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Narhari Shivram Shet Narvekar Vs. Pannalal Umediram

remains the same. But under the circumstances of the case the Sholapur court no longer being a foreign court qua the Akalkot court the question of private international law does not arise at all. The decree is then being executed under the municipal law and clearly under the municipal law the decree is executable as it has been passed by a court of competent jurisdiction."It would appear therefore that an identical phenomenon had taken place in the case before the Bombay High Court and the Full Bench held that the moment the decree became executable and enforceable the status of the defendant/judgment debtor was altered and the decree became executable. On a parity of reasoning, therefore, in the present case also the decree passed by the Bombay High Court having been passed by a court of competent jurisdiction and not being a nullity because the judgment debtor had appeared and participated in the proceedings of the court to some extent, and the order of transfer under Section 38 of the Code of Civil Procedure also not having suffered from any inherent lack of jurisdiction, the decree became enforceable and executable as soon as the Code of Civil Procedure was applied to Goa. As we have indicated above it was the duty of the appellate Court, namely the Additional Judicial Commissioner, to take note of the change in law, namely, the applicability of the Code of Civil Procedure to Goa and the repeal of the Portuguese Code which was in force before the provisions of the Code of Civil Procedure were applied. The Additional Judicial Commissioner was, therefore, fully justified in taking the view that the decree was executable and the bar of inexecutability came to an end, when the provisions of the Code of Civil Procedure were applied to Goa.13. Mr. Patel appearing for the respondent submitted an alternative argument that even if the transfer of the decree under Section 38 of the Code of Civil Procedure was not valid, under the Portuguese Code there was no provision which required transfer of the decree to that court before the same could be executed. Counsel for the appellant objected to this argument on the ground that it was never raised at any stage of the case and being a question of fact as to whether or not there was any such provision in the Portuguese Code it should not be entertained. In these circumstances, we do not think it necessary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us:14. Finally it appears that this case is clearly covered by the principles contained in Article 261(3) of the Constitution of India which runs thus:"Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law."This is a constitutional provision which enjoins that a decree shall be executable in any part of the territory of India according to law. It is obvious that in the instant case the decree was passed by the Bombay High Court after the Constitution came into force and this article would, therefore, clearly apply to the decree passed by the Bombay High Court. The article would also apply the Goa because at the time when the application for execution was made in a Goa court, the Constitution had already been made applicable to that State also. Mr. Lokur, Counsel for the appellant, however, submitted that the words according to law in Article 261(3) would clearly show that the decree would be executable only in accordance with the law in force, i.e. the Portuguese Code. It is true that at the time when the executing Court dismissed the suit of the decree holder/respondent the Code of Civil Procedure had not been applied and the Portuguese Code continued to apply but after the application of the Code of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration Act) Act, 1965 (Act 30 of 1965) the Portuguese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions of Section 4 of the Act. Thus when the Code of Civil Procedure was made applicable to Goa during the pendency of the appeal, the appellate Court, namely, the Additional Judicial Commissioner, was bound to decide the matter in accordance with the law that was in force, namely, the Code of Civil Procedure. In Jose da Costas case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows : [pp. 927, 928, paras 36, 39]Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from June 15, 1966. If that be the correct position, there is no legal hurdle in the way of the appellant to the reagitation in this Court of the issue as to prescription lift undecided by the court below.To sum up, since on and from June 15, 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4 (1) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article 136, the plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner. We therefore negative the preliminary objection raised by the respondents.15. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the Additional Judicial Commissioner and hold that the decree passed by the Bombay High Court was clearly executable. The executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commissioner.

0[ds]It was mainly contended before this Court that the decree being that of a foreign court was a nullity and the execution application was not maintainable. In these peculiar circumstances this Court, after considering the entire law on the subject, concluded as followsOur conclusion therefore is that the Allahabad High Court had no power to execute the decree either under Section 38 or under Section 43 or 44 of theCode of Civil Procedure. Therefore, even if the decree was not a foreign decree, the decree holders application for execution was rightly dismissed.An analysis of Shitoles case (supra) would clearly show that the facts in that case are clearly distinguishable from the facts in the present case and there are indeed a large number of distinguishing features in the case indicated above which are not at all applicable to the presentview of these circumstances therefore in cannot be said that Shitoles case referred to above is of any assistance to the appellant in deciding the issues involved in thisdo not think that even by straining the language of the provision it can be said that the non- executability of a decree within a particular territory can be considered as a privilege. All that has happened in view of the extension of the Code to the whole of India in 1951 is that the decree which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction . . . It was the invalidity of the order transferring the decree to the Morena court that stood in the was of the decree holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors . . . . By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court in now made competent to execute theare, however, unable to agree with this contention. To begin with as the decree was passed by the Bombay High Court, Section 38 of theCode of Civil Procedure would clearly apply because the decree passed by the Bombay High Court was not a foreign decree. It is true that at the time when the Bombay High court passed the order of transfer, theCode of Civil Procedure had not been applied to Goa. But that does not put the respondent/decree holder out of court. The decree could be transferred and was valid and executable. But because of an impediment or an infirmity it could not be executed so long as theCode of Civil Procedure was not made applicable to Goa. Thus the only bar which stood in the way of the execution of the decree was the non-applicability of the provisions of theCode of Civil Procedure to Goa. This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment theCode of Civil Procedure was applied to Goa on June 15, 1966. It is common ground that this was done during the pendency of the appeal before the Additional Judicial Commissioner passed the impugned order on June 28, 1967. In these circumstances, therefore, it seems to us that this is a fit case in which the doctrine of eclipse would apply and the wall or the bar which separated Bombay from Goa having disappeared there was no impediment in the execution of the decree. The decree lay dormant only so far as no bridge was built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of theCode of Civil Procedure to Goa the decree became at oncethese circumstances, we do not think it necessary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us:14. Finally it appears that this case is clearly covered by the principles contained in Article 261(3) of the Constitution of India which runsjudgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according tois a constitutional provision which enjoins that a decree shall be executable in any part of the territory of India according to law. It is obvious that in the instant case the decree was passed by the Bombay High Court after the Constitution came into force and this article would, therefore, clearly apply to the decree passed by the Bombay High Court. The article would also apply the Goa because at the time when the application for execution was made in a Goa court, the Constitution had already been made applicable to that State also. Mr. Lokur, Counsel for the appellant, however, submitted that the words according to law in Article 261(3) would clearly show that the decree would be executable only in accordance with the law in force, i.e. the Portuguese Code. It is true that at the time when the executing Court dismissed the suit of the decree holder/respondent theCode of Civil Procedure had not been applied and the Portuguese Code continued to apply but after the application of theCode of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of theCode of Civil Procedure and the Arbitration Act) Act, 1965 (Act 30 of 1965) the Portuguese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions of Section 4 of the Act. Thus when theCode of Civil Procedure was made applicable to Goa during the pendency of the appeal, the appellate Court, namely, the Additional Judicial Commissioner, was bound to decide the matter in accordance with the law that was in force, namely, theCode of Civil Procedure. In Jose da Costas case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows : [pp. 927, 928, paras 36, 39]Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from June 15, 1966. If that be the correct position, there is no legal hurdle in the way of the appellant to the reagitation in this Court of the issue as to prescription lift undecided by the court below.To sum up, since on and from June 15, 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4 (1) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article 136, the plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner. We therefore negative the preliminary objection raised by the respondents.15. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the Additional Judicial Commissioner and hold that the decree passed by the Bombay High Court was clearly executable. The executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commissioner.

### 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: remains the same. But under the circumstances of the case the Sholapur court no longer being a foreign court qua the Akalkot court the question of private international law does not arise at all. The decree is then being executed under the municipal law and clearly under the municipal law the decree is executable as it has been passed by a court of competent jurisdiction."It would appear therefore that an identical phenomenon had taken place in the case before the Bombay High Court and the Full Bench held that the moment the decree became executable and enforceable the status of the defendant/judgment debtor was altered and the decree became executable. On a parity of reasoning, therefore, in the present case also the decree passed by the Bombay High Court having been passed by a court of competent jurisdiction and not being a nullity because the judgment debtor had appeared and participated in the proceedings of the court to some extent, and the order of transfer under Section 38 of the Code of Civil Procedure also not having suffered from any inherent lack of jurisdiction, the decree became enforceable and executable as soon as the Code of Civil Procedure was applied to Goa. As we have indicated above it was the duty of the appellate Court, namely the Additional Judicial Commissioner, to take note of the change in law, namely, the applicability of the Code of Civil Procedure to Goa and the repeal of the Portuguese Code which was in force before the provisions of the Code of Civil Procedure were applied. The Additional Judicial Commissioner was, therefore, fully justified in taking the view that the decree was executable and the bar of inexecutability came to an end, when the provisions of the Code of Civil Procedure were applied to Goa.13. Mr. Patel appearing for the respondent submitted an alternative argument that even if the transfer of the decree under Section 38 of the Code of Civil Procedure was not valid, under the Portuguese Code there was no provision which required transfer of the decree to that court before the same could be executed. Counsel for the appellant objected to this argument on the ground that it was never raised at any stage of the case and being a question of fact as to whether or not there was any such provision in the Portuguese Code it should not be entertained. In these circumstances, we do not think it necessary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us:14. Finally it appears that this case is clearly covered by the principles contained in Article 261(3) of the Constitution of India which runs thus:"Final judgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according to law."This is a constitutional provision which enjoins that a decree shall be executable in any part of the territory of India according to law. It is obvious that in the instant case the decree was passed by the Bombay High Court after the Constitution came into force and this article would, therefore, clearly apply to the decree passed by the Bombay High Court. The article would also apply the Goa because at the time when the application for execution was made in a Goa court, the Constitution had already been made applicable to that State also. Mr. Lokur, Counsel for the appellant, however, submitted that the words according to law in Article 261(3) would clearly show that the decree would be executable only in accordance with the law in force, i.e. the Portuguese Code. It is true that at the time when the executing Court dismissed the suit of the decree holder/respondent the Code of Civil Procedure had not been applied and the Portuguese Code continued to apply but after the application of the Code of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of the Code of Civil Procedure and the Arbitration Act) Act, 1965 (Act 30 of 1965) the Portuguese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions of Section 4 of the Act. Thus when the Code of Civil Procedure was made applicable to Goa during the pendency of the appeal, the appellate Court, namely, the Additional Judicial Commissioner, was bound to decide the matter in accordance with the law that was in force, namely, the Code of Civil Procedure. In Jose da Costas case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows : [pp. 927, 928, paras 36, 39]Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from June 15, 1966. If that be the correct position, there is no legal hurdle in the way of the appellant to the reagitation in this Court of the issue as to prescription lift undecided by the court below.To sum up, since on and from June 15, 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4 (1) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article 136, the plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner. We therefore negative the preliminary objection raised by the respondents.15. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the Additional Judicial Commissioner and hold that the decree passed by the Bombay High Court was clearly executable. The executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commissioner. ### Response: 0 ### Explanation: 1951 is that the decree which could have been executed only by courts in British India are now made executable in the whole of India. The change made is one relating to procedure and jurisdiction . . . It was the invalidity of the order transferring the decree to the Morena court that stood in the was of the decree holders in executing their decree in that court on the earlier occasion and not because of any vested rights of the judgment-debtors . . . . By the extension of the Code to Madhya Bharat, want of jurisdiction on the part of the Morena court was remedied and that court in now made competent to execute theare, however, unable to agree with this contention. To begin with as the decree was passed by the Bombay High Court, Section 38 of theCode of Civil Procedure would clearly apply because the decree passed by the Bombay High Court was not a foreign decree. It is true that at the time when the Bombay High court passed the order of transfer, theCode of Civil Procedure had not been applied to Goa. But that does not put the respondent/decree holder out of court. The decree could be transferred and was valid and executable. But because of an impediment or an infirmity it could not be executed so long as theCode of Civil Procedure was not made applicable to Goa. Thus the only bar which stood in the way of the execution of the decree was the non-applicability of the provisions of theCode of Civil Procedure to Goa. This was, however, not an insurmountable bar or an obstacle and the bar or the obstacle disappeared the moment theCode of Civil Procedure was applied to Goa on June 15, 1966. It is common ground that this was done during the pendency of the appeal before the Additional Judicial Commissioner passed the impugned order on June 28, 1967. In these circumstances, therefore, it seems to us that this is a fit case in which the doctrine of eclipse would apply and the wall or the bar which separated Bombay from Goa having disappeared there was no impediment in the execution of the decree. The decree lay dormant only so far as no bridge was built between Bombay and Goa but as soon as the bridge was constructed in the shape of the application of the provisions of theCode of Civil Procedure to Goa the decree became at oncethese circumstances, we do not think it necessary to go into this question, particularly when the order of the Additional Judicial Commissioner can be upheld on other grounds mentioned by us:14. Finally it appears that this case is clearly covered by the principles contained in Article 261(3) of the Constitution of India which runsjudgments or orders delivered or passed by civil courts in any part of the territory of India shall be capable of execution anywhere within that territory according tois a constitutional provision which enjoins that a decree shall be executable in any part of the territory of India according to law. It is obvious that in the instant case the decree was passed by the Bombay High Court after the Constitution came into force and this article would, therefore, clearly apply to the decree passed by the Bombay High Court. The article would also apply the Goa because at the time when the application for execution was made in a Goa court, the Constitution had already been made applicable to that State also. Mr. Lokur, Counsel for the appellant, however, submitted that the words according to law in Article 261(3) would clearly show that the decree would be executable only in accordance with the law in force, i.e. the Portuguese Code. It is true that at the time when the executing Court dismissed the suit of the decree holder/respondent theCode of Civil Procedure had not been applied and the Portuguese Code continued to apply but after the application of theCode of Civil Procedure by virtue of the Goa, Daman and Diu (Extension of theCode of Civil Procedure and the Arbitration Act) Act, 1965 (Act 30 of 1965) the Portuguese Code which was in force in Goa was clearly repealed and the present case does not fall within any of the clauses mentioned in the saving provisions of Section 4 of the Act. Thus when theCode of Civil Procedure was made applicable to Goa during the pendency of the appeal, the appellate Court, namely, the Additional Judicial Commissioner, was bound to decide the matter in accordance with the law that was in force, namely, theCode of Civil Procedure. In Jose da Costas case (supra) this Court, while dwelling upon the applicability of the Portuguese Code, observed as follows : [pp. 927, 928, paras 36, 39]Thus considered, it is clear that the procedural provisions of the Portuguese Civil Code were no longer applicable to this case with effect from June 15, 1966. If that be the correct position, there is no legal hurdle in the way of the appellant to the reagitation in this Court of the issue as to prescription lift undecided by the court below.To sum up, since on and from June 15, 1966 the Portuguese law relating to Reclamacao stood repealed and no substantive right or obligation had been acquired or incurred under that repealed law within the meaning of the first proviso to Section 4 (1) of Act 30 of 1965, the appellants cannot be debarred from canvassing in this appeal under Article 136, the plea of prescription notwithstanding the fact that they did not file any Reclamacao in the Court of the Judicial Commissioner. We therefore negative the preliminary objection raised by the respondents.15. For these reasons, therefore, we find ourselves in complete agreement with the view taken by the Additional Judicial Commissioner and hold that the decree passed by the Bombay High Court was clearly executable. The executing Court will now proceed in accordance with the law as directed by the Additional Judicial Commissioner.

Shyamlal Vs. State of Uttar Pradesh

Imam, J.1. Shyamlal was convicted by the Honorary Railway Bench Magistrate Tundla Bench Agra, exercising first class powers, for an offence punishable under s. 121 of the Indian Railways Act and was sentenced to pay a fine of Rs. 60/-, and in case of default in the payment of fine, to two months rigorous imprisonment. His appeal to the II Additional Sessions Judge, Agra was dismissed and his conviction and sentence were confirmed. He then filed Revision No. 971 of 1961 in the High Court of Judicature at Allahabad, but the same was also rejected by Mr. Justice Brij Lal Gupta. Against the Judgment of the High Court he obtained special leave from this Court and has filed this appeal.2. The appellant Shyamlal was a pointsman at Achhnera Railway Station. He bore grudge for some time against Hukam Chand Chaturvedi, P.W. 2, who was a Guard. The latter had taken in 1955 objection to a bed being carried on a passenger train by the appellant. Hukam Chand had also detected the appellant taking Railway line sleepers in a compartment, a portion of which was protruding of the compartment, and made a report against the appellant, as a result of which he was transferred. It is alleged that on November 30, 1959, Hukam Chand was on duty as a Guard on 20 Down train standing at the platform at Achhnera Railway Station at about 4-50 p.m. Suddenly the appellant came out from behind a compartment, armed with a scythe, and waiving it in his hand in a menacing way told Hukam Chand that he would cut his neck, and hurled abuses on him thereby causing an obstruction in the discharge of his duty.3. P.W. 2, Hukam Chand Chaturvedi, narrated the entire prosecution case and his statement was corroborated in full by P.W. 3 R. L. Pandey, P.W. 4 Chanda Ram, P.W. 8 Maharaj Dutt and P.W. 9 Nisar, who were all independent witnesses, and there is nothing at all to show that they are inimical to the appellant. On a careful consideration of the evidence, the Additional Sessions Judge, Agra came to the conclusion that the prosecution have been successful in establishing its case and the appellant came out from behind a compartment, abused Hukam Chand and waived the scythe towards him in a menacing way shouting that he would cut his neck with it.Section 121 of the Indian Railways Act states :"If a person wilfully obstructs or impedes any railway servant in the discharge of his duty, he shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."4. Mr. D. S. Golani, for the appellant, contended that as the prosecution had failed to prove as to what duty was being actually performed by Hukam Chand, the appellant cannot be convicted under s. 121 of the Indian Railways Act. In support of his contention the counsel relied on Radha Kishan v. Emperor [A.I.R. (1923) Lah. 71.], Mohinder Singh v. The State [A.I.R. (1953) S.C. 415.], Jawand Mal v. The Crown, [(1923) I.L.R. 5 Lah. 467.]. In the matter of Baroda Kant Pramanik [(1896) 1 C.W.N. 74.] and Emperor v. Popatlal Bhaichand Shah [(1929) I.L.R. 54 Bom. 326.]. He also relied upon Rules 113, 114, 115 and 137 of the Rules framed under the Indian Railways Act. The facts of all these cases were different from those of the present case and they can be easily distinguished. They have therefore no bearing on the decision of the present case.5. From the facts stated above it is evident that the act alleged to have been done by the appellant was done by him, actuated by malice by reason of the fact that Hukam Chand had not spared him in the past for his lapses. It would follow, therefore, that this act was wilful within the meaning of s. 121 of the Indian Railways Act. Further, Hukam Chand was on duty as a guard of train 20 Down, which was then standing at the platform, and as a Guard he had to discharge multifarious duties at the time while the train was standing at the platform, e.g. he had to look after the loading of the parcels in the luggage van and to see that nothing untoward happened at the platform. Thus, it is clear, that during the time that the incident took place, viz., for about 15 minutes, he was obstructed from discharging his duty by this deliberate and wilful act on the part of the appellant, as it is not only when the train is in motion that a Guard is on duty, but also while the train is standing at the platform. We are, therefore, of the opinion that the appellant has wilfully created obstruction in the discharge of the public duty by Hukam Chand as a Guard.Rules 93 to 103 of the Rules framed under certain sections of the Indian Railways Act, 1890, deal with the attendance, discipline and equipment of Staff Working Trains. In Rule 95, it is stated that the Guard shall be in charge of the train in all matters affecting stopping or movement of the train for traffic purposes. It is, therefore, clear that Hukam Chand was on duty as a Guard right up to the time when he was to be the Guard of the train, and the act of the appellant amounted to wilfully creating obstruction in the discharge of the public duty by Hukam Chand. The appellant was, therefore, rightly convicted under s. 121 of the Indian Railways Act.6.

0[ds]From the facts stated above it is evident that the act alleged to have been done by the appellant was done by him, actuated by malice by reason of the fact that Hukam Chand had not spared him in the past for his lapses. It would follow, therefore, that this act was wilful within the meaning of s. 121 of the Indian Railways Act. Further, Hukam Chand was on duty as a guard of train 20 Down, which was then standing at the platform, and as a Guard he had to discharge multifarious duties at the time while the train was standing at the platform, e.g. he had to look after the loading of the parcels in the luggage van and to see that nothing untoward happened at the platform. Thus, it is clear, that during the time that the incident took place, viz., for about 15 minutes, he was obstructed from discharging his duty by this deliberate and wilful act on the part of the appellant, as it is not only when the train is in motion that a Guard is on duty, but also while the train is standing at the platform. We are, therefore, of the opinion that the appellant has wilfully created obstruction in the discharge of the public duty by Hukam Chand as a Guard.Rules 93 to 103 of the Rules framed under certain sections of the Indian Railways Act, 1890, deal with the attendance, discipline and equipment of Staff Working Trains. In Rule 95, it is stated that the Guard shall be in charge of the train in all matters affecting stopping or movement of the train for traffic purposes. It is, therefore, clear that Hukam Chand was on duty as a Guard right up to the time when he was to be the Guard of the train, and the act of the appellant amounted to wilfully creating obstruction in the discharge of the public duty by Hukam Chand. The appellant was, therefore, rightly convicted under s. 121 of the Indian Railways Act.

### 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: Imam, J.1. Shyamlal was convicted by the Honorary Railway Bench Magistrate Tundla Bench Agra, exercising first class powers, for an offence punishable under s. 121 of the Indian Railways Act and was sentenced to pay a fine of Rs. 60/-, and in case of default in the payment of fine, to two months rigorous imprisonment. His appeal to the II Additional Sessions Judge, Agra was dismissed and his conviction and sentence were confirmed. He then filed Revision No. 971 of 1961 in the High Court of Judicature at Allahabad, but the same was also rejected by Mr. Justice Brij Lal Gupta. Against the Judgment of the High Court he obtained special leave from this Court and has filed this appeal.2. The appellant Shyamlal was a pointsman at Achhnera Railway Station. He bore grudge for some time against Hukam Chand Chaturvedi, P.W. 2, who was a Guard. The latter had taken in 1955 objection to a bed being carried on a passenger train by the appellant. Hukam Chand had also detected the appellant taking Railway line sleepers in a compartment, a portion of which was protruding of the compartment, and made a report against the appellant, as a result of which he was transferred. It is alleged that on November 30, 1959, Hukam Chand was on duty as a Guard on 20 Down train standing at the platform at Achhnera Railway Station at about 4-50 p.m. Suddenly the appellant came out from behind a compartment, armed with a scythe, and waiving it in his hand in a menacing way told Hukam Chand that he would cut his neck, and hurled abuses on him thereby causing an obstruction in the discharge of his duty.3. P.W. 2, Hukam Chand Chaturvedi, narrated the entire prosecution case and his statement was corroborated in full by P.W. 3 R. L. Pandey, P.W. 4 Chanda Ram, P.W. 8 Maharaj Dutt and P.W. 9 Nisar, who were all independent witnesses, and there is nothing at all to show that they are inimical to the appellant. On a careful consideration of the evidence, the Additional Sessions Judge, Agra came to the conclusion that the prosecution have been successful in establishing its case and the appellant came out from behind a compartment, abused Hukam Chand and waived the scythe towards him in a menacing way shouting that he would cut his neck with it.Section 121 of the Indian Railways Act states :"If a person wilfully obstructs or impedes any railway servant in the discharge of his duty, he shall be punished with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both."4. Mr. D. S. Golani, for the appellant, contended that as the prosecution had failed to prove as to what duty was being actually performed by Hukam Chand, the appellant cannot be convicted under s. 121 of the Indian Railways Act. In support of his contention the counsel relied on Radha Kishan v. Emperor [A.I.R. (1923) Lah. 71.], Mohinder Singh v. The State [A.I.R. (1953) S.C. 415.], Jawand Mal v. The Crown, [(1923) I.L.R. 5 Lah. 467.]. In the matter of Baroda Kant Pramanik [(1896) 1 C.W.N. 74.] and Emperor v. Popatlal Bhaichand Shah [(1929) I.L.R. 54 Bom. 326.]. He also relied upon Rules 113, 114, 115 and 137 of the Rules framed under the Indian Railways Act. The facts of all these cases were different from those of the present case and they can be easily distinguished. They have therefore no bearing on the decision of the present case.5. From the facts stated above it is evident that the act alleged to have been done by the appellant was done by him, actuated by malice by reason of the fact that Hukam Chand had not spared him in the past for his lapses. It would follow, therefore, that this act was wilful within the meaning of s. 121 of the Indian Railways Act. Further, Hukam Chand was on duty as a guard of train 20 Down, which was then standing at the platform, and as a Guard he had to discharge multifarious duties at the time while the train was standing at the platform, e.g. he had to look after the loading of the parcels in the luggage van and to see that nothing untoward happened at the platform. Thus, it is clear, that during the time that the incident took place, viz., for about 15 minutes, he was obstructed from discharging his duty by this deliberate and wilful act on the part of the appellant, as it is not only when the train is in motion that a Guard is on duty, but also while the train is standing at the platform. We are, therefore, of the opinion that the appellant has wilfully created obstruction in the discharge of the public duty by Hukam Chand as a Guard.Rules 93 to 103 of the Rules framed under certain sections of the Indian Railways Act, 1890, deal with the attendance, discipline and equipment of Staff Working Trains. In Rule 95, it is stated that the Guard shall be in charge of the train in all matters affecting stopping or movement of the train for traffic purposes. It is, therefore, clear that Hukam Chand was on duty as a Guard right up to the time when he was to be the Guard of the train, and the act of the appellant amounted to wilfully creating obstruction in the discharge of the public duty by Hukam Chand. The appellant was, therefore, rightly convicted under s. 121 of the Indian Railways Act.6. ### Response: 0 ### Explanation: From the facts stated above it is evident that the act alleged to have been done by the appellant was done by him, actuated by malice by reason of the fact that Hukam Chand had not spared him in the past for his lapses. It would follow, therefore, that this act was wilful within the meaning of s. 121 of the Indian Railways Act. Further, Hukam Chand was on duty as a guard of train 20 Down, which was then standing at the platform, and as a Guard he had to discharge multifarious duties at the time while the train was standing at the platform, e.g. he had to look after the loading of the parcels in the luggage van and to see that nothing untoward happened at the platform. Thus, it is clear, that during the time that the incident took place, viz., for about 15 minutes, he was obstructed from discharging his duty by this deliberate and wilful act on the part of the appellant, as it is not only when the train is in motion that a Guard is on duty, but also while the train is standing at the platform. We are, therefore, of the opinion that the appellant has wilfully created obstruction in the discharge of the public duty by Hukam Chand as a Guard.Rules 93 to 103 of the Rules framed under certain sections of the Indian Railways Act, 1890, deal with the attendance, discipline and equipment of Staff Working Trains. In Rule 95, it is stated that the Guard shall be in charge of the train in all matters affecting stopping or movement of the train for traffic purposes. It is, therefore, clear that Hukam Chand was on duty as a Guard right up to the time when he was to be the Guard of the train, and the act of the appellant amounted to wilfully creating obstruction in the discharge of the public duty by Hukam Chand. The appellant was, therefore, rightly convicted under s. 121 of the Indian Railways Act.

Suhas Sandilya Vs. Central Industrial Security Force & Others

pension under Central Civil Services (Pension) Rules, 1972 (for short Pension Rules) with effect 24.4.1996 for the services rendered by him in the Army and Central Industrial Security Force (for short the CISF).3. The appellant approached by a Writ Petition the High Court of Delhi claiming pro-rata pension from 9.2.1984 under the provisions of Rule 37 of the Pension Rules. The High Court by the impugned order dated 22.10.2002 negatived his claim relying on the terms of his permanent absorption contained in letter dated 21.2.1990 conveying sanction of the President to the permanent absorption of the appellant in the services of the CISF.4. The dates concerning the services of the appellant relevant for the purpose of claim of pension are the following:The appellant was commissioned in Indian Army on 24.4.1996. On 31.11.1975, he joined CISF as Inspector (Executive). The appellant applied for the post of Security Officer in the Punjab National Bank in July 1981. On being selected, he joined the Bank services in the year 1982. On completion of his probationary period in Bank services and confirmation, his lien was terminated. 5. The Presidential sanction to his permanent absorption with effect from 9.2.1984 in the services of Punjab National Bank was conveyed to him by letter dated 21.2.1990. With regard to the date of payment of pro-rata retirement benefits, the relevant condition of sanctioning his absorption in Bank services reads:- "(iv) Date of payment of pro-rata retirement benefits - The amounts of pro-rata pension and death-cum-retirement gratuity which will be worked out and intimated to Shri Subhas Sandilya as well as to Punjab National Bank would be disbursable to the officer from the earliest date from which he could have become eligible for voluntary retirement had he continued under Government of India or from the date of his permanent absorption in the Punjab National Bank whichever is later." (Emphasis supplied) 5. The claim for pro-rata pension from the date of his permanent absorption in Bank services that is 9.2.1984, is based on Rule 37, as it existed prior to the amendment introduced to the same, which reads thus:-- "37. Pension on absorption in or under a Corporation, Company or body: A Government servant who has been permitted to be absorbed in the service or post in or under a Corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the order of the government applicable to him:Provided............................" [Emphasis added] 6. Learned counsel appearing for the appellant contended before the High Court and has reiterated his contention before us in this appeal that in terms of Rule 37, the appellants pro-rata pension should have been fixed from the date of his absorption in the services of the Bank i.e. 9.2.1984. It is also submitted that the subject of fixation of pension of an employee, absorbed in services, owned and controlled by the Government, is regulated by Rule 37 and Rule 48 requiring completion of thirty years of services for voluntary retirement for pension was not application in his case. 7. Learned counsel appearing for the respondent representing Union of India and the CISF has supported the reasoning and conclusion of the High Court based on the terms of his absorption contained in the letter dated 21.2.1990 read with Rules 37 and 48 of the Rules. 8. After hearing the learned counsel appearing for the parties and on going through the relevant Rules and the conditions of his absorption, we have not been able to find any fault with the order of the High Court. It is to be seen from the provisions contained in Rule 37 that a Government servant absorbed in other services under the government is "eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined in accordance with the orders of the Government" passed in his case. This part of Rule 37 necessarily attracts application of Rule 48 which prescribes 30 years as qualifying service for pension. Rule 37 also requires fixation or determination of a date by the Government for giving retirement benefits to a government servant absorbed in other services under the Government of India. For the same reason as stipulated in the last part of Rule 37 (quoted above), the terms of absorption contained in the letter dated 21.2.1990 conveying sanction of the President become relevant. In terms of clause (iv) of the order of absorption as conveyed by letter dated 21.2.1990, the date for pro-rata retirement benefits is stated to be the earliest date from which he would have become eligible for voluntary retirement had he continued under Government of India or from the date of his permanent absorption in the Punjab National Bank whichever is later.9. In terms of the above order of absorption, the appellant completed thirty years of qualifying service on 24.4.1996 treating him to have notionally continued in the services of CISF. His permanent absorption of Bank services is from 9.2.1984 but the date of his completion of qualifying service is 24.4.1996 and it being later, he was entitled to pro-rata retirement benefits only from 24.4.1996 in accordance with Rule 48. Rule 48 allows a government servant voluntary retirement on completion of thirty years of qualifying service. That is how on the question of fixation of date for grant of retirement benefits to the appellant, Rules 37 & 48 read with clause (iv) of the terms of his absorption in the services of the Bank become relevant and were rightly relied by the High Court to uphold the action of the Government and its authorities.

0[ds]8. After hearing the learned counsel appearing for the parties and on going through the relevant Rules and the conditions of his absorption, we have not been able to find any fault with the order of the High Court. It is to be seen from the provisions contained in Rule 37 that a Government servant absorbed in other services under the government is "eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined in accordance with the orders of the Government" passed in his case. This part of Rule 37 necessarily attracts application of Rule 48 which prescribes 30 years as qualifying service for pension. Rule 37 also requires fixation or determination of a date by the Government for giving retirement benefits to a government servant absorbed in other services under the Government of India. For the same reason as stipulated in the last part of Rule 37 (quoted above), the terms of absorption contained in the letter dated 21.2.1990 conveying sanction of the President become relevant. In terms of clause (iv) of the order of absorption as conveyed by letter dated 21.2.1990, the date for pro-rata retirement benefits is stated to be the earliest date from which he would have become eligible for voluntary retirement had he continued under Government of India or from the date of his permanent absorption in the Punjab National Bank whichever is later.9. In terms of the above order of absorption, the appellant completed thirty years of qualifying service on 24.4.1996 treating him to have notionally continued in the services of CISF. His permanent absorption of Bank services is from 9.2.1984 but the date of his completion of qualifying service is 24.4.1996 and it being later, he wasto pro-rata retirement benefits only from 24.4.1996 in accordance with RuleRule 48 allows a government servant voluntary retirement on completion of thirty years of qualifying service.That is how on the question of fixation of date for grant of retirement benefits to the appellant, Rules 37 & 48 read with clause (iv) of the terms of his absorption in the services of the Bank become relevant and were rightly relied by the High Court to uphold the action of the Government and its authorities.

### 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: pension under Central Civil Services (Pension) Rules, 1972 (for short Pension Rules) with effect 24.4.1996 for the services rendered by him in the Army and Central Industrial Security Force (for short the CISF).3. The appellant approached by a Writ Petition the High Court of Delhi claiming pro-rata pension from 9.2.1984 under the provisions of Rule 37 of the Pension Rules. The High Court by the impugned order dated 22.10.2002 negatived his claim relying on the terms of his permanent absorption contained in letter dated 21.2.1990 conveying sanction of the President to the permanent absorption of the appellant in the services of the CISF.4. The dates concerning the services of the appellant relevant for the purpose of claim of pension are the following:The appellant was commissioned in Indian Army on 24.4.1996. On 31.11.1975, he joined CISF as Inspector (Executive). The appellant applied for the post of Security Officer in the Punjab National Bank in July 1981. On being selected, he joined the Bank services in the year 1982. On completion of his probationary period in Bank services and confirmation, his lien was terminated. 5. The Presidential sanction to his permanent absorption with effect from 9.2.1984 in the services of Punjab National Bank was conveyed to him by letter dated 21.2.1990. With regard to the date of payment of pro-rata retirement benefits, the relevant condition of sanctioning his absorption in Bank services reads:- "(iv) Date of payment of pro-rata retirement benefits - The amounts of pro-rata pension and death-cum-retirement gratuity which will be worked out and intimated to Shri Subhas Sandilya as well as to Punjab National Bank would be disbursable to the officer from the earliest date from which he could have become eligible for voluntary retirement had he continued under Government of India or from the date of his permanent absorption in the Punjab National Bank whichever is later." (Emphasis supplied) 5. The claim for pro-rata pension from the date of his permanent absorption in Bank services that is 9.2.1984, is based on Rule 37, as it existed prior to the amendment introduced to the same, which reads thus:-- "37. Pension on absorption in or under a Corporation, Company or body: A Government servant who has been permitted to be absorbed in the service or post in or under a Corporation or company wholly or substantially owned or controlled by the Government or in or under a body controlled or financed by the Government shall, if such absorption is declared by the Government to be in the public interest, be deemed to have retired from service from the date of such absorption and shall be eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined, in accordance with the order of the government applicable to him:Provided............................" [Emphasis added] 6. Learned counsel appearing for the appellant contended before the High Court and has reiterated his contention before us in this appeal that in terms of Rule 37, the appellants pro-rata pension should have been fixed from the date of his absorption in the services of the Bank i.e. 9.2.1984. It is also submitted that the subject of fixation of pension of an employee, absorbed in services, owned and controlled by the Government, is regulated by Rule 37 and Rule 48 requiring completion of thirty years of services for voluntary retirement for pension was not application in his case. 7. Learned counsel appearing for the respondent representing Union of India and the CISF has supported the reasoning and conclusion of the High Court based on the terms of his absorption contained in the letter dated 21.2.1990 read with Rules 37 and 48 of the Rules. 8. After hearing the learned counsel appearing for the parties and on going through the relevant Rules and the conditions of his absorption, we have not been able to find any fault with the order of the High Court. It is to be seen from the provisions contained in Rule 37 that a Government servant absorbed in other services under the government is "eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined in accordance with the orders of the Government" passed in his case. This part of Rule 37 necessarily attracts application of Rule 48 which prescribes 30 years as qualifying service for pension. Rule 37 also requires fixation or determination of a date by the Government for giving retirement benefits to a government servant absorbed in other services under the Government of India. For the same reason as stipulated in the last part of Rule 37 (quoted above), the terms of absorption contained in the letter dated 21.2.1990 conveying sanction of the President become relevant. In terms of clause (iv) of the order of absorption as conveyed by letter dated 21.2.1990, the date for pro-rata retirement benefits is stated to be the earliest date from which he would have become eligible for voluntary retirement had he continued under Government of India or from the date of his permanent absorption in the Punjab National Bank whichever is later.9. In terms of the above order of absorption, the appellant completed thirty years of qualifying service on 24.4.1996 treating him to have notionally continued in the services of CISF. His permanent absorption of Bank services is from 9.2.1984 but the date of his completion of qualifying service is 24.4.1996 and it being later, he was entitled to pro-rata retirement benefits only from 24.4.1996 in accordance with Rule 48. Rule 48 allows a government servant voluntary retirement on completion of thirty years of qualifying service. That is how on the question of fixation of date for grant of retirement benefits to the appellant, Rules 37 & 48 read with clause (iv) of the terms of his absorption in the services of the Bank become relevant and were rightly relied by the High Court to uphold the action of the Government and its authorities. ### Response: 0 ### Explanation: 8. After hearing the learned counsel appearing for the parties and on going through the relevant Rules and the conditions of his absorption, we have not been able to find any fault with the order of the High Court. It is to be seen from the provisions contained in Rule 37 that a Government servant absorbed in other services under the government is "eligible to receive retirement benefits which he may have elected or deemed to have elected, and from such date as may be determined in accordance with the orders of the Government" passed in his case. This part of Rule 37 necessarily attracts application of Rule 48 which prescribes 30 years as qualifying service for pension. Rule 37 also requires fixation or determination of a date by the Government for giving retirement benefits to a government servant absorbed in other services under the Government of India. For the same reason as stipulated in the last part of Rule 37 (quoted above), the terms of absorption contained in the letter dated 21.2.1990 conveying sanction of the President become relevant. In terms of clause (iv) of the order of absorption as conveyed by letter dated 21.2.1990, the date for pro-rata retirement benefits is stated to be the earliest date from which he would have become eligible for voluntary retirement had he continued under Government of India or from the date of his permanent absorption in the Punjab National Bank whichever is later.9. In terms of the above order of absorption, the appellant completed thirty years of qualifying service on 24.4.1996 treating him to have notionally continued in the services of CISF. His permanent absorption of Bank services is from 9.2.1984 but the date of his completion of qualifying service is 24.4.1996 and it being later, he wasto pro-rata retirement benefits only from 24.4.1996 in accordance with RuleRule 48 allows a government servant voluntary retirement on completion of thirty years of qualifying service.That is how on the question of fixation of date for grant of retirement benefits to the appellant, Rules 37 & 48 read with clause (iv) of the terms of his absorption in the services of the Bank become relevant and were rightly relied by the High Court to uphold the action of the Government and its authorities.

The Karnataka Housing Board & Anr Vs. State Of Karnataka & Ors

arises for consideration is whether non-particularisation with sufficient specificity of the land to be acquired can be a reason for annulling acquisition proceedings initiated under the L.A. Act as modified by KHB Act for the purpose of KHB Act. The contention raised is to the effect that owing to such vagueness in the Notification the holders/land owners would be deprived of the opportunity to file an effective objection under Section 5A of the L.A. Act. In that context, it is worthy to refer to the Constitution Bench decision of this Court in Aflatoons case (supra). That was a case where the question was whether before publishing the Notification under Section 4 of the L.A. Act the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of the Act. On that basis Notification under Section 4 was attacked. The contention that no development of land could be undertaken or carried out in such circumstances in terms of Section 12(3) of the said Act was negatived by the Constitution Bench. In the said case, it was held that the wording of Section 5A of the L.A. Act would make it clear that all that is necessary to be specified in a Notification under Section 4 is that the land is needed for a public purpose. It is true that the specific purpose is also to be mentioned. In L. Krishnans case the decision in Aflatoon was referred to. It was held that whether a particular Notification is vague or not is a question of fact to be decided in the facts and circumstances of each case. In the cases falling under the provisions of KHB Act mentioning of the fact that the acquisition is required for the purposes of the KHB would make it one for public purpose within the meaning of L.A. Act and a further mentioning of the locality in which acquisition would be effected, would save it from the attack based on Section 5A. At the stage of Section 4 Notification to enable persons interested to file objection, especially in the light of the provisions under Section 33(2) carrying the aforesaid deeming provision, a mention on the aforesaid lines would be sufficient. As already noted that in the appeal arising from SLP(C)No.1361/2021, the deceased mother of Respondent Nos.2 and 3 had filed objections under Section 5A. It is also relevant to note that the High Court had also noted the fact that in some of the cases acquisition based on the selfsame Notification were effected and awards were also passed. 42. We have already noted the provisions under Section 24 of the KHB Act and held that Section 24(1) speaks of the question as to when KHB could proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme. That apart, we have also held that Section 24(2) pertains to executability of such a scheme not included in the programme and in respect of such a scheme falling within the sweep of Section 24(2) the mandate thereunder is that it shall not be executed unless the same has been sanctioned by the State Government. In such circumstances, a conjoint reading of Section 33(2) and Section 24(2), of the KHB Act would make it clear that prior approval or sanction of any scheme is not required for compulsory acquisition invoking the power under Section 33(2). This is because in terms of the State amendment of Section 4(1), notification marking initiation of acquisition proceedings under L.A. Act, is issued by the appropriate Government or by the Deputy Commissioner and thereafter, the said formal expression of the decision to start acquisition proceedings gets into concrete shape and form by publication in the Official Gazette of Government of Karnataka. In such circumstances, if it is for the purposes of KHB, in other words, for implementation of a scheme of the KHB, what is statutorily required is to wait for its execution till the same is sanctioned by the State Government. In other words, the mere factum of non- existence of a sanctioned and published scheme prior to the initiation of acquisition proceedings, by itself, will not make the notifications and the initiated acquisition proceedings null and void. 43. One another aspect also requires reference in the context of the rival contentions and situation. The scheme of the Act reveals that KHB has also a duty to undertake the schemes entrusted to it by the State Government. Section 32(1) of the KHB Act exclusively make it clear that in respect of scheme entrusted to KHB by Government, provisions under Sections 18-24 (both inclusive) shall not be applicable, except to such an extent and subject to such modifications as may be specified in general or special order made by the State Government. It is also to be noted that in respect of housing schemes, land development schemes or labour housing schemes entrusted to the Board by the Government, sometimes such entrustment takes place only after acquisition of the necessary extent of land by the State Government. All the above mentioned provisions and situations would reveal that the contention of the appellants other than the appellants in the appeal arising from SLP(C)No.1361/2021 and Respondent Nos.2 and 3 therein that existence of a finally sanctioned scheme is a pre-condition for initiation of acquisition of any land or any interest therein is a pre-condition and its non-existence must invariably make the acquisition proceedings null and void, are unsustainable and liable to be rejected. Hence, on a careful perusal of Sections 18 to 24 (both inclusive) and Section 33(2) we have no hesitation to hold that KHB Act carry no statutory insistence that for initiation of acquisition invoking the power under Section 33(2), for the purposes of the KHB Act/KHB, framing, finalization and publication of a housing scheme or land development scheme or labour housing scheme, is a pre-condition.

0[ds]11. On perusal of the relevant provisions and hearing the rival contentions in all the above appeals we think that construction of Section 33 (2) of the KHB Act would be a pointer to answer the stated common question involved in the appeals.In that pursuit, it is also to be ascertained, with reference to the relevant provisions under the Act, as to whether acquisition proceedings by KHB invoking the power thereunder would form part of a housing scheme, as defined under the KHB Act.Subject to its answer, the question whether acquisition forming part of housing scheme by itself is decisive as to the validity of the initiation of acquisition proceeding prior to the sanction of the scheme concerned, may also have to be considered in this pursuit.13. In the light of the rival contentions referred to hereinbefore it is apropos to consider, at first, the applicability of decision of this Court in Mohammed Yousefs case (supra) in the matter of resolution of the stated question and the allied issues. In view of the scanned analysis of the decision in Mohammed Yousefs case by a three-Judge Bench of this Court in the decision in L. Krishnans case (supra), from paragraphs 23 onwards, we need only to refer to the relevant recitals and conclusions/findings from the decision in L. Krishnans case in our pursuit to answer the applicability of the decision in Mohammed Yousefs case. The three-Judge Bench was called upon to consider the correctness of the law laid down in Mohammed Yousefs case while considering the questions that arose in Civil Appeal Nos.1865-66 and 1868-70 of 1992. Those appeals were directed against a judgment of the Madras High Court in a batch of Writ Petitions whereunder it quashed three Notifications issued under Section 4(1) of the L.A. Act for the implementation of housing schemes, relying mainly on the decisions of this court in Mohammed Yousefs case (supra) and in Munshi Singh Vs. Union of India [(1973) 2 SCC 337] . In paragraph 22 of L. Krishnans case this Court observed:But before we refer to them, it would be appropriate to deal with the decision of a two-Judge Bench of this Court in State of T.N. Vs. A Mohd. Yusuf, affirming the decision of the Madras High Court, upon which strong reliance is placed by the respondents. In this decision, it has been held that a proceeding under the Land Acquisition Act read with Section 70 of the Housing Board Act can be commenced only after the framing of the scheme for which the land is required, but not before.In this context, it is also worthy to note the first question posed for consideration before the three-Judge Bench in L. Krishnans case (supra), which was mentioned in paragraph 7 thereof thus:-The first question that arises in these appeals is whether a final and effective scheme prepared and published under the provisions of the Housing Board Act is a precondition to the issuance of notification under Section 4. This question has to be answered with reference to the provisions of the Land Acquisition act as well as the Housing Board Act.14. The three-Judge Bench in L. Krishnans case further mentioned thus:-We may mention, at the outset, that these appeals have been referred to a three-Judge Bench by a Bench of two learned judges because they doubted the correctness of the decision in Mohd. Yusuf, vide order dated 16.09.1993.15. Paragraphs 24 to 33 of the decision in L. Krishnans case are worthy to be extracted to decide on the applicability of the decision in Mohammed Yousefs case to decide the stated mooted question involved in these appeals. Paragraphs 24 to 28 read thus:-24. The facts in Mohammed Yousef are these: the notification under Section 4 of the Land Acquisition Act was issued stating the public purpose as construction of houses by the Tamil Nadu Housing Board. Admittedly not even a draft scheme was framed by the Housing Board by the date of the said notification. On the contrary, the contention of the State was that only after the acquisition proceedings are completed and possession of the land taken, would they frame a scheme. Alternately, it was contended by the State that framing of a scheme is not a precondition for issuance of a valid notification under Section 4 of the Land Acquisition Act proposing to acquire the land for construction of houses by the Housing Board. The High Court had struck down the notification on the ground that the public purpose mentioned therein was too vague in the absence of details relating to the scheme for which the acquisition was sought to be made. The High Court opined that in the absence of such a scheme with necessary particulars the land- owners cannot effectively avail of the opportunity given by Section 5-A. In this Court, however, the main contention of the respondents-land-owners was that the framing of a scheme by the Housing Board under the provisions of the Housing Board Act is a precondition to a valid notification under Section 4 where the land is proposed to be acquired for the purpose of the Housing Board. In view of the said contention, this Court examined the scheme of the Act and held that inasmuch as acquisition of the land is a part and parcel of the execution of a scheme framed by the Board under the Act, the acquisition must follow the scheme and cannot precede it. The Bench further observed that unless such a scheme with requisite particulars is duly published, it may not be possible for the land-owners to object to the proposed acquisition on the ground that the land is not suitable for the scheme at all and/or that it does not serve the stated public purpose. The Bench observed that the power of the Board to frame a scheme is regulated by the provisions of the Act which, inter alia, provide a full opportunity to the affected persons to object to the scheme. Even after the final publication of the scheme and after its coming into force, it was pointed out, the scheme can yet be altered or cancelled as provided under Section 56 of the Act. For all these reasons, the Bench held that: (SCC p. 229, para 11)a proceeding under the Land Acquisition Act read with Section 70 of the Madras Housing Board Act, can be commenced only after framing the scheme for which the land is required.25. Unfortunately, the provisions in sub- Sections (2) and (3) of Section 35 and Section 36 were not brought to the notice of the Bench nor were the earlier Constitution Bench decisions of this Court brought to its notice, to which decisions we may now turn. But one more relevant aspect before we refer to them.26. After, and in the light of, the impugned judgment, the Tamil Nadu Legislature has amended the Housing Board Act with retrospective effect with a view to remove the basis of the said judgment and providing expressly that existence of a scheme framed by the Housing Board is not a pre-condition for acquiring land for the purpose of the Board. The validity of the said Amendment Act has also been questioned in the connected matters but the necessity to go into that question will arise only if we agree with the reasoning and conclusions in the decision under appeal. Indeed, Shri Salves argument was that the decision of the High Court is unsustainable even without reference to the said Amendment Act and it is on that basis that he made his submissions.27. In Arnold Rodricks v. State of Maharashtra, the Constitution Bench dealt with the question whether the statement in the notification under Section 4 that the land was required for development and utilisation of the said lands as an industrial and residential area cannot be said to be a public purpose within the meaning of Section 4 of the Land Acquisition Act. The Court held, relying upon the decisions of this Court in Babu Barkya Thakur v. State of Bombay (SCR at p. 137) and Pandit Jhandu Lai v. State of Punjab — as well as the statement in the counter-affidavit filed on behalf of the State Government — that the purpose stated in the notification is indeed a public purpose. The Constitution Bench pointed out that in Babu Barkya Thakur, this Court had relied upon the decision in State of Bombay v. Bhanji Munji to the effect that providing housing accommodation to the homeless is a public purpose (and that) where a larger section of the community is concerned, its welfare is a matter of public concern.The counter-affidavit filed on behalf of the Government explained that the pressure of housing in Bombay is acute and that there was any amount of need for fresh housing. The Court (majority) observed:In our view the welfare of a large proportion of persons living in Bombay is a matter of public concern and the notifications served to enhance the welfare of this section of the community and this is public purpose.28. Another contention urged for the petitioners was that the Government had not prepared any scheme before issuing the notification under Section 4. This argument was also negatived in the following words: This is true that the Government has not uptil now prepared any scheme for the utilisation of the developed sites. But the notification itself shows that the sites would be used as residential and industrial sites. There is no law that requires a scheme to be prepared before issuing a notification under Section 4 or Section 6 of the Act. We have, however, no doubt that the Government will, before disposing of the sites, have a scheme for their disposal.16. After making such reference in L. Krishnans case it was further held in paragraphs 29 to 33 thus:-29. We have held hereinbefore that merely because the Housing Board Act contemplates acquisition of land as part of a housing or improvement scheme, it does not follow that no land needed for the purpose of the Housing Board Act can be acquired until and unless a scheme is prepared and finalised by the Board and becomes effective under the provisions contained in Chapter VII.30. In Aflatoon v. Lt. Governor of Delhi, another Constitution Bench dealt with a similar contention, viz., that before publishing the notification under Section 4, the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a master plan drawn up in accordance with Section 7 of that Act. The notification under Section 4 was attacked on that basis. It was argued that under Section 12(3) of the Delhi Development Act, no development of land can be undertaken or carried out except as provided in that sub- Section. This argument was negatived by the Constitution Bench holding that: (SCC pp. 294-95, para 23)The planned development of Delhi had been decided upon by the Government before 1959, viz., even before the Delhi Development Act came into force. It is true that there could be no planned development of Delhi except in accordance with the provisions of Delhi Development Act after that Act came into force, but there was no inhibition in acquiring land for planned development of Delhi under the Act before the Master Plan was ready (See the decision in Patna Improvement Trust v. Lakshmi Devi). In other words, the fact that actual development is permissible in an area other than a development area with the approval or sanction of the local authority did not preclude the Central Government from acquiring the land for planned development under the Act. Section 12 is concerned only with the planned development. It has nothing to do with acquisition of property; acquisition generally precedes development. For planned development in an area other than a development area, it is only necessary to obtain the sanction or approval of the local authority as provided in Section 12(3). The Central Government could acquire any property under the Act and develop it after obtaining the approval of the local authority.31. It is significant to notice that Section 12 of the Delhi Development Act, 1957 provided for declaration of any area as development area by the Central Government and it further provided that except as otherwise provided by the said Act, the Delhi Development Authority shall not undertake or carry out any development of land in any area which is not a development area. Sub-Section (3) of Section 12, however, provided that after the commencement of the said Act, no development of land shall be undertaken or carried out in any area by anyone unless (i) where that area is a development area, permission for such development has been obtained in writing from the Authority in accordance with the provisions of the Act and (ii) where the area is an area other than a development area, approval of the local authority or other authority concerned is obtained according to law. Section 15 of the said Act provided for acquisition of any land required for the purpose of development under the Act.32. In our opinion, the observations quoted and emphasised hereinabove, and the broad similarity between the provisions of the Delhi Act and the Tamil Nadu Housing Board Act, establish that the acquisition of the land is not dependent upon the preparation and approval of a scheme under Sections 37 to 56 and that the Governments power of acquisition extends to other purposes of the Board and the Housing Board Act referred to in Sections 35 and 36. Moreover, under Tamil Nadu Housing Board too, there is no inhibition against acquisition of land for the purpose of the Board except in accordance with and as a part of the scheme.33. For all the above reasons, we find it difficult to read the holding in Mohammed Yousef as saying that in no event can the land be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56. The said limitation applies only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter VII of the Tamil Nadu Housing Board Act. In other words, unless the notification under Section 4 of the Land Acquisition Act expressly states that land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the provisions of the Tamil Nadu Housing Board Act, the principle and ratio of Mohammed Yousef is not attracted. Mere statement in the notification that land is required for the purpose of the Housing Board would not by itself attract the said principle and ratio. In the instant appeals, the notifications do not even state that the land proposed to be acquired is meant for the purpose of the Housing Board.17. Thus, a perusal of the decisions in Mohammed Yousefs case and L. Krishnans case (supra) would disclose that both the decisions were rendered with reference to the provisions under the L.A. Act and the TNHB Act. It is true that a two-Judge Bench of this Court in Mohammed Yousefs case, after referring to the provisions under the Madras State Housing Board Act, 1961, which was later renamed as TNHB Act, held that a proceeding under the Land Acquisition Act read with Section 70 of the Housing Board Act could be commenced only after the framing of the scheme for which the land is required, and not before. But then, upon doubting the correctness of the decision in Mohammed Yousefs case, two learned judges of this Court referred the appeals (decided under L. Krishnans case) to a three- Judge Bench. It is in those appeals that the three- Judge Bench in L. Krishnans case observed that unfortunately neither the provisions in sub-Sections (2) and (3) of Section 25 and Section 36 of Act 17 of 1961 nor earlier Constitution Bench decisions of this Court, were brought to the notice of the Bench which rendered the decision in Mohammed Yousefs case. Thereafter, upon considering all the relevant provisions under Act 17 of 1961, the provisions of the very Act which were dealt with or not dealt with in the decision in Mohammed Yousefs case and also various decisions of this Court the three-Judge Bench in L. Krishnans case held :-For all the above reasons, we find it difficult to read the holding in Mohd. Yusuf as saying that in no event can the land be acquired for the purposes of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56.18. The afore-extracted recitals in L. Krishnans case would reveal that the position held as above holding in Mohammed Yousefs case was held applicable only where the land is sought to be acquired avowedly for the purpose of execution of a housing or improvement scheme prepared by the Housing Board under Chapter VII of the Tamil Nadu Housing Board Act. Further it was clarified in paragraph 33 itself thus:-In other words unless the notification under Section 4 of the Land Acquisition Act expressly states that the land proposed to be acquired is required for executing a housing or improvement scheme (i.e., a final and effective scheme) framed by the Housing Board under the Tamil Nadu Housing Board Act, the principle and ratio of Mohd. Yusuf is not attracted.19. The contention of vagueness in the matter of public purpose in the Notifications and its impact was considered and negated in view of the Constitution Bench decisions of this Court in Aflatoon Vs. Lt. Governor of Delhi [(1975) 4 SCC 285] and in Arnold Rodricks Vs. State of Maharashtra [AIR 1966 SC 1788 ]. The decision in Pt. Lila Ram Vs. Union of India [(1975) 2 SCC 547] was also referred to in that regard. It was observed that the decision in Munshi Singhs case (supra) would not come to the rescue of the Writ Petitioners – Respondents. Based on such conclusions and findings and those made in paragraphs 24-33 this Court allowed Civil Appeal Nos.1865-66, 1868-70 of 1992 and set aside the judgment of the Madras High Court under Appeal and dismissed the Writ Petitions from which those appeals arose. It is also relevant to note that the Civil Appeals filed against the judgments of the Madras High Court upholding the validity of the Tamil Nadu Housing Board Amendment Act 5 of 1992 were also dismissed by the three-Judge Bench following the judgment in Civil Appeal Nos.1865-66, 1868-70 of 1992.20. Decision in L. Krishnans case would thus reveal that the three-Judge Bench after careful consideration held that merely because the TNHB Act contemplates acquisition of land as part of a housing or improvement scheme, it could not be said that no land needed for the purpose of the Housing Board could be acquired until and unless the scheme was prepared and finalized by the board and became effective under the provisions contained in chapter VII of the TNHB Act that deals with acquisition and disposal of land. The three-Judge Bench further found it difficult to read the dictum in Mohammed Yousefs case (supra) as saying that in no event land could be acquired for the purpose of the Act/Board unless a final and effective scheme is framed by the Housing Board under the provisions of Sections 37 to 56. We have already noted the further conclusions and findings of the three-Judge Bench in L. Krishnans case and the outcome of such consideration, conclusions and findings.21. The long and short of the above discussion is that the contention that initiation of acquisition for the purposes of KHB/the KHB Act, prior to the sanction and/or the publication of housing scheme concerned/land development scheme concerned, is null and void in view of the decision in Mohammed Yousefs case is untenable. So also, the contention that in view of the decision in Mohammed Yousefs case acquisition proceedings form part of housing scheme/land development scheme and hence, acquisition for the purposes of KHB/the KHB Act prior to the sanction and/or the publication of housing scheme concerned/land acquisition scheme concerned, is null and void cannot be countenanced. Suffice it to say that the moot question and allied issues are to be considered and answered independently without reference to the decision in Mohammed Yousefs case, but with reference to the L.A. Act as well as KHB Act. In that view of the matter, we will now proceed to consider them with reference to the L.A. Act and the KHB Act and not with reference to other authorities pronounced under different enactments. We are fortified in that view by a Constitution Bench decision of this Court in Offshore Holdings Pvt. Ltd. vs. Bangalore Development Authority & Ors. (2011) 3 SCC 139 . It, in so far as relevant, reads thus:-85…… the dictum stated in every judgment should be applied with reference to the facts of the case as well as its cumulative impact. Similarly, a statute should be construed with reference to the context and its provisions to make a consistent enactment i.e. ex visceribus actus.22. We may also add that a judgment rendered with respect to the position obtained under a particular provision(s) in one enactment cannot be applied while dealing with a similar situation falling under a different enactment, unless pari materia provision(s) exist in that enactment, without looking into the facts and law.25. A conjoint reading of the afore-extracted provisions of KHB Act will unfold the duties of the KHB as to undertake housing schemes and land development schemes as it may consider necessary from time to time or as may be entrusted to it by the State Government. What are the matters to be provided for by housing schemes and land development schemes are mentioned respectively under Sections 18 and 18A. Going by Section 2(n) programme means the annual housing programme and land development programme prepared by KHB under Section 19. Section 19 mandates that before the first day of December in each year, KHB shall prepare and forward a programme, a budget for the next year and a schedule of the staff of officers and servants already employed and to be employed during the next year, to the State Government. As per the said section, the said programme shall contain such particulars of the housing schemes, land development schemes and labour housing schemes which it proposes to execute whether in part or whole during the next year as may be prescribed. Under Section 20 the State Government may sanction the programme, the budget and the schedule of the staff of officers and servants forwarded to it with such modifications as it deems fit. As per Section 21, the State Government shall publish the programme sanctioned by it under Section 20 in the official Gazette. Section 22 permits submission of supplementary programme and budget in respect of which a programme and budget had been sanctioned under Section 20 and in the eventuality of submission of such a supplementary programme and budget the provisions of Sections 20 and 21 would apply.Thus a bare perusal of the provisions under Sections 17 to 23, contained in Chapter-III of the KBH Act, would reveal that they deal with duties of KHB to undertake housing schemes and land development schemes, matters to be included in such schemes, preparation and submission of annual housing programme and land development programme, budget and establishment schedule and such other procedures to be followed ultimately unto the sanctioning of the programme and also the power of KHB to make variance of sanctioned programme and its limit.27. Going by the scheme of the KHB Act, it deals with the subject of execution of housing schemes, land development schemes and labour housing schemes under Section 24. Bearing in mind the provisions under Sections 18-23 we will consider the scope and purport of Section 24 of the KHB Act. A careful scrutiny of sub-Sections (1) and (2) of Section 24 would bring forth their distinct differences. Section 24(1) prescribes that after the programme has been sanctioned and published by the State Government the board shall, subject to the provisions of Section 23, proceed to execute the housing scheme, land development scheme and labour housing scheme included in the programme. Thus, Section 24(1) states in unequivocal terms as to when the KHB shall proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme. Indisputably, in terms of the said statutory mandate KHB could proceed to execute any of the aforesaid schemes included in the programme only after the sanction and publication of the programme wherein the scheme concerned is included.29. As noted earlier, what sub-Section (2) proscribes is execution of such a scheme, be it a housing scheme or land development scheme or labour housing scheme, evidently not included in the programme for any particular year unless the same has been sanctioned by the State Government. Pithily put, the schemes falling under sub-Sections (1) and (2) are different. If they are one and the same in view of the positive mandate under sub-Section (1) of Section 24 with respect to the time of executability of such schemes included in the programme, viz., only after their sanction and publication by the State Government, there was absolutely no necessity for incorporating sub-Section (2) under Section 24 in the negative form. Certainly, the legislative intention under sub-Section (2) can be taken only as one to enable KHB to undertake such schemes which were not included in the programme, as exception, but subject to the condition of obtainment of sanction of the State Government before execution. In short, as a whole, the purport of Section 24 is that no housing scheme or land development scheme or labour housing scheme, undertaken by the KHB shall be executed sans sanction from the State Government. Sub-Section (2) of Section 24 cannot be interpreted as one requiring obtainment of a second sanction for executing such schemes included in the programme. On the contrary, the provision under Section 24(2) has to be interpreted as one enabling KHB to undertake such schemes which were not included in the programme, but became necessary to undertake, subject to sanction from the Government. According to us, such a construction will only sub-serve the purpose of constitution of KHB.30. There can be no doubt that for executing a housing scheme, land development scheme and labour housing scheme, be it included or not included in the programme, necessary extent of land has to be acquired. For, without the required extent of land, construction of houses under housing and labour housing schemes or development of land under land development schemes could not be effected. It is a fact that, the expression execution is not defined in the KHB Act. Therefore, the question is how the expressions execute/execution employed in sub-Sections (1) and (2) of Section 24 and Section 33(2) are to be understood. In that regard bearing in mind the object and purpose of Constitution of KHB and its duties the dictionary meaning of the said expression has to be looked into.This State amendment was brought vide Land Acquisition (Mysore Extension and Amendment Act) Act 17 of 1961. We have already noted that the Government of Karnataka as per Annexure-A Notification dated 15.12.1998 (marked thus in the appeal arising from SLP (C)No.1361 of 2021), which was issued under Clause (c)of Section 3 of the L.A. Act, appointed the Housing Commissioner of KHB to perform the functions of Deputy Commissioner under Section 4 of the L.A. Act in respect of lands to be acquired for the purpose of KHB in Bengaluru and Mysore Revenue Divisions. In such circumstances, no error or defect can be attributed against his issuing preliminary notification under Section 4(1) of the L.A. Act.37. A bare perusal of L.A. Act would reveal that the acquisition proceedings begin with issuance of a notification under Section 4(1) thereof that land in any locality is needed or is likely to be needed for any public purpose. The Notification under Section 4(1) is a formal expression of the decision to start acquisition proceedings for a public purpose. The said notification takes the concrete shape and form by publication in the official Gazette of the appropriate Government, when that be mandatory procedures and when they are strictly complied with it would be without rhyme or reason to prescribe obtainment of a further approval of the Government for such compulsory acquisition by KHB. It is also to be noted that in the cases on hand subsequently, Government had issued declaration and final Notification as prescribed under Section 6 of the L.A. Act.38. As noted earlier in L. Krishnans case a three- Judge Bench of this Court clearly found that there is nothing in Section 4(1) of the L.A. Act which insists for availability/existence of a sanctioned and published scheme for initiation of land acquisition under L.A. Act. In paragraph 9 of L. Krishnans decision this Court held and observed thus:Section 4 of the Land Acquisition Act does not state expressly or by necessary intendment that before a Notification is issued/published thereunder proposing to acquire land for the purposes of a body like the Tamil Nadu Housing Board, a duly published final scheme prepared in accordance with the relevant Act should be in force. The respondents/writ petitioners, however, seek to deduce such a requirement from the provisions of the TNHB Act.In view of the provisions under Section 4 of the L.A. Act and the decision in L. Krishnans case as extracted above, it cannot be said that for initiation of land acquisition proceedings under Section 4(1) of the L.A. Act proposing to acquire any particular land for the purpose of KHB a duly published final scheme prepared in accordance with the provisions of KHB Act should be in force. Despite the said position obtained from Section 4 of the L.A. Act and the decision in L. Krishnans case the attempt herein is to deduce such a mandate from the provisions under the KHB Act. The scanning of Section 33(2) of the KHB Act, as above would clearly show that it contains no condition, either expressly or by necessary implication, that before a Notification under Section 4(1) of the L.A. Act is issued proposing to acquire land or interest therein, for the purpose of KHB, a sanctioned and published housing scheme/land development scheme/labour housing scheme should be in force. In the said circumstances, the said contention cannot be sustained.39. Unlike the provisions under TNHB Act, which mandate for acquisition of land for the purpose of TNHB Act and Tamil Nadu Housing Board only in accordance with the provisions of L.A. Act, Section 33(2) of the KHB Act empowers the KHB to take steps for compulsory acquisition of any land or any interest therein, required for the execution of a housing scheme in the manner provided in the L.A. Act, as modified by KHB Act.A bare perusal of sub-Section (2) of Section 33 itself would answer this question. Its latter limb contains a deeming provision. Certainly, that is attracted only on establishing the foundational fact that the acquisition of land or interest therein is for the purposes of KHB Act. The said provision, extracted hereinbefore, would go to show that upon establishing the same the acquisition of land concerned or interest therein, as the case may be, shall have to be deemed as an acquisition for the purpose within the meaning of L.A. Act, viz., Section 3(f) of the L.A. Act that defines public purpose. Therefore, in terms of the same L.A. Act stands modified by KHB Act to the extent mentioned above. Hence, it would be suffice if the Notification specifies that the acquisition is for the purpose of KHB. It is a fact that in the TNHB Act no provision pari materia to Section 33(2) of the KHB Act enabling the Housing Board to take steps for compulsory acquisition for the purposes of the Act/the Board as also a deeming provision relating public purpose, as mentioned hereinbefore, is available.In that context, it is worthy to refer to the Constitution Bench decision of this Court in Aflatoons case (supra). That was a case where the question was whether before publishing the Notification under Section 4 of the L.A. Act the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of the Act. On that basis Notification under Section 4 was attacked. The contention that no development of land could be undertaken or carried out in such circumstances in terms of Section 12(3) of the said Act was negatived by the Constitution Bench. In the said case, it was held that the wording of Section 5A of the L.A. Act would make it clear that all that is necessary to be specified in a Notification under Section 4 is that the land is needed for a public purpose. It is true that the specific purpose is also to be mentioned. In L. Krishnans case the decision in Aflatoon was referred to. It was held that whether a particular Notification is vague or not is a question of fact to be decided in the facts and circumstances of each case. In the cases falling under the provisions of KHB Act mentioning of the fact that the acquisition is required for the purposes of the KHB would make it one for public purpose within the meaning of L.A. Act and a further mentioning of the locality in which acquisition would be effected, would save it from the attack based on Section 5A. At the stage of Section 4 Notification to enable persons interested to file objection, especially in the light of the provisions under Section 33(2) carrying the aforesaid deeming provision, a mention on the aforesaid lines would be sufficient. As already noted that in the appeal arising from SLP(C)No.1361/2021, the deceased mother of Respondent Nos.2 and 3 had filed objections under Section 5A. It is also relevant to note that the High Court had also noted the fact that in some of the cases acquisition based on the selfsame Notification were effected and awards were also passed.42. We have already noted the provisions under Section 24 of the KHB Act and held that Section 24(1) speaks of the question as to when KHB could proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme. That apart, we have also held that Section 24(2) pertains to executability of such a scheme not included in the programme and in respect of such a scheme falling within the sweep of Section 24(2) the mandate thereunder is that it shall not be executed unless the same has been sanctioned by the State Government. In such circumstances, a conjoint reading of Section 33(2) and Section 24(2), of the KHB Act would make it clear that prior approval or sanction of any scheme is not required for compulsory acquisition invoking the power under Section 33(2). This is because in terms of the State amendment of Section 4(1), notification marking initiation of acquisition proceedings under L.A. Act, is issued by the appropriate Government or by the Deputy Commissioner and thereafter, the said formal expression of the decision to start acquisition proceedings gets into concrete shape and form by publication in the Official Gazette of Government of Karnataka. In such circumstances, if it is for the purposes of KHB, in other words, for implementation of a scheme of the KHB, what is statutorily required is to wait for its execution till the same is sanctioned by the State Government. In other words, the mere factum of non- existence of a sanctioned and published scheme prior to the initiation of acquisition proceedings, by itself, will not make the notifications and the initiated acquisition proceedings null and void.43. One another aspect also requires reference in the context of the rival contentions and situation. The scheme of the Act reveals that KHB has also a duty to undertake the schemes entrusted to it by the State Government. Section 32(1) of the KHB Act exclusively make it clear that in respect of scheme entrusted to KHB by Government, provisions under Sections 18-24 (both inclusive) shall not be applicable, except to such an extent and subject to such modifications as may be specified in general or special order made by the State Government. It is also to be noted that in respect of housing schemes, land development schemes or labour housing schemes entrusted to the Board by the Government, sometimes such entrustment takes place only after acquisition of the necessary extent of land by the State Government. All the above mentioned provisions and situations would reveal that the contention of the appellants other than the appellants in the appeal arising from SLP(C)No.1361/2021 and Respondent Nos.2 and 3 therein that existence of a finally sanctioned scheme is a pre-condition for initiation of acquisition of any land or any interest therein is a pre-condition and its non-existence must invariably make the acquisition proceedings null and void, are unsustainable and liable to be rejected. Hence, on a careful perusal of Sections 18 to 24 (both inclusive) and Section 33(2) we have no hesitation to hold that KHB Act carry no statutory insistence that for initiation of acquisition invoking the power under Section 33(2), for the purposes of the KHB Act/KHB, framing, finalization and publication of a housing scheme or land development scheme or labour housing scheme, is a pre-condition.

### 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: arises for consideration is whether non-particularisation with sufficient specificity of the land to be acquired can be a reason for annulling acquisition proceedings initiated under the L.A. Act as modified by KHB Act for the purpose of KHB Act. The contention raised is to the effect that owing to such vagueness in the Notification the holders/land owners would be deprived of the opportunity to file an effective objection under Section 5A of the L.A. Act. In that context, it is worthy to refer to the Constitution Bench decision of this Court in Aflatoons case (supra). That was a case where the question was whether before publishing the Notification under Section 4 of the L.A. Act the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of the Act. On that basis Notification under Section 4 was attacked. The contention that no development of land could be undertaken or carried out in such circumstances in terms of Section 12(3) of the said Act was negatived by the Constitution Bench. In the said case, it was held that the wording of Section 5A of the L.A. Act would make it clear that all that is necessary to be specified in a Notification under Section 4 is that the land is needed for a public purpose. It is true that the specific purpose is also to be mentioned. In L. Krishnans case the decision in Aflatoon was referred to. It was held that whether a particular Notification is vague or not is a question of fact to be decided in the facts and circumstances of each case. In the cases falling under the provisions of KHB Act mentioning of the fact that the acquisition is required for the purposes of the KHB would make it one for public purpose within the meaning of L.A. Act and a further mentioning of the locality in which acquisition would be effected, would save it from the attack based on Section 5A. At the stage of Section 4 Notification to enable persons interested to file objection, especially in the light of the provisions under Section 33(2) carrying the aforesaid deeming provision, a mention on the aforesaid lines would be sufficient. As already noted that in the appeal arising from SLP(C)No.1361/2021, the deceased mother of Respondent Nos.2 and 3 had filed objections under Section 5A. It is also relevant to note that the High Court had also noted the fact that in some of the cases acquisition based on the selfsame Notification were effected and awards were also passed. 42. We have already noted the provisions under Section 24 of the KHB Act and held that Section 24(1) speaks of the question as to when KHB could proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme. That apart, we have also held that Section 24(2) pertains to executability of such a scheme not included in the programme and in respect of such a scheme falling within the sweep of Section 24(2) the mandate thereunder is that it shall not be executed unless the same has been sanctioned by the State Government. In such circumstances, a conjoint reading of Section 33(2) and Section 24(2), of the KHB Act would make it clear that prior approval or sanction of any scheme is not required for compulsory acquisition invoking the power under Section 33(2). This is because in terms of the State amendment of Section 4(1), notification marking initiation of acquisition proceedings under L.A. Act, is issued by the appropriate Government or by the Deputy Commissioner and thereafter, the said formal expression of the decision to start acquisition proceedings gets into concrete shape and form by publication in the Official Gazette of Government of Karnataka. In such circumstances, if it is for the purposes of KHB, in other words, for implementation of a scheme of the KHB, what is statutorily required is to wait for its execution till the same is sanctioned by the State Government. In other words, the mere factum of non- existence of a sanctioned and published scheme prior to the initiation of acquisition proceedings, by itself, will not make the notifications and the initiated acquisition proceedings null and void. 43. One another aspect also requires reference in the context of the rival contentions and situation. The scheme of the Act reveals that KHB has also a duty to undertake the schemes entrusted to it by the State Government. Section 32(1) of the KHB Act exclusively make it clear that in respect of scheme entrusted to KHB by Government, provisions under Sections 18-24 (both inclusive) shall not be applicable, except to such an extent and subject to such modifications as may be specified in general or special order made by the State Government. It is also to be noted that in respect of housing schemes, land development schemes or labour housing schemes entrusted to the Board by the Government, sometimes such entrustment takes place only after acquisition of the necessary extent of land by the State Government. All the above mentioned provisions and situations would reveal that the contention of the appellants other than the appellants in the appeal arising from SLP(C)No.1361/2021 and Respondent Nos.2 and 3 therein that existence of a finally sanctioned scheme is a pre-condition for initiation of acquisition of any land or any interest therein is a pre-condition and its non-existence must invariably make the acquisition proceedings null and void, are unsustainable and liable to be rejected. Hence, on a careful perusal of Sections 18 to 24 (both inclusive) and Section 33(2) we have no hesitation to hold that KHB Act carry no statutory insistence that for initiation of acquisition invoking the power under Section 33(2), for the purposes of the KHB Act/KHB, framing, finalization and publication of a housing scheme or land development scheme or labour housing scheme, is a pre-condition. ### Response: 0 ### Explanation: stands modified by KHB Act to the extent mentioned above. Hence, it would be suffice if the Notification specifies that the acquisition is for the purpose of KHB. It is a fact that in the TNHB Act no provision pari materia to Section 33(2) of the KHB Act enabling the Housing Board to take steps for compulsory acquisition for the purposes of the Act/the Board as also a deeming provision relating public purpose, as mentioned hereinbefore, is available.In that context, it is worthy to refer to the Constitution Bench decision of this Court in Aflatoons case (supra). That was a case where the question was whether before publishing the Notification under Section 4 of the L.A. Act the Government had not declared any area in Delhi as a development area under Section 12(1) of the Delhi Development Act nor was there a Master Plan drawn up in accordance with Section 7 of the Act. On that basis Notification under Section 4 was attacked. The contention that no development of land could be undertaken or carried out in such circumstances in terms of Section 12(3) of the said Act was negatived by the Constitution Bench. In the said case, it was held that the wording of Section 5A of the L.A. Act would make it clear that all that is necessary to be specified in a Notification under Section 4 is that the land is needed for a public purpose. It is true that the specific purpose is also to be mentioned. In L. Krishnans case the decision in Aflatoon was referred to. It was held that whether a particular Notification is vague or not is a question of fact to be decided in the facts and circumstances of each case. In the cases falling under the provisions of KHB Act mentioning of the fact that the acquisition is required for the purposes of the KHB would make it one for public purpose within the meaning of L.A. Act and a further mentioning of the locality in which acquisition would be effected, would save it from the attack based on Section 5A. At the stage of Section 4 Notification to enable persons interested to file objection, especially in the light of the provisions under Section 33(2) carrying the aforesaid deeming provision, a mention on the aforesaid lines would be sufficient. As already noted that in the appeal arising from SLP(C)No.1361/2021, the deceased mother of Respondent Nos.2 and 3 had filed objections under Section 5A. It is also relevant to note that the High Court had also noted the fact that in some of the cases acquisition based on the selfsame Notification were effected and awards were also passed.42. We have already noted the provisions under Section 24 of the KHB Act and held that Section 24(1) speaks of the question as to when KHB could proceed to execute the housing schemes, land development schemes and labour housing schemes included in the programme. That apart, we have also held that Section 24(2) pertains to executability of such a scheme not included in the programme and in respect of such a scheme falling within the sweep of Section 24(2) the mandate thereunder is that it shall not be executed unless the same has been sanctioned by the State Government. In such circumstances, a conjoint reading of Section 33(2) and Section 24(2), of the KHB Act would make it clear that prior approval or sanction of any scheme is not required for compulsory acquisition invoking the power under Section 33(2). This is because in terms of the State amendment of Section 4(1), notification marking initiation of acquisition proceedings under L.A. Act, is issued by the appropriate Government or by the Deputy Commissioner and thereafter, the said formal expression of the decision to start acquisition proceedings gets into concrete shape and form by publication in the Official Gazette of Government of Karnataka. In such circumstances, if it is for the purposes of KHB, in other words, for implementation of a scheme of the KHB, what is statutorily required is to wait for its execution till the same is sanctioned by the State Government. In other words, the mere factum of non- existence of a sanctioned and published scheme prior to the initiation of acquisition proceedings, by itself, will not make the notifications and the initiated acquisition proceedings null and void.43. One another aspect also requires reference in the context of the rival contentions and situation. The scheme of the Act reveals that KHB has also a duty to undertake the schemes entrusted to it by the State Government. Section 32(1) of the KHB Act exclusively make it clear that in respect of scheme entrusted to KHB by Government, provisions under Sections 18-24 (both inclusive) shall not be applicable, except to such an extent and subject to such modifications as may be specified in general or special order made by the State Government. It is also to be noted that in respect of housing schemes, land development schemes or labour housing schemes entrusted to the Board by the Government, sometimes such entrustment takes place only after acquisition of the necessary extent of land by the State Government. All the above mentioned provisions and situations would reveal that the contention of the appellants other than the appellants in the appeal arising from SLP(C)No.1361/2021 and Respondent Nos.2 and 3 therein that existence of a finally sanctioned scheme is a pre-condition for initiation of acquisition of any land or any interest therein is a pre-condition and its non-existence must invariably make the acquisition proceedings null and void, are unsustainable and liable to be rejected. Hence, on a careful perusal of Sections 18 to 24 (both inclusive) and Section 33(2) we have no hesitation to hold that KHB Act carry no statutory insistence that for initiation of acquisition invoking the power under Section 33(2), for the purposes of the KHB Act/KHB, framing, finalization and publication of a housing scheme or land development scheme or labour housing scheme, is a pre-condition.

Samaj Parivartana Samudaya & Others Vs. State of Karnataka & Others

across the country. It is not a mechanism designed to deal with any area specific extraordinary situation arising out of large scale, irresponsible and reckless mining carried out with total disregard to the consequences on the environment as was the case in Karnataka."9. Specifically, in paragraph 15 of the affidavit, the Union of India has stated that:"Considering all the above, it is clear that the DMF was never intended to be, and can never actually work as, a substitute for the CEPMIZ."10. The State of Karnataka has also filed its detailed objections to the grant of any relief, as sought for by FIMI-Southern Region. In addition to the stand taken by the Union of India in its affidavit, as noted above, the State of Karnataka has pointed out that the CEPMIZ prepared and submitted to the Court in consultation with the CEC proceeds on the recommendations of the CEC that henceforth the lessee should be directed to pay 5.5% of the sale proceeds to the Monitoring Committee/SPV (details in this regard would be noticed subsequently). The whole CEPMIZ Scheme, particularly, the financial projections for successful implementation thereof has been drawn up on that basis. Grant of the prayer made by the FIMI-Southern Region would result in upsetting the entire scheme as a whole and would jeopardize its contemplated/planned implementation. Furthermore, according to the State of Karnataka, any order of discontinuance of the contribution to the Monitoring Committee/SPV by the lessees of A and B categories would seriously prejudice other lessees who have obtained leases recently and who would be obtaining such leases in future, inasmuch as, a percentage of the sale proceeds for such leases is to be contributed by the State of Karnataka and made available to the SPV. The State contends that such a situation would result in a highly inequitable position inasmuch as the existing lessees responsible, in a way, for the environmental degradation would not be contributing anything further to the SPV in undertaking ameliorative and mitigative steps to restore the environment whereas new leases e.g. category C lessees, who may not be so responsible, would be so contributing.11. The CEC in its response dated 27.04.2016, however, has taken a slightly different view of the matter. In the comprehension of the CEC there is a fair amount of overlapping between the objects of the District Mineral Foundation and the purpose for which the Court had passed orders for creation of the SPV with the task outlined, as noticed above. According to the CEC, for existing leases, 30% of the royalty paid presently works out roughly about 4.5% of the sale proceeds. Accordingly, the CEC has suggested that the existing lessees may pay 5.5% of the sale proceeds to the Monitoring Committee/SPV (instead of 10%) and at the same time continue to discharge the statutory liability of payment to the District Mineral Foundation to the extent of 30% of the royalty, equivalent to about 4.5% of the sale proceeds.12. We have considered the matter. We have also taken note of the previous orders of this Court particularly the final order dated 18.04.2013 (Paragraph 37); the objects behind the amendment of the Mines and Minerals (Development and Regulation) Act by inclusion of the provisions of Section 9B; and also the notifications issued from time to time including the objects of the District Mineral Foundation as provided for by Rule 3 of the District Mineral Rules, 2016 notified by the Government of Karnataka on 11.01.2016. Though, at first blush, it may appear that there is some amount of overlapping between the objects of the District Mineral Foundation and the purpose contemplated by the Courts order in setting up the SPV, the observations of this Court in Paragraph 37 of the judgment dated 18.04.2013 (supra) would make the position amply clear. The statutory enactments and exercises carried out subsequent to the Courts order(s) will have to be understood to be the expression of the legislative opinion of the necessity to meet the challenges of mineral exploitation that are incidental to any mining operation. Every mining activity results in baneful effects which need to be corrected and destruction of environment that inevitably occurs in the process needs to be mitigated. This is the specific reiteration that has been made by the amendment of the provisions of the Act and the Rules framed thereunder. What had happened in Bellary, Chitradurga and Tumkur, has already been noticed by this Court in Paragraph 37 of the judgment dated 18.04.2013 i.e. systematic, extraordinary and unprecedented plunder of the natural wealth and environment. This Court has specifically observed in paragraph 37 that "the situation being extraordinary the remedy, indeed, must also be extraordinary". It is to deal with such an extraordinary situation that the necessity of CEPMIZ and implementation thereof by a Special Purpose Vehicle out of funds in credit with the Monitoring Committee was contemplated. The special funds in deposit with the Monitoring Committee being the proceeds of illegal mining were meant to be deployed for recreation of what have been lost due to such illegal activities. It is for the aforesaid purpose that CEPMIZ was required to be drawn up and thereafter implemented. The state of implementation of the Scheme has not yet commenced. Funds in huge proportions would be necessary. A full and clear picture is yet to emerge. In a situation lessees who may be even remotely connected with the degradation and destruction of nature must continue to pay their share in the process of restitution by contributing to the Managing Committee from their present sale proceeds. Even the new lessees who may not have been involved with such degradation are contributing to the process of reclamation and restoration. In such a situation, we do not see how we can vary or modify our earlier orders that require all existing lessees to pay 10% of the sale proceeds and/or to depart from the requirement of payment of what has been already ordered, namely, 10% of the sale proceeds to the Monitoring Committee/SPV.

0[ds]12. We have considered the matter. We have also taken note of the previous orders of this Court particularly the final order dated 18.04.2013 (Paragraph 37); the objects behind the amendment of the Mines and Minerals (Development and Regulation) Act by inclusion of the provisions of Section 9B; and also the notifications issued from time to time including the objects of the District Mineral Foundation as provided for by Rule 3 of the District Mineral Rules, 2016 notified by the Government of Karnataka on 11.01.2016. Though, at first blush, it may appear that there is some amount of overlapping between the objects of the District Mineral Foundation and the purpose contemplated by the Courts order in setting up the SPV, the observations of this Court in Paragraph 37 of the judgment dated 18.04.2013 (supra) would make the position amply clear. The statutory enactments and exercises carried out subsequent to the Courts order(s) will have to be understood to be the expression of the legislative opinion of the necessity to meet the challenges of mineral exploitation that are incidental to any mining operation. Every mining activity results in baneful effects which need to be corrected and destruction of environment that inevitably occurs in the process needs to be mitigated. This is the specific reiteration that has been made by the amendment of the provisions of the Act and the Rules framed thereunder. What had happened in Bellary, Chitradurga and Tumkur, has already been noticed by this Court in Paragraph 37 of the judgment dated 18.04.2013 i.e. systematic, extraordinary and unprecedented plunder of the natural wealth and environment. This Court has specifically observed in paragraph 37 that "the situation being extraordinary the remedy, indeed, must also be extraordinary". It is to deal with such an extraordinary situation that the necessity of CEPMIZ and implementation thereof by a Special Purpose Vehicle out of funds in credit with the Monitoring Committee was contemplated. The special funds in deposit with the Monitoring Committee being the proceeds of illegal mining were meant to be deployed for recreation of what have been lost due to such illegal activities. It is for the aforesaid purpose that CEPMIZ was required to be drawn up and thereafter implemented. The state of implementation of the Scheme has not yet commenced. Funds in huge proportions would be necessary. A full and clear picture is yet to emerge. In a situation lessees who may be even remotely connected with the degradation and destruction of nature must continue to pay their share in the process of restitution by contributing to the Managing Committee from their present sale proceeds. Even the new lessees who may not have been involved with such degradation are contributing to the process of reclamation and restoration. In such a situation, we do not see how we can vary or modify our earlier orders that require all existing lessees to pay 10% of the sale proceeds and/or to depart from the requirement of payment of what has been already ordered, namely, 10% of the sale proceeds to the Monitoring Committee/SPV.We have perused the CEPMIZ which has been presented before us by the CEC by report dated 29.04.2016. Very broadly speaking, the works proposed under the Scheme can be divided into two broad categories, one pertaining to socio-economic development and the other for integrated mining and railway infrastructure, industrial infrastructure and medical infrastructure.22. We have considered the matter in depth. Beyond recording the view that the CEPMIZ, at this stage, is really in the nature of a vision document with all concrete measures, steps and proposals left to be worked out at a later stage i.e. the stage of preparation of the detailed project reports, we would not like to comment on the merits of the Scheme save and except to say that so far as the socio-economic measures are concerned, very broadly and roughly speaking, the different heads under which restoration and reclamation work is proposed to be done, subject to final details being worked out later, appears to be sufficiently comprehensive. Insofar as the integrated mining and railway infrastructure, industrial and medical infrastructure is concerned, we are of the view that except for the integrated mining infrastructure and part of the railway infrastructure so far as railway sidings and railway sub-lines mentioned in the Chart shown hereinabove, the rest of the infrastructural measures can wait for the present. Having considered the various dimensions of the matter, we are of the view that instead of approving the CEPMIZ as a whole on the basis of the inputs available at this stage, we should hold back our views in the matter until more comprehensive details are available in respect of each of the broad heads under which ameliorative and mitigative measures are proposed to be undertaken. However, at the same time, we must convey our approval to the integrated mining and part of the railway infrastructure that is proposed, namely, construction of the conveyor belt system; railway sidings and railway sub-lines. It is only once a decision is taken on raising the aforesaid infrastructure and noticeable headway in the matter of execution thereof is reached, that the other ameliorative and mitigative socio-economic measures can have any relevance. This is because it is the limited infrastructure that have been indicated above i.e. conveyor belt, railway sidings and railway sub-lines which would constitute the most significant steps towards controlling the environmental pollution that persists on account of open movement of iron ore by road. It is only after controlled and regulated movement of iron ore is achieved that the other socio-economic measures should be undertaken so as to produce meaningful results. So far as the industrial infrastructure is concerned, all measures already being undertaken by the KIADB in the Bellery, Chitradurga, Tumkur areas may continue. It will not be necessary to involve the SPV in such activities at this stage. Transfer of funds from the SPV for such projects already undertaken by the KIADB and other bodies can always be considered at a later stage. The medical infrastructure on which an outlay of Rs. 950 Crores is contemplated need not engage the attention of this Court for the present. In other words, the entire CEPMIZ Scheme need not be approved in one go and such approval may be considered and accorded in phases. The initial activity identified, namely, construction of conveyor belt system; railway sidings and railway sub-lines needs to be prioritized.23. Insofar as the transfer of funds is concerned, even without going into the issue of the exact quantum of funds available with the Monitoring Committee for transfer to the SPV, it would be suffice to say that the funds available with the Monitoring Committee as on date is more than adequate to meet the cost projected against the works which have been identified by the Court to be the priority works for the repair and restoration of the environment. Once further details with regard to the aforesaid three items of work are available indicating what exactly that is proposed to be done; the period of time that is likely to be taken if the work is to be carried out independently of the other measures included in the CEPMIZ, the issue with regard to the source of funds, namely, whether the sum should be exclusively from the funds to be transferred to the SPV or such cost is to be borne by the lessees can be decided by the Court.

### 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: across the country. It is not a mechanism designed to deal with any area specific extraordinary situation arising out of large scale, irresponsible and reckless mining carried out with total disregard to the consequences on the environment as was the case in Karnataka."9. Specifically, in paragraph 15 of the affidavit, the Union of India has stated that:"Considering all the above, it is clear that the DMF was never intended to be, and can never actually work as, a substitute for the CEPMIZ."10. The State of Karnataka has also filed its detailed objections to the grant of any relief, as sought for by FIMI-Southern Region. In addition to the stand taken by the Union of India in its affidavit, as noted above, the State of Karnataka has pointed out that the CEPMIZ prepared and submitted to the Court in consultation with the CEC proceeds on the recommendations of the CEC that henceforth the lessee should be directed to pay 5.5% of the sale proceeds to the Monitoring Committee/SPV (details in this regard would be noticed subsequently). The whole CEPMIZ Scheme, particularly, the financial projections for successful implementation thereof has been drawn up on that basis. Grant of the prayer made by the FIMI-Southern Region would result in upsetting the entire scheme as a whole and would jeopardize its contemplated/planned implementation. Furthermore, according to the State of Karnataka, any order of discontinuance of the contribution to the Monitoring Committee/SPV by the lessees of A and B categories would seriously prejudice other lessees who have obtained leases recently and who would be obtaining such leases in future, inasmuch as, a percentage of the sale proceeds for such leases is to be contributed by the State of Karnataka and made available to the SPV. The State contends that such a situation would result in a highly inequitable position inasmuch as the existing lessees responsible, in a way, for the environmental degradation would not be contributing anything further to the SPV in undertaking ameliorative and mitigative steps to restore the environment whereas new leases e.g. category C lessees, who may not be so responsible, would be so contributing.11. The CEC in its response dated 27.04.2016, however, has taken a slightly different view of the matter. In the comprehension of the CEC there is a fair amount of overlapping between the objects of the District Mineral Foundation and the purpose for which the Court had passed orders for creation of the SPV with the task outlined, as noticed above. According to the CEC, for existing leases, 30% of the royalty paid presently works out roughly about 4.5% of the sale proceeds. Accordingly, the CEC has suggested that the existing lessees may pay 5.5% of the sale proceeds to the Monitoring Committee/SPV (instead of 10%) and at the same time continue to discharge the statutory liability of payment to the District Mineral Foundation to the extent of 30% of the royalty, equivalent to about 4.5% of the sale proceeds.12. We have considered the matter. We have also taken note of the previous orders of this Court particularly the final order dated 18.04.2013 (Paragraph 37); the objects behind the amendment of the Mines and Minerals (Development and Regulation) Act by inclusion of the provisions of Section 9B; and also the notifications issued from time to time including the objects of the District Mineral Foundation as provided for by Rule 3 of the District Mineral Rules, 2016 notified by the Government of Karnataka on 11.01.2016. Though, at first blush, it may appear that there is some amount of overlapping between the objects of the District Mineral Foundation and the purpose contemplated by the Courts order in setting up the SPV, the observations of this Court in Paragraph 37 of the judgment dated 18.04.2013 (supra) would make the position amply clear. The statutory enactments and exercises carried out subsequent to the Courts order(s) will have to be understood to be the expression of the legislative opinion of the necessity to meet the challenges of mineral exploitation that are incidental to any mining operation. Every mining activity results in baneful effects which need to be corrected and destruction of environment that inevitably occurs in the process needs to be mitigated. This is the specific reiteration that has been made by the amendment of the provisions of the Act and the Rules framed thereunder. What had happened in Bellary, Chitradurga and Tumkur, has already been noticed by this Court in Paragraph 37 of the judgment dated 18.04.2013 i.e. systematic, extraordinary and unprecedented plunder of the natural wealth and environment. This Court has specifically observed in paragraph 37 that "the situation being extraordinary the remedy, indeed, must also be extraordinary". It is to deal with such an extraordinary situation that the necessity of CEPMIZ and implementation thereof by a Special Purpose Vehicle out of funds in credit with the Monitoring Committee was contemplated. The special funds in deposit with the Monitoring Committee being the proceeds of illegal mining were meant to be deployed for recreation of what have been lost due to such illegal activities. It is for the aforesaid purpose that CEPMIZ was required to be drawn up and thereafter implemented. The state of implementation of the Scheme has not yet commenced. Funds in huge proportions would be necessary. A full and clear picture is yet to emerge. In a situation lessees who may be even remotely connected with the degradation and destruction of nature must continue to pay their share in the process of restitution by contributing to the Managing Committee from their present sale proceeds. Even the new lessees who may not have been involved with such degradation are contributing to the process of reclamation and restoration. In such a situation, we do not see how we can vary or modify our earlier orders that require all existing lessees to pay 10% of the sale proceeds and/or to depart from the requirement of payment of what has been already ordered, namely, 10% of the sale proceeds to the Monitoring Committee/SPV. ### Response: 0 ### Explanation: Tumkur, has already been noticed by this Court in Paragraph 37 of the judgment dated 18.04.2013 i.e. systematic, extraordinary and unprecedented plunder of the natural wealth and environment. This Court has specifically observed in paragraph 37 that "the situation being extraordinary the remedy, indeed, must also be extraordinary". It is to deal with such an extraordinary situation that the necessity of CEPMIZ and implementation thereof by a Special Purpose Vehicle out of funds in credit with the Monitoring Committee was contemplated. The special funds in deposit with the Monitoring Committee being the proceeds of illegal mining were meant to be deployed for recreation of what have been lost due to such illegal activities. It is for the aforesaid purpose that CEPMIZ was required to be drawn up and thereafter implemented. The state of implementation of the Scheme has not yet commenced. Funds in huge proportions would be necessary. A full and clear picture is yet to emerge. In a situation lessees who may be even remotely connected with the degradation and destruction of nature must continue to pay their share in the process of restitution by contributing to the Managing Committee from their present sale proceeds. Even the new lessees who may not have been involved with such degradation are contributing to the process of reclamation and restoration. In such a situation, we do not see how we can vary or modify our earlier orders that require all existing lessees to pay 10% of the sale proceeds and/or to depart from the requirement of payment of what has been already ordered, namely, 10% of the sale proceeds to the Monitoring Committee/SPV.We have perused the CEPMIZ which has been presented before us by the CEC by report dated 29.04.2016. Very broadly speaking, the works proposed under the Scheme can be divided into two broad categories, one pertaining to socio-economic development and the other for integrated mining and railway infrastructure, industrial infrastructure and medical infrastructure.22. We have considered the matter in depth. Beyond recording the view that the CEPMIZ, at this stage, is really in the nature of a vision document with all concrete measures, steps and proposals left to be worked out at a later stage i.e. the stage of preparation of the detailed project reports, we would not like to comment on the merits of the Scheme save and except to say that so far as the socio-economic measures are concerned, very broadly and roughly speaking, the different heads under which restoration and reclamation work is proposed to be done, subject to final details being worked out later, appears to be sufficiently comprehensive. Insofar as the integrated mining and railway infrastructure, industrial and medical infrastructure is concerned, we are of the view that except for the integrated mining infrastructure and part of the railway infrastructure so far as railway sidings and railway sub-lines mentioned in the Chart shown hereinabove, the rest of the infrastructural measures can wait for the present. Having considered the various dimensions of the matter, we are of the view that instead of approving the CEPMIZ as a whole on the basis of the inputs available at this stage, we should hold back our views in the matter until more comprehensive details are available in respect of each of the broad heads under which ameliorative and mitigative measures are proposed to be undertaken. However, at the same time, we must convey our approval to the integrated mining and part of the railway infrastructure that is proposed, namely, construction of the conveyor belt system; railway sidings and railway sub-lines. It is only once a decision is taken on raising the aforesaid infrastructure and noticeable headway in the matter of execution thereof is reached, that the other ameliorative and mitigative socio-economic measures can have any relevance. This is because it is the limited infrastructure that have been indicated above i.e. conveyor belt, railway sidings and railway sub-lines which would constitute the most significant steps towards controlling the environmental pollution that persists on account of open movement of iron ore by road. It is only after controlled and regulated movement of iron ore is achieved that the other socio-economic measures should be undertaken so as to produce meaningful results. So far as the industrial infrastructure is concerned, all measures already being undertaken by the KIADB in the Bellery, Chitradurga, Tumkur areas may continue. It will not be necessary to involve the SPV in such activities at this stage. Transfer of funds from the SPV for such projects already undertaken by the KIADB and other bodies can always be considered at a later stage. The medical infrastructure on which an outlay of Rs. 950 Crores is contemplated need not engage the attention of this Court for the present. In other words, the entire CEPMIZ Scheme need not be approved in one go and such approval may be considered and accorded in phases. The initial activity identified, namely, construction of conveyor belt system; railway sidings and railway sub-lines needs to be prioritized.23. Insofar as the transfer of funds is concerned, even without going into the issue of the exact quantum of funds available with the Monitoring Committee for transfer to the SPV, it would be suffice to say that the funds available with the Monitoring Committee as on date is more than adequate to meet the cost projected against the works which have been identified by the Court to be the priority works for the repair and restoration of the environment. Once further details with regard to the aforesaid three items of work are available indicating what exactly that is proposed to be done; the period of time that is likely to be taken if the work is to be carried out independently of the other measures included in the CEPMIZ, the issue with regard to the source of funds, namely, whether the sum should be exclusively from the funds to be transferred to the SPV or such cost is to be borne by the lessees can be decided by the Court.

State Of Mysore Vs. Swamy Satyanand Saraswati, Religiouspreacher, Raichur

consumption of the subject leased."Accordingly it was held that the words founded on did not add to the true scope at the grant nor cause mineral rights to be included within it.10. It should be noted here that there was a reference to the trees on the land in the pattas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.According to the Board :"Such a lease is a lease at the surface only. This is the general case to which in the present case there is alone superadded a right to the trees. The minerals are not included."11. Most of the above cases were referred to again by the Board in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 = (AIR 1931 PC 89 ) where after noting the earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh, 1934 ILR 61 Cal 1 = (AIR 1934 Cal 430 ) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, bankar, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no. transfer of the property in the soil"12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest as to therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no. express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.13. We may also note that in State of Andhra Pradesh v. Duvvuru Balarami Reddy, (1963) 1 SCR 173 = (AIR 1963 SC 264 ) where the respondents had obtained mining leases for mining mica from the owners of a certain shrotriem village it was held that shrotriemdars had no. rights in the minerals and the leases granted by them to the respondent had no. legal effect. It is true that this Court was there dealing with rights of a different class of persons and it was claimed on behalf of the respondent that inasmuch as the grant included poramboke, it followed that mere surface rights were not the subject-matter of the grant Rejecting this contention the Court observed (p. 183) :"So far as the sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein."It is not in our view possible to hold otherwise than that granite is a mineral. According to Halsburys Laws of England :"There is no. general definition of the word "mineral." The word is susceptible of expansion or limitation in meaning according to the intention with which it is used;..........It is a question of fact whether in a particular case a substance is a mineral or not........The test of what is a mineral is what, at the date of the instrument in question, the word meant in the vernacular of the mining world, the commercial world, and among landowners, and in case of conflict this meaning must prevail over the purely scientific meaning." (See vol. 26. 3rd edition, Art. 674 page 320).In Art. 675 at p. 322 the learned authors summarise the case law on the subject as to whether particular substances are minerals or not. Reference is there made to the case of Attorney General v. Welsh Granite Co. (1885) 1 Law TR 549 where granite was held to be included under the reservation of "minerals" in the Enclosure Act which reserved all mines, minerals, ores, coal limestone, and slate to the Crown. According to Lord Coleridge the word "minerals" was large enough to include granite.14. In the view we have taken, it is not necessary to consider the effect of the Farmans or S. 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of S. 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis at the sub-soil rights to the hillock must therefore be negatived and the appeal allowed.

1[ds]5. In our view it is not necessary to consider the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act. It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the grant thereof by the Nizam to Salar Jung I and to show that his rights in the land held by him were co-extensive with those of Nawab Salar Jung III. There is no. scope for any presumption that the Nizam had parted with the mineral rights to the jagirdar or that the jagirdar had done so in his turn. Even assuming that the Nizam conferred the right of minerals in the land or to quarry for granite therein to Nawab Salar Jung I, the question still remains, what right did the patta of the Salar Jung, estate confer on the predecessor-in-interest of the claimant. The patta for S. Nos. 312 and 313 was marked as Ex. 49 in this case.It is amply clear from the above that what was in contemplation of the grantor and grantee at the time of the grant was either the cultivation of the land or the grazing of cattle on it. Nobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein. The grantor was careful to exclude even the fruit-bearing trees. It would be wholly unrealistic to construe the grant as conferring mining rights by implication simply because of the fact that there was no. mention of it.it.10. It should be noted here that there was a reference to the trees on the land in the pattas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.Most of the above cases were referred to again by the Board in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 = (AIR 1931 PC 89 ) where after noting the earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh, 1934 ILR 61 Cal 1 = (AIR 1934 Cal 430 ) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, bankar, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no. transfer of the property in the soil"12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest as to therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no. express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.In the view we have taken, it is not necessary to consider the effect of the Farmans or S. 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of S. 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis at the sub-soil rights to the hillock must therefore be negatived and the appeal allowed.

### 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: consumption of the subject leased."Accordingly it was held that the words founded on did not add to the true scope at the grant nor cause mineral rights to be included within it.10. It should be noted here that there was a reference to the trees on the land in the pattas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.According to the Board :"Such a lease is a lease at the surface only. This is the general case to which in the present case there is alone superadded a right to the trees. The minerals are not included."11. Most of the above cases were referred to again by the Board in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 = (AIR 1931 PC 89 ) where after noting the earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh, 1934 ILR 61 Cal 1 = (AIR 1934 Cal 430 ) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, bankar, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no. transfer of the property in the soil"12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest as to therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no. express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.13. We may also note that in State of Andhra Pradesh v. Duvvuru Balarami Reddy, (1963) 1 SCR 173 = (AIR 1963 SC 264 ) where the respondents had obtained mining leases for mining mica from the owners of a certain shrotriem village it was held that shrotriemdars had no. rights in the minerals and the leases granted by them to the respondent had no. legal effect. It is true that this Court was there dealing with rights of a different class of persons and it was claimed on behalf of the respondent that inasmuch as the grant included poramboke, it followed that mere surface rights were not the subject-matter of the grant Rejecting this contention the Court observed (p. 183) :"So far as the sub-soil rights are concerned, they can only pass to the grantee if they are conferred as such by the grant or if it can be inferred from the grant that sub-soil rights were also included therein."It is not in our view possible to hold otherwise than that granite is a mineral. According to Halsburys Laws of England :"There is no. general definition of the word "mineral." The word is susceptible of expansion or limitation in meaning according to the intention with which it is used;..........It is a question of fact whether in a particular case a substance is a mineral or not........The test of what is a mineral is what, at the date of the instrument in question, the word meant in the vernacular of the mining world, the commercial world, and among landowners, and in case of conflict this meaning must prevail over the purely scientific meaning." (See vol. 26. 3rd edition, Art. 674 page 320).In Art. 675 at p. 322 the learned authors summarise the case law on the subject as to whether particular substances are minerals or not. Reference is there made to the case of Attorney General v. Welsh Granite Co. (1885) 1 Law TR 549 where granite was held to be included under the reservation of "minerals" in the Enclosure Act which reserved all mines, minerals, ores, coal limestone, and slate to the Crown. According to Lord Coleridge the word "minerals" was large enough to include granite.14. In the view we have taken, it is not necessary to consider the effect of the Farmans or S. 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of S. 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis at the sub-soil rights to the hillock must therefore be negatived and the appeal allowed. ### Response: 1 ### Explanation: 5. In our view it is not necessary to consider the effect of the Farmans or of Section 63 of the Hyderabad Land Revenue Act. It was for the respondent to establish his claim to minerals or quarry rights by putting forward proof of the grant thereof by the Nizam to Salar Jung I and to show that his rights in the land held by him were co-extensive with those of Nawab Salar Jung III. There is no. scope for any presumption that the Nizam had parted with the mineral rights to the jagirdar or that the jagirdar had done so in his turn. Even assuming that the Nizam conferred the right of minerals in the land or to quarry for granite therein to Nawab Salar Jung I, the question still remains, what right did the patta of the Salar Jung, estate confer on the predecessor-in-interest of the claimant. The patta for S. Nos. 312 and 313 was marked as Ex. 49 in this case.It is amply clear from the above that what was in contemplation of the grantor and grantee at the time of the grant was either the cultivation of the land or the grazing of cattle on it. Nobody at that time had any thought or idea of the land being put to any other use or any mining or quarrying rights being exercised therein. The grantor was careful to exclude even the fruit-bearing trees. It would be wholly unrealistic to construe the grant as conferring mining rights by implication simply because of the fact that there was no. mention of it.it.10. It should be noted here that there was a reference to the trees on the land in the pattas it being expressly provided that the lessee would be entitled to take the price of the trees by cutting and selling them and the zamindar would not have any right thereto. This was held by the Board to negative the idea that mokarari pottah could be comprehensively viewed to include mineral rights.Most of the above cases were referred to again by the Board in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125 = (AIR 1931 PC 89 ) where after noting the earlier cases the Board concluded that in the case of any claim against the zamindar to the lands which were included at the permanent settlement the burden of proof is upon the claimant. Reference may also be made to Bejoy Singh Dudhoria v. Surendra Narayan Singh, 1934 ILR 61 Cal 1 = (AIR 1934 Cal 430 ) where the Board held that the grant of a patni lease by a zamindar of his zamindari lands "including all interest therein, and jalkar, bankar, falkar, beels and jhils at an annual jama containing a stipulation that the grantee should not cut trees or excavate a tank was only consistent with the theory that the lessee and those claiming under him were not entitled to excavate the soil for the purpose of making bricks and that there was no. transfer of the property in the soil"12. In our view the principle which is to be deduced from these cases is not one which is to be confined to the case of zamindars in permanently settled estates. What has to be considered in each case is the purpose for which the lands are leased or an interest as to therein with all the clauses which throw any light on the question as to whether the grantor purported to include his rights to the sub-soil in the grant when there was no. express mention of it. If the lease shows that the purpose of the grant was to allow the user of the surface only it would be wrong to presume that sub-soil rights were also covered thereby. The patta Ex. 49 in this case amply demonstrates that what was in contemplation of the parties at the time of the grant in 1930 was the cultivation thereof or grazing cattle thereon. The grantor was even careful to reserve the right to fruit-bearing trees. It would be a strange construction to hold that although the grantor expressly excluded such trees from his grant he must be taken to have parted with his sub-soil rights by implication.In the view we have taken, it is not necessary to consider the effect of the Farmans or S. 63 of the Hyderabad Land Revenue Act. In our view the pattas only indicating that the grant was for the purpose of cultivation or grazing of cattle with the express reservation of the trees on the land to the grantor, the question of grant of sub-soil rights by implication does not arise. It is therefore not necessary to consider the effect of the Farmans Exs. A-21 and A-22 or of S. 63 of the Hyderabad Land Revenue Act. The claim to compensation on the basis at the sub-soil rights to the hillock must therefore be negatived and the appeal allowed.

Coimbatore Stock Exchange Ltd. & Another Vs. Tamil Nadu Electricity Regulatory Commission & Others

29(3). In our view, by enacting that section, the Legislature has empowered the Commission to give effect to the concept of equality enshrined in Article 14 of the Constitution. Article 14 of the Constitution mandates that the State shall not discriminate between similarly situated persons. This, however, does not mean that all persons should be subjected to similar treatment. From a positivistic point of view, the decision/action taken by the State or its instrumentality/ agency to accord favourable treatment to a particular class of persons on the ground of economic disparity and like factors cannot be said to be violative of the doctrine of equality enshrined in Article 14 of the Constitution. In the present case, the State Commission has, keeping in view the factors like geographical location of the consumers, the quantum of energy consumed by them, the time at which the energy is supplied to them, the nature of supply etc. fixed different tariffs for different classes of consumers. Therefore, it is not possible to find any fault with the view taken by the High Court that the Commission was entitled to fix different tariff for different consumers and that fixation of lower tariff for certain classes of consumers did not amount to violation of Article 14 of the Constitution.It is also apposite to note that in the past, the Board had been supplying electricity to HT consumers (industrial and commercial), who have been described by this Court in Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board (supra) as power guzzlers and tariff was increased for them keeping in view the object of achieving the target of average cost of supply and reducing cross-subsidies in the State. In this context, reference can usefully be made to Paragraph 7.5 of the Tariff Order.We also agree with the High Court that the judgment in West Bengal Electricity Regulatory Commission vs. C.E.S.C. Limited (supra) is distinguishable on facts. The facts of that case show that the Calcutta High Court had interfered with the exercise undertaken by the appellant for determination of tariff for 2000-2001 and 2001-2002. While setting aside the order of the High Court, this Court considered various issues including the issue relating to cross-subsidy and observed:"A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also obligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government. However, the High Court in its judgment has directed the Company to maintain its tariff structure in regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of cross-subsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same."The present one is not a case of giving cross subsidy by the State under Section 29(5) after determination of the tariff. What the State Government had done was to make a commitment before the State Commission that it would provide revenue subsidy of Rs.250 crore for financial year 2003 by making a provision in the State Budget and the Board had clarified that the subsidy was being given for the subsidized supply of electricity to agricultural consumers. The State Government had filed written statement making it clear that no subsidy is being provided for the financial year 2004. The Commission took note of the same and then determined the tariff.Thus, it is not a case in which burden of subsidy has been transferred to other consumers. That apart, the appellants cannot be heard to make a grievance against the so called favourable treatment accorded to certain consumers because they had also availed the benefit of subsidized tariff in the past.The tariff determined for the Railways is in conformity with the demand made by it and we do not find any error in the impugned judgment whereby the High Court rejected their grievance in the matter of fixation of tariff.

0[ds]In the present case, the State Commission has, keeping in view the factors like geographical location of the consumers, the quantum of energy consumed by them, the time at which the energy is supplied to them, the nature of supply etc. fixed different tariffs for different classes of consumers. Therefore, it is not possible to find any fault with the view taken by the High Court that the Commission was entitled to fix different tariff for different consumers and that fixation of lower tariff for certain classes of consumers did not amount to violation of Article 14 of the Constitution.It is also apposite to note that in the past, the Board had been supplying electricity to HT consumers (industrial and commercial), who have been described by this Court in Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board (supra) as power guzzlers and tariff was increased for them keeping in view the object of achieving the target of average cost of supply and reducingin the State. In this context, reference can usefully be made to Paragraph 7.5 of the Tariff Order.We also agree with the High Court that the judgment in West Bengal Electricity Regulatory Commission vs. C.E.S.C. Limited (supra) is distinguishable on facts. The facts of that case show that the Calcutta High Court had interfered with the exercise undertaken by the appellant for determination of tariff for2. While setting aside the order of the High Court, this Court considered various issues including the issue relating toand observed:"A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act showsthat the consumers should be charged only for the electricity consumedby them on the basis of average cost of supply of energy, and thetariff should be determined by the State Commission without showingany undue preference to any consumer. The statute also obligates theState Government to bear the subsidy which if it requires to be givento any consumer or any class of consumers, should be only on suchconditions that the Commission may fix and such burden should be borneby the Government. However, the High Court in its judgment hasdirected the Company to maintain its tariff structure in regard todifferent types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance ofOne of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposingbut at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to they, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same."The present one is not a case of giving cross subsidy by the State under Section 29(5) after determination of the tariff. What the State Government had done was to make a commitment before the State Commission that it would provide revenue subsidy of Rs.250 crore for financial year 2003 by making a provision in the State Budget and the Board had clarified that the subsidy was being given for the subsidized supply of electricity to agricultural consumers. The State Government had filed written statement making it clear that no subsidy is being provided for the financial year 2004. The Commission took note of the same and then determined the tariff.Thus, it is not a case in which burden of subsidy has been transferred to other consumers. That apart, the appellants cannot be heard to make a grievance against the so called favourable treatment accorded to certain consumers because they had also availed the benefit of subsidized tariff in the past.The tariff determined for the Railways is in conformity with the demand made by it and we do not find any error in the impugned judgment whereby the High Court rejected their grievance in the matter of fixation of tariff.

### 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: 29(3). In our view, by enacting that section, the Legislature has empowered the Commission to give effect to the concept of equality enshrined in Article 14 of the Constitution. Article 14 of the Constitution mandates that the State shall not discriminate between similarly situated persons. This, however, does not mean that all persons should be subjected to similar treatment. From a positivistic point of view, the decision/action taken by the State or its instrumentality/ agency to accord favourable treatment to a particular class of persons on the ground of economic disparity and like factors cannot be said to be violative of the doctrine of equality enshrined in Article 14 of the Constitution. In the present case, the State Commission has, keeping in view the factors like geographical location of the consumers, the quantum of energy consumed by them, the time at which the energy is supplied to them, the nature of supply etc. fixed different tariffs for different classes of consumers. Therefore, it is not possible to find any fault with the view taken by the High Court that the Commission was entitled to fix different tariff for different consumers and that fixation of lower tariff for certain classes of consumers did not amount to violation of Article 14 of the Constitution.It is also apposite to note that in the past, the Board had been supplying electricity to HT consumers (industrial and commercial), who have been described by this Court in Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board (supra) as power guzzlers and tariff was increased for them keeping in view the object of achieving the target of average cost of supply and reducing cross-subsidies in the State. In this context, reference can usefully be made to Paragraph 7.5 of the Tariff Order.We also agree with the High Court that the judgment in West Bengal Electricity Regulatory Commission vs. C.E.S.C. Limited (supra) is distinguishable on facts. The facts of that case show that the Calcutta High Court had interfered with the exercise undertaken by the appellant for determination of tariff for 2000-2001 and 2001-2002. While setting aside the order of the High Court, this Court considered various issues including the issue relating to cross-subsidy and observed:"A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act shows that the consumers should be charged only for the electricity consumed by them on the basis of average cost of supply of energy, and the tariff should be determined by the State Commission without showing any undue preference to any consumer. The statute also obligates the State Government to bear the subsidy which if it requires to be given to any consumer or any class of consumers, should be only on such conditions that the Commission may fix and such burden should be borne by the Government. However, the High Court in its judgment has directed the Company to maintain its tariff structure in regard to different types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance of cross-subsidy. One of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposing cross-subsidy, but at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to the non-applicability of cross-subsidy, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same."The present one is not a case of giving cross subsidy by the State under Section 29(5) after determination of the tariff. What the State Government had done was to make a commitment before the State Commission that it would provide revenue subsidy of Rs.250 crore for financial year 2003 by making a provision in the State Budget and the Board had clarified that the subsidy was being given for the subsidized supply of electricity to agricultural consumers. The State Government had filed written statement making it clear that no subsidy is being provided for the financial year 2004. The Commission took note of the same and then determined the tariff.Thus, it is not a case in which burden of subsidy has been transferred to other consumers. That apart, the appellants cannot be heard to make a grievance against the so called favourable treatment accorded to certain consumers because they had also availed the benefit of subsidized tariff in the past.The tariff determined for the Railways is in conformity with the demand made by it and we do not find any error in the impugned judgment whereby the High Court rejected their grievance in the matter of fixation of tariff. ### Response: 0 ### Explanation: In the present case, the State Commission has, keeping in view the factors like geographical location of the consumers, the quantum of energy consumed by them, the time at which the energy is supplied to them, the nature of supply etc. fixed different tariffs for different classes of consumers. Therefore, it is not possible to find any fault with the view taken by the High Court that the Commission was entitled to fix different tariff for different consumers and that fixation of lower tariff for certain classes of consumers did not amount to violation of Article 14 of the Constitution.It is also apposite to note that in the past, the Board had been supplying electricity to HT consumers (industrial and commercial), who have been described by this Court in Hindustan Zinc Ltd. v. Andhra Pradesh State Electricity Board (supra) as power guzzlers and tariff was increased for them keeping in view the object of achieving the target of average cost of supply and reducingin the State. In this context, reference can usefully be made to Paragraph 7.5 of the Tariff Order.We also agree with the High Court that the judgment in West Bengal Electricity Regulatory Commission vs. C.E.S.C. Limited (supra) is distinguishable on facts. The facts of that case show that the Calcutta High Court had interfered with the exercise undertaken by the appellant for determination of tariff for2. While setting aside the order of the High Court, this Court considered various issues including the issue relating toand observed:"A perusal of Sections 29(2)(d), 29(3) and 29(5) of the 1998 Act showsthat the consumers should be charged only for the electricity consumedby them on the basis of average cost of supply of energy, and thetariff should be determined by the State Commission without showingany undue preference to any consumer. The statute also obligates theState Government to bear the subsidy which if it requires to be givento any consumer or any class of consumers, should be only on suchconditions that the Commission may fix and such burden should be borneby the Government. However, the High Court in its judgment hasdirected the Company to maintain its tariff structure in regard todifferent types of supplies as it was prevailing before the Commission fixed the new tariff. It also directed the increase in the average rate of tariff which it had permitted to be distributed pro rata by the Company amongst different consumers, so that the percentage of increase of each rate is the same. In effect, therefore, the High Court has directed the continuance ofOne of the reasons given by the High Court in this regard is that Calcutta Tramways which is otherwise running a cheap transportation system might have to increase its fare and the same cannot be permitted since Calcutta Tramways were not heard in the matter of fixation of tariff and there is, therefore, a likelihood of wide discontentment if the fares are to be increased. We have noticed that the object of the 1998 Act is to prevent discrimination in fixation of tariff by imposingbut at the same time under Section 29(5) of the 1998 Act, if the State Government so chooses to subsidise the supply of energy to any particular class of consumers, the same can be done provided of course the burden of loss suffered by the Company is borne by the State Government and not imposed on any other class of consumers. In this view of the matter, we are of the opinion that while the Commission was justified in its view as to they, the High Court was in error in issuing a direction to the Commission, contrary to the object and provisions of the 1998 Act to maintain a tariff structure which was prevailing prior to the Commissions report. It is still open to the State Government if it so chooses to direct the Commission to fix the tariff of supply of electricity to any class of consumers at a reduced rate provided the State Government itself subsidises the same."The present one is not a case of giving cross subsidy by the State under Section 29(5) after determination of the tariff. What the State Government had done was to make a commitment before the State Commission that it would provide revenue subsidy of Rs.250 crore for financial year 2003 by making a provision in the State Budget and the Board had clarified that the subsidy was being given for the subsidized supply of electricity to agricultural consumers. The State Government had filed written statement making it clear that no subsidy is being provided for the financial year 2004. The Commission took note of the same and then determined the tariff.Thus, it is not a case in which burden of subsidy has been transferred to other consumers. That apart, the appellants cannot be heard to make a grievance against the so called favourable treatment accorded to certain consumers because they had also availed the benefit of subsidized tariff in the past.The tariff determined for the Railways is in conformity with the demand made by it and we do not find any error in the impugned judgment whereby the High Court rejected their grievance in the matter of fixation of tariff.

STATE OF U.P Vs. M/S. INDIAN OIL CORPORATION LTD. ETC

reasons also in striking down these legislations. The assessees as well as the States had filed special leave petitions against those judgments. Those cases were heard and decided by the Constitution Bench of this Court in Jindal Stainless Ltd.(2) and Anr. v. State of Haryana and Ors. [2006 (7) SCC 241 ]. 6. Jindal Strips Ltd. is an industry manufacturing products within the State of Haryana. The raw-material is purchased from outside the State. The finished products are sent to other States on consignment basis or stock transfer basis. No sales tax is paid on the input of the raw material. Similarly, no sales tax is paid on the export of finished products. 7. The impugned Act came into force w.e.f. 5th May, 2000, to provide for levy and collection of tax on the entry of goods into the local areas of the State for consumption or use therein. The Act is enacted to provide for levy and collection of tax on the entry into a local area of the State, of a motor vehicle for use or sale, and of other goods for use or consumption therein. The Act seeks to impose entry tax on all goods brought into a local area. The entire State is divided into local areas. The Act covers not only vehicles bringing goods into the State but also vehicles carrying goods from one local area to another. However, those who pay sales tax to the State are exempt from payment of entry tax. Ultimately, the entry tax only falls on concerns, like Jindal Strips, which, by virtue of the provisions of the Central Sales Tax Act, 1956, pay sales tax on purchase of raw-material and sale of finished goods to other States and do not pay sales tax to the State of Haryana. This is the context in which the challenge to the Act under Article 301 has been made. At this stage, we may point out that prior to September 30, 2003, Section 22 stated that the tax collected under the Act shall be distributed by the State Government amongst the local bodies to be utilized for the development of local areas. However, on 30th September, 2003, Section 22 was amended clarifying that the tax levied and collected shall be utilized for facilitating free flow of trade and commerce. REASONS FOR THE REFERRAL ORDER: 8. In Atiabari Tea Co. Ltd. etc. v. State of Assam & Ors., it was held that taxing laws are not excluded from the operation of Article 301, which means that tax laws can and do amount to restrictions on the freedoms guaranteed to trade under Part-XIII of the Constitution. However, the prohibition of restrictions on free trade is not an absolute one. Statutes restrictive of trade can avoid invalidation if they comply with Article 304(a) or (b). 9. In Automobile Transport (Rajasthan) Ltd. (supra), it was held that only such taxes that directly and immediately restrict trade would fall within the purview of Article 301 and that any restriction in the form of taxes imposed on the carriage of goods or their movement by the State Legislature can only be done after satisfying the requirements of Article 304(b). The statute which was challenged in Atiabari Tea Co. (supra) was the Assam Taxation (On Goods Carried By Roads And Inland Waterways) Act, 1954. It was held that the Act had put a direct restriction on the freedom of trade and since the State Legislature had not complied with the provisions of Article 304(b), the Act was declared void. 10. It is in the aforesaid background, reference was made to Nine Judges Bench, as indicated at the outset of this order. 11. We may also mention at this stage that when the matters were argued before the Nine Judges Bench, certain other aspects were also argued. Primarily, three kinds of issues were taken by the assessees which are to the following effect: (1) Whether the entire State can be treated as local area for the purposes of entry tax? (2) Whether entry tax can be levied on the goods which are directly imported from other countries and brought in a particular State?. (3) In some statutes enacted by certain States, there was a provision for giving adjustment of other taxes like VAT, incentives etc. paid by the indigenous manufacturers and it was contended by the assessees that whether the benefits given to certain categories of manufacturers would amount to discrimination under Section 304. 12. The Nine Judges Bench while answering the reference deemed it appropriate to leave these questions to be agitated before the regular Bench. That is how these matters are posted before this Bench and it is agreed that the aforesaid issues are the main issues to be decided. 13. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on compensatory tax theory, as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues. 14. According to us, in the aforesaid scenario, appropriate course of action would be to permit the appellants to file fresh petitions by May 31, 2017, raising the aforesaid issues with necessary factual background or any other constitutional/statutory issue which arises for consideration.

1[ds]13. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on compensatory tax theory, as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues.14. According to us, in the aforesaid scenario, appropriate course of action would be to permit the appellants to file fresh petitions by May 31, 2017, raising the aforesaid issues with necessary factual background or any other constitutional/statutory issue which arises for consideration.

### 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: reasons also in striking down these legislations. The assessees as well as the States had filed special leave petitions against those judgments. Those cases were heard and decided by the Constitution Bench of this Court in Jindal Stainless Ltd.(2) and Anr. v. State of Haryana and Ors. [2006 (7) SCC 241 ]. 6. Jindal Strips Ltd. is an industry manufacturing products within the State of Haryana. The raw-material is purchased from outside the State. The finished products are sent to other States on consignment basis or stock transfer basis. No sales tax is paid on the input of the raw material. Similarly, no sales tax is paid on the export of finished products. 7. The impugned Act came into force w.e.f. 5th May, 2000, to provide for levy and collection of tax on the entry of goods into the local areas of the State for consumption or use therein. The Act is enacted to provide for levy and collection of tax on the entry into a local area of the State, of a motor vehicle for use or sale, and of other goods for use or consumption therein. The Act seeks to impose entry tax on all goods brought into a local area. The entire State is divided into local areas. The Act covers not only vehicles bringing goods into the State but also vehicles carrying goods from one local area to another. However, those who pay sales tax to the State are exempt from payment of entry tax. Ultimately, the entry tax only falls on concerns, like Jindal Strips, which, by virtue of the provisions of the Central Sales Tax Act, 1956, pay sales tax on purchase of raw-material and sale of finished goods to other States and do not pay sales tax to the State of Haryana. This is the context in which the challenge to the Act under Article 301 has been made. At this stage, we may point out that prior to September 30, 2003, Section 22 stated that the tax collected under the Act shall be distributed by the State Government amongst the local bodies to be utilized for the development of local areas. However, on 30th September, 2003, Section 22 was amended clarifying that the tax levied and collected shall be utilized for facilitating free flow of trade and commerce. REASONS FOR THE REFERRAL ORDER: 8. In Atiabari Tea Co. Ltd. etc. v. State of Assam & Ors., it was held that taxing laws are not excluded from the operation of Article 301, which means that tax laws can and do amount to restrictions on the freedoms guaranteed to trade under Part-XIII of the Constitution. However, the prohibition of restrictions on free trade is not an absolute one. Statutes restrictive of trade can avoid invalidation if they comply with Article 304(a) or (b). 9. In Automobile Transport (Rajasthan) Ltd. (supra), it was held that only such taxes that directly and immediately restrict trade would fall within the purview of Article 301 and that any restriction in the form of taxes imposed on the carriage of goods or their movement by the State Legislature can only be done after satisfying the requirements of Article 304(b). The statute which was challenged in Atiabari Tea Co. (supra) was the Assam Taxation (On Goods Carried By Roads And Inland Waterways) Act, 1954. It was held that the Act had put a direct restriction on the freedom of trade and since the State Legislature had not complied with the provisions of Article 304(b), the Act was declared void. 10. It is in the aforesaid background, reference was made to Nine Judges Bench, as indicated at the outset of this order. 11. We may also mention at this stage that when the matters were argued before the Nine Judges Bench, certain other aspects were also argued. Primarily, three kinds of issues were taken by the assessees which are to the following effect: (1) Whether the entire State can be treated as local area for the purposes of entry tax? (2) Whether entry tax can be levied on the goods which are directly imported from other countries and brought in a particular State?. (3) In some statutes enacted by certain States, there was a provision for giving adjustment of other taxes like VAT, incentives etc. paid by the indigenous manufacturers and it was contended by the assessees that whether the benefits given to certain categories of manufacturers would amount to discrimination under Section 304. 12. The Nine Judges Bench while answering the reference deemed it appropriate to leave these questions to be agitated before the regular Bench. That is how these matters are posted before this Bench and it is agreed that the aforesaid issues are the main issues to be decided. 13. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on compensatory tax theory, as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues. 14. According to us, in the aforesaid scenario, appropriate course of action would be to permit the appellants to file fresh petitions by May 31, 2017, raising the aforesaid issues with necessary factual background or any other constitutional/statutory issue which arises for consideration. ### Response: 1 ### Explanation: 13. During the hearing of arguments, counsel for both sides submitted that since the main challenge in the writ petitions, which were filed by the writ petitioners before the High Court, was predicated on the law laid down by the Constitution Bench in Atiabari Tea Co. Ltd. (supra), the High Court essentially confined its discussion only on compensatory tax theory, as propounded in the aforesaid judgment so the High Courts looked at the issue by only keeping in mind the principle propounded in the aforesaid judgment and decided as to whether the tax imposed by a particular statute is compensatory in nature or not. Thus, when other issues are to be dealt with, as indicated above, we find that in many cases there is no adequate factual foundation and there is no discussion in the impugned judgments as well. It is also agreed by counsel for both the sides that in the absence thereof, it may not be possible for this Court to decide these issues.14. According to us, in the aforesaid scenario, appropriate course of action would be to permit the appellants to file fresh petitions by May 31, 2017, raising the aforesaid issues with necessary factual background or any other constitutional/statutory issue which arises for consideration.

Purxomoma Ramanata Quenin Vs. Makan Kalyan Tandel & Others

certain statutory provisions. This circumstance, in our opinion, would not detract from the binding effect of the general principle enunciated in those cases.13. We may now deal with the contention of Mr. Iyengar that the lease of distilleries is governed by para 2 of Article 9 of Legislative Diploma No. 1761. In this connection we find that the judgment of the learned Judicial Commissioner does not show that any such ground was urged before him. Mr. Parekh on behalf of the appellant submits that the said Legislative Diploma was no longer in force at the time the distillery was leased in favour of the appellant. It is, in our opinion, not necessary to go into this aspect because it does not appear that tenders were invited in connection with the lease of the distillery in pursuance of the provisions of Article 9 of the Legislative Diploma. According to para 2 of Article 9 upon which reliance has been place by Mr. Iyengar, the lease can be put to auction in the stipulated conditions when it is found not convenient to renewed the previous one. The aforesaid paragraph, it would thus appear, relates to auction and not to calling of sealed tenders. An auction, as stated in Halsburys Laws of England, Third Edition, Vol. 2, page 69, is a manner of selling or letting property by bids, and usually to the highest bidder by public competition. An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is willing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an offer to chaffer (see Halsburys Laws of England, Third Edition, page 422). There is, in our opinion difference between auction and invitation for tenders. As there was no auction but only invitation for tenders in the present case, it cannot be said that the lease of the distillery was governed by Article 9 of the Legislative Diploma.14. It has been argued by Mr. Iyengar that there must have been some negotiation between the Government and the appellant as a result of which the appellant raised his offer so that it might exceed that of respondent No. 1. This may have been so but it was apparently with a view to ensure that the pecuniary interest of the Government did not suffer as a result of the rejection of the tender of respondent N. 1. The appellant was consequently made to pay Rs. 1,000 more than what had been offered by respondent No. 1.15. Mr. Iyengar has referred to some of the decisions of this Court, but none of them, in our opinion, is of any material assistance to respondent No. 1. In Century Spg. and Mfg. Co. Ltd. v. The Ulhasnagar Municipal Council, (1970) 3 SCR 854 = AIR 1971 SC 1021 ) this Court observed that a public body is not exempt from the liability to carry out its obligations arising out of representation made by it when a citizen who relies upon that representation alters his position to his prejudice. No such question arises in the present case because it is not shown that respondent No. 1 has altered his position to his prejudice by relying upon any representation made by the authorities.16. In Rashbihari Panda v. State of Orissa, (1969), 3 SCR 374 = (AIR 1969 SC 1081 ) this Court dealt with a Government scheme for sale and disposal of Kendu leaves. It was found that the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained contracts in the previous year. The scheme was held to be violative of Articles 14 and 19 (1) (g) because it gave rise to monopoly in Kendu leaves to certain traders. The dictum laid down in the above case cannot be of much assistance because there was no such restriction in the present case with regard to the making of the tenders.17. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh, 1954 SCR 803 = (AIR 1954 SC 224 ) related to the validity of clause 4 (3) of the Uttar Pradesh Coal Control Order, 1953 according to which the licensing authority was given absolute power in the matter of grant, revocation, cancellation or modification of the licences issued under that Order. No such question arises in the present case.18. The last case referred to on behalf of respondent No. 1 is Guruswamy v. State of Mysore, AIR 1954 SC 592 . In that case a liquor contract was knocked down in an auction by the Deputy Commissioner in favour of one. A who was the highest bidder, B who was present at the auction but did not bid, saw the Excise Commissioner and offered Rs. 5,000/- in excess of As bid. Bs offer was accepted and As bid was cancelled. It was held that the cancellation of As bid though irregular was proper as A had obtained no right to the licence by the mere fact that the contract had been knocked down in his favour. The action of the Deputy Commissioner in giving contract to B was held to be wrong as it was found to be contrary to the rules framed under the Mysore Act. No such contravention of a statutory rule has been shown in the present case because of the lease of the distillery in question to the appellant.19. It may be stated that no allegations were made in the writ petition by the respondent No. 1 that the act of the authorities in the grant of lease of the distillery in question to the appellant was mala fide. There arises consequently no occasion for us to into that aspect. Nor has the above act been shown to be vitiated by any such arbitrariness as should call for interference by the Court. Indeed, as mentioned earlier, the matter is concluded by the decisions of this Court.

1[ds]8. There is, in our opinion force in the contention advanced on behalf of the appellant that the Judicial Commissioner should not have without giving some cogent reason set aside the lease of the distillery in favour of the appellant. Pursual of the judgment shows that the main reason which weighed with the learned Judicial Commission in setting aside the lease in favour of the appellant was the submission made on behalf of the State that it was prepared without accepting the correctness of the contentions of respondent No.1 to set aside the lease if the court so desired.This circumstance in our opinion was hardly sufficient to warrant the setting aside of the lease in favour of the appellant. The person who was primarily affected by the setting aside of the lease was the appellant to whom the lease had been granted. In the absence of any concurrence of the appellant, the fact that the Government was prepared if the court so desired, to set aside the lease could hardly provide valid basis for the setting aside of the lease.We may now deal with the contention of Mr. Iyengar that the lease of distilleries is governed by para 2 of Article 9 of Legislative Diploma No. 1761. In this connection we find that the judgment of the learned Judicial Commissioner does not show that any such ground was urged before him. Mr. Parekh on behalf of the appellant submits that the said Legislative Diploma was no longer in force at the time the distillery was leased in favour of the appellant. It is, in our opinion, not necessary to go into this aspect because it does not appear that tenders were invited in connection with the lease of the distillery in pursuance of the provisions of Article 9 of the Legislative Diploma. According to para 2 of Article 9 upon which reliance has been place by Mr. Iyengar, the lease can be put to auction in the stipulated conditions when it is found not convenient to renewed the previous one. The aforesaid paragraph, it would thus appear, relates to auction and not to calling of sealed tenders. An auction, as stated in Halsburys Laws of England, Third Edition, Vol. 2, page 69, is a manner of selling or letting property by bids, and usually to the highest bidder by public competition. An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is willing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an offer to chaffer (see Halsburys Laws of England, Third Edition, page 422). There is, in our opinion difference between auction and invitation for tenders. As there was no auction but only invitation for tenders in the present case, it cannot be said that the lease of the distillery was governed by Article 9 of the Legislative Diploma.14. It has been argued by Mr. Iyengar that there must have been some negotiation between the Government and the appellant as a result of which the appellant raised his offer so that it might exceed that of respondent No. 1. This may have been so but it was apparently with a view to ensure that the pecuniary interest of the Government did not suffer as a result of the rejection of the tender of respondent N. 1. The appellant was consequently made to pay Rs. 1,000 more than what had been offered by respondent No. 1.It may be stated that no allegations were made in the writ petition by the respondent No. 1 that the act of the authorities in the grant of lease of the distillery in question to the appellant was mala fide. There arises consequently no occasion for us to into that aspect. Nor has the above act been shown to be vitiated by any such arbitrariness as should call for interference by the Court. Indeed, as mentioned earlier, the matter is concluded by the decisions of this Court.

### 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: certain statutory provisions. This circumstance, in our opinion, would not detract from the binding effect of the general principle enunciated in those cases.13. We may now deal with the contention of Mr. Iyengar that the lease of distilleries is governed by para 2 of Article 9 of Legislative Diploma No. 1761. In this connection we find that the judgment of the learned Judicial Commissioner does not show that any such ground was urged before him. Mr. Parekh on behalf of the appellant submits that the said Legislative Diploma was no longer in force at the time the distillery was leased in favour of the appellant. It is, in our opinion, not necessary to go into this aspect because it does not appear that tenders were invited in connection with the lease of the distillery in pursuance of the provisions of Article 9 of the Legislative Diploma. According to para 2 of Article 9 upon which reliance has been place by Mr. Iyengar, the lease can be put to auction in the stipulated conditions when it is found not convenient to renewed the previous one. The aforesaid paragraph, it would thus appear, relates to auction and not to calling of sealed tenders. An auction, as stated in Halsburys Laws of England, Third Edition, Vol. 2, page 69, is a manner of selling or letting property by bids, and usually to the highest bidder by public competition. An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is willing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an offer to chaffer (see Halsburys Laws of England, Third Edition, page 422). There is, in our opinion difference between auction and invitation for tenders. As there was no auction but only invitation for tenders in the present case, it cannot be said that the lease of the distillery was governed by Article 9 of the Legislative Diploma.14. It has been argued by Mr. Iyengar that there must have been some negotiation between the Government and the appellant as a result of which the appellant raised his offer so that it might exceed that of respondent No. 1. This may have been so but it was apparently with a view to ensure that the pecuniary interest of the Government did not suffer as a result of the rejection of the tender of respondent N. 1. The appellant was consequently made to pay Rs. 1,000 more than what had been offered by respondent No. 1.15. Mr. Iyengar has referred to some of the decisions of this Court, but none of them, in our opinion, is of any material assistance to respondent No. 1. In Century Spg. and Mfg. Co. Ltd. v. The Ulhasnagar Municipal Council, (1970) 3 SCR 854 = AIR 1971 SC 1021 ) this Court observed that a public body is not exempt from the liability to carry out its obligations arising out of representation made by it when a citizen who relies upon that representation alters his position to his prejudice. No such question arises in the present case because it is not shown that respondent No. 1 has altered his position to his prejudice by relying upon any representation made by the authorities.16. In Rashbihari Panda v. State of Orissa, (1969), 3 SCR 374 = (AIR 1969 SC 1081 ) this Court dealt with a Government scheme for sale and disposal of Kendu leaves. It was found that the right to make tenders for the purchase of Kendu leaves was restricted to those persons who had obtained contracts in the previous year. The scheme was held to be violative of Articles 14 and 19 (1) (g) because it gave rise to monopoly in Kendu leaves to certain traders. The dictum laid down in the above case cannot be of much assistance because there was no such restriction in the present case with regard to the making of the tenders.17. Dwarka Prasad Laxmi Narain v. The State of Uttar Pradesh, 1954 SCR 803 = (AIR 1954 SC 224 ) related to the validity of clause 4 (3) of the Uttar Pradesh Coal Control Order, 1953 according to which the licensing authority was given absolute power in the matter of grant, revocation, cancellation or modification of the licences issued under that Order. No such question arises in the present case.18. The last case referred to on behalf of respondent No. 1 is Guruswamy v. State of Mysore, AIR 1954 SC 592 . In that case a liquor contract was knocked down in an auction by the Deputy Commissioner in favour of one. A who was the highest bidder, B who was present at the auction but did not bid, saw the Excise Commissioner and offered Rs. 5,000/- in excess of As bid. Bs offer was accepted and As bid was cancelled. It was held that the cancellation of As bid though irregular was proper as A had obtained no right to the licence by the mere fact that the contract had been knocked down in his favour. The action of the Deputy Commissioner in giving contract to B was held to be wrong as it was found to be contrary to the rules framed under the Mysore Act. No such contravention of a statutory rule has been shown in the present case because of the lease of the distillery in question to the appellant.19. It may be stated that no allegations were made in the writ petition by the respondent No. 1 that the act of the authorities in the grant of lease of the distillery in question to the appellant was mala fide. There arises consequently no occasion for us to into that aspect. Nor has the above act been shown to be vitiated by any such arbitrariness as should call for interference by the Court. Indeed, as mentioned earlier, the matter is concluded by the decisions of this Court. ### Response: 1 ### Explanation: 8. There is, in our opinion force in the contention advanced on behalf of the appellant that the Judicial Commissioner should not have without giving some cogent reason set aside the lease of the distillery in favour of the appellant. Pursual of the judgment shows that the main reason which weighed with the learned Judicial Commission in setting aside the lease in favour of the appellant was the submission made on behalf of the State that it was prepared without accepting the correctness of the contentions of respondent No.1 to set aside the lease if the court so desired.This circumstance in our opinion was hardly sufficient to warrant the setting aside of the lease in favour of the appellant. The person who was primarily affected by the setting aside of the lease was the appellant to whom the lease had been granted. In the absence of any concurrence of the appellant, the fact that the Government was prepared if the court so desired, to set aside the lease could hardly provide valid basis for the setting aside of the lease.We may now deal with the contention of Mr. Iyengar that the lease of distilleries is governed by para 2 of Article 9 of Legislative Diploma No. 1761. In this connection we find that the judgment of the learned Judicial Commissioner does not show that any such ground was urged before him. Mr. Parekh on behalf of the appellant submits that the said Legislative Diploma was no longer in force at the time the distillery was leased in favour of the appellant. It is, in our opinion, not necessary to go into this aspect because it does not appear that tenders were invited in connection with the lease of the distillery in pursuance of the provisions of Article 9 of the Legislative Diploma. According to para 2 of Article 9 upon which reliance has been place by Mr. Iyengar, the lease can be put to auction in the stipulated conditions when it is found not convenient to renewed the previous one. The aforesaid paragraph, it would thus appear, relates to auction and not to calling of sealed tenders. An auction, as stated in Halsburys Laws of England, Third Edition, Vol. 2, page 69, is a manner of selling or letting property by bids, and usually to the highest bidder by public competition. An invitation to tender is a mere attempt to ascertain whether an offer can be obtained within such margin as the building owner or employer is willing to adopt, or, in other words, is an offer to negotiate, an offer to receive offers, an offer to chaffer (see Halsburys Laws of England, Third Edition, page 422). There is, in our opinion difference between auction and invitation for tenders. As there was no auction but only invitation for tenders in the present case, it cannot be said that the lease of the distillery was governed by Article 9 of the Legislative Diploma.14. It has been argued by Mr. Iyengar that there must have been some negotiation between the Government and the appellant as a result of which the appellant raised his offer so that it might exceed that of respondent No. 1. This may have been so but it was apparently with a view to ensure that the pecuniary interest of the Government did not suffer as a result of the rejection of the tender of respondent N. 1. The appellant was consequently made to pay Rs. 1,000 more than what had been offered by respondent No. 1.It may be stated that no allegations were made in the writ petition by the respondent No. 1 that the act of the authorities in the grant of lease of the distillery in question to the appellant was mala fide. There arises consequently no occasion for us to into that aspect. Nor has the above act been shown to be vitiated by any such arbitrariness as should call for interference by the Court. Indeed, as mentioned earlier, the matter is concluded by the decisions of this Court.

Amina Marwa Sabreen (Minor ) Vs. The State Of Kerala

separately. But they will not be eligible for Communal/Special/Persons with Disabilities reservation or any fee concession. Non-Keralite Category II (NK II) candidates are not eligible for admission to Medical and Allied Courses including MBBS/BDS and for admission to Government Engineering Colleges. Note: The following category of candidates will not be governed by clauses (i), (ii) and (iii) above: Candidates to be admitted in respect of seats reserved for the nominees of Government of India, Administration of Union Territory of Andaman & Nicobar Islands, Lakshadweep Administration, Jammu & Kashmir, candidates selected through the All India quota seats for MBBS/BDS courses and candidates sponsored under reciprocal quota by Government of Karnataka/Tamil Nadu. 9) As is clear from the reading of the aforesaid provision, students seeking admission are put in three categories, namely, Keralite, Non-Keralite Category I (NK I) and Non-Keralite Category II (NK II). Insofar as NK I is concerned, though persons mentioned therein who come under that category are not of Kerala origin, they are also eligible to be considered against State Merit seats for certain courses, including medical courses. Further, NK II candidates are totally excluded from eligibility insofar as admission to medical and allied courses, including MBBS/BDS and for admission to Government Engineering Colleges is concerned. It is this provision which hits the petitioners and makes them ineligible for admission to medical courses. 10) Entire thrust of the argument of the petitioners was that the aforesaid G.O. dated January 30, 2017, which carves out NK II and makes them ineligible for admission to medical and allied courses, including MBBS/BDS, is unconstitutional as it is discriminatory and violative of Articles 14 and 15 of the Constitution of India. This document does not find a mention in the writ petition and not even filed along with the writ petition, but was filed as an additional document subsequent to the filing of the writ petition. In these circumstances, the preliminary submission which is raised by the learned senior counsel appearing for the State of Kerala was that when there is no prayer to quash the aforesaid G.O. dated January 30, 2017, it is not permissible for the petitioners to challenge the validity of this notification by way of oral arguments. We find substance in this preliminary objection raised by the respondent State. 11) We may mention that Mr. Dushyant Dave, learned senior counsel appearing for the petitioners, had made detailed submissions to attack the validity of the aforesaid G.O. and has cited various judgments in support. It may also be mentioned that respondent No.4, which is a minority institution, has supported the case of the petitioners by means of counter affidavit filed by it and at the time of oral hearing also Mr. Huzefa Ahmadi, learned senior counsel appearing for respondent No.4, made scathing attack on the vires of the said G.O. 12) It may also be mentioned that the learned senior counsel appearing for the State of Kerala also advanced detailed arguments refuting the submissions made by the petitioners as well as respondent No.4. He had submitted that there is an All India quota of 15% and in this quota students from all over India, on the basis of their merit, were entitled to get admission in the State run medical colleges as well as private aided and unaided medical colleges. He further submitted that after setting apart the aforesaid quota of 15% for students from all India, it was the prerogative of the State to take students from the State of Kerala alone in respect of the balance 85% seats as these colleges are State colleges and are not having national status. It was additionally submitted that the first phase of counselling to the State quota seats in MBBS/BDS courses in the State have already been completed in accordance with the time schedule fixed by the Medical Council of India and approved by this Court. In that counselling 262 candidates belonging to NK I category (who are otherwise non-Keralities) are given admission. The office of the Commissioner for Entrance Examinations is heading to the activities related to the second phase of counselling to the MBBS/BDS courses along with other medical and allied courses and the second round of allotment is scheduled to be published on August 18, 2017. In Kerala, a total of 1044 seats were available under MBBS course in nine Government medical colleges for allotment by the Commissioner for Entrance Examinations. Also a total of 2050 seats are available for allotment by the Commissioner in eighteen self financing medical colleges in the State of which twelve colleges are minority colleges. Of these twelve colleges, six each belong to Christian and Muslim minorities. He also argued that similar provisions are contained in other States as well, providing 15% seats/quota on All India basis and earmarking 85% seats for the natives. Submission was that the provision in the State of Kerala was more liberal where NK I category was carved out giving some representation to non-Keralites even against 85% quota. However, since we are accepting the argument of the State predicated on the maintainability of the writ petition, it is not necessary to deal with the submissions on merits. 13) Reverting to the preliminary objections raised by the respondent State, as already mentioned above, there is no reference to the G.O. in the entire writ petition. This document is not even part of the writ petition. Therefore, there are no foundational facts and/or pleadings in the writ petition challenging this G.O. as unconstitutional. More importantly, there is no prayer in the writ petition seeking quashing of this G.O. Even when learned counsel for the State had pointed out fundamental infirmity in the writ petition, no attempt was made by the petitioners to amend the writ petition so as to incorporate challenge to the said G.O. as well. In the absence of any pleadings and the prayer seeking quashing of the said G.O., it is not permissible for the petitioners to seek a relief by making oral submissions in this behalf.

0[ds]7) From the aforesaid pleadings and prayers made in the writ petition, it can clearly be discerned that the petitioners are aggrieved by Press Release dated July 01, 2017 and the grievance is that insofar as minority institutions are concerned, they should not be included in the counselling process that is to be undertaken by the State. In that hue, further prayer is that the DGHS should conduction admission to minority medical institutions on All India basis9) As is clear from the reading of the aforesaid provision, students seeking admission are put in three categories, namely, Keralite,e Category I (NK I) ande Category II (NK II). Insofar as NK I is concerned, though persons mentioned therein who come under that category are not of Kerala origin, they are also eligible to be considered against State Merit seats for certain courses, including medical courses. Further, NK II candidates are totally excluded from eligibility insofar as admission to medical and allied courses, including MBBS/BDS and for admission to Government Engineering Colleges is concerned. It is this provision which hits the petitioners and makes them ineligible for admission to medical coursesThis document does not find a mention in the writ petition and not even filed along with the writ petition, but was filed as an additional document subsequent to the filing of the writ petition.In these circumstances, the preliminary submission which is raised by the learned senior counsel appearing for the State of Kerala was that when there is no prayer to quash the aforesaid G.O. dated January 30, 2017, it is not permissible for the petitioners to challenge the validity of this notification by way of oral argumentsWe find substance in this preliminary objection raised by the respondent StateHowever, since we are accepting the argument of the State predicated on the maintainability of the writ petition, it is not necessary to deal with the submissions on merits13) Reverting to the preliminary objections raised by the respondent State, as already mentioned above, there is no reference to the G.O. in the entire writ petition. This document is not even part of the writ petition. Therefore, there are no foundational facts and/or pleadings in the writ petition challenging this G.O. as unconstitutional. More importantly, there is no prayer in the writ petition seeking quashing of this G.O. Even when learned counsel for the State had pointed out fundamental infirmity in the writ petition, no attempt was made by the petitioners to amend the writ petition so as to incorporate challenge to the said G.O. as well. In the absence of any pleadings and the prayer seeking quashing of the said G.O., it is not permissible for the petitioners to seek a relief by making oral submissions in this behalf.

### 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: separately. But they will not be eligible for Communal/Special/Persons with Disabilities reservation or any fee concession. Non-Keralite Category II (NK II) candidates are not eligible for admission to Medical and Allied Courses including MBBS/BDS and for admission to Government Engineering Colleges. Note: The following category of candidates will not be governed by clauses (i), (ii) and (iii) above: Candidates to be admitted in respect of seats reserved for the nominees of Government of India, Administration of Union Territory of Andaman & Nicobar Islands, Lakshadweep Administration, Jammu & Kashmir, candidates selected through the All India quota seats for MBBS/BDS courses and candidates sponsored under reciprocal quota by Government of Karnataka/Tamil Nadu. 9) As is clear from the reading of the aforesaid provision, students seeking admission are put in three categories, namely, Keralite, Non-Keralite Category I (NK I) and Non-Keralite Category II (NK II). Insofar as NK I is concerned, though persons mentioned therein who come under that category are not of Kerala origin, they are also eligible to be considered against State Merit seats for certain courses, including medical courses. Further, NK II candidates are totally excluded from eligibility insofar as admission to medical and allied courses, including MBBS/BDS and for admission to Government Engineering Colleges is concerned. It is this provision which hits the petitioners and makes them ineligible for admission to medical courses. 10) Entire thrust of the argument of the petitioners was that the aforesaid G.O. dated January 30, 2017, which carves out NK II and makes them ineligible for admission to medical and allied courses, including MBBS/BDS, is unconstitutional as it is discriminatory and violative of Articles 14 and 15 of the Constitution of India. This document does not find a mention in the writ petition and not even filed along with the writ petition, but was filed as an additional document subsequent to the filing of the writ petition. In these circumstances, the preliminary submission which is raised by the learned senior counsel appearing for the State of Kerala was that when there is no prayer to quash the aforesaid G.O. dated January 30, 2017, it is not permissible for the petitioners to challenge the validity of this notification by way of oral arguments. We find substance in this preliminary objection raised by the respondent State. 11) We may mention that Mr. Dushyant Dave, learned senior counsel appearing for the petitioners, had made detailed submissions to attack the validity of the aforesaid G.O. and has cited various judgments in support. It may also be mentioned that respondent No.4, which is a minority institution, has supported the case of the petitioners by means of counter affidavit filed by it and at the time of oral hearing also Mr. Huzefa Ahmadi, learned senior counsel appearing for respondent No.4, made scathing attack on the vires of the said G.O. 12) It may also be mentioned that the learned senior counsel appearing for the State of Kerala also advanced detailed arguments refuting the submissions made by the petitioners as well as respondent No.4. He had submitted that there is an All India quota of 15% and in this quota students from all over India, on the basis of their merit, were entitled to get admission in the State run medical colleges as well as private aided and unaided medical colleges. He further submitted that after setting apart the aforesaid quota of 15% for students from all India, it was the prerogative of the State to take students from the State of Kerala alone in respect of the balance 85% seats as these colleges are State colleges and are not having national status. It was additionally submitted that the first phase of counselling to the State quota seats in MBBS/BDS courses in the State have already been completed in accordance with the time schedule fixed by the Medical Council of India and approved by this Court. In that counselling 262 candidates belonging to NK I category (who are otherwise non-Keralities) are given admission. The office of the Commissioner for Entrance Examinations is heading to the activities related to the second phase of counselling to the MBBS/BDS courses along with other medical and allied courses and the second round of allotment is scheduled to be published on August 18, 2017. In Kerala, a total of 1044 seats were available under MBBS course in nine Government medical colleges for allotment by the Commissioner for Entrance Examinations. Also a total of 2050 seats are available for allotment by the Commissioner in eighteen self financing medical colleges in the State of which twelve colleges are minority colleges. Of these twelve colleges, six each belong to Christian and Muslim minorities. He also argued that similar provisions are contained in other States as well, providing 15% seats/quota on All India basis and earmarking 85% seats for the natives. Submission was that the provision in the State of Kerala was more liberal where NK I category was carved out giving some representation to non-Keralites even against 85% quota. However, since we are accepting the argument of the State predicated on the maintainability of the writ petition, it is not necessary to deal with the submissions on merits. 13) Reverting to the preliminary objections raised by the respondent State, as already mentioned above, there is no reference to the G.O. in the entire writ petition. This document is not even part of the writ petition. Therefore, there are no foundational facts and/or pleadings in the writ petition challenging this G.O. as unconstitutional. More importantly, there is no prayer in the writ petition seeking quashing of this G.O. Even when learned counsel for the State had pointed out fundamental infirmity in the writ petition, no attempt was made by the petitioners to amend the writ petition so as to incorporate challenge to the said G.O. as well. In the absence of any pleadings and the prayer seeking quashing of the said G.O., it is not permissible for the petitioners to seek a relief by making oral submissions in this behalf. ### Response: 0 ### Explanation: 7) From the aforesaid pleadings and prayers made in the writ petition, it can clearly be discerned that the petitioners are aggrieved by Press Release dated July 01, 2017 and the grievance is that insofar as minority institutions are concerned, they should not be included in the counselling process that is to be undertaken by the State. In that hue, further prayer is that the DGHS should conduction admission to minority medical institutions on All India basis9) As is clear from the reading of the aforesaid provision, students seeking admission are put in three categories, namely, Keralite,e Category I (NK I) ande Category II (NK II). Insofar as NK I is concerned, though persons mentioned therein who come under that category are not of Kerala origin, they are also eligible to be considered against State Merit seats for certain courses, including medical courses. Further, NK II candidates are totally excluded from eligibility insofar as admission to medical and allied courses, including MBBS/BDS and for admission to Government Engineering Colleges is concerned. It is this provision which hits the petitioners and makes them ineligible for admission to medical coursesThis document does not find a mention in the writ petition and not even filed along with the writ petition, but was filed as an additional document subsequent to the filing of the writ petition.In these circumstances, the preliminary submission which is raised by the learned senior counsel appearing for the State of Kerala was that when there is no prayer to quash the aforesaid G.O. dated January 30, 2017, it is not permissible for the petitioners to challenge the validity of this notification by way of oral argumentsWe find substance in this preliminary objection raised by the respondent StateHowever, since we are accepting the argument of the State predicated on the maintainability of the writ petition, it is not necessary to deal with the submissions on merits13) Reverting to the preliminary objections raised by the respondent State, as already mentioned above, there is no reference to the G.O. in the entire writ petition. This document is not even part of the writ petition. Therefore, there are no foundational facts and/or pleadings in the writ petition challenging this G.O. as unconstitutional. More importantly, there is no prayer in the writ petition seeking quashing of this G.O. Even when learned counsel for the State had pointed out fundamental infirmity in the writ petition, no attempt was made by the petitioners to amend the writ petition so as to incorporate challenge to the said G.O. as well. In the absence of any pleadings and the prayer seeking quashing of the said G.O., it is not permissible for the petitioners to seek a relief by making oral submissions in this behalf.

K. C. Kapoor Vs. Radhika Devi (Dead) By L. Rs. and Others

1959, defendant No. 2 received Rs. 800/- as consideration for the sale covered by exhibit A-l9.(c) No evidence had been produced to show that defend ant No. 2 had income of his own from which he could have saved enough money to be spent on the Lucknow building.We may add that there is definite evidence in the form of exhibit A-99 to the effect that in 1965 the family of defendant No. 2 consisted of nine souls and that he was then holding a subordinate position in the office of the Director of Health Service, U P., at Lucknow with a salary of no more than Rs. 240 per mensem. It goes without saying that his salary w as to meagre to have sufficed for the maintenance of the family and that any savings therefrom were out of question.Although each of the facts just above taken note of, when considered in isolation, may not enable the Court to raise a p resumption of the sufficiency of the requisite nucleus, collectively they constitute a formidable array and practically a clincher in favour of such a presumption, especially in the absence of any attempt on the part of the plaintiffs to produce evidence showing that defendant No. 2 had any source of income of his own other then his salary. And then the failure (referred to above) of plaintiff No. I to step into the witness-box is enough for the Court to raise another presumption, namely, that her deposition would not have supported the plaintiffs case. The onus of proof of the issue on the defendant was, therefore, very light and stood amply discharged by the facts noted in that behalf by the trial court, with whose finding on the point the first appellate court concurred. No case at all was thus made out for interference by the High Court with that finding.13. The High Court did not express any dissent from the conclusion concurrently reached by the trial court and the learned District Judge that the disputed sale constituted an act of prudence A on the part of defendant No. 2 and was on that account for the benefit of the family. We find ourselves in full agreement with that conclusion which too is based on full y reliable evidence and follows logically therefrom, as also with the reasons given by the two courts in support thereof. However, we may point to another significant factor which lends strength to that conclusion, the same being that defendant No. 2 was not only the Karta of the family and its sole adult male member at the time of the sale but was also the father of the only other two coparceners for whom he must naturally be having great affection and whose interests he would surely protect and promote, rather than jeopardise, there being no allegation by the plaintiffs that he was a profligate or had other reason to act to their detriment.14. The Lucknow house being the property of the joint Hindu family consisting of defendant No. 2 and his sons and the disputed sale being an act of good management, the latter must be held to be justified by legal necessity, which expression, as pointed out in Nagindas Maneklal and others v. Mahomed Yusuf Mitchella, (1) is not to be str ictly construed. In that case the facts were very similar to those obtaining here and may be briefly recapitulated. The joint Hindu family had several houses, one of which was in such a dilapidated condition that the Municipality required it to be pulled down. The adult coparceners contracted to sell it to a third person. The joint family was in fairly good circumstances and it was not necessary to sell the house which, however, could not be used by the family for residence and would not have fetched any rent. In a suit for specific performance of the contract to sell instituted by the purchaser, the minor coparceners contended that the contract did not affect their interest in the absence of "necessity" for the sale. In repelling the contention, Shah, J., who delivered the leading judgment of the Division Bench, referred to the manner in which the expression kutumbarthe had been construed by Vijnanesvara in the Mitakshara and observed:"The expression used must be interpreted with due regard to the conditions of modern life. I am not at all sure that Vijnanesvara intended to curtail the scope of the word kutumbarthe while explaining it. I do not see any reason why a restricted interpretation should be placed upon the word necessity so as to exclude a case like the present in which defendants Nos. I and 2, on all the facts proved, properly and wisely decided to get rid of the proper ty which was in such a state as to be a burden to the family. I think that the facts of the case fairly satisfy the test."Fawcett., J., who agreed with these observations added a separate short note of his own and rel ied upon the following passage in Hunoomanpersaud Pandey v. Mussumat Babooee Munraj Koonweree, (1)"But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, t he bona fide lender is no. affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be rearded." (Emphasis supplied)Although these remarks were made in relation to a charge created on the estate of an infant heir by its manager under the Hindu law, it is well settled that the principles governing an alienation of property property of a joint Hindu family by its Karta are identical.15. The perimeters of the expression kutumbarthe, as interpreted in Nagindass case (supra) which meets with our unqualified, approval, fully embrace the facts of the present case in so far as legal necessity for the disputed sale is concerned.

1[ds]8. After hearing learned counsel for the parties at great length we have no hesitation in recording our disagreement with the High Court on the findings reached by it in relation to both the points canvassed before it, namely, those of estoppel and legal A necessity, and are fully satisfied that it stepped outside the limits of its jurisdiction when it interfered with the conclusions of the fact arrived at by the learned District Judge on the basis of fully acceptable evidence and a correct appreciationare clearly of the opinion that the High Court erred in taking either of these circumstances as a minus point for defendant No. 1. In so far as the written statement is concerned it contains a definite plea in para 15 to the effect that if the disputed property is proved to joint be Hindu family property, its transfer was made by the Karta for legal necessity so that it was binding on the family. Was it then incumbent on defendant No. I to further plead how he proposed to prove the legal necessity? This question was pointedly posed to learned counsel for the plaintiffs during the course of arguments and although his answer was in the affirmative, he could quote neither law nor precedent in support of the same.It may also be pointed out that no objection by the plaintiffs was ever taken at any stage of the trial to any lack of particulars of the legal necessity set up by defendant No. I in paragraph 15 of the written statement. On the other hand they were fully posted about what case they have to meet on the point by reason of the contents of that paragraph itself in which it was specifically asserted that the disputed house was sold by defendant No. 2 "for the purpose of building a more profitable and advantageous house at Lucknow and with a view to dispose of a construction which was old and in perilous condition and which was of no present utility." In view of this averment it was fully open to defendant No. 1 to prove by evidence that putting up a second storey in the Lucknow house constituted legal necessity and, in the process, to establish that the Lucknow house was owned by the said coparcenary. Again, no objection was taken at the evidence stage to the right of defendant No. I to show that the Lucknow house was so owned and thereby to prove the existence of legal necessity for the sale. No fault can thus be found with the case of defendant No. l on the ground of his failure to take a specific plea in the written statement abount the ownership of that house vesting in thewas the High Court right in putting the construction that A it did on the testimony of defendant No. I as DW-3 to the effect that to hi s knowledge defendant No. 2 was the sole owner of the Lucknow house. Obviously all that he meant was that according to such knowledge as he had, the Lucknow house vested in the exclusive ownership of defendant No. 2; and that knowledge, in the circumstances of the case, could be no more than a belief arising from what he was told by defendant No. 2 who had been at pains to stake his claim to the exclusive ownership of all the property under his control, including the property left b y his father. In this connection we cannot lose sight of the fact that defendant No. 1 was a total stranger to the family of the plaintiffs and in the very nature of things could not have had any personal knowledge referable to the actual manner in and the precise source from which either the Lucknow house or, for that matter, the Rae Bareli property was acquired, such manner and source being within the special knowledge of plaintiff No. I and defendant No. 2 only. That part of t he deposition of defendant No. I which the High Court has pressed into service against him, cannot, therefore, form the basis of solution to the question of the ownership of the property.12. In the present case both plaintiff No. l and defendant No. 2 have stayed away from the witness-box and have thus deprived the Court of the only real evidence which could throw light on the source of the consideration paid for the purchase of the Luck- now house. There may be some force in the argument that no duty was cast upon defendant No. 2 to appear as a witness in as much as he was not a contesting party, but than such an excuse is not open to plaintiff No. 1 who was actively contesting the case in the trial Court on behalf of herself and her two grand-children. It is in the light of this significant circumstance that the Court must decide whether or not defendant No. l has been able to discharge the burden of proving that the Lucknow house was purchased with joint Hindu family funds. This important aspect of the matter was completely lost on the High Court although it was an unassailable ground when it formulated the proposition that before a presumption could be raised that a property acquired by a member of a joint Hindu family could be regarded as the property of the family, it must be shown that the family owned other property which could be regarded as a nucleus providing a sufficient source for the later acquisition. Furthermore, in assessing the evidence on that point, the High Court referred only to two facts, namely, that S.D. Misra left immovable property and cash at the time of his death and that property continued to yield some income thereafter, but paid no heed to at least three other important circumstances which had been listed by the trial court in support of the finding that a sufficient nucleus for the purchase had been proved. Those circumstancesThe family received compensation for theeach of the facts just above taken note of, when considered in isolation, may not enable the Court to raise a p resumption of the sufficiency of the requisite nucleus, collectively they constitute a formidable array and practically a clincher in favour of such a presumption, especially in the absence of any attempt on the part of the plaintiffs to produce evidence showing that defendant No. 2 had any source of income of his own other then his salary. And then the failure (referred to above) of plaintiff No. I to step into the witness-box is enough for the Court to raise another presumption, namely, that her deposition would not have supported the plaintiffs case. The onus of proof of the issue on the defendant was, therefore, very light and stood amply discharged by the facts noted in that behalf by the trial court, with whose finding on the point the first appellate court concurred. No case at all was thus made out for interference by the High Court with thatthese remarks were made in relation to a charge created on the estate of an infant heir by its manager under the Hindu law, it is well settled that the principles governing an alienation of property property of a joint Hindu family by its Karta are identical.After hearing learned counsel for the parties at great length we have no hesitation in recording our disagreement with the High Court on the findings reached by it in relation to both the points canvassed before it, namely, those of estoppel and legal A necessity, and are fully satisfied that it stepped outside the limits of its jurisdiction when it interfered with the conclusions of the fact arrived at by the learned District Judge on the basis of fully acceptable evidence and a correct appreciationffs Nos. 2 and 3 being minors that question does not arise in their case and it is only in relation to the half share of plaintiff No. I in the disputed property that it calls for ait is true that defendant No. I had made enquiries regarding the title of defendant No. 2 to the property in dispute and the latter had made an unequivocal representation that he alone was the owner thereof, but then it was only after the lady ha d been consulted and had told her son to go ahead with what he thought proper as he was the owner of the property that receipt exhibitwas executed. Till then defendant No. I was not fully satisfied about the title of defendant No. 2 and had not only raised the question with defendant No. I at Lucknow but even after the assurance given by the latter in communication exhibitinsisted on the municipal records being produced for his inspection. The inquiry into the title was, th erefore, very much in progress when defendant No. 2 consulted his mother in the presence of defendant No. 1. This was presumably done to ally the lurking suspicion in the mind of defendant No. 2 as to the title to the entire property vesting in defendan t No.contention suffers from two important infirmities. Under section 3 of the 1937 Act, plaintiff No. I would have succeeded to a half share only if S.D. Misra had died intestate. So the question would be whether or not S.D. Misra left a will. The concession made before the High Court on the point of inheritence of a half share by plaintiff No, I was obviously based not on any facts within the knowledge of defendant No. 1 but on the circumstance that nobody had talked of any will by S.D. Misra. Whether or not such a will was made was a fact specially within the knowledge of plaintiff No. I and, as stated earlier, that she remained absent from the witness box so that the Court is left in the dark as to what was the actual state of affairs. The onus of proof of the allegation that she was the owner of a half share in the property at the time of the sale was on her and she was duty bound to depose to facts which would make section 3 a foresaid applicable to her case. Her failure to depose to the existence thereof must result in a finding that she has failed to prove the issue., even if it be assumed that plaintiff No. I succeeded to a half share in the p roperty of S.D. Misra, there was no impediment in the way of her relinquishing that share in favour of her son either immediately after her husbands death or at any other point of time prior to the disputed sale. This aspect of the matter canno t be lost sight of in view of the fact that on S. D. Misras death all his property was mutated in favour of his son to the exclusion of plaintiff No. 1 and was all along being dealt with by him as its sole and absolute owner without any objection whatsover having been raised by her at any point of time to such exclusion orthe above situation defendant No. I was fully justified in A accepting her word on the point of ownership, the said section 3 notwithstanding.e above discussion of the evidence has been entered into by us merely to show that the finding given by the learned District Judge on the point of estoppel was eminently reasonable and that the short ground on which the High Court turned the tables on defendant No. I was untenable. That finding of the District Judge being a finding of fact and being based on good evidence, it was not open to the High Court to interfere with it in a secondcombined reading of paragraphs 14 and 16 of the written statement, hower, furnishes a complete answer to the contention. The representation said to have been made by plaintiff No. I is set out in paragraph 14 while the plea that she was estopped from contesting the sale is taken in paragraph 16. It is true that the plea last mentioned is linked with "the active consent and approval of plaintiff No. I and not in so many words with the said representation. It can also not be disputed that defendant No. I did not specifically state that he purchased the disputed property in the belief that the representation was true and that he would not have entered into the transaction but for that belief. Thus undoubtedly the written statement is inartistically drafted and leaves much to be desired, but then pleadings are not to be construed in such a hypertechnical manner and what is to be seen is whether the allegations made in paragraphs 14 and 16 gave sufficient notice to the plaintiffs of what case they had to meet. In this connection we may refer to the significant fact that no objection to the lack of particulars was taken at the stage when issues were framed or later when statements of parties counsel were recorded on a subsequent occasion or during the course of arguments addressed to the trial Court, the District Judge and the High Court. even though the issue of estoppel was hotly contested before all three of them. All these circumstances unmistakably indicate that the case put forward by defendant No. I was throughout understood by the plaintiffs to be that it was the belief induced in him by the representation of plaintiff No. l which made him accept the tit le of defendant No. 2 as bein exclusive. In this view of the matter it is too late in the day for the plaintiffs to raise the contention under consideration and we have no hesitation in rejecting it asthis connection the High Court observed that not only defendant No. I did not plead in his written statement that the Lucknow house was the property of the coparcenary but that he also stated in the witness box asthat to his knowledge defendant No. I was the so le owner of that house.

### 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: 1959, defendant No. 2 received Rs. 800/- as consideration for the sale covered by exhibit A-l9.(c) No evidence had been produced to show that defend ant No. 2 had income of his own from which he could have saved enough money to be spent on the Lucknow building.We may add that there is definite evidence in the form of exhibit A-99 to the effect that in 1965 the family of defendant No. 2 consisted of nine souls and that he was then holding a subordinate position in the office of the Director of Health Service, U P., at Lucknow with a salary of no more than Rs. 240 per mensem. It goes without saying that his salary w as to meagre to have sufficed for the maintenance of the family and that any savings therefrom were out of question.Although each of the facts just above taken note of, when considered in isolation, may not enable the Court to raise a p resumption of the sufficiency of the requisite nucleus, collectively they constitute a formidable array and practically a clincher in favour of such a presumption, especially in the absence of any attempt on the part of the plaintiffs to produce evidence showing that defendant No. 2 had any source of income of his own other then his salary. And then the failure (referred to above) of plaintiff No. I to step into the witness-box is enough for the Court to raise another presumption, namely, that her deposition would not have supported the plaintiffs case. The onus of proof of the issue on the defendant was, therefore, very light and stood amply discharged by the facts noted in that behalf by the trial court, with whose finding on the point the first appellate court concurred. No case at all was thus made out for interference by the High Court with that finding.13. The High Court did not express any dissent from the conclusion concurrently reached by the trial court and the learned District Judge that the disputed sale constituted an act of prudence A on the part of defendant No. 2 and was on that account for the benefit of the family. We find ourselves in full agreement with that conclusion which too is based on full y reliable evidence and follows logically therefrom, as also with the reasons given by the two courts in support thereof. However, we may point to another significant factor which lends strength to that conclusion, the same being that defendant No. 2 was not only the Karta of the family and its sole adult male member at the time of the sale but was also the father of the only other two coparceners for whom he must naturally be having great affection and whose interests he would surely protect and promote, rather than jeopardise, there being no allegation by the plaintiffs that he was a profligate or had other reason to act to their detriment.14. The Lucknow house being the property of the joint Hindu family consisting of defendant No. 2 and his sons and the disputed sale being an act of good management, the latter must be held to be justified by legal necessity, which expression, as pointed out in Nagindas Maneklal and others v. Mahomed Yusuf Mitchella, (1) is not to be str ictly construed. In that case the facts were very similar to those obtaining here and may be briefly recapitulated. The joint Hindu family had several houses, one of which was in such a dilapidated condition that the Municipality required it to be pulled down. The adult coparceners contracted to sell it to a third person. The joint family was in fairly good circumstances and it was not necessary to sell the house which, however, could not be used by the family for residence and would not have fetched any rent. In a suit for specific performance of the contract to sell instituted by the purchaser, the minor coparceners contended that the contract did not affect their interest in the absence of "necessity" for the sale. In repelling the contention, Shah, J., who delivered the leading judgment of the Division Bench, referred to the manner in which the expression kutumbarthe had been construed by Vijnanesvara in the Mitakshara and observed:"The expression used must be interpreted with due regard to the conditions of modern life. I am not at all sure that Vijnanesvara intended to curtail the scope of the word kutumbarthe while explaining it. I do not see any reason why a restricted interpretation should be placed upon the word necessity so as to exclude a case like the present in which defendants Nos. I and 2, on all the facts proved, properly and wisely decided to get rid of the proper ty which was in such a state as to be a burden to the family. I think that the facts of the case fairly satisfy the test."Fawcett., J., who agreed with these observations added a separate short note of his own and rel ied upon the following passage in Hunoomanpersaud Pandey v. Mussumat Babooee Munraj Koonweree, (1)"But where, in the particular instance, the charge is one that a prudent owner would make, in order to benefit the estate, t he bona fide lender is no. affected by the precedent mismanagement of the estate. The actual pressure on the estate, the danger to be averted, or the benefit to be conferred upon it, in the particular instance, is the thing to be rearded." (Emphasis supplied)Although these remarks were made in relation to a charge created on the estate of an infant heir by its manager under the Hindu law, it is well settled that the principles governing an alienation of property property of a joint Hindu family by its Karta are identical.15. The perimeters of the expression kutumbarthe, as interpreted in Nagindass case (supra) which meets with our unqualified, approval, fully embrace the facts of the present case in so far as legal necessity for the disputed sale is concerned. ### Response: 1 ### Explanation: No. I had made enquiries regarding the title of defendant No. 2 to the property in dispute and the latter had made an unequivocal representation that he alone was the owner thereof, but then it was only after the lady ha d been consulted and had told her son to go ahead with what he thought proper as he was the owner of the property that receipt exhibitwas executed. Till then defendant No. I was not fully satisfied about the title of defendant No. 2 and had not only raised the question with defendant No. I at Lucknow but even after the assurance given by the latter in communication exhibitinsisted on the municipal records being produced for his inspection. The inquiry into the title was, th erefore, very much in progress when defendant No. 2 consulted his mother in the presence of defendant No. 1. This was presumably done to ally the lurking suspicion in the mind of defendant No. 2 as to the title to the entire property vesting in defendan t No.contention suffers from two important infirmities. Under section 3 of the 1937 Act, plaintiff No. I would have succeeded to a half share only if S.D. Misra had died intestate. So the question would be whether or not S.D. Misra left a will. The concession made before the High Court on the point of inheritence of a half share by plaintiff No, I was obviously based not on any facts within the knowledge of defendant No. 1 but on the circumstance that nobody had talked of any will by S.D. Misra. Whether or not such a will was made was a fact specially within the knowledge of plaintiff No. I and, as stated earlier, that she remained absent from the witness box so that the Court is left in the dark as to what was the actual state of affairs. The onus of proof of the allegation that she was the owner of a half share in the property at the time of the sale was on her and she was duty bound to depose to facts which would make section 3 a foresaid applicable to her case. Her failure to depose to the existence thereof must result in a finding that she has failed to prove the issue., even if it be assumed that plaintiff No. I succeeded to a half share in the p roperty of S.D. Misra, there was no impediment in the way of her relinquishing that share in favour of her son either immediately after her husbands death or at any other point of time prior to the disputed sale. This aspect of the matter canno t be lost sight of in view of the fact that on S. D. Misras death all his property was mutated in favour of his son to the exclusion of plaintiff No. 1 and was all along being dealt with by him as its sole and absolute owner without any objection whatsover having been raised by her at any point of time to such exclusion orthe above situation defendant No. I was fully justified in A accepting her word on the point of ownership, the said section 3 notwithstanding.e above discussion of the evidence has been entered into by us merely to show that the finding given by the learned District Judge on the point of estoppel was eminently reasonable and that the short ground on which the High Court turned the tables on defendant No. I was untenable. That finding of the District Judge being a finding of fact and being based on good evidence, it was not open to the High Court to interfere with it in a secondcombined reading of paragraphs 14 and 16 of the written statement, hower, furnishes a complete answer to the contention. The representation said to have been made by plaintiff No. I is set out in paragraph 14 while the plea that she was estopped from contesting the sale is taken in paragraph 16. It is true that the plea last mentioned is linked with "the active consent and approval of plaintiff No. I and not in so many words with the said representation. It can also not be disputed that defendant No. I did not specifically state that he purchased the disputed property in the belief that the representation was true and that he would not have entered into the transaction but for that belief. Thus undoubtedly the written statement is inartistically drafted and leaves much to be desired, but then pleadings are not to be construed in such a hypertechnical manner and what is to be seen is whether the allegations made in paragraphs 14 and 16 gave sufficient notice to the plaintiffs of what case they had to meet. In this connection we may refer to the significant fact that no objection to the lack of particulars was taken at the stage when issues were framed or later when statements of parties counsel were recorded on a subsequent occasion or during the course of arguments addressed to the trial Court, the District Judge and the High Court. even though the issue of estoppel was hotly contested before all three of them. All these circumstances unmistakably indicate that the case put forward by defendant No. I was throughout understood by the plaintiffs to be that it was the belief induced in him by the representation of plaintiff No. l which made him accept the tit le of defendant No. 2 as bein exclusive. In this view of the matter it is too late in the day for the plaintiffs to raise the contention under consideration and we have no hesitation in rejecting it asthis connection the High Court observed that not only defendant No. I did not plead in his written statement that the Lucknow house was the property of the coparcenary but that he also stated in the witness box asthat to his knowledge defendant No. I was the so le owner of that house.

Vijendra Nath & Ors Vs. Jagdish Rai Aggarwal & Ors

shall, except with the previous permission in writing of the competent authority,- (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area, or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or 1and in such area, execute such decree or order. 2. Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. 3.On receipt of such applications, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. 4. In granting or refusing to grant the permission under sub-section (3), the competent authority shall take into account the following factors, namely:(a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum areas; (c) such other factors, if any, as may be prescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant," During the pendency of the appeal from the order dated August 7, 1964, the application for execution filed on July 22, 1964, had been consigned to the record room. For this reason on March 23, 1965, the respondent filed another application for execution of the decree. The object of this application was to revive the substantive application for execution which was filed on July 22, 1964 and which was still pending. The application made on March 23, 1965, must be regarded as a continuation of the execution proceeding commenced on July 22, 1964.The tenant filed fresh objections to the execution of the decree. He contended that the respondents were not entitled to execute the decree without obtaining a fresh permission from the competent authority under the new S. I9 inserted by the Slum Areas (Improvement and Clearance) Amendment Act, 1964. The objections were dismissed by the executing court on April 27, 1965. The order was confirmed by the appellate court on June 9, 1965. A revision petition to the High Court was dismissed on December 15,1965, During the pendency of the revision petition, the tenant died and the appellants were brought on the record as his legal representatives. The appellants have now filed this appeal by Special leave. 3. Sub-section (1) (a) of Section 19 inserted by the Amending Act bars the institution of any suit for obtaining a decree for the eviction of any tenant from any building in a slum area after the commencement of the Amending Act without the previous permission in writing of the competent authority. This provision has no application the present case because before the commencement of the Amending Act the respondents had instituted a suit and obtained a decree for the eviction of the tenant. Sub-section 1 (a) of the newly inserted S. 19 imposes a bar on the execution of a decree for the eviction of a tenant from any building in a slum, area obtained in any suit instituted before the commencement of the Amending Act without the previous permission in writing of the competent authority. The bar under Section 19 operates notwithstanding anything contained in any other law for the time being in force. In granting or refusing the permission under the new Section 19, the competent authority is required to take into account certain matters which it was not bound to take into account under the repealed Section 19. Now on July 22, 1964 before the commencement of the Amending Act, the respondents had filed the application for execution of the decree for eviction of the tenant after obtaining the requisite permission of the competent authority under the repealed Section 19. Under the law then in force this application for execution was competent. The question is whether this application is rendered incompetent by the absence of a fresh permission from the competent authority under the newly inserted Section 19. 4. Unless the Amending Act affects the pending execution proceeding by express words or by necessary implication, the rights of the parties in the pending proceeding must be decided according to the law in force at the time when the proceeding was commenced and the decree-holder will be entitled to continue the proceeding without obtaining a fresh permission from the competent authority. We think that the new Section 19 inserted by the Amending Act does not affect a pending execution proceeding either expressly or by necessary implication and makes no change in the law applicable to the proceeding. The newly inserted Section 19 does not provide for stay of the pending proceeding nor does it otherwise show any clear intentions to vary the rights of the parties in the proceeding. If we are to hold that the pending application for execution is liable to be dismissed in the absence of the previous permission of the competent authority under the newly inserted Section 19, the decree-holder would be entirely without a remedy in a case where a fresh application for execution would be barred by limitation. The legislature could not have intended such a result. The rights of the parties in the pending application must be decided according to the law as it existed on July 22, 1964, when the application was filed and the execution of the decree commenced. Under the law then in force, the application was competent. The objections filed by the tenant were, therefore, rightly dismissed by the courts below.

0[ds]3. Sub-section (1) (a) of Section 19 inserted by the Amending Act bars the institution of any suit for obtaining a decree for the eviction of any tenant from any building in a slum area after the commencement of the Amending Act without the previous permission in writing of the competent authority. This provision has no application the present case because before the commencement of the Amending Act the respondents had instituted a suit and obtained a decree for the eviction of the tenant. Sub-section 1 (a) of the newly inserted S. 19 imposes a bar on the execution of a decree for the eviction of a tenant from any building in a slum, area obtained in any suit instituted before the commencement of the Amending Act without the previous permission in writing of the competent authority. The bar under Section 19 operates notwithstanding anything contained in any other law for the time being in force. In granting or refusing the permission under the new Section 19, the competent authority is required to take into account certain matters which it was not bound to take into account under the repealed Section 19. Now on July 22, 1964 before the commencement of the Amending Act, the respondents had filed the application for execution of the decree for eviction of the tenant after obtaining the requisite permission of the competent authority under the repealed Section 19. Under the law then in force this application for execution was competent4. Unless the Amending Act affects the pending execution proceeding by express words or by necessary implication, the rights of the parties in the pending proceeding must be decided according to the law in force at the time when the proceeding was commenced and the decree-holder will be entitled to continue the proceeding without obtaining a fresh permission from the competent authority. We think that the new Section 19 inserted by the Amending Act does not affect a pending execution proceeding either expressly or by necessary implication and makes no change in the law applicable to the proceeding. The newly inserted Section 19 does not provide for stay of the pending proceeding nor does it otherwise show any clear intentions to vary the rights of the parties in the proceeding. If we are to hold that the pending application for execution is liable to be dismissed in the absence of the previous permission of the competent authority under the newly inserted Section 19, the decree-holder would be entirely without a remedy in a case where a fresh application for execution would be barred by limitation. The legislature could not have intended such a result. The rights of the parties in the pending application must be decided according to the law as it existed on July 22, 1964, when the application was filed and the execution of the decree commenced. Under the law then in force, the application was competent. The objections filed by the tenant were, therefore, rightly dismissed by the courts below.

### 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: shall, except with the previous permission in writing of the competent authority,- (a) institute, after the commencement of the Slum Areas (Improvement and Clearance) Amendment Act, 1964, any suit or proceeding for obtaining any decree or order for the eviction of a tenant from any building or land in a slum area, or (b) where any decree or order is obtained in any suit or proceeding instituted before such commencement for the eviction of a tenant from any building or 1and in such area, execute such decree or order. 2. Every person desiring to obtain the permission referred to in sub-section (1) shall make an application in writing to the competent authority in such form and containing such particulars as may be prescribed. 3.On receipt of such applications, the competent authority, after giving an opportunity to the parties of being heard and after making such summary inquiry into the circumstances of the case as it thinks fit, shall by order in writing, either grant or refuse to grant such permission. 4. In granting or refusing to grant the permission under sub-section (3), the competent authority shall take into account the following factors, namely:(a) whether alternative accommodation within the means of the tenant would be available to him if he were evicted; (b) whether the eviction is in the interest of improvement and clearance of the slum areas; (c) such other factors, if any, as may be prescribed. (5) Where the competent authority refuses to grant the permission, it shall record a brief statement of the reasons for such refusal and furnish a copy thereof to the applicant," During the pendency of the appeal from the order dated August 7, 1964, the application for execution filed on July 22, 1964, had been consigned to the record room. For this reason on March 23, 1965, the respondent filed another application for execution of the decree. The object of this application was to revive the substantive application for execution which was filed on July 22, 1964 and which was still pending. The application made on March 23, 1965, must be regarded as a continuation of the execution proceeding commenced on July 22, 1964.The tenant filed fresh objections to the execution of the decree. He contended that the respondents were not entitled to execute the decree without obtaining a fresh permission from the competent authority under the new S. I9 inserted by the Slum Areas (Improvement and Clearance) Amendment Act, 1964. The objections were dismissed by the executing court on April 27, 1965. The order was confirmed by the appellate court on June 9, 1965. A revision petition to the High Court was dismissed on December 15,1965, During the pendency of the revision petition, the tenant died and the appellants were brought on the record as his legal representatives. The appellants have now filed this appeal by Special leave. 3. Sub-section (1) (a) of Section 19 inserted by the Amending Act bars the institution of any suit for obtaining a decree for the eviction of any tenant from any building in a slum area after the commencement of the Amending Act without the previous permission in writing of the competent authority. This provision has no application the present case because before the commencement of the Amending Act the respondents had instituted a suit and obtained a decree for the eviction of the tenant. Sub-section 1 (a) of the newly inserted S. 19 imposes a bar on the execution of a decree for the eviction of a tenant from any building in a slum, area obtained in any suit instituted before the commencement of the Amending Act without the previous permission in writing of the competent authority. The bar under Section 19 operates notwithstanding anything contained in any other law for the time being in force. In granting or refusing the permission under the new Section 19, the competent authority is required to take into account certain matters which it was not bound to take into account under the repealed Section 19. Now on July 22, 1964 before the commencement of the Amending Act, the respondents had filed the application for execution of the decree for eviction of the tenant after obtaining the requisite permission of the competent authority under the repealed Section 19. Under the law then in force this application for execution was competent. The question is whether this application is rendered incompetent by the absence of a fresh permission from the competent authority under the newly inserted Section 19. 4. Unless the Amending Act affects the pending execution proceeding by express words or by necessary implication, the rights of the parties in the pending proceeding must be decided according to the law in force at the time when the proceeding was commenced and the decree-holder will be entitled to continue the proceeding without obtaining a fresh permission from the competent authority. We think that the new Section 19 inserted by the Amending Act does not affect a pending execution proceeding either expressly or by necessary implication and makes no change in the law applicable to the proceeding. The newly inserted Section 19 does not provide for stay of the pending proceeding nor does it otherwise show any clear intentions to vary the rights of the parties in the proceeding. If we are to hold that the pending application for execution is liable to be dismissed in the absence of the previous permission of the competent authority under the newly inserted Section 19, the decree-holder would be entirely without a remedy in a case where a fresh application for execution would be barred by limitation. The legislature could not have intended such a result. The rights of the parties in the pending application must be decided according to the law as it existed on July 22, 1964, when the application was filed and the execution of the decree commenced. Under the law then in force, the application was competent. The objections filed by the tenant were, therefore, rightly dismissed by the courts below. ### Response: 0 ### Explanation: 3. Sub-section (1) (a) of Section 19 inserted by the Amending Act bars the institution of any suit for obtaining a decree for the eviction of any tenant from any building in a slum area after the commencement of the Amending Act without the previous permission in writing of the competent authority. This provision has no application the present case because before the commencement of the Amending Act the respondents had instituted a suit and obtained a decree for the eviction of the tenant. Sub-section 1 (a) of the newly inserted S. 19 imposes a bar on the execution of a decree for the eviction of a tenant from any building in a slum, area obtained in any suit instituted before the commencement of the Amending Act without the previous permission in writing of the competent authority. The bar under Section 19 operates notwithstanding anything contained in any other law for the time being in force. In granting or refusing the permission under the new Section 19, the competent authority is required to take into account certain matters which it was not bound to take into account under the repealed Section 19. Now on July 22, 1964 before the commencement of the Amending Act, the respondents had filed the application for execution of the decree for eviction of the tenant after obtaining the requisite permission of the competent authority under the repealed Section 19. Under the law then in force this application for execution was competent4. Unless the Amending Act affects the pending execution proceeding by express words or by necessary implication, the rights of the parties in the pending proceeding must be decided according to the law in force at the time when the proceeding was commenced and the decree-holder will be entitled to continue the proceeding without obtaining a fresh permission from the competent authority. We think that the new Section 19 inserted by the Amending Act does not affect a pending execution proceeding either expressly or by necessary implication and makes no change in the law applicable to the proceeding. The newly inserted Section 19 does not provide for stay of the pending proceeding nor does it otherwise show any clear intentions to vary the rights of the parties in the proceeding. If we are to hold that the pending application for execution is liable to be dismissed in the absence of the previous permission of the competent authority under the newly inserted Section 19, the decree-holder would be entirely without a remedy in a case where a fresh application for execution would be barred by limitation. The legislature could not have intended such a result. The rights of the parties in the pending application must be decided according to the law as it existed on July 22, 1964, when the application was filed and the execution of the decree commenced. Under the law then in force, the application was competent. The objections filed by the tenant were, therefore, rightly dismissed by the courts below.

Abdul Karim And Others Vs. State Of West Bengal

necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality.It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the view point contended for by the respondent is correct, the constitutional right under Article 22 (5) would be rendered illusory. Take for instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. It is obvious that apart from the procedure of reference to the Advisory Board, the State Government has ample power under Section 13 of the Act to revoke any order of detention at any time. If the right of representation in such a case is to be real and not illusory, there is a legal obligation imposed upon the State Government to consider the representation and to take appropriate action thereon. Otherwise the right of representation conferred by Article 22 (5) of the Constitution would be rendered nugatory. The argument of Mr. Debabrata Mukherjee as regards the construction of Article 22 (5) cannot also be correct for another reason. Under Article 22 clause (4) of the Constitution, it is open to Parliament to make a law providing for preventive detention for a period of less than three months without the cause of detention being investigated by an Advisory Board. It is clear that the right of representation conferred by clause (5) of Article 22 does not depend upon the duration of period of detention. Even if the period of detention is less than three months, the detenu has a constitutional right of representation. It is also important to notice that under Article 22 (7) Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes a law contemplated by Article 22 (7) of the Constitution, the detaining authority is under no legal obligation to consider the representation made by the detenu under Article 22 (5).12. Faced with this difficulty counsel on behalf of the respondent conceded that in a case where the detention is for a period of less than three months or in a case contemplated by Article 22 (7), the State Government will be legally obliged to consider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was not necessary for the State Government to consider the representation. We are unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22 (5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes of detenus.It is manifest that the right under Article 22 (5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference is made.13. In the present case, Sk. Abdul Karim has alleged that his representation was not considered by the State Government before it was forwarded to the Advisory Board. This allegation is not controverted in the counter-affidavit filed on behalf of the respondent. What is at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendered illegal. Accordingly, the order of detention dated 17th February, 1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and petitioner No, 2 Sk. Abdul Karim was entitled to be released.

1[ds]On behalf of the respondent it was said that there was no express language in Article 22 (5) requiring the State Government to consider the representation of the detenu.But it is a necessary implication of the language of Article 22 (5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality.It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board isis at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendereds of the respondent are somewhat vague and the allegation of the petitioner has not been categoricallyare unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22 (5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes ofis manifest that the right under Article 22 (5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence orof an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference isallegation is not controverted in thefiled on behalf of the respondent. Whatis at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be renderedillegal. Accordingly, the order of detention dated 17th February, 1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and petitioner No, 2 Sk. Abdul Karim was entitled to be released.

### 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: necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality.It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board is reached. If the view point contended for by the respondent is correct, the constitutional right under Article 22 (5) would be rendered illusory. Take for instance a case of detention of a person on account of mistaken identity. If the order of detention has been made against A and a different person B is arrested and detained by the police authorities because of similarity of names or some such cause, it cannot be reasonably said that the State Government should wait for the report of the Advisory Board before releasing the wrong person from detention. It is obvious that apart from the procedure of reference to the Advisory Board, the State Government has ample power under Section 13 of the Act to revoke any order of detention at any time. If the right of representation in such a case is to be real and not illusory, there is a legal obligation imposed upon the State Government to consider the representation and to take appropriate action thereon. Otherwise the right of representation conferred by Article 22 (5) of the Constitution would be rendered nugatory. The argument of Mr. Debabrata Mukherjee as regards the construction of Article 22 (5) cannot also be correct for another reason. Under Article 22 clause (4) of the Constitution, it is open to Parliament to make a law providing for preventive detention for a period of less than three months without the cause of detention being investigated by an Advisory Board. It is clear that the right of representation conferred by clause (5) of Article 22 does not depend upon the duration of period of detention. Even if the period of detention is less than three months, the detenu has a constitutional right of representation. It is also important to notice that under Article 22 (7) Parliament may by law prescribe the circumstances under which and the class or classes of cases in which a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board. It cannot possibly be argued that if Parliament makes a law contemplated by Article 22 (7) of the Constitution, the detaining authority is under no legal obligation to consider the representation made by the detenu under Article 22 (5).12. Faced with this difficulty counsel on behalf of the respondent conceded that in a case where the detention is for a period of less than three months or in a case contemplated by Article 22 (7), the State Government will be legally obliged to consider the representation of the detenu. But it was suggested that in a case where a reference has to be made to the Advisory Board it was not necessary for the State Government to consider the representation. We are unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22 (5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes of detenus.It is manifest that the right under Article 22 (5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence or non-existence of an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference is made.13. In the present case, Sk. Abdul Karim has alleged that his representation was not considered by the State Government before it was forwarded to the Advisory Board. This allegation is not controverted in the counter-affidavit filed on behalf of the respondent. What is at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendered illegal. Accordingly, the order of detention dated 17th February, 1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and petitioner No, 2 Sk. Abdul Karim was entitled to be released. ### Response: 1 ### Explanation: On behalf of the respondent it was said that there was no express language in Article 22 (5) requiring the State Government to consider the representation of the detenu.But it is a necessary implication of the language of Article 22 (5) that the State Government should consider the representation made by the detenu as soon as it is made, apply its mind to it and, if necessary, take appropriate action. In our opinion, the constitutional right to make a representation guaranteed by Article 22 (5) must be taken to include by necessary implication the constitutional right to a proper consideration of the representation by the authority to whom it is made. The right of representation under Article 22 (5) is a valuable constitutional right and is not a mere formality.It is, therefore, not possible to accept the argument of the respondent that the State Government is not under a legal obligation to consider the representation of the detenu or that the representation must be kept in cold storage in the archives of the Secretariat till the time or occasion for sending it to the Advisory Board isis at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be rendereds of the respondent are somewhat vague and the allegation of the petitioner has not been categoricallyare unable to accept this argument as correct. There is no such dichotomy in the scheme of Article 22 (5) of the Constitution and there is no reason why it must be interpreted in a different manner for the two classes ofis manifest that the right under Article 22 (5) to make a representation has been guaranteed independent of the duration of the period of detention and irrespective of the existence orof an Advisory Board. The constitution of an Advisory Board for the purpose of reporting whether a person should or should not be detained for a period of more than three months is a very different thing from a right of consideration by the State Government whether a person should be detained even for a single day. The obligation of the detaining authority to consider the representation is different from the obligation of the Advisory Board to consider the representation later on at the time of hearing the reference. It follows, therefore, that even if reference is to be made to the Advisory Board under Section 9 of the Act, the appropriate Government is under legal obligation to consider the representation of the detenu before such a reference isallegation is not controverted in thefiled on behalf of the respondent. Whatis at stake in this case is the issue of personal freedom which is one of the basic principles of a democratic State. A predominant position and role is given in our Constitution to human personality and human freedom as the ultimate source of all moral and spiritual values. Preventive detention is a serious invasion of personal liberty, and, therefore, the Constitution has provided procedural safeguards against the improper exercise of the power of preventive detention. All the procedural requirements of Article 22 are in our opinion mandatory in character and even if one of the procedural requirements is not complied with, the order of detention would be renderedillegal. Accordingly, the order of detention dated 17th February, 1968 made against petitioner No. 2, Sk. Abdul Karim and the subsequent order of the Governor of West Bengal dated 24th April, 1968, confirming the order of detention must be held to be illegal and ultra vires and petitioner No, 2 Sk. Abdul Karim was entitled to be released.

Jaswinder Singh & Another Vs. Santokh Nursing Home & Others

a foreign body, like a mop was left inside the abdomen of the deceased at the time of surgery conducted by Dr. Rashmi Jain. It is true that in such a surgical procedure, the surgeon is assisted by other doctor and paramedical staff like nurses, etc. who also owe a duty to count the mops used during the surgical procedure to ensure that all the mops/swabs so used had been retrieved before the operated organ is sutured. However, the surgeon cannot be abjure of his/her overall responsibility even in that behalf and cannot be allowed to take the plea that it was not his/her concern to ensure that no mop/swab was left in the abdomen. The pieces of mop/swab left inside the abdomen of the patient had led to infection and septicaemia which ultimately led to her death despite the best possible treatment the patient could be given in other upgraded hospital. The State Commissioner was therefore, fully justified in holding the nursing home as well as Dr. Rashmi Jain guilty of negligence and deficiency in service in giving the medical treatment to the deceased. The said finding is based on correct appreciation of evidence and material placed on record and calls for no interference from this commission. This finding also finds some support from the recent judgment of the Hon’ble Supreme Court in Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 : (2009) 1 SCC (Civ) 735 : (2009) 1 SCC (Cri) 958 : (2009) 1 CPJ 32”. 6. The national Commission then considered the question whether the compensation awarded by the State Commission was excessive, took cognizance of the assertion made before it that the deceased was not generating any income by practising any occupation for gain and she was merely a homemaker and reduced the amount of compensation to Rs.8,00,000/-. 7. Shri Himanshu Gupta, learned counsel for the appellants argued that the impugned order Santokh Nursing Home v. Jaswinder Singh, First Appeal No. 506 of 2005 order dated 7-7-2009 (NC), is liable to be set aside because the National Commission has not assigned cogent reasons for reducing the amount of compensation by Rs.4,34,414.50. The learned counsel submitted that the particular perception entertained by the members of the National Commission about the value of the services rendered by a housewife could not be made basis for reducing the amount of compensation awarded by the State Commission. 8. Shri Rajiv Kataria, learned counsel appearing for respondent 3 argued that the National Commission did not commit any error by reducing the amount of compensation because the appellants did not produce any evidence to show that the deceased was gainfully employed. He further argued that the State Commission committed grave error by applying the multiplier of 13 ignoring that the deceased was fifty years old at the time of surgery and death.9. The learned counsel for Respondent 1 and 2 submitted that the hospital was insured with Respondent 4 and the insurance company has already paid a sum of Rs.5,00,000/-. 10. We have considered the submissions of the learned counsel and carefully perused the record. 11. In our view, the National Commission committed serious error by reducing the amount of compensation by assuming that the award made by the State Commission was on higher side. The mere fact that the deceased was a homemaker was not sufficient to deny adequate compensation to the appellants in lieu of the services rendered by her see Arun Kumar Agrawal v. National Insurance Co. Ltd. (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 : (2010) 3 SCC (Cri) 1313. In that case, this court considered the questions whether compensation could be awarded keeping in view the gratuitous services rendered by a housewife, referred to several precedents including some judgments of the English courts and held: (SCC pp.237-38, paras 26-27) “26. In India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like grand-mother may volunteer to render some of the services to the family which the deceased was giving earlier”. 12. By applying the ratio of the aforesaid judgment in Arun Kumar Case (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 : (2010) 3 SCC (Cri) 1313 to the facts of this case, we hold that the National Commission committed grave error by reducing the amount of compensation determined by the State Commission.

1[ds]In India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the termis required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like grand-mother may volunteer to render some of the services to the family which the deceased was giving

### 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: a foreign body, like a mop was left inside the abdomen of the deceased at the time of surgery conducted by Dr. Rashmi Jain. It is true that in such a surgical procedure, the surgeon is assisted by other doctor and paramedical staff like nurses, etc. who also owe a duty to count the mops used during the surgical procedure to ensure that all the mops/swabs so used had been retrieved before the operated organ is sutured. However, the surgeon cannot be abjure of his/her overall responsibility even in that behalf and cannot be allowed to take the plea that it was not his/her concern to ensure that no mop/swab was left in the abdomen. The pieces of mop/swab left inside the abdomen of the patient had led to infection and septicaemia which ultimately led to her death despite the best possible treatment the patient could be given in other upgraded hospital. The State Commissioner was therefore, fully justified in holding the nursing home as well as Dr. Rashmi Jain guilty of negligence and deficiency in service in giving the medical treatment to the deceased. The said finding is based on correct appreciation of evidence and material placed on record and calls for no interference from this commission. This finding also finds some support from the recent judgment of the Hon’ble Supreme Court in Martin F. D’Souza v. Mohd. Ishfaq (2009) 3 SCC 1 : (2009) 1 SCC (Civ) 735 : (2009) 1 SCC (Cri) 958 : (2009) 1 CPJ 32”. 6. The national Commission then considered the question whether the compensation awarded by the State Commission was excessive, took cognizance of the assertion made before it that the deceased was not generating any income by practising any occupation for gain and she was merely a homemaker and reduced the amount of compensation to Rs.8,00,000/-. 7. Shri Himanshu Gupta, learned counsel for the appellants argued that the impugned order Santokh Nursing Home v. Jaswinder Singh, First Appeal No. 506 of 2005 order dated 7-7-2009 (NC), is liable to be set aside because the National Commission has not assigned cogent reasons for reducing the amount of compensation by Rs.4,34,414.50. The learned counsel submitted that the particular perception entertained by the members of the National Commission about the value of the services rendered by a housewife could not be made basis for reducing the amount of compensation awarded by the State Commission. 8. Shri Rajiv Kataria, learned counsel appearing for respondent 3 argued that the National Commission did not commit any error by reducing the amount of compensation because the appellants did not produce any evidence to show that the deceased was gainfully employed. He further argued that the State Commission committed grave error by applying the multiplier of 13 ignoring that the deceased was fifty years old at the time of surgery and death.9. The learned counsel for Respondent 1 and 2 submitted that the hospital was insured with Respondent 4 and the insurance company has already paid a sum of Rs.5,00,000/-. 10. We have considered the submissions of the learned counsel and carefully perused the record. 11. In our view, the National Commission committed serious error by reducing the amount of compensation by assuming that the award made by the State Commission was on higher side. The mere fact that the deceased was a homemaker was not sufficient to deny adequate compensation to the appellants in lieu of the services rendered by her see Arun Kumar Agrawal v. National Insurance Co. Ltd. (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 : (2010) 3 SCC (Cri) 1313. In that case, this court considered the questions whether compensation could be awarded keeping in view the gratuitous services rendered by a housewife, referred to several precedents including some judgments of the English courts and held: (SCC pp.237-38, paras 26-27) “26. In India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the term ‘services’ is required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like grand-mother may volunteer to render some of the services to the family which the deceased was giving earlier”. 12. By applying the ratio of the aforesaid judgment in Arun Kumar Case (2010) 9 SCC 218 : (2010) 3 SCC (Civ) 664 : (2010) 3 SCC (Cri) 1313 to the facts of this case, we hold that the National Commission committed grave error by reducing the amount of compensation determined by the State Commission. ### Response: 1 ### Explanation: In India the courts have recognized that the contribution made by the wife to the house is invaluable and cannot be computed in terms of money. The gratuitous services rendered by the wife with true love and affection to the children and her husband and managing the household affairs cannot be equated with services rendered by others. A wife/mother does not work by the clock. She is in the constant attendance of the family throughout the day and night unless she is hours. She takes care of all the requirements of the husband and children including cooking of food, washing of clothes, etc. She teaches small children and provides invaluable guidance to them for their future life. A housekeeper or maidservant can do the household work, such as cooking food, washing clothes and utensils, keeping the house clean, etc., but she can never be a substitute for a wife/mother who renders selfless service to her husband and children.27. It is not possible to quantify any amount in lieu of the services rendered by the wife/mother to the family i.e. the husband and children. However, for the purpose of award of compensation to the dependants, some pecuniary estimate has to be made of the services of the housewife/mother. In that context, the termis required to be given a broad meaning and must be construed by taking into account the loss of personal care and attention given by the deceased to her children as a mother and to her husband as a wife. They are entitled to adequate compensation in lieu of the loss of gratuitous services rendered by the deceased. The amount payable to the dependants cannot be diminished on the ground that some close relation like grand-mother may volunteer to render some of the services to the family which the deceased was giving

M/s. Indo International Industries Vs. Commissioner of Sales Tax, Uttar Pradesh

liable to be taxed at 7 per cent as an unclassified item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10 per cent on the basis that clinical syringes fell within the expression "glassware" occurring in entry 39. Counsel for the assessee contended before us that in the absence of any definition of "glassware" in the Act that expression must be understood in the ordinary commercial parlance and not in any scientific and technical sense and if such a test were applied to the instant case then clinical syringes manufactured and sold by the assessee could never he regarded as "glassware". Counsel pointed out that the revising authority negatived the contention of the assessee in view of a decision of the Allahabad High Court in the case of Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers (1973 Law Diary 178.), but urged that the contrary view taken by the Orissa High Court in the case of State of Orissa v. Janata Medical Stores ([1976] 37 S.T.C. 33.) that thermometers, lactometers, syringes, eye-wash glasses, etc., do not come within the meaning of the expression "glassware" in entry 38 in the schedule to the relevant notification issued under the first proviso to section 5(1) of the Orissa Sales Tax Act, 1947, was correct. In our view counsels contention has considerable force and deserves acceptance.It is well-settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should he had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by. those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 (S.C); [1962] 1 S.C.R. 279.), the question was whether "betel leaves" fell within the item "vegetable" so as to earn exemption from sales tax and this Court held that the word "vegetable" had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed, it denoted those classes of vegetable matter which are grown in kitchen garden and. are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation. In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh ([1967] 19 S.T.C. 469 (S.C.); [1967] 2 S.C.R. 720.), the question was whether the item "coal" under entry 1 of Part III of Schedule II to the Madhya Pradesh General Sales Tax Act, 1958, included charcoal or not and this Court observed thus :"Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well-settled that while interpreting items in statutes like the Sales Tax Acts, resort should he had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense." Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include "charcoal" in the term "coal" and held that "charcoal" fell within the concerned entry 1 of Part III of Schedule II to the Act. 4. Having regard to the aforesaid well-settled test the question is whether clinical syringes could be regarded as "glassware" falling within entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glassware" is "articles made of glass" (see Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glassware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc., which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to ones mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as "glassware" falling within entry 39 of the First Schedule to the Act. 5. In our opinion, the view taken by the Orissa High Court in State of Orissa v. Janata Medical Stores ([1976] 37 S.T.C. 33.) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers (1973 Law Diary 178.) is unsustainable.In this view of the matter it is clear that the assessees turnover up to November 30, 1973, will fall under entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4 per cent and its turnover from December 1, 1973, to March 31, 1974, will be taxable at the rate of 7 per cent as an unclassified item and the assessment will have to be made accordingly. 6.

1[ds]Having regard to the aforesaid well-settled test the question is whether clinical syringes could be regarded as "glassware" falling within entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glassware" is "articles made of glass" (see Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glassware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc., which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to ones mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as "glassware" falling within entry 39 of the First Schedule to the ActIn our opinion, the view taken by the Orissa High Court in State of Orissa v. Janata Medical Stores ([1976] 37 S.T.C. 33.) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers (1973 Law Diary 178.) is unsustainable.In this view of the matter it is clear that the assessees turnover up to November 30, 1973, will fall under entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4 per cent and its turnover from December 1, 1973, to March 31, 1974, will be taxable at the rate of 7 per cent as an unclassified item and the assessment will have to be made accordinglyIn our view counsels contention has considerable force and deserves acceptance.It isd that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should he had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by. those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 (S.C); [1962] 1 S.C.R. 279.), the question was whether "betel leaves" fell within the item "vegetable" so as to earn exemption from sales tax and this Court held that the word "vegetable" had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed, it denoted those classes of vegetable matter which are grown in kitchen garden and. are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation. In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh ([1967] 19 S.T.C. 469 (S.C.); [1967] 2 S.C.R. 720.), the question was whether the item "coal" under entry 1 of Part III of Schedule II tothe Madhya Pradesh General Sales Tax Act, 1958, included charcoal or not and this Court observed thus :"Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is nowd that while interpreting items in statutes like the Sales Tax Acts, resort should he had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercialg the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include "charcoal" in the term "coal" and held that "charcoal" fell within the concerned entry 1 of Part III of Schedule II to the Act.

### 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: liable to be taxed at 7 per cent as an unclassified item. But, negativing its contentions the entire turnover was held to be taxable at the rate of 10 per cent on the basis that clinical syringes fell within the expression "glassware" occurring in entry 39. Counsel for the assessee contended before us that in the absence of any definition of "glassware" in the Act that expression must be understood in the ordinary commercial parlance and not in any scientific and technical sense and if such a test were applied to the instant case then clinical syringes manufactured and sold by the assessee could never he regarded as "glassware". Counsel pointed out that the revising authority negatived the contention of the assessee in view of a decision of the Allahabad High Court in the case of Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers (1973 Law Diary 178.), but urged that the contrary view taken by the Orissa High Court in the case of State of Orissa v. Janata Medical Stores ([1976] 37 S.T.C. 33.) that thermometers, lactometers, syringes, eye-wash glasses, etc., do not come within the meaning of the expression "glassware" in entry 38 in the schedule to the relevant notification issued under the first proviso to section 5(1) of the Orissa Sales Tax Act, 1947, was correct. In our view counsels contention has considerable force and deserves acceptance.It is well-settled that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should he had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by. those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 (S.C); [1962] 1 S.C.R. 279.), the question was whether "betel leaves" fell within the item "vegetable" so as to earn exemption from sales tax and this Court held that the word "vegetable" had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed, it denoted those classes of vegetable matter which are grown in kitchen garden and. are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation. In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh ([1967] 19 S.T.C. 469 (S.C.); [1967] 2 S.C.R. 720.), the question was whether the item "coal" under entry 1 of Part III of Schedule II to the Madhya Pradesh General Sales Tax Act, 1958, included charcoal or not and this Court observed thus :"Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is now well-settled that while interpreting items in statutes like the Sales Tax Acts, resort should he had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercial sense." Viewing the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include "charcoal" in the term "coal" and held that "charcoal" fell within the concerned entry 1 of Part III of Schedule II to the Act. 4. Having regard to the aforesaid well-settled test the question is whether clinical syringes could be regarded as "glassware" falling within entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glassware" is "articles made of glass" (see Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glassware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc., which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to ones mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as "glassware" falling within entry 39 of the First Schedule to the Act. 5. In our opinion, the view taken by the Orissa High Court in State of Orissa v. Janata Medical Stores ([1976] 37 S.T.C. 33.) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers (1973 Law Diary 178.) is unsustainable.In this view of the matter it is clear that the assessees turnover up to November 30, 1973, will fall under entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4 per cent and its turnover from December 1, 1973, to March 31, 1974, will be taxable at the rate of 7 per cent as an unclassified item and the assessment will have to be made accordingly. 6. ### Response: 1 ### Explanation: Having regard to the aforesaid well-settled test the question is whether clinical syringes could be regarded as "glassware" falling within entry 39 of the First Schedule to the Act ? It is true that the dictionary meaning of the expression "glassware" is "articles made of glass" (see Websters New World Dictionary). However, in commercial sense glassware would never comprise articles like clinical syringes, thermometers, lactometers and the like which have specialised significance and utility. In popular or commercial parlance a general merchant dealing in "glassware" does not ordinarily deal in articles like clinical syringes, thermometers, lactometers, etc., which articles though made of glass, are normally available in medical stores or with the manufacturers thereof like the assessee. It is equally unlikely that a consumer would ask for such articles from a glassware shop. In popular sense when one talks of glassware such specialised articles like clinical syringes, thermometers, lactometers and the like do not come up to ones mind. Applying the aforesaid test, therefore, we are clearly of the view that the clinical syringes which the assessee manufactures and sells cannot be considered as "glassware" falling within entry 39 of the First Schedule to the ActIn our opinion, the view taken by the Orissa High Court in State of Orissa v. Janata Medical Stores ([1976] 37 S.T.C. 33.) is correct and the view of the Allahabad High Court in Commissioner of Sales Tax v. S. S. R. Syringes and Thermometers (1973 Law Diary 178.) is unsustainable.In this view of the matter it is clear that the assessees turnover up to November 30, 1973, will fall under entry 44 dealing with "hospital equipment" and the same would be taxable at the rate of 4 per cent and its turnover from December 1, 1973, to March 31, 1974, will be taxable at the rate of 7 per cent as an unclassified item and the assessment will have to be made accordinglyIn our view counsels contention has considerable force and deserves acceptance.It isd that in interpreting items in statutes like the Excise Tax Acts or Sales Tax Acts, whose primary object is to raise revenue and for which purpose they classify diverse products, articles and substances, resort should he had not to the scientific and technical meaning of the terms or expressions used but to their popular meaning, that is to say, the meaning attached to them by. those dealing in them. If any term or expression has been defined in the enactment then it must be understood in the sense in which it is defined but in the absence of any definition being given in the enactment the meaning of the term in common parlance or commercial parlance has to be adopted. In Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, Akola ([1961] 12 S.T.C. 286 (S.C); [1962] 1 S.C.R. 279.), the question was whether "betel leaves" fell within the item "vegetable" so as to earn exemption from sales tax and this Court held that the word "vegetable" had not been defined in the Act, and that the same must be construed not in any technical sense nor from the botanical point of view but as understood in common parlance and so construed, it denoted those classes of vegetable matter which are grown in kitchen garden and. are used for the table and did not comprise betel leaves within it and, therefore, betel leaves were not exempt from taxation. In Commissioner of Sales Tax, Madhya Pradesh v. Jaswant Singh Charan Singh ([1967] 19 S.T.C. 469 (S.C.); [1967] 2 S.C.R. 720.), the question was whether the item "coal" under entry 1 of Part III of Schedule II tothe Madhya Pradesh General Sales Tax Act, 1958, included charcoal or not and this Court observed thus :"Now, there can be no dispute that while coal is technically understood as a mineral product, charcoal is manufactured by human agency from products like wood and other things. But it is nowd that while interpreting items in statutes like the Sales Tax Acts, resort should he had not to the scientific or the technical meaning of such terms but to their popular meaning or the meaning attached to them by those dealing in them, that is to say, to their commercialg the question from the above angle this Court further observed that both a merchant dealing in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in the sense as ordinarily understood and would include "charcoal" in the term "coal" and held that "charcoal" fell within the concerned entry 1 of Part III of Schedule II to the Act.

Shri Roshanlal Gautam Vs. State Of Uttar Pradesh And Others

does not seem to be preserved. These terms - route and area - were explained in C.P.C. Motor Services, Mysore v. State of Mysore, (1962) Supp. (1) SCR 717 and it was pointed out that under the scheme of the Motor Vehicles Act. 1939 these two words sometimes stand for the road on which the omnibuses run or portions thereof. A similar view was earlier expressed in Kondala Rao v. A. P. State Road Transport Corporation, AIR 1961 SC 82 . In Dosa Satyanaraynamurty v. Andhra Pradesh State Road Transport Corporation, (1961) 1 SCR 642 at p. 664: (AIR 1961 SC 82 at p. 93) Subba Rao J. observed:"Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an "area and a "route". The proposed route, is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C."8. The argument thus loses a great deal of its force but there are other reasons too which show that the contention is misconceived.9. By S. 2(3) a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined as a motor vehicle carrying or adopted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is this: the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. Mr. Pathak contends that if one examines the scheme of Sections 46 and 49 one finds that the application for a stage carriage permit is for a route of routes or area or areas but the application for a contract carriage is only for an area for which the permit is required. He contends, therefore, that as contract carriages do not ply on, routes a scheme curtailing a contract carriage permit must be for a part of the area covered by the permit and that it cannot be for a route of routes. He also refers to S. 68G in which two separate principles and methods for the determination of compensation for the curtailment of areas and routes is provided and submits that this also points out that a contract carriage permit is by an area and not by a route and consequently the indication of the route on which the carriage of State undertakings would run is ineffective to curtail the area of a private operator and the scheme must therefore fail. On the other hand, it may be pointed out that S. 51(2) of the Motor Vehicles Act itself provides as follows-"51 (2) The Regional Transport Authority, if it decides to grant a contract carriage permit may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-(i) that the vehicle or vehicles shall be used only in a specified area or on a specified route or routes;* * *10. This provision clearly shows that the area at the commencement of the permit can be cut down by notifying certain routes and there seems to be no bar doing it later in view of a scheme of nationalisation.11. In our judgment, the argument of the respondents must be accepted. If under S. 51 (2) (i) a permit for a contract carriage could be limited to specified route or routes notwithstanding that the petition for such a permit must be for an area there is no difficulty in accepting a scheme which cuts down the area by subtracting a few routes. By the taking over of the routes the area is as effectively cut down as when an area is included in the permit but routes are indicated on which alone the contract carriages can ply.12. There are two other arguments which support the contention of the respondents. Under S. 68B the provisions of Chapter IVA apply notwithstanding anything inconsistent therewith contained in Chapter IV of the Act. Sections 46 to 49 are in Chapter IV and no inconsistency between a scheme framed under S. 68C and any provision of Chapter IV can be made a ground of attack. Secondly, under S 68F when the permits are issued to a State transport undertaking for stage carriages or contract carriages it is provided that the Regional Transport Authority may modify the terms of any existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This would indicate that power is reserved to modify the existing permits either by curtailing the area or by curtailing the routes. The taking over of certain routes exclusively for the State undertakings renders that portion of the area ineffective for a private operator such as the appellant who holds a permit for the whole area including those routes. The High Court was, therefore, right in holding that by the notified scheme the routes which were mentioned must be taken to have been subtracted from the area to which the permit applied. In other words, there is no merit in the appeal.

0[ds]It is therefore necessary to see how far the two provisions differ in their requirements. Section 3 of the U. P. Act laid down the power of the State Government to run Road Transport Services asPower of the State Government to run Road TransportWhere the State Government is of the opinion that it is necessary in the interests of the general public and forthe common good, or for maintaining and developing efficient road transport system so to direct, it may, by notification in the official Gazette declare that the road transport services in general, or any particular class of such services on any route or portion thereof as may be specified, shall be run and operated exclusively by the State Government, or by the State Government in conjunction with railway or be run and operated partly by the State Government and partly by others under and in accordance with the provisions of this Act.(2) The notification under(1) shall be conclusive evidence of the facts statedC of the Motor Vehicles Act provided asPreparation and publication of scheme of road transport Service of a State Transport undertaking.Where any State transport undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properlyroad transport service, it is necessary in the public interest that road transport services in general or any particular class of such service in relation to any area or route or portion thereof should be run and operated by the State transport undertakings whether to the exclusion, complete or partial, of other persons or otherwise, the State transport undertaking may prepare a scheme giving particulars of the nature of the services proposed to be rendered, the area or route proposed to be covered and such other particulars reflecting thereto as may be prescribed, and shall cause every such scheme to be published in the Official Gazette and also in such other manner as the State Government maychange of verbiage, however, does not make a change in the requirements. It would be wrong to think that even under the U. P. Act Government would not think of an adequate, economical or properlyroad transport service when it chose to provide road transport services for the common good and for maintaining and developing efficient road transport system. The change in language is no doubt there but the intention underlying the words is the same and even if the exact words of S. 68C might not have been present before the framers of the scheme, it is quite obvious that they took into account those very factors. Indeed, the use of the words "adequate state road transport contract carriage service" in clause (3) of the scheme framed and notified in 1959 reproduces the language of Section 68C and not that of S. 3. This suggests that the requirements of S. 68C were probably borne in mind. Even if they were not and only the requirements of the U. P. Act were borne in mind, we find no difficulty in holding that as the requirements are practically the same, the exercise of power must be referred to S. 68C under which it has validity, and not to S. 3 of the U. P. Act. This ground of objection was rightly overruled by the Highmay be pointed out that on the former occasion the provision about adequate carriages was challenged as too vague. It is because of that challenge that the number of carriages is now shown and it is provided that this number may be more or less as the occasion demands. We read the scheme as providing sixteen contract carriages. We need not consider whether it would become inadequate in the future. At the moment it is stated that 16 carriages will be provided and it is not affirmed that this number is in any wayargument is that if State road transport contract carriages were to be provided the scheme should have indicated an area in which they were to operate and that area should have been excluded instead of dismembering the area of the appellant mentioning the routes. Such a procedure, it is submitted, is contrary to the scheme of the grant of permits under Chapter IV of the Vehicles Act. On behalf of the respondent it is submitted that the notification of the 56 routes curtails the area such as it was and that there is no breach of the provisions of the Motor Vehicles Act.Under the Motor Vehicles Act, there is no doubt a distinction between area and route in some of the sections but in others that distinction does not seem to be preserved. These termsroute and areawere explained in C.P.C. Motor Services, Mysore v. State of Mysore, (1962) Supp. (1) SCR 717 and it was pointed out that under the scheme of the Motor Vehicles Act. 1939 these two words sometimes stand for the road on which the omnibuses run or portions thereof. A similar view was earlier expressed in Kondala Rao v. A. P. State Road Transport Corporation, AIR 1961 SC 82 . In Dosa Satyanaraynamurty v. Andhra Pradesh State Road Transport Corporation, (1961) 1 SCR 642 at p. 664: (AIR 1961 SC 82 at p. 93) Subba Rao J.8C of theAct the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an "area and a "route". The proposed route, is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C.The argument thus loses a great deal of its force but there are other reasons too which show that the contention is misconceived.By S. 2(3) a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined as a motor vehicle carrying or adopted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is this: the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. Mr. Pathak contends that if one examines the scheme of Sections 46 and 49 one finds that the application for a stage carriage permit is for a route of routes or area or areas but the application for a contract carriage is only for an area for which the permit is required. He contends, therefore, that as contract carriages do not ply on, routes a scheme curtailing a contract carriage permit must be for a part of the area covered by the permit and that it cannot be for a route of routes. He also refers to S. 68G in which two separate principles and methods for the determination of compensation for the curtailment of areas and routes is provided and submits that this also points out that a contract carriage permit is by an area and not by a route and consequently the indication of the route on which the carriage of State undertakings would run is ineffective to curtail the area of a private operator and the scheme must therefore fail. On the other hand, it may be pointed out that S. 51(2) of the Motor Vehicles Act itself provides as(2) The Regional Transport Authority, if it decides to grant a contract carriage permit may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions,that the vehicle or vehicles shall be used only in a specified area or on a specified route or routes;* *This provision clearly shows that the area at the commencement of the permit can be cut down by notifying certain routes and there seems to be no bar doing it later in view of a scheme of nationalisation.In our judgment, the argument of the respondents must be accepted. If under S. 51 (2) (i) a permit for a contract carriage could be limited to specified route or routes notwithstanding that the petition for such a permit must be for an area there is no difficulty in accepting a scheme which cuts down the area by subtracting a few routes. By the taking over of the routes the area is as effectively cut down as when an area is included in the permit but routes are indicated on which alone the contract carriages can ply.There are two other arguments which support the contention of the respondents. Under S. 68B the provisions of Chapter IVA apply notwithstanding anything inconsistent therewith contained in Chapter IV of the Act. Sections 46 to 49 are in Chapter IV and no inconsistency between a scheme framed under S. 68C and any provision of Chapter IV can be made a ground of attack. Secondly, under S 68F when the permits are issued to a State transport undertaking for stage carriages or contract carriages it is provided that the Regional Transport Authority may modify the terms of any existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This would indicate that power is reserved to modify the existing permits either by curtailing the area or by curtailing the routes. The taking over of certain routes exclusively for the State undertakings renders that portion of the area ineffective for a private operator such as the appellant who holds a permit for the whole area including those routes. The High Court was, therefore, right in holding that by the notified scheme the routes which were mentioned must be taken to have been subtracted from the area to which the permit applied. In other words, there is no merit in the appeal.

### 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: does not seem to be preserved. These terms - route and area - were explained in C.P.C. Motor Services, Mysore v. State of Mysore, (1962) Supp. (1) SCR 717 and it was pointed out that under the scheme of the Motor Vehicles Act. 1939 these two words sometimes stand for the road on which the omnibuses run or portions thereof. A similar view was earlier expressed in Kondala Rao v. A. P. State Road Transport Corporation, AIR 1961 SC 82 . In Dosa Satyanaraynamurty v. Andhra Pradesh State Road Transport Corporation, (1961) 1 SCR 642 at p. 664: (AIR 1961 SC 82 at p. 93) Subba Rao J. observed:"Under S. 68C of the Act the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an "area and a "route". The proposed route, is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C."8. The argument thus loses a great deal of its force but there are other reasons too which show that the contention is misconceived.9. By S. 2(3) a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined as a motor vehicle carrying or adopted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is this: the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. Mr. Pathak contends that if one examines the scheme of Sections 46 and 49 one finds that the application for a stage carriage permit is for a route of routes or area or areas but the application for a contract carriage is only for an area for which the permit is required. He contends, therefore, that as contract carriages do not ply on, routes a scheme curtailing a contract carriage permit must be for a part of the area covered by the permit and that it cannot be for a route of routes. He also refers to S. 68G in which two separate principles and methods for the determination of compensation for the curtailment of areas and routes is provided and submits that this also points out that a contract carriage permit is by an area and not by a route and consequently the indication of the route on which the carriage of State undertakings would run is ineffective to curtail the area of a private operator and the scheme must therefore fail. On the other hand, it may be pointed out that S. 51(2) of the Motor Vehicles Act itself provides as follows-"51 (2) The Regional Transport Authority, if it decides to grant a contract carriage permit may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions, namely:-(i) that the vehicle or vehicles shall be used only in a specified area or on a specified route or routes;* * *10. This provision clearly shows that the area at the commencement of the permit can be cut down by notifying certain routes and there seems to be no bar doing it later in view of a scheme of nationalisation.11. In our judgment, the argument of the respondents must be accepted. If under S. 51 (2) (i) a permit for a contract carriage could be limited to specified route or routes notwithstanding that the petition for such a permit must be for an area there is no difficulty in accepting a scheme which cuts down the area by subtracting a few routes. By the taking over of the routes the area is as effectively cut down as when an area is included in the permit but routes are indicated on which alone the contract carriages can ply.12. There are two other arguments which support the contention of the respondents. Under S. 68B the provisions of Chapter IVA apply notwithstanding anything inconsistent therewith contained in Chapter IV of the Act. Sections 46 to 49 are in Chapter IV and no inconsistency between a scheme framed under S. 68C and any provision of Chapter IV can be made a ground of attack. Secondly, under S 68F when the permits are issued to a State transport undertaking for stage carriages or contract carriages it is provided that the Regional Transport Authority may modify the terms of any existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This would indicate that power is reserved to modify the existing permits either by curtailing the area or by curtailing the routes. The taking over of certain routes exclusively for the State undertakings renders that portion of the area ineffective for a private operator such as the appellant who holds a permit for the whole area including those routes. The High Court was, therefore, right in holding that by the notified scheme the routes which were mentioned must be taken to have been subtracted from the area to which the permit applied. In other words, there is no merit in the appeal. ### Response: 0 ### Explanation: route in some of the sections but in others that distinction does not seem to be preserved. These termsroute and areawere explained in C.P.C. Motor Services, Mysore v. State of Mysore, (1962) Supp. (1) SCR 717 and it was pointed out that under the scheme of the Motor Vehicles Act. 1939 these two words sometimes stand for the road on which the omnibuses run or portions thereof. A similar view was earlier expressed in Kondala Rao v. A. P. State Road Transport Corporation, AIR 1961 SC 82 . In Dosa Satyanaraynamurty v. Andhra Pradesh State Road Transport Corporation, (1961) 1 SCR 642 at p. 664: (AIR 1961 SC 82 at p. 93) Subba Rao J.8C of theAct the scheme may be framed in respect of any area or a route or a portion of any area or a portion of a route. There is no inherent inconsistency between an "area and a "route". The proposed route, is also an area limited to the route proposed. The scheme may as well propose to operate a transport service in respect of a new route from point A to point B and that route would certainly be an area within the meaning of S. 68C.The argument thus loses a great deal of its force but there are other reasons too which show that the contention is misconceived.By S. 2(3) a contract carriage is defined as a motor vehicle which carries a passenger or passengers on hire or reward under a contract from one point to another without stopping to pick up or set down along the line of that route passengers not included in the contract. A stage carriage is defined as a motor vehicle carrying or adopted to carry passengers for hire or reward at separate fares paid for the whole journey or for stages of the journey. The distinction between the two is this: the contract carriage is engaged for the whole of the journey between two points for carriage of a person or persons hiring it but it has not the right to pick up other passengers en route. The stage carriage, on the other hand, runs between two points irrespective of any prior contract and it is boarded by passengers en route who pay the fare for the distance they propose to travel. Mr. Pathak contends that if one examines the scheme of Sections 46 and 49 one finds that the application for a stage carriage permit is for a route of routes or area or areas but the application for a contract carriage is only for an area for which the permit is required. He contends, therefore, that as contract carriages do not ply on, routes a scheme curtailing a contract carriage permit must be for a part of the area covered by the permit and that it cannot be for a route of routes. He also refers to S. 68G in which two separate principles and methods for the determination of compensation for the curtailment of areas and routes is provided and submits that this also points out that a contract carriage permit is by an area and not by a route and consequently the indication of the route on which the carriage of State undertakings would run is ineffective to curtail the area of a private operator and the scheme must therefore fail. On the other hand, it may be pointed out that S. 51(2) of the Motor Vehicles Act itself provides as(2) The Regional Transport Authority, if it decides to grant a contract carriage permit may, subject to any rules that may be made under this Act, attach to the permit any one or more of the following conditions,that the vehicle or vehicles shall be used only in a specified area or on a specified route or routes;* *This provision clearly shows that the area at the commencement of the permit can be cut down by notifying certain routes and there seems to be no bar doing it later in view of a scheme of nationalisation.In our judgment, the argument of the respondents must be accepted. If under S. 51 (2) (i) a permit for a contract carriage could be limited to specified route or routes notwithstanding that the petition for such a permit must be for an area there is no difficulty in accepting a scheme which cuts down the area by subtracting a few routes. By the taking over of the routes the area is as effectively cut down as when an area is included in the permit but routes are indicated on which alone the contract carriages can ply.There are two other arguments which support the contention of the respondents. Under S. 68B the provisions of Chapter IVA apply notwithstanding anything inconsistent therewith contained in Chapter IV of the Act. Sections 46 to 49 are in Chapter IV and no inconsistency between a scheme framed under S. 68C and any provision of Chapter IV can be made a ground of attack. Secondly, under S 68F when the permits are issued to a State transport undertaking for stage carriages or contract carriages it is provided that the Regional Transport Authority may modify the terms of any existing permit so as to curtail the area or route covered by the permit in so far as such permit relates to the notified area or notified route". This would indicate that power is reserved to modify the existing permits either by curtailing the area or by curtailing the routes. The taking over of certain routes exclusively for the State undertakings renders that portion of the area ineffective for a private operator such as the appellant who holds a permit for the whole area including those routes. The High Court was, therefore, right in holding that by the notified scheme the routes which were mentioned must be taken to have been subtracted from the area to which the permit applied. In other words, there is no merit in the appeal.

SANJAY RAMDAS PATIL Vs. SANJAY AND OTHERS

choose between them, the courts have to say what meaning the statute is to bear, rather than reject it as a nullity. 120. It is, therefore, the courts duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. IRC [1926 AC 37 : 95 LJKB 165 : 134 LT 98 (HL)] Lord Dunedin said: (AC p. 52) A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result……. 38. It could thus be seen that the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment. As already discussed hereinabove, the dominant intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation. The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation. However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated. At the cost of repetition and particularly taking into consideration the difference in number of seats for Scheduled Castes and Backward Class of Citizens, we find that the interpretation as placed by the High Court, would not make the said Rules workable and give effect to the legislative intent. It would have been a different matter that even after completion of the cycle, requisite reservation as per the Rules is not provided to the Scheduled Castes and excessive reservation is provided for Backward Class of Citizens. Such is not the case. Unfortunately, for the writ petitioner, even for the present term, Dhule Municipal Corporation was also in the pool of eligible Corporations for draw of lots for Scheduled Castes category. However, in the draw, it could not be reserved for Scheduled Castes. Only thereafter, Dhule Municipal Corporation was considered in the pool of draw of lots for Backward Class of Citizens. This was so because in the immediate preceding elections, the office of Mayor was not reserved for Backward Class of Citizens. 39. The High Court has strongly relied on the following observations of the Single Judge of the Karnataka High Court in M. Abdul Azeez v. State of Karnataka and Others (supra):- 27.1. An elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation. 40. However, it is to be noted that the Rules that fell for consideration before the Karnataka High Court, provided that the offices of the President and Vice-President shall be rotated for the different categories from term-to-term. The Rules provided that the cycle of the reservation will begin from the Municipal Council which had the highest population of a particular category. The rotation will go to the other Municipal Councils in the descending manner on the basis of the population of a particular category in the concerned Municipal Council area. The scheme is that the Municipal Council which has the highest number of population of a particular category, will be the first to be reserved for that category and the Council with the least population of that category, would be the last one to be reserved for that category. Only after completion of the said cycle, the reservation can come back for a particular category which was reserved for it at the first instance. It could thus be seen that the Rules that fell for consideration before the Karnataka High Court, were totally different than the ones which fell for consideration before the Bombay High Court. 41. Though the Division Bench of the High Court was not bound by the judgment of the Single Judge and it had only a persuasive value, we may gainfully refer to the observations of this Court in The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 :- 7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts…..

1[ds]10. It is not in dispute that from 2003 to 2017, the Office of Mayor of the said Corporation was reserved for Backward Class category for two terms, out of the total 7 terms. It is also not in dispute that there was no reservation provided for the Scheduled Castes category even once.19. It is thus clear that the scheme of Rules which is in tune with Section 19(1A) of the said Act and in turn with the constitutional provision under Article 243T, is to provide reservation to the Scheduled Castes and Scheduled Tribes in proportion to the total population of the Scheduled Castes and Scheduled Tribes in the Municipal Corporation areas. Insofar as the Backward Class is concerned, the reservation provided is fixed at 27% of the total number of offices of Mayors. 1/3rd of the total number of posts shall be reserved for women category including the one belonging to Scheduled Castes, Scheduled Tribes and Backward Class of Citizens. Clause (a) of sub- rule(2) of Rule 3 of the said Rules mandates the State Government to allot by draw of lots, the offices of Mayors for the Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women, on the principles specified in sub-rule (1). Clause (b) of sub-rule (2) of Rule 3 of the said Rules mandates the State Government to ensure that, at any given point of time, the number of offices of Mayors, reserved for the said categories, shall not be less than the number determined in accordance with the provisions of sub-rule(1). Clause (c) of sub-rule (2) of Rule 3 of the said Rules provides that the lots in respect of women belonging to a particular category shall be drawn only among the offices of Mayors reserved for such category. Clause (d) of sub-rule (2) of Rule 3 of the said Rules provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) of sub-rule (2) of Rule 3 of the said Rules requires that the offices of Mayors to be reserved, shall be rotated in the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.20. The High Court, while interpreting clause (e) of sub-rule (2) of Rule 3 of the said Rules, has held that until the reservations are given by rotation to each category, the reservation cannot be provided to a category for which reservation was already provided. While doing so, the High Court has relied on the judgment of the Karnataka High Court in M. Abdul Azeez v. State of Karnataka and Others(Writ Petition No. 38256 of 2013 decided on 06.01.2014). We will have to examine the correctness of the said view.22. It could thus be seen from paragraph (8) of the said affidavit that insofar as Scheduled Castes are concerned, 3 posts of Mayor need to be mandatorily reserved. It could further be seen that out of 27 Corporations, 12 Corporations were reserved for Scheduled Castes in earlier years. It further states that those 12 Corporations and 1 Corporation (Vasai-Virar Corporation) which was reserved for Scheduled Tribes in the first draw of lots dated 13th November 2019 were excluded. As such, there are 14 Corporations available, which were not previously reserved for Scheduled Castes. It is further clear that when draw of lots was done for the Scheduled Castes category, amongst the other eligible Corporations, Dhule Municipal Corporation was also considered. However, in the said draw of lots, 3 Corporations i.e. Mira-Bhayandar, Ahmednagar and Parbhani Municipal Corporation got reserved for Scheduled Castes.23. Insofar as Backward Class is concerned, it is stated that 7 posts of Mayor need to be mandatorily reserved. Out of 27 Corporations, 26 Corporations excluding the newly created Panvel Corporation were reserved for Backward Class of Citizens in the earlier years. It is stated that since 26 Corporations were reserved for Backward Class of Citizens, even the minimum required 7 Corporations were not available in the draw in question. As such, 7 Corporations which were reserved for Backward Class of Citizens in the earlier years i.e. immediately preceding term, were excluded in the draw of lots. So also, 4 Corporations which got reserved for Scheduled Castes and Scheduled Tribes in the first and second draw, were excluded. As such, the draw of lots was done from the pool of 16 Corporations after excluding the 7 Corporations which were reserved for Backward Class of Citizens in the immediately preceding term and the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes.24. We have no hesitation in observing that sub-rule (2) of Rule 3 of the said Rules has not been happily worded. On a plain reading, various clauses in the sub-rule are capable of being interpreted in a manner that there are inconsistencies and at times, conflict amongst them. We will have to therefore examine the legal position with the aid of principles of interpretation as laid down by this Court in such situations.25. In Philips India Limited v. Labour Court, Madras and Others (1985) 3 SCC 103, this Court observed thus:-15. No canon of statutory construction is more firmly established than that the statute must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus. This rule of statutory construction is so firmly established that it is variously styled as elementary rule (see Attorney General v. Bastow [(1957) 1 All ER 497] ) and as a settled rule (see Poppatlal Shah v. State of Madras [AIR 1953 SC 274 : 1953 SCR 667] ). The only recognised exception to this well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: it is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expresseth meaning of the makers (Quoted with approval in Punjab Beverages Pvt. Ltd. v. Suresh Chand [(1978) 2 SCC 144 : 1978 SCC (L&S) 165 : (1978) 3 SCR 370 ]).30. In Commissioner of Income Tax v. Hindustan Bulk Carriers (2003) 3 SCC 57, this Court observed thus:-16. The courts will have to reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] AC at p. 634, Curtis v. Stovin [(1889) 22 QBD 513 : 58 LJQB 174 : 60 LT 772 (CA)] referred to in S. Teja Singh case [AIR 1959 SC 352 : (1959) 35 ITR 408 ] .)17. If the choice is between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result. (See Nokes v. Doncaster Amalgamated Collieries [(1940) 3 All ER 549 : 1940 AC 1014 : 109 LJKB 865 : 163 LT 343 (HL)] referred to in Pye v. Minister for Lands for NSW [(1954) 3 All ER 514 : (1954) 1 WLR 1410 (PC)] .) The principles indicated in the said cases were reiterated by this Court in Mohan Kumar Singhania v. Union of India [1992 Supp (1) SCC 594 : 1992 SCC (L&S) 455 : (1992) 19 ATC 881 : AIR 1992 SC 1 ] .18. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute.19. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to be interpreted occurs. (See R.S. Raghunath v. State of Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507 : AIR 1992 SC 81 ] .) Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid a head-on clash between two sections of the same Act. (See Sultana Begum v. Prem Chand Jain [(1997) 1 SCC 373 : AIR 1997 SC 1006 ] .)20. Whenever it is possible to do so, it must be done to construe the provisions which appear to conflict so that they harmonise. It should not be lightly assumed that Parliament had given with one hand what it took away with the other.21. The provisions of one section of the statute cannot be used to defeat those of another unless it is impossible to effect reconciliation between them.Thus a construction that reduces one of the provisions to a useless lumber or dead letter is not a harmonised construction. To harmonise is not to destroy.31. It could thus be seen that it is more than well settled that it is the duty of the Court to construe the Statute as a whole and that one provision of the Act has to be construed with reference to other provisions so as to make a consistent enactment of the whole Statute. It is the duty of the Court to avoid a head-on clash between two sections and construe the provisions which appear to be in conflict with each other in such a manner so as to harmonise them. It is further equally settled that while interpreting a particular statutory provision, it should not result into making the other provision a useless lumber or a dead letter. While construing the provisions, the Court will have to ascertain the intention of the law-making authority in the backdrop of dominant purpose and the underlying intendment of the Statute.32. In the light of these guiding principles, we will have to construe the provisions that fall for consideration. Undisputedly, the said Rules are mechanism for giving effect to the constitutional mandate under Article 243T of the Constitution of providing reservation for Scheduled Castes and Scheduled Tribes and the enabling provision for providing reservation for Backward Class of Citizens in proportion to their population. As already discussed hereinabove, the said Rules have been prescribed so as to provide a procedure for the reservation of the office of Mayor in the Corporation by rotation for the Scheduled Castes, the Scheduled Tribes, Women and the Backward Class of Citizens as mandated under Section 19 (1A) of the said Act. It could thus be seen that the intent and the dominant purpose of Rule 3 of the said Rules is to provide reservation to Scheduled Castes, Scheduled Tribes, Backward Class of Citizens and Women and further to ensure that there is no repetition of reservation of a particular category in a particular Corporation. It could thus be seen that the dominant purpose and the legislative intent of the said Rules is to provide reservation in proportion of the population of such categories in the Municipal areas and also to ensure that while all the eligible Corporations get reservation at some point of time for the different categories, at the same time there would be no repetition of reservation until the rotation is complete. However, while doing so, the number of seats reserved for a particular category also cannot be ignored. As already pointed out hereinabove, the total number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of citizens, they are 7. Sub-rule (2) of Rule 3 of the said Rules prescribes the manner in which the seats are to be allotted to be reserved for various categories including women. Clause (a) thereof provides that it shall be done by notification in the Official Gazette by allotment of draw of lots. Clause (d) thereof provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years shall be excluded from the draw of lots for those categories. Clause (e) thereof provides that the offices of Mayors to be reserved shall be rotated in the subsequent terms of office of Mayor to such Corporation, in which no reservation has been made in the previous terms until such reservations are given by rotation to each category.33. No doubt, that at the first blush, an isolated reading of reservation is provided for each category by rotation, the said office cannot be reserved for a category for which it was already reserved. However, if the Rules along with Article 243T of the Constitution and Section 19(1A) of the said Act are read as a whole, then the dominant purpose behind the said Rules appears to be that the reservation as mandated in the Constitution, should be provided for offices of Mayors in the Corporations. While doing so, the reservation has to be provided by a draw of lots. It has to be ensured that at any given point of time, the number of offices of Mayors reserved for such categories should not be less than the number determined in accordance with the provisions of sub-rule (1) of Rule 3 of the said Rules. Clause (d) of sub-rule (2) of Rule 3 of the said Rules also provides that while drawing lots, the offices of Mayors reserved for such category in the earlier years, shall be excluded from the draw of lots for those categories. The purpose appears to ensure that the reservation is not thrust upon a particular Corporation again and again and all the Corporations, at some point of time, will have the office of Mayor reserved for particular category in accordance with the said Rules. The office of Mayor can be reserved for Scheduled Tribes in only 9 Corporations whereas all the Corporations are eligible for reservation for Scheduled Castes and Backward Class of Citizens. However, taking into consideration the fact that the number of seats reserved for Scheduled Castes are 3 whereas for Backward Class of Citizens, they are 7 i.e. more than twice, it is quite probable that the post of Mayor could be reserved for two earlier terms for Backward Class of Citizens and whereas no reservation is provided for Scheduled Castes. We find that a harmonious construction of the said Rules would not lead to a conclusion that the procedure as followed by the State Government in allotting the reservation by draw of lots, would be said to be inconsistent with the scheme of the said Rules. As has been explained in the affidavit filed before the High Court by Smt. Alice Sufi Pore, after excluding 12 Corporations which are already reserved for Scheduled Castes in the earlier years and the one which was reserved for Scheduled Tribes in the first draw of lots, there were 14 Corporations available including the Dhule Municipal Corporation. The said Corporation was also included in the draw of lots for Scheduled Castes. However, in the draw of lots, it could not be reserved for Scheduled Castes. However, insofar as Backward Class is concerned, out of 27 Corporations, 26 Corporations excluding newly created Panvel Corporation were already reserved for Backward Class in the earlier years. As such, the State excluded the 7 Corporations which were immediately reserved for the Backward Class and also excluded the 4 Corporations which were reserved for Scheduled Castes and Scheduled Tribes in the present draw of lots. Coincidentally, in the draw of lots, Dhule Municipal Corporation was one of the 7 Corporations which got to be reserved for the Backward Class.34. We find that such a situation is bound to occur in view of the difference in number of seats, reserved for Scheduled Castes and Backward Class of Citizens. If the interpretation as placed is to be accepted then unless the post of Mayor is reserved for Scheduled Tribes in all the Corporations to complete the rotation, it will not be possible to provide reservation for the categories which were already reserved earlier. However, it could be seen that as per the Rules, only 9 Corporations could be reserved for Scheduled Tribes. We therefore find that the combined reading of the said Rules along with the constitutional mandate under Article 243T of the Constitution and Section 19(1A) of the said Act would not permit the interpretation as placed by the High Court.37. In Balram Kumawat v. Union of India and Others (2003) 7 SCC 628, this Court observed thus:-25. A statute must be construed as a workable instrument. Ut res magis valeat quam pereat is a well-known principle of law. In Tinsukhia Electric Supply Co. Ltd. v. State of Assam [(1989) 3 SCC 709 : AIR 1990 SC 123 ] this Court stated the law thus: (SCC p. 754, paras 118-120)118. The courts strongly lean against any construction which tends to reduce a statute to futility. The provision of a statute must be so construed as to make it effective and operative, on the principle ut res magis valeat quam pereat. It is, no doubt, true that if a statute is absolutely vague and its language wholly intractable and absolutely meaningless, the statute could be declared void for vagueness. This is not in judicial review by testing the law for arbitrariness or unreasonableness under Article 14; but what a court of construction, dealing with the language of a statute, does in order to ascertain from, and accord to, the statute the meaning and purpose which the legislature intended for it. In Manchester Ship Canal Co. v. Manchester Racecourse Co. [(1900) 2 Ch 352 : 69 LJCh 850 : 83 LT 274 (CA)] Farwell, J. said: (pp. 360-61)Unless the words were so absolutely senseless that I could do nothing at all with them, I should be bound to find some meaning and not to declare them void for uncertainty.119. In Fawcett Properties Ltd. v. Buckingham County Council [(1960) 3 All ER 503 : (1960) 3 WLR 831 (HL)] Lord Denning approving the dictum of Farwell, J. said: (All ER p. 516)But when a statute has some meaning, even though it is obscure, or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute is to bear, rather than reject it as a nullity.120. It is, therefore, the courts duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. IRC [1926 AC 37 : 95 LJKB 165 : 134 LT 98 (HL)] Lord Dunedin said: (AC p. 52)A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result…….38. It could thus be seen that the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment. As already discussed hereinabove, the dominant intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation. The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation. However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated. At the cost of repetition and particularly taking into consideration the difference in number of seats for Scheduled Castes and Backward Class of Citizens, we find that the interpretation as placed by the High Court, would not make the said Rules workable and give effect to the legislative intent. It would have been a different matter that even after completion of the cycle, requisite reservation as per the Rules is not provided to the Scheduled Castes and excessive reservation is provided for Backward Class of Citizens. Such is not the case. Unfortunately, for the writ petitioner, even for the present term, Dhule Municipal Corporation was also in the pool of eligible Corporations for draw of lots for Scheduled Castes category. However, in the draw, it could not be reserved for Scheduled Castes. Only thereafter, Dhule Municipal Corporation was considered in the pool of draw of lots for Backward Class of Citizens. This was so because in the immediate preceding elections, the office of Mayor was not reserved for Backward Class of Citizens.39. The High Court has strongly relied on the following observations of the Single Judge of the Karnataka High Court in M. Abdul Azeez v. State of Karnataka and Others (supra):-27.1. An elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation.40. However, it is to be noted that the Rules that fell for consideration before the Karnataka High Court, provided that the offices of the President and Vice-President shall be rotated for the different categories from term-to-term. The Rules provided that the cycle of the reservation will begin from the Municipal Council which had the highest population of a particular category. The rotation will go to the other Municipal Councils in the descending manner on the basis of the population of a particular category in the concerned Municipal Council area. The scheme is that the Municipal Council which has the highest number of population of a particular category, will be the first to be reserved for that category and the Council with the least population of that category, would be the last one to be reserved for that category. Only after completion of the said cycle, the reservation can come back for a particular category which was reserved for it at the first instance. It could thus be seen that the Rules that fell for consideration before the Karnataka High Court, were totally different than the ones which fell for consideration before the Bombay High Court.41. Though the Division Bench of the High Court was not bound by the judgment of the Single Judge and it had only a persuasive value, we may gainfully refer to the observations of this Court in The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 :-7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts…..

### 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: choose between them, the courts have to say what meaning the statute is to bear, rather than reject it as a nullity. 120. It is, therefore, the courts duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. IRC [1926 AC 37 : 95 LJKB 165 : 134 LT 98 (HL)] Lord Dunedin said: (AC p. 52) A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable. 26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result……. 38. It could thus be seen that the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment. As already discussed hereinabove, the dominant intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation. The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation. However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated. At the cost of repetition and particularly taking into consideration the difference in number of seats for Scheduled Castes and Backward Class of Citizens, we find that the interpretation as placed by the High Court, would not make the said Rules workable and give effect to the legislative intent. It would have been a different matter that even after completion of the cycle, requisite reservation as per the Rules is not provided to the Scheduled Castes and excessive reservation is provided for Backward Class of Citizens. Such is not the case. Unfortunately, for the writ petitioner, even for the present term, Dhule Municipal Corporation was also in the pool of eligible Corporations for draw of lots for Scheduled Castes category. However, in the draw, it could not be reserved for Scheduled Castes. Only thereafter, Dhule Municipal Corporation was considered in the pool of draw of lots for Backward Class of Citizens. This was so because in the immediate preceding elections, the office of Mayor was not reserved for Backward Class of Citizens. 39. The High Court has strongly relied on the following observations of the Single Judge of the Karnataka High Court in M. Abdul Azeez v. State of Karnataka and Others (supra):- 27.1. An elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation. 40. However, it is to be noted that the Rules that fell for consideration before the Karnataka High Court, provided that the offices of the President and Vice-President shall be rotated for the different categories from term-to-term. The Rules provided that the cycle of the reservation will begin from the Municipal Council which had the highest population of a particular category. The rotation will go to the other Municipal Councils in the descending manner on the basis of the population of a particular category in the concerned Municipal Council area. The scheme is that the Municipal Council which has the highest number of population of a particular category, will be the first to be reserved for that category and the Council with the least population of that category, would be the last one to be reserved for that category. Only after completion of the said cycle, the reservation can come back for a particular category which was reserved for it at the first instance. It could thus be seen that the Rules that fell for consideration before the Karnataka High Court, were totally different than the ones which fell for consideration before the Bombay High Court. 41. Though the Division Bench of the High Court was not bound by the judgment of the Single Judge and it had only a persuasive value, we may gainfully refer to the observations of this Court in The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 :- 7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts….. ### Response: 1 ### Explanation: or several meanings, even though there is little to choose between them, the courts have to say what meaning the statute is to bear, rather than reject it as a nullity.120. It is, therefore, the courts duty to make what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short of impossibility should allow a court to declare a statute unworkable. In Whitney v. IRC [1926 AC 37 : 95 LJKB 165 : 134 LT 98 (HL)] Lord Dunedin said: (AC p. 52)A statute is designed to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable.26. The courts will therefore reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. [See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] (AC at p. 634).] Reducing the legislation futility shall be avoided and in a case where the intention of the legislature cannot be given effect to, the courts would accept the bolder construction for the purpose of bringing about an effective result…….38. It could thus be seen that the Court will have to prefer an interpretation which makes the Statute workable. The interpretation which gives effect to the intention of the legislature, will have to be preferred. The interpretation which brings about the effect of result, will have to be preferred than the one which defeats the purpose of the enactment. As already discussed hereinabove, the dominant intent of the said Rules is to give effect to the reservation policy while ensuring that reservations are not repeated in particular Corporations and at the same time in all the Corporations, there shall be reservation, at some point of time, for all the eligible categories by rotation. The legislative intent is to exclude the Corporations which were earlier reserved for a particular category until all the categories are provided reservation. However, while doing so, the Court will have to interpret Rule 3 of the said Rules in such a manner that this scheme is made workable and not frustrated. At the cost of repetition and particularly taking into consideration the difference in number of seats for Scheduled Castes and Backward Class of Citizens, we find that the interpretation as placed by the High Court, would not make the said Rules workable and give effect to the legislative intent. It would have been a different matter that even after completion of the cycle, requisite reservation as per the Rules is not provided to the Scheduled Castes and excessive reservation is provided for Backward Class of Citizens. Such is not the case. Unfortunately, for the writ petitioner, even for the present term, Dhule Municipal Corporation was also in the pool of eligible Corporations for draw of lots for Scheduled Castes category. However, in the draw, it could not be reserved for Scheduled Castes. Only thereafter, Dhule Municipal Corporation was considered in the pool of draw of lots for Backward Class of Citizens. This was so because in the immediate preceding elections, the office of Mayor was not reserved for Backward Class of Citizens.39. The High Court has strongly relied on the following observations of the Single Judge of the Karnataka High Court in M. Abdul Azeez v. State of Karnataka and Others (supra):-27.1. An elementary test to find out as to whether the principle of rotation is violated or not, is to examine as to whether any allotment to a reserved category is repeated in any Municipality before commencement of a fresh cycle of rotation for that category. If there is any allotment to any reserved category for the second time in a Municipality before completion of a cycle of rotation or before commencement of a fresh cycle of rotation for that category, it would be a clear violation of the principle of rotation.40. However, it is to be noted that the Rules that fell for consideration before the Karnataka High Court, provided that the offices of the President and Vice-President shall be rotated for the different categories from term-to-term. The Rules provided that the cycle of the reservation will begin from the Municipal Council which had the highest population of a particular category. The rotation will go to the other Municipal Councils in the descending manner on the basis of the population of a particular category in the concerned Municipal Council area. The scheme is that the Municipal Council which has the highest number of population of a particular category, will be the first to be reserved for that category and the Council with the least population of that category, would be the last one to be reserved for that category. Only after completion of the said cycle, the reservation can come back for a particular category which was reserved for it at the first instance. It could thus be seen that the Rules that fell for consideration before the Karnataka High Court, were totally different than the ones which fell for consideration before the Bombay High Court.41. Though the Division Bench of the High Court was not bound by the judgment of the Single Judge and it had only a persuasive value, we may gainfully refer to the observations of this Court in The Regional Manager and Another v. Pawan Kumar Dubey (1976) 3 SCC 334 :-7. …..Even where there appears to be some conflict, it would, we think, vanish when the ratio decidendi of each case is correctly understood. It is the rule deducible from the application of law to the facts and circumstances of a case which constitutes its ratio decidendi and not some conclusion based upon facts which may appear to be similar. One additional or different fact can make a world of difference between conclusions in two cases even when the same principles are applied in each case to similar facts…..

MAHESH CHANDRA VERMA Vs. THE STATE OF JHARKHAND STATE OF JHARKHAND AND ORS. THROUGH ITS CHIEF SECRETARY

to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter.”14. The need to set up Fast Track courts arose on account of delays in the judicial process, targeting certain priority areas for quicker adjudication. In fact, had there been adequate cadre strength, there would have been no need to set up these Fast Track courts.15. The appellants were not appointed to the Fast Track courts just at the whim and fancy of any person, but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment. We do believe that these Judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise there would have been no occasion for their appointment to the regular cadre strength. Not only that, they also went through a second process for such recruitment. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal 12 -[II] and in Mahesh Chandra Verma 13 , the necessary corollary must also follow, of giving benefit of the period of service in Fast Track courts for their pension and retiral benefits. The methodology of non-creation of adequate regular cadre posts and the consequent establishment of Fast Track courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants. 16. In a different factual context but on the principle laid down, we take note of the judgment in Nihal Singh & Ors. v. State of Punjab & Ors. 14 of a Bench of this court to which one of us was a member. The State of Punjab in the 1980s was faced with large scale disturbance and was not in a position to handle the prevailing law and order situation with the available police personnel and, hence, resorted to recruitment under Section 17 of the Police Act, 1861 (hereinafter referred to as the ‘Act’) for appointing Special Police Officers (‘SPOs’). The SPOs were assigned the duty of providing security to banks, for which the financial burden was to be borne by the banks, with the clear understanding that, as per the provisions of the Act, such police officers were to be under the discipline and control of the Senior Superintendent of Police of the District concerned. Such SPOs provided yeoman service in difficult times but when their case was considered for regularization subsequently, it met with an unfavourable response by an order passed in the year 2002. This Court while recognizing that the creation of a cadre or sanctioning of posts was exclusively within the authority of the State, opined that if the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only, such action would be categorized as arbitrary nature of exercise of power. In this context, it was observed by the Bench, thus:“Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.”Thus, the facts found showed that there was the existence of a need for creation of posts and the failure to create such posts or having a stop gap arrangement, which lasted for years cannot be used to deny in an arbitrary manner, the absorption benefit to people who had worked for long years. A direction was issued to regularise the services of such SPOs and they were held entitled to the benefits of service similar in nature to the existing cadre of police service of the State.17. The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this court and have continued to work thereafter.18. We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track court Judges to be counted for their length of service in determination of their pension and retiral benefits.

1[ds]13. We put a specific query to the learned counsel as to whether this Court had, in the two judgments in question, prohibited any such grant? Learned counsel after some initial hesitation could not dispute the position that there was no such prohibition. We also put to the learned counsel whether the existing cadre strength was sufficient tothe justice delivery process, i.e., could it be said that there were enough courts in existence to try the relevant cases? The only answer, which came forth was that the State had been carved out recently and had taken immediate steps to fill the vacancies. However, to our mind, the important aspect is that the State was no exception to the general position prevalent of inadequate judicial posts to deal with the existing inflow of cases. It is only through subsequent directions that a periodic increase in judicial strength has been envisaged. In Brij Mohan Lal 11Keeping in view the need of the hour and the constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter.The need to set up Fast Track courts arose on account of delays in the judicial process, targeting certain priority areas for quicker adjudication. In fact, had there been adequate cadre strength, there would have been no need to set up these Fast Track courts.15. The appellants were not appointed to the Fast Track courts just at the whim and fancy of any person, but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment. We do believe that these Judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise there would have been no occasion for their appointment tothe regular cadre strength. Not only that, they also went through a second process for such recruitment. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal 12[II] and in Mahesh Chandra Verma 13 , the necessary corollary must also follow, of giving benefit of the period of service in Fast Track courts for their pension and retiral benefits. The methodology ofof adequate regular cadre posts and the consequent establishment of Fast Track courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants.. The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this court and have continued to work thereafter.18. We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track court Judges to be counted for their length of service in determination of their pension and retiral benefits.

### 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: to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter.”14. The need to set up Fast Track courts arose on account of delays in the judicial process, targeting certain priority areas for quicker adjudication. In fact, had there been adequate cadre strength, there would have been no need to set up these Fast Track courts.15. The appellants were not appointed to the Fast Track courts just at the whim and fancy of any person, but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment. We do believe that these Judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise there would have been no occasion for their appointment to the regular cadre strength. Not only that, they also went through a second process for such recruitment. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal 12 -[II] and in Mahesh Chandra Verma 13 , the necessary corollary must also follow, of giving benefit of the period of service in Fast Track courts for their pension and retiral benefits. The methodology of non-creation of adequate regular cadre posts and the consequent establishment of Fast Track courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants. 16. In a different factual context but on the principle laid down, we take note of the judgment in Nihal Singh & Ors. v. State of Punjab & Ors. 14 of a Bench of this court to which one of us was a member. The State of Punjab in the 1980s was faced with large scale disturbance and was not in a position to handle the prevailing law and order situation with the available police personnel and, hence, resorted to recruitment under Section 17 of the Police Act, 1861 (hereinafter referred to as the ‘Act’) for appointing Special Police Officers (‘SPOs’). The SPOs were assigned the duty of providing security to banks, for which the financial burden was to be borne by the banks, with the clear understanding that, as per the provisions of the Act, such police officers were to be under the discipline and control of the Senior Superintendent of Police of the District concerned. Such SPOs provided yeoman service in difficult times but when their case was considered for regularization subsequently, it met with an unfavourable response by an order passed in the year 2002. This Court while recognizing that the creation of a cadre or sanctioning of posts was exclusively within the authority of the State, opined that if the State did not choose to create a cadre but chose to make appointments of persons creating contractual relationship only, such action would be categorized as arbitrary nature of exercise of power. In this context, it was observed by the Bench, thus:“Sanctioned posts do not fall from heaven. The State has to create them by a conscious choice on the basis of some rational assessment of the need.”Thus, the facts found showed that there was the existence of a need for creation of posts and the failure to create such posts or having a stop gap arrangement, which lasted for years cannot be used to deny in an arbitrary manner, the absorption benefit to people who had worked for long years. A direction was issued to regularise the services of such SPOs and they were held entitled to the benefits of service similar in nature to the existing cadre of police service of the State.17. The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this court and have continued to work thereafter.18. We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track court Judges to be counted for their length of service in determination of their pension and retiral benefits. ### Response: 1 ### Explanation: 13. We put a specific query to the learned counsel as to whether this Court had, in the two judgments in question, prohibited any such grant? Learned counsel after some initial hesitation could not dispute the position that there was no such prohibition. We also put to the learned counsel whether the existing cadre strength was sufficient tothe justice delivery process, i.e., could it be said that there were enough courts in existence to try the relevant cases? The only answer, which came forth was that the State had been carved out recently and had taken immediate steps to fill the vacancies. However, to our mind, the important aspect is that the State was no exception to the general position prevalent of inadequate judicial posts to deal with the existing inflow of cases. It is only through subsequent directions that a periodic increase in judicial strength has been envisaged. In Brij Mohan Lal 11Keeping in view the need of the hour and the constitutional mandate to provide fair and expeditious trial to all litigants and the citizens of the country, we direct the respective States and the Central Government to create 10% of the total regular cadre of the State as additional posts within three months from today and take up the process for filling such additional vacancies as per the Higher Judicial Service and Judicial Services Rules of that State, immediately thereafter.The need to set up Fast Track courts arose on account of delays in the judicial process, targeting certain priority areas for quicker adjudication. In fact, had there been adequate cadre strength, there would have been no need to set up these Fast Track courts.15. The appellants were not appointed to the Fast Track courts just at the whim and fancy of any person, but were the next in line on the merit list of a judicial recruitment process. They were either part of the select list, who could not find a place given the cadre strength, or those next in line in the select list. Had there been adequate cadre strength, the recruitment process would have resulted in their appointment. We do believe that these Judges have rendered services over a period of nine years and have performed their role as Judges to the satisfaction, otherwise there would have been no occasion for their appointment tothe regular cadre strength. Not only that, they also went through a second process for such recruitment. We believe that it is a matter of great regret that these appellants who have performed the functions of a Judge to the satisfaction of the competent authorities should be deprived of their pension and retiral benefits for this period of service. The appellants were not pressing before us any case of seniority over any person who may have been recruited subsequently, nor for any other benefit. In fact, we had made it clear to the appellants that we are only examining the issue of giving the benefits of their service in the capacity of Fast Track court Judges to be counted towards their length of service for pensionary and retiral benefits. To deny the same would be unjust and unfair to the appellants. In any case, keeping in mind the spirit of the directions made under Article 142 of the Constitution of India in Brij Mohan Lal 12[II] and in Mahesh Chandra Verma 13 , the necessary corollary must also follow, of giving benefit of the period of service in Fast Track courts for their pension and retiral benefits. The methodology ofof adequate regular cadre posts and the consequent establishment of Fast Track courts manned by the appellants cannot be used as a ruse to deny the dues of the appellants.. The position in respect of the appellants is really no different on the principle enunciated, as there was need for a regular cadre strength keeping in mind the inflow and pendency of cases. The Fast Track Court Scheme was brought in to deal with the exigency and the appellants were appointed to the Fast Track courts and continued to work for almost a decade. They were part of the initial select list/merit list for recruitment to the regular cadre strength but were not high enough to be recruited in the existing strength. Even at the stage of absorption in the regular cadre strength, they had to go through a defined process in pursuance of the judgment of this court and have continued to work thereafter.18. We are, thus, unhesitatingly and unequivocally of the view that all the appellants and Judicial Officers identically situated are entitled to the benefit of the period of service rendered as Fast Track court Judges to be counted for their length of service in determination of their pension and retiral benefits.

SURENDRA KUMAR BHILAWE Vs. THE NEW INDIA ASSURANCE COMPANY LTD

Motor Vehicles Accidents Claims Tribunal in case of an accident, was that of the purchaser of the vehicle alone, or whether the liability of the recorded owner of the vehicle was coextensive, and from the recorded owner it would pass on to the Insurer of the vehicle. This Court found that the person whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation, having regard to the provisions of Section 2(30) read with Section 50 of the Motor Vehicles Act, 1988 and since an insurance policy had been taken out in the name of the recorded owner, he was indemnified and the Insurer would be liable to satisfy the third party claims. 48. In Naveen Kumar vs. Vijay Kumar and Others (2018) 3 SCC 1 , a three- Judge Bench of this Court held that in view of the definition of the expression owner in Section 2(30) of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purposes of the said Act, would be treated as the owner of the vehicle. Where the registered owner purports to transfer the vehicle, but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of his liability as owner. 49. The Judgment of this Court in Pushpa @ Leela & Ors. vs. Shakuntala (supra) and Naveen Kumar vs. Vijay Kumar (supra) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually. However, the dictum of this Court that the registered owner continues to remain owner and when the vehicle is Insured in the name of the registered owner, the Insurer would remain liable notwithstanding any transfer, would apply equally in the case of claims made by the insured himself in case of an accident. If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident. 50. The policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. The Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident. 51. The FIR was lodged within three days of the accident. In the case of a major accident of the kind as in this case, where the said truck had turned turtle and fallen into a river, slight delay if any, on the part of the traumatized driver to lodge an FIR, cannot defeat the legitimate claim of the Insured. Of course in our view, there was no delay at all in lodging the FIR. In case of a serious accident in course of inter-state transportation of goods, delay of 20 days in lodging a claim is also no delay at all. It is nobodys case that the claim application filed by the Appellant was time barred. Moreover, the Insurer had, in any case, duly sent its Surveyors/ Assessors to assess the loss. The claim of the Appellant could not have, in this case, been resisted, either on the ground of delay in lodging the FIR, or on the ground of delay in lodging an Accident Information Report, or on the ground of delay in making a claim. 52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another (2017) 1 SCC 724 delay in intimation of accident, or submission of documents due to unavoidable circumstances, should not bar settlement of genuine claims. 53. In our considered opinion, the National Commission erred in law in reversing the concurrent factual findings of the District Forum and the National Commission ignoring vital admitted facts as stated above, including registration of the said truck being in the name of the Appellant, even as on the date of the accident, over three years after the alleged transfer, payment by the Appellant of the premium for the Insurance Policy, issuance of Insurance Policy in the name of the Appellant, permit in the name of the Appellant even after three years and seven months, absence of No Objection from the financier bank etc. and also overlooking the definition of owner in Section 2(30) of the Motor Vehicles Act, as also other relevant provisions of the Motor Vehicles Act and the Rules framed thereunder, including in particular the transferability of a policy of insurance under Section 157. 54. In view of the definition of owner in Section 2(30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad Iliyas Ansari. 55. The judgment of this Court in Oriental Insurance vs. Sony Cheriyam (1999) 6 SCC 451 was rendered in the context of liability of an Insurer in terms of the insurance policy and is not attracted in this case, where the claim of the insured has not been rejected on the ground of the same not being covered by the policy of insurance, but on the ground of purported transfer to a third party by entering into a sale agreement. 56. We have not dealt with the judgments of the National Commission and/or other Fora under the Consumer Protection Act, 1986, relied upon by the parties, as they are factually distinguishable and are in any case, not precedents binding on this Court. In any case, we have considered and dealt with the submission of the respective parties at length.

1[ds]28. The National Commission completely ignored the following concurrent factual findings of the District Forum and State Commission:-(i) Even after the date of the purported sale agreement, that is, 11.4.2008, the Appellant continued to pay instalments to ICICI Bank towards repayment of the loan for purchase of the said truck.(ii) The ICICI Bank had neither released the said truck from hypothecation nor given No Objection for the sale of the said truck.(iii) The Appellant paid the premium and took out the policy of insurance on or about 31.5.2011 covering the period from 2.6.2011 to 1.6.2012 in his own name. This was over three years after the date of the purported sale agreement.(iv) No steps were taken by the Appellant or by Mohammad Iliyas Ansari to have the registration of the said truck transferred in the name of Mohammad Iliyas Ansari.(v) The permit for operating the said truck was still in the name of the Appellant over three years after the purported sale agreement.29. There was no material evidence at all before the National Commission, on the basis of which the National Commission could have reversed the concurrent factual findings of the District Forum and the State Commission which unerringly led to the conclusion that ownership of the said truck never stood transferred to Mohammad Iliyas Ansari30. In fact, the National Commission did not address the following questions:-(i) Who actually paid instalments to ICICI Bank after 11.4.2008 – the Appellant or Mohammad Iliyas Ansari? The concurrent finding of the District Forum and the State Commission that the Appellant paid instalments to ICICI Bank even after 11.4.2008, therefore, remained unshaken.(ii) If the ownership of the said truck stood transferred on 11.4.2008, why would the Appellant continue to pay the instalments to ICICI Bank towards repayment of the loan for purchase of the said truck?(iii) Was any No Objection obtained from ICICI Bank for transfer of the said truck?(iv) Could the Appellant have transferred the said truck without No Objection from ICICI Bank?(v) Who actually paid the Insurance Premium on 31.5.2011 for the said Policy No.45030031110100001693 effective from 2.6.2011 to 1.6.2012?(vi) If the ownership of the said truck were transferred, why would the Appellant have taken out an Insurance Policy covering the said truck in his own name even on 31.5.2011, after over three years?(vii) Was the Driver Rajendra Singh employee of the Appellant or of Mohammad Iliyas Ansari? Was any statement in this regard taken either from Driver Rajendra Singh or Mohammad Iliyas Ansari?(viii) Were any steps ever taken for transfer of registration of the said truck in the name of Mohammad Iliyas Ansari?(ix) If the ownership of the said truck stood transferred to Mohammad Iliyas Ansari, why did he not take steps to have the registration of the said truck transferred in his own name even after three years?(x) In whose name did the permit to operate the said truck stand?(xi) Why would Mohammad Iliyas Ansari run the said truck with a permit in the name of the Appellant, if he was its owner, thereby exposing himself to penal consequences under the Motor Vehicle Act and the Rules framed thereunder?(xii) Could ownership of the said truck be transferred without transfer of registration in the name of the transferee, in view of the Motor Vehicle Act, 1988 and the Rules framed thereunder?31. In our considered opinion, Sections 19 and 20 of the Sale of Goods Act, 1930, which deal with the stage at which the property in movable goods passes to the buyer, is of no assistance to the Insurer. There can be no doubt that property in a specific movable property is transferred to the buyer at such time as parties to the contract intend it to be transferred, provided such immovable property is free to be transferred, and/or in other words capable of being transferred32. If there is an impediment to the transfer, as in the instant case, where No Objection of the financier bank was imperative for transfer of the said truck, there could be no question of transfer of title until the impediment were removed, for otherwise the contract for transfer would be injurious to the financier bank, immoral, unlawful and void under Section 10 read with Sections 23 and 24 of the Contract Act, 187233. It was thus, an implicit condition of the agreement for transfer of the said truck, that the transfer would be complete only upon issuance of No Objection by the financier bank and upon compliance with the statutory requirements for transfer of a motor vehicle34. The contract in this case, could not possibly have been an unconditional contract of transfer of movable property in deliverable state, but a contract to transfer, contingent upon No Objection from ICICI Bank, and compliance with the statutory provisions of the Motor Vehicles Act, 1988 and the Rules framed thereunder. Sections 19 and 20 of the Sale of Goods Act are not attracted35. The National Commission overlooked the definition of owner in Section 2(30) of the Motor Vehicle Act, 1988. In Section 2(30) owner has been defined to mean a person in whose name a motor vehicle stands registered and, where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire purchase agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement. Even assuming that Mohammad Iliyas Ansari was in possession of the said truck at the time of the accident, such possession was not under any agreement of lease, hire purchase or hypothecation with ICIC Bank.37. The National Commission also overlooked other applicable provisions of the Motor Vehicle Act 1988, particularly Sections 39 to 41, 50, 51, 66, 69, 82, 84(g), 86(c), 146, 157, 177 and 192A.39. It appears that the National Commission patently erred in holding that the Appellant had been paid the consideration without even examining if Mohammad Iliyas Ansari had paid any instalments to ICICI Bank40. The finding of the National Commission that the fact of registration of the said truck in the name of the Appellant was inconsequential is also not sustainable in law. Section 2(30) of the Motor Vehicles Act, 1988 defines owner to mean the person in whose name the motor vehicle stands registered. The definition of owner has been overlooked and ignored by the National Commission. Had ownership of the said truck intended to be transferred forthwith, the registration would have been transferred in the name of the transferee, as also the permit to operate the said truck for carriage of goods41. It is difficult to accept that a person who has transferred the ownership of a goods carriage vehicle on receipt of consideration, would not report the transfer or apply for transfer of registration, and thereby continue to incur the risks and liabilities of ownership of the vehicle under the provisions of law including in particular, under the Motor Vehicles Act, 1988 and other criminal/penal laws. It does not also stand to reason why a person who has transferred the ownership of the vehicle should, for over three years, benevolently go on repaying the loan for purchase of the vehicle, take out insurance policies to cover the vehicle or otherwise discharge obligations of ownership42. It is equally incredible that an owner of a vehicle who has paid consideration to acquire the vehicle would not insist on transfer of the permit and thereby expose himself to the penal consequence of operating a goods vehicle without a valid permit43. The National Commission also failed to appreciate that Section 157 of the Motor Vehicles Act provides that where a person, in whose favour the certificate of insurance has been issued in accordance with the provisions of Chapter XI of the Motor Vehicles Act, transfers to another person the ownership of the motor vehicle in respect of which such insurance was taken together with the policy of insurance relating thereto, the certificate of insurance and the policy described in the certificate are to be deemed to have been transferred in favour of the person to whom the motor vehicle is transferred, with effect from the date of its transfer44. The explanation to Section 157 clarifies, for the removal of all doubts, that such deemed transfer would include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. The transferee might, within 14 days from the date of transfer, apply to the Insurer in the prescribed form, for making requisite changes in the certificate of insurance and the policy of insurance with regard to the factum of transfer of insurance. There could be no reason for a transferee of an insured motor vehicle, to refrain from applying for endorsement of the transfer in the Insurance Policy Certificate when insurance covering third party risk is mandatory for using a vehicle45. In any case, there could be no reason for the Appellant to take out an insurance cover in his own name as late as on 31.5.2011, covering the period from 2.6.2011 till 1.6.2012, if the Appellant had transferred ownership of the vehicle in April 2008. It is incredible that the transferee, Mohammad Iliyas Ansari would take the risk of operating a vehicle, owned by him, without taking out a policy of Insurance in his own name, inter alia, covering third party risks, notwithstanding the mandate of Section 146 of the Motor Vehicles Act, 1988 prohibiting the use of a motor vehicle without third party insurance49. The Judgment of this Court in Pushpa @ Leela & Ors. vs. Shakuntala (supra) and Naveen Kumar vs. Vijay Kumar (supra) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually. However, the dictum of this Court that the registered owner continues to remain owner and when the vehicle is Insured in the name of the registered owner, the Insurer would remain liable notwithstanding any transfer, would apply equally in the case of claims made by the insured himself in case of an accident. If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident50. The policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. The Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident51. The FIR was lodged within three days of the accident. In the case of a major accident of the kind as in this case, where the said truck had turned turtle and fallen into a river, slight delay if any, on the part of the traumatized driver to lodge an FIR, cannot defeat the legitimate claim of the Insured. Of course in our view, there was no delay at all in lodging the FIR. In case of a serious accident in course of inter-state transportation of goods, delay of 20 days in lodging a claim is also no delay at all. It is nobodys case that the claim application filed by the Appellant was time barred. Moreover, the Insurer had, in any case, duly sent its Surveyors/ Assessors to assess the loss. The claim of the Appellant could not have, in this case, been resisted, either on the ground of delay in lodging the FIR, or on the ground of delay in lodging an Accident Information Report, or on the ground of delay in making a claim52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another (2017) 1 SCC 724 delay in intimation of accident, or submission of documents due to unavoidable circumstances, should not bar settlement of genuine claims53. In our considered opinion, the National Commission erred in law in reversing the concurrent factual findings of the District Forum and the National Commission ignoring vital admitted facts as stated above, including registration of the said truck being in the name of the Appellant, even as on the date of the accident, over three years after the alleged transfer, payment by the Appellant of the premium for the Insurance Policy, issuance of Insurance Policy in the name of the Appellant, permit in the name of the Appellant even after three years and seven months, absence of No Objection from the financier bank etc. and also overlooking the definition of owner in Section 2(30) of the Motor Vehicles Act, as also other relevant provisions of the Motor Vehicles Act and the Rules framed thereunder, including in particular the transferability of a policy of insurance under Section 15754. In view of the definition of owner in Section 2(30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad Iliyas Ansari.55. The judgment of this Court in Oriental Insurance vs. Sony Cheriyam (1999) 6 SCC 451 was rendered in the context of liability of an Insurer in terms of the insurance policy and is not attracted in this case, where the claim of the insured has not been rejected on the ground of the same not being covered by the policy of insurance, but on the ground of purported transfer to a third party by entering into a sale agreement56. We have not dealt with the judgments of the National Commission and/or other Fora under the Consumer Protection Act, 1986, relied upon by the parties, as they are factually distinguishable and are in any case, not precedents binding on this Court. In any case, we have considered and dealt with the submission of the respective parties at length.

### 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: Motor Vehicles Accidents Claims Tribunal in case of an accident, was that of the purchaser of the vehicle alone, or whether the liability of the recorded owner of the vehicle was coextensive, and from the recorded owner it would pass on to the Insurer of the vehicle. This Court found that the person whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation, having regard to the provisions of Section 2(30) read with Section 50 of the Motor Vehicles Act, 1988 and since an insurance policy had been taken out in the name of the recorded owner, he was indemnified and the Insurer would be liable to satisfy the third party claims. 48. In Naveen Kumar vs. Vijay Kumar and Others (2018) 3 SCC 1 , a three- Judge Bench of this Court held that in view of the definition of the expression owner in Section 2(30) of the Motor Vehicles Act, 1988, it is the person in whose name the motor vehicle stands registered, who, for the purposes of the said Act, would be treated as the owner of the vehicle. Where the registered owner purports to transfer the vehicle, but continues to be reflected in the records of the Registering Authority as the owner of the vehicle, he would not stand absolved of his liability as owner. 49. The Judgment of this Court in Pushpa @ Leela & Ors. vs. Shakuntala (supra) and Naveen Kumar vs. Vijay Kumar (supra) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually. However, the dictum of this Court that the registered owner continues to remain owner and when the vehicle is Insured in the name of the registered owner, the Insurer would remain liable notwithstanding any transfer, would apply equally in the case of claims made by the insured himself in case of an accident. If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident. 50. The policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. The Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident. 51. The FIR was lodged within three days of the accident. In the case of a major accident of the kind as in this case, where the said truck had turned turtle and fallen into a river, slight delay if any, on the part of the traumatized driver to lodge an FIR, cannot defeat the legitimate claim of the Insured. Of course in our view, there was no delay at all in lodging the FIR. In case of a serious accident in course of inter-state transportation of goods, delay of 20 days in lodging a claim is also no delay at all. It is nobodys case that the claim application filed by the Appellant was time barred. Moreover, the Insurer had, in any case, duly sent its Surveyors/ Assessors to assess the loss. The claim of the Appellant could not have, in this case, been resisted, either on the ground of delay in lodging the FIR, or on the ground of delay in lodging an Accident Information Report, or on the ground of delay in making a claim. 52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another (2017) 1 SCC 724 delay in intimation of accident, or submission of documents due to unavoidable circumstances, should not bar settlement of genuine claims. 53. In our considered opinion, the National Commission erred in law in reversing the concurrent factual findings of the District Forum and the National Commission ignoring vital admitted facts as stated above, including registration of the said truck being in the name of the Appellant, even as on the date of the accident, over three years after the alleged transfer, payment by the Appellant of the premium for the Insurance Policy, issuance of Insurance Policy in the name of the Appellant, permit in the name of the Appellant even after three years and seven months, absence of No Objection from the financier bank etc. and also overlooking the definition of owner in Section 2(30) of the Motor Vehicles Act, as also other relevant provisions of the Motor Vehicles Act and the Rules framed thereunder, including in particular the transferability of a policy of insurance under Section 157. 54. In view of the definition of owner in Section 2(30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad Iliyas Ansari. 55. The judgment of this Court in Oriental Insurance vs. Sony Cheriyam (1999) 6 SCC 451 was rendered in the context of liability of an Insurer in terms of the insurance policy and is not attracted in this case, where the claim of the insured has not been rejected on the ground of the same not being covered by the policy of insurance, but on the ground of purported transfer to a third party by entering into a sale agreement. 56. We have not dealt with the judgments of the National Commission and/or other Fora under the Consumer Protection Act, 1986, relied upon by the parties, as they are factually distinguishable and are in any case, not precedents binding on this Court. In any case, we have considered and dealt with the submission of the respective parties at length. ### Response: 1 ### Explanation: been transferred in favour of the person to whom the motor vehicle is transferred, with effect from the date of its transfer44. The explanation to Section 157 clarifies, for the removal of all doubts, that such deemed transfer would include transfer of rights and liabilities of the said certificate of insurance and policy of insurance. The transferee might, within 14 days from the date of transfer, apply to the Insurer in the prescribed form, for making requisite changes in the certificate of insurance and the policy of insurance with regard to the factum of transfer of insurance. There could be no reason for a transferee of an insured motor vehicle, to refrain from applying for endorsement of the transfer in the Insurance Policy Certificate when insurance covering third party risk is mandatory for using a vehicle45. In any case, there could be no reason for the Appellant to take out an insurance cover in his own name as late as on 31.5.2011, covering the period from 2.6.2011 till 1.6.2012, if the Appellant had transferred ownership of the vehicle in April 2008. It is incredible that the transferee, Mohammad Iliyas Ansari would take the risk of operating a vehicle, owned by him, without taking out a policy of Insurance in his own name, inter alia, covering third party risks, notwithstanding the mandate of Section 146 of the Motor Vehicles Act, 1988 prohibiting the use of a motor vehicle without third party insurance49. The Judgment of this Court in Pushpa @ Leela & Ors. vs. Shakuntala (supra) and Naveen Kumar vs. Vijay Kumar (supra) were rendered in the context of liability to satisfy third party claims and as such distinguishable factually. However, the dictum of this Court that the registered owner continues to remain owner and when the vehicle is Insured in the name of the registered owner, the Insurer would remain liable notwithstanding any transfer, would apply equally in the case of claims made by the insured himself in case of an accident. If the insured continues to remain the owner in law in view of the statutory provisions of the Motor Vehicles Act, 1988 and in particular Section 2(30) thereof, the Insurer cannot evade its liability in case of an accident50. The policy of insurance in this case, was apparently a comprehensive policy of Insurance which covered third party risk as well. The Insurer could not have repudiated only one part of the contract of insurance to reimburse the owner for losses, when it could not have evaded its liability to third parties under the same contract of Insurance in case of death, injury, loss or damage by reason of an accident51. The FIR was lodged within three days of the accident. In the case of a major accident of the kind as in this case, where the said truck had turned turtle and fallen into a river, slight delay if any, on the part of the traumatized driver to lodge an FIR, cannot defeat the legitimate claim of the Insured. Of course in our view, there was no delay at all in lodging the FIR. In case of a serious accident in course of inter-state transportation of goods, delay of 20 days in lodging a claim is also no delay at all. It is nobodys case that the claim application filed by the Appellant was time barred. Moreover, the Insurer had, in any case, duly sent its Surveyors/ Assessors to assess the loss. The claim of the Appellant could not have, in this case, been resisted, either on the ground of delay in lodging the FIR, or on the ground of delay in lodging an Accident Information Report, or on the ground of delay in making a claim52. In any case, as held by this Court in Om Prakash vs. Reliance General Insurance and Another (2017) 1 SCC 724 delay in intimation of accident, or submission of documents due to unavoidable circumstances, should not bar settlement of genuine claims53. In our considered opinion, the National Commission erred in law in reversing the concurrent factual findings of the District Forum and the National Commission ignoring vital admitted facts as stated above, including registration of the said truck being in the name of the Appellant, even as on the date of the accident, over three years after the alleged transfer, payment by the Appellant of the premium for the Insurance Policy, issuance of Insurance Policy in the name of the Appellant, permit in the name of the Appellant even after three years and seven months, absence of No Objection from the financier bank etc. and also overlooking the definition of owner in Section 2(30) of the Motor Vehicles Act, as also other relevant provisions of the Motor Vehicles Act and the Rules framed thereunder, including in particular the transferability of a policy of insurance under Section 15754. In view of the definition of owner in Section 2(30) of the Motor Vehicles Act, the Appellant remained the owner of the said truck on the date of the accident and the Insurer could not have avoided its liability for the losses suffered by the owner on the ground of transfer of ownership to Mohammad Iliyas Ansari.55. The judgment of this Court in Oriental Insurance vs. Sony Cheriyam (1999) 6 SCC 451 was rendered in the context of liability of an Insurer in terms of the insurance policy and is not attracted in this case, where the claim of the insured has not been rejected on the ground of the same not being covered by the policy of insurance, but on the ground of purported transfer to a third party by entering into a sale agreement56. We have not dealt with the judgments of the National Commission and/or other Fora under the Consumer Protection Act, 1986, relied upon by the parties, as they are factually distinguishable and are in any case, not precedents binding on this Court. In any case, we have considered and dealt with the submission of the respective parties at length.

KAKADIA BUILDERS PVT LTD Vs. INCOME TAX OFFICER WARD 1(3)

matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. 17. So far as the decision rendered in Ghaswala (supra) is concerned, the question involved therein was whether the Settlement Commission constituted under Section 245B of the Act has the jurisdiction to reduce or waive the interest chargeable under Sections 234A, 234B and 234C of the Act while passing the order of settlement under Section 245D of the Act. After examining the scheme of the Act in the context of the powers of the Settlement Commission, Justice Santosh Hegde speaking for the Bench held as under: “35. For the reasons stated above, we hold that the Commission in exercise of its power under Sections 245¬D(4) and (6) does not have the power to reduce or waive interest statutorily payable under Sections 234¬A, 234¬B and 234¬C except to the extent of granting relief under the circulars issued by the Board under Section 119 of the Act.” 18. So far as the decision rendered in Brijlal (supra) is concerned, this Court examined the following three questions: “(I) Whether Section 234¬B applies to proceedings of the Settlement Commission under Chapter XIX¬A of the said Act?(II) If answer to the above question is in the affirmative, what is the terminal point for levy of such interest — whether such interest should be computed up to the date of the order under Section 245¬D(1) or up to the date of the order of the Commission under Section 245¬D(4)?(III) Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 of the said Act so as to levy interest under Section 234¬B, though it was not so done in the original proceedings?” 19. After examining these questions, this Court speaking through Justice S.H. Kapadia, the then learned CJI, answered the questions as under : “ (1) Sections 234¬A, 234¬B and 234¬C are applicable to the proceedings of the Settlement Commission under Chapter XIX¬A of the Act to the extent indicated hereinabove.(2) Consequent upon Conclusion (1), the terminal point for the levy of interest under Section 234-B would be up to the date of the order under Section 245¬D(1) and not up to the date of the order of settlement under Section 245¬D(4).(3) The Settlement Commission cannot reopen its concluded proceedings by invoking Section 154 of the Act so as to levy interest under Section 234¬B, particularly, in view of Section 245¬I.” 20. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned.

1[ds]15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow the appeals and remand the case to the Settlement Commission for deciding the matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned.

### 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: matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. 17. So far as the decision rendered in Ghaswala (supra) is concerned, the question involved therein was whether the Settlement Commission constituted under Section 245B of the Act has the jurisdiction to reduce or waive the interest chargeable under Sections 234A, 234B and 234C of the Act while passing the order of settlement under Section 245D of the Act. After examining the scheme of the Act in the context of the powers of the Settlement Commission, Justice Santosh Hegde speaking for the Bench held as under: “35. For the reasons stated above, we hold that the Commission in exercise of its power under Sections 245¬D(4) and (6) does not have the power to reduce or waive interest statutorily payable under Sections 234¬A, 234¬B and 234¬C except to the extent of granting relief under the circulars issued by the Board under Section 119 of the Act.” 18. So far as the decision rendered in Brijlal (supra) is concerned, this Court examined the following three questions: “(I) Whether Section 234¬B applies to proceedings of the Settlement Commission under Chapter XIX¬A of the said Act?(II) If answer to the above question is in the affirmative, what is the terminal point for levy of such interest — whether such interest should be computed up to the date of the order under Section 245¬D(1) or up to the date of the order of the Commission under Section 245¬D(4)?(III) Whether the Settlement Commission could reopen its concluded proceedings by invoking Section 154 of the said Act so as to levy interest under Section 234¬B, though it was not so done in the original proceedings?” 19. After examining these questions, this Court speaking through Justice S.H. Kapadia, the then learned CJI, answered the questions as under : “ (1) Sections 234¬A, 234¬B and 234¬C are applicable to the proceedings of the Settlement Commission under Chapter XIX¬A of the Act to the extent indicated hereinabove.(2) Consequent upon Conclusion (1), the terminal point for the levy of interest under Section 234-B would be up to the date of the order under Section 245¬D(1) and not up to the date of the order of settlement under Section 245¬D(4).(3) The Settlement Commission cannot reopen its concluded proceedings by invoking Section 154 of the Act so as to levy interest under Section 234¬B, particularly, in view of Section 245¬I.” 20. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned. ### Response: 1 ### Explanation: 15. Having heard the learned counsel for the parties and on perusal of the record of the case including the written submissions filed by the parties, we are inclined to allow the appeals and remand the case to the Settlement Commission for deciding the matter in question afresh on merits keeping in view the observations made infra.16. At the outset, we consider it apposite to mention that the issue involved in these appeals is governed by the law laid down by the decision of two Constitution Benches of this Court. One was rendered on 18.10.2001 in Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala & Ors., (2002) 1 SCC 633 and the other was rendered on 21.10.2010 in Brij Lal & Ors. vs. Commissioner of Income Tax, Jalandhar, (2011) 1 SCC 1. Keeping in view the law laid down by this Court in the aforementioned two decisions, the question arises for consideration in these appeals is whether the High Court was justified in allowing the petitions(SCAs) filed by the Revenue.21. It is not in dispute that when the Settlement Commission passed the first order on 11.08.2000 disposing of the application of the appellants(aseesee), the issue with regard to the powers of the Settlement Commission was not settled by any decision of this Court. These two decisions were rendered after the Settlement Commission passed the order in this case. Therefore, the Settlement Commission had no occasion to examine the issue in question in the context of law laid down by this Court in these two decisions. However, the issue in question was, at that time, pending before the High Court in the petitions(SCAs).22. In a situation like the one arising in the case, the High Court instead of going into the merits of the issue, should have set aside the order dated 11.08.2000 passed by the Settlement Commission and remanded the case to the Settlement Commission for deciding the issue relating to waiver of interest payable under Sections 234A , 234B, and 234C of the Act afresh keeping in view the scope and the extent of powers of the Settlement Commissioner in relation to waiver of interest as laid down in the said two decisions.23. The High Court, however, committed a jurisdictional error when it observed in Para 13 (quoted above) that they (High Court) adopt the directions contained in the order of the Settlement Commission dated 11.10.2002 and then went on to make the said directions as a part of the impugned order in relation to waiver of interest. This approach of the High Court is wholly without jurisdiction.24. The High Court failed to see that the order dated 11.10.2002 of the Settlement Commission was already set aside by the High Court itself in the first round vide order dated 03.03.2014 passed in S.C.A. Nos. 15097 & 15101 of 2004 in the light of law laid down by this Court in Brijlal (supra) wherein it is laid down that the Settlement Commission has no power to pass orders under Section 154 (see conclusion III).25. Since the order dated 11.10.2002 of the Settlement Commission was already held bad in law on the ground that it was passed under Section 154 of the Act, the same was neither in existence for any purpose and nor it could be relied upon by the High Court much less for making it a part of their order for issuing a writ.26. In the light of what we have held above, we consider it apposite to set aside the impugned order and the order dated 11.08.2000 passed by Settlement Commission to the extent it decided the issue in relation to waiver of interest and remand the case to the Settlement Commission to decide the issue relating to waiver of interest payable by the assessee (appellants herein) afresh keeping in view the law laid down by this Court in Ghaswala (supra) and Brijlal (supra) after affording an opportunity to the parties concerned.

Union Of India Vs. International Trading Company

the legal sense merely because the Court thinks it it be unwise. 20. In Union of India vs. Hindustan Development Corporation (AIR 1994 SC 988 ), it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given a case whether there are such facts and circumstances giving rise to legitimate expectation, would primarily be a question of fact. 21. As was observed in Punjab Communications Ltd. vs. Union of India and others, (AIR 1999 SC 1801 ), the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. How significant is the statement that today is tomorrows", yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not some anticipation. Legitimacy of a expectation can be inferred only if it is founded on the sanction of law. 22. As observed in Attorney General for New Southwale vs. Quin (1990 (64) Australian LJR 327) to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law; if a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the court must life the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits, particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwales case the Court should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important. 23. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect of the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Co-operative Society Ltd. vs. Regional Transport Authority, Aurangabad and others (AIR 1960 SC 801 ), Shree Meenakshi Mills Ltd. vs. Union of India (AIR 1974 SC 366 ), Hari Chand Sarda vs. Mizo District Council and Anr. (AIR 1967 SC 829 ) and Krishan Kakkanth vs. Government of Kerala and others (AIR 1997 SC 129)25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the aforenoted 32 vessels, due consideration in accordance with law shall be made.

1[ds]13. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible.If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect of the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani TransportSociety Ltd. vs. Regional Transport Authority, Aurangabad and others (AIR 1960 SC 801 ), Shree Meenakshi Mills Ltd. vs. Union of India (AIR 1974 SC 366 ), Hari Chand Sarda vs. Mizo District Council and Anr. (AIR 1967 SC 829 ) and Krishan Kakkanth vs. Government of Kerala and others (AIR 1997 SC 129)25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the aforenoted 32 vessels, due consideration in accordance with law shall be made.

### 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 legal sense merely because the Court thinks it it be unwise. 20. In Union of India vs. Hindustan Development Corporation (AIR 1994 SC 988 ), it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the Courts cannot intervene with the decision. In a given a case whether there are such facts and circumstances giving rise to legitimate expectation, would primarily be a question of fact. 21. As was observed in Punjab Communications Ltd. vs. Union of India and others, (AIR 1999 SC 1801 ), the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the Court. The legitimate substantive expectation merely permits the Court to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. How significant is the statement that today is tomorrows", yesterday. The present is as we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not some anticipation. Legitimacy of a expectation can be inferred only if it is founded on the sanction of law. 22. As observed in Attorney General for New Southwale vs. Quin (1990 (64) Australian LJR 327) to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law; if a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the court must life the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognised general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits, particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwales case the Court should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important. 23. If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect of the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani Transport Co-operative Society Ltd. vs. Regional Transport Authority, Aurangabad and others (AIR 1960 SC 801 ), Shree Meenakshi Mills Ltd. vs. Union of India (AIR 1974 SC 366 ), Hari Chand Sarda vs. Mizo District Council and Anr. (AIR 1967 SC 829 ) and Krishan Kakkanth vs. Government of Kerala and others (AIR 1997 SC 129)25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the aforenoted 32 vessels, due consideration in accordance with law shall be made. ### Response: 1 ### Explanation: 13. Doctrines of promissory estoppel and legitimate expectation cannot come in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that respondents have acquired any right for renewal. The High Court was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had the High Court not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders the High Court judgment indefensible.If the State acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interests of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect of the circumstances relating to the trade or business in question. Canalisation of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. (See Parbhani TransportSociety Ltd. vs. Regional Transport Authority, Aurangabad and others (AIR 1960 SC 801 ), Shree Meenakshi Mills Ltd. vs. Union of India (AIR 1974 SC 366 ), Hari Chand Sarda vs. Mizo District Council and Anr. (AIR 1967 SC 829 ) and Krishan Kakkanth vs. Government of Kerala and others (AIR 1997 SC 129)25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the aforenoted 32 vessels, due consideration in accordance with law shall be made.

Raj Kumar Vs. Director of Education and Ors

on behalf of the respondents on the case of TMA Pai (supra) is also misplaced as the same has no bearing on the facts of the instant case, for the reasons discussed supra. The reliance placed upon the decision of the Delhi High Court in the case of Kathuria Public School (supra) is also misplaced as the same has been passed without appreciating the true purport of the Constitution Bench decision in the case of Katra Education Society (supra). Therefore, the decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act, is bad in law. 34. Furthermore, the decision in the case of Kathuria Public School (supra) does not come to the aid of the respondents for one more reason. Undisputedly, the notice of retrenchment was served on the appellant on 07.01.2003 and he was retrenched from service on 25.07.2003. The decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act was rendered almost exactly two years later, i.e. on 22.07.2005. Surely, the respondents could not have foreseen that the requirement of prior approval of the order of termination passed against the appellant from Director would be struck down later and hence decided to not comply with it. Section 8(2) of the DSE Act was very much a valid provision of the statute as on the date of the retrenchment of the appellant, and there is absolutely no reason why it should not have been complied with. The rights and liabilities of the parties to the suit must be considered in accordance with the law as on the date of the institution of the suit. This is a fairly well settled principle of law. In the case of Dayawati v. Inderjit, AIR 1966 SC 1423 , a three judge bench of this Court held as under: "Now as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been tendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit." More recently, in the case of Carona Ltd v. Parvathy Swaminathan and Sons, (2007) 8 SCC 559 , this Court held as under: ".......The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit. Thus, if the plaintiff has no cause of action on the date of the filing of the suit, ordinarily, he will not be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Conversely, no relief will normally be denied to the plaintiff by reason of any subsequent event if at the date of the institution of the suit, he has a substantive right to claim such relief." 35. The respondent-Managing Committee in the instant case, did not obtain prior approval of the order of termination passed against the appellant from the Director of Education, Govt. of NCT of Delhi as required under Section 8(2) of the DSE Act. The order of termination passed against the appellant is thus, bad in law. Answer to Point no. 4 36. The termination of the appellant is bad in law for non-compliance with the mandatory provisions of Section 25F of the ID Act and also Section 8(2) of the DSE Act. Further, the respondent-School has not produced any evidence on record to show that the retrenchment of the appellant was necessary as he had become `surplus. The termination of the appellant was ordered in the year 2003 and he is unemployed till date. The respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.ED.)& Ors., (2013) 10 SCC 324 wherein it was held as under: "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latters source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." 37. For the reasons stated supra, we are of the view that

1[ds]The question `who is a workman has been well settled by various judgments of this Court. In the case of H.R. Adyanthaya v. Sandoz (India) Ltd, (1997) 5 SCC 737, a Constitution Bench of this Court has held asthus have three Judge Bench decisions which have taken the view that a person to be qualified to be a workman must be doing the work which falls in any of the four categories, viz, manual, clerical, supervisory or technical and two two-judge Bench decisions which have by referring to one or the other of the said three decisions have reiterated the said law. As against this, we have three three-judge Bench decisions which have without referring to the decisions in May & Baker, WIMCO and Bunnah Shell cases (supra) have taken the other view which was expressly negatived, viz., if a person does not fall within the four exceptions to the said definition he is a workman within the meaning of the ID Act. These decisions are also based on the facts found in those cases. They have, therefore, to be confined to those facts. Hence the position in law as it obtains today is that a person to be a workman under the ID Act must be employed to do the work of any of the categories, viz., manual, unskilled, skilled, technical, operational, clerical or supervisory. It is not enough that he is not covered by either of the four exceptions to the definition. We reiterate the saidlaid by this Court)19. The issue whether educational institution is an `industry, and its employees are `workmen for the purpose of the ID Act has been answered by a Seven-judge Bench of this Court way back in the year 1978 in the case of Bangalore Water Supply (supra). It was held that educational institution is an industry in terms of Section 2(j) of the ID Act, though not all of its employees are workmen. It was held aspremises relied on is that the bulk of the employees in the university is the teaching community. Teachers are not workmen and cannot raise disputes under the Act. The subordinate staff being only a minor category of insignificant numbers, the institution must be excluded, going by the predominant character test. It is one thing to say that an institution is not an industry. It is altogether another thinking to say that a large number of its employees are not workmen and cannot therefore avail of the benefits of the Act so the institution ceases to be an industry. The test is not the predominant number of employees entitled to enjoy the benefits of the Act. The true test is the predominant nature of the activity. In the case of the university or an educational institution, the nature of the activity is, ex hypothesis, education which is a service to the community. Ergo, the university is an industry. The error has crept in, if we may so say with great respect, in mixing up the numerical strength of the personnel with the nature of the activity.Secondly there are a number of other activities of the University Administration, demonstrably industrial which are severable although ancillary to the main cultural enterprise. For instance, a university may have a large printing press as a separate but considerable establishment. It may have a large fleet of transport buses with an army of running staff. It may have a tremendous administrative strength of officers and clerical cadres. It may have karamcharis of various hues. As the Corporation of Nagpur has effectively ruled, these operations, viewed in severalty or collectively, may be treated as industry. It would be strange, indeed, if a university has 50 transport buses, hiring drivers, conductors, cleaners and workshop technicians. How are they to be denied the benefits of the Act, especially when their work is separable from academic teaching, merely because the buses are owned by the same corporate personality? We find, with all defence, little force in this process of nullification of the industrial character of the Universitys multi-formperusal of the abovementioned two judgments clearly shows that a driver employed by a school, being a skilled person, is a workman for the purpose of the ID Act. Point No.1 is answered accordingly in favor of the respondents. The provisions of ID Act are applicable to the facts of the presentthe instant case, the relevant rules are the Industrial Disputes (Central) Rules, 1957. Rule 76 of the said Rules reads asNotice of retrenchment.-If any employer desires to retrench any workman employed in his industrial establishment who has been in continuous service for not less than one year under him (hereinafter referred to as workman in this rule and in rules 77 and 78), he shall give notice of such retrenchment as in Form P to the Central Government, the Regional Labour Commissioner (Central) and Assistant Labour Commissioner (Central) and the Employment Exchange concerned and such notice shall be served on that Government, the Regional Labour Commissioner (Central), the Assistant Labour Commissioner (Central), and the Employment Exchange concerned by registered post in the following manner :-(a) where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman;(emphasis laid by this Court)Rule 76(a) clearly mandates that the notice has to be sent to the appropriate authorities within three days from the date on which notice is served on the workman. In the instant case, the notice of retrenchment was served on the appellant on 07.01.2003. No evidence has been produced on behalf of the respondents to show that notice of the retrenchment has been sent to the appropriate authority even till date.That being the case, it is clear that in the instant case, the mandatory conditions of Section 25F of the ID Act to retrench a workman have not been complied with. The notice of retrenchment dated 07.01.2003 and the order of retrenchment dated 25.07.2003 are liable to be set aside and accordingly set aside.We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent-School. Section 8(2) of the DSE Act is a procedural safeguard in favor of an employee to ensure that an order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognized private school.The Division Bench of the Delhi High Court, thus, erred in striking down Section 8(2) of the DSE Act in the case of Kathuria Public School (supra) by placing reliance on the decision of this Court in the case of TMA Pai (supra), as the subject matter in controversy therein was not the security of tenure of the employees of a school, rather, the question was the right of educational institutions to function unfettered. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management. The Division Bench of the Delhi High Court, while striking down Section 8(2) of the DSE Act in the case of Kathuria Public School (supra) has not correctly applied the law laid down in the case of Katra Educational Society (supra), wherein a Constitution Bench of this Court, with reference to provision similar to Section 8(2) of the DSE Act and keeping in view the object of regulation of an aided or unaided recognised school, has held that the regulation of the service conditions of the employees of private recognized schools is required to be controlled by educational authorities and the state legislature is empowered to legislate such provision in the DSE Act. The Division Bench wrongly relied upon that part of the judgment in the case of Katra Education Society (supra) which dealt with Article 14 of the Constitution and aided and unaided educational institutions, which had no bearing on the fact situation therein. Further, the reliance placed upon the decision of this Court in the case of Frank Anthony Public School Employees Association v. Union Of India & Ors., (1986) 4 SCC 707 is also misplaced as the institution under consideration in that case was a religious minority institution. The reliance placed by the learned counsel appearing on behalf of the respondents on the case of TMA Pai (supra) is also misplaced as the same has no bearing on the facts of the instant case, for the reasons discussed supra. The reliance placed upon the decision of the Delhi High Court in the case of Kathuria Public School (supra) is also misplaced as the same has been passed without appreciating the true purport of the Constitution Bench decision in the case of Katra Education Society (supra). Therefore, the decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act, is bad in

### 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: on behalf of the respondents on the case of TMA Pai (supra) is also misplaced as the same has no bearing on the facts of the instant case, for the reasons discussed supra. The reliance placed upon the decision of the Delhi High Court in the case of Kathuria Public School (supra) is also misplaced as the same has been passed without appreciating the true purport of the Constitution Bench decision in the case of Katra Education Society (supra). Therefore, the decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act, is bad in law. 34. Furthermore, the decision in the case of Kathuria Public School (supra) does not come to the aid of the respondents for one more reason. Undisputedly, the notice of retrenchment was served on the appellant on 07.01.2003 and he was retrenched from service on 25.07.2003. The decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act was rendered almost exactly two years later, i.e. on 22.07.2005. Surely, the respondents could not have foreseen that the requirement of prior approval of the order of termination passed against the appellant from Director would be struck down later and hence decided to not comply with it. Section 8(2) of the DSE Act was very much a valid provision of the statute as on the date of the retrenchment of the appellant, and there is absolutely no reason why it should not have been complied with. The rights and liabilities of the parties to the suit must be considered in accordance with the law as on the date of the institution of the suit. This is a fairly well settled principle of law. In the case of Dayawati v. Inderjit, AIR 1966 SC 1423 , a three judge bench of this Court held as under: "Now as a general proposition, it may be admitted that ordinarily a court of appeal cannot take into account a new law, brought into existence after the judgment appealed from has been tendered, because the rights of the litigants in an appeal are determined under the law in force at the date of the suit." More recently, in the case of Carona Ltd v. Parvathy Swaminathan and Sons, (2007) 8 SCC 559 , this Court held as under: ".......The basic rule is that the rights of the parties should be determined on the basis of the date of institution of the suit. Thus, if the plaintiff has no cause of action on the date of the filing of the suit, ordinarily, he will not be allowed to take advantage of the cause of action arising subsequent to the filing of the suit. Conversely, no relief will normally be denied to the plaintiff by reason of any subsequent event if at the date of the institution of the suit, he has a substantive right to claim such relief." 35. The respondent-Managing Committee in the instant case, did not obtain prior approval of the order of termination passed against the appellant from the Director of Education, Govt. of NCT of Delhi as required under Section 8(2) of the DSE Act. The order of termination passed against the appellant is thus, bad in law. Answer to Point no. 4 36. The termination of the appellant is bad in law for non-compliance with the mandatory provisions of Section 25F of the ID Act and also Section 8(2) of the DSE Act. Further, the respondent-School has not produced any evidence on record to show that the retrenchment of the appellant was necessary as he had become `surplus. The termination of the appellant was ordered in the year 2003 and he is unemployed till date. The respondents have been unable to produce any evidence to show that he was gainfully employed during that period and therefore he is entitled to back wages and other consequential benefits in view of the law laid down by this Court in the case of Deepali Gundu Surwase v. Kranti Junior Adhyapak Mahavidyala (D.ED.)& Ors., (2013) 10 SCC 324 wherein it was held as under: "22. The very idea of restoring an employee to the position which he held before dismissal or removal or termination of service implies that the employee will be put in the same position in which he would have been but for the illegal action taken by the employer. The injury suffered by a person, who is dismissed or removed or is otherwise terminated from service cannot easily be measured in terms of money. With the passing of an order which has the effect of severing the employer employee relationship, the latters source of income gets dried up. Not only the concerned employee, but his entire family suffers grave adversities. They are deprived of the source of sustenance. The children are deprived of nutritious food and all opportunities of education and advancement in life. At times, the family has to borrow from the relatives and other acquaintance to avoid starvation. These sufferings continue till the competent adjudicatory forum decides on the legality of the action taken by the employer. The reinstatement of such an employee, which is preceded by a finding of the competent judicial/quasi judicial body or Court that the action taken by the employer is ultra vires the relevant statutory provisions or the principles of natural justice, entitles the employee to claim full back wages. If the employer wants to deny back wages to the employee or contest his entitlement to get consequential benefits, then it is for him/her to specifically plead and prove that during the intervening period the employee was gainfully employed and was getting the same emoluments. Denial of back wages to an employee, who has suffered due to an illegal act of the employer would amount to indirectly punishing the concerned employee and rewarding the employer by relieving him of the obligation to pay back wages including the emoluments." 37. For the reasons stated supra, we are of the view that ### Response: 1 ### Explanation: a university may have a large printing press as a separate but considerable establishment. It may have a large fleet of transport buses with an army of running staff. It may have a tremendous administrative strength of officers and clerical cadres. It may have karamcharis of various hues. As the Corporation of Nagpur has effectively ruled, these operations, viewed in severalty or collectively, may be treated as industry. It would be strange, indeed, if a university has 50 transport buses, hiring drivers, conductors, cleaners and workshop technicians. How are they to be denied the benefits of the Act, especially when their work is separable from academic teaching, merely because the buses are owned by the same corporate personality? We find, with all defence, little force in this process of nullification of the industrial character of the Universitys multi-formperusal of the abovementioned two judgments clearly shows that a driver employed by a school, being a skilled person, is a workman for the purpose of the ID Act. Point No.1 is answered accordingly in favor of the respondents. The provisions of ID Act are applicable to the facts of the presentthe instant case, the relevant rules are the Industrial Disputes (Central) Rules, 1957. Rule 76 of the said Rules reads asNotice of retrenchment.-If any employer desires to retrench any workman employed in his industrial establishment who has been in continuous service for not less than one year under him (hereinafter referred to as workman in this rule and in rules 77 and 78), he shall give notice of such retrenchment as in Form P to the Central Government, the Regional Labour Commissioner (Central) and Assistant Labour Commissioner (Central) and the Employment Exchange concerned and such notice shall be served on that Government, the Regional Labour Commissioner (Central), the Assistant Labour Commissioner (Central), and the Employment Exchange concerned by registered post in the following manner :-(a) where notice is given to the workman, notice of retrenchment shall be sent within three days from the date on which notice is given to the workman;(emphasis laid by this Court)Rule 76(a) clearly mandates that the notice has to be sent to the appropriate authorities within three days from the date on which notice is served on the workman. In the instant case, the notice of retrenchment was served on the appellant on 07.01.2003. No evidence has been produced on behalf of the respondents to show that notice of the retrenchment has been sent to the appropriate authority even till date.That being the case, it is clear that in the instant case, the mandatory conditions of Section 25F of the ID Act to retrench a workman have not been complied with. The notice of retrenchment dated 07.01.2003 and the order of retrenchment dated 25.07.2003 are liable to be set aside and accordingly set aside.We are unable to agree with the contention advanced by the learned counsel appearing on behalf of the respondent-School. Section 8(2) of the DSE Act is a procedural safeguard in favor of an employee to ensure that an order of termination or dismissal is not passed without the prior approval of the Director of Education. This is to avoid arbitrary or unreasonable termination or dismissal of an employee of a recognized private school.The Division Bench of the Delhi High Court, thus, erred in striking down Section 8(2) of the DSE Act in the case of Kathuria Public School (supra) by placing reliance on the decision of this Court in the case of TMA Pai (supra), as the subject matter in controversy therein was not the security of tenure of the employees of a school, rather, the question was the right of educational institutions to function unfettered. While the functioning of both aided and unaided educational institutions must be free from unnecessary governmental interference, the same needs to be reconciled with the conditions of employment of the employees of these institutions and provision of adequate precautions to safeguard their interests. Section 8(2) of the DSE Act is one such precautionary safeguard which needs to be followed to ensure that employees of educational institutions do not suffer unfair treatment at the hands of the management. The Division Bench of the Delhi High Court, while striking down Section 8(2) of the DSE Act in the case of Kathuria Public School (supra) has not correctly applied the law laid down in the case of Katra Educational Society (supra), wherein a Constitution Bench of this Court, with reference to provision similar to Section 8(2) of the DSE Act and keeping in view the object of regulation of an aided or unaided recognised school, has held that the regulation of the service conditions of the employees of private recognized schools is required to be controlled by educational authorities and the state legislature is empowered to legislate such provision in the DSE Act. The Division Bench wrongly relied upon that part of the judgment in the case of Katra Education Society (supra) which dealt with Article 14 of the Constitution and aided and unaided educational institutions, which had no bearing on the fact situation therein. Further, the reliance placed upon the decision of this Court in the case of Frank Anthony Public School Employees Association v. Union Of India & Ors., (1986) 4 SCC 707 is also misplaced as the institution under consideration in that case was a religious minority institution. The reliance placed by the learned counsel appearing on behalf of the respondents on the case of TMA Pai (supra) is also misplaced as the same has no bearing on the facts of the instant case, for the reasons discussed supra. The reliance placed upon the decision of the Delhi High Court in the case of Kathuria Public School (supra) is also misplaced as the same has been passed without appreciating the true purport of the Constitution Bench decision in the case of Katra Education Society (supra). Therefore, the decision in the case of Kathuria Public School (supra), striking down Section 8(2) of the DSE Act, is bad in

G. SHASHIKALA (DIED) THROUGH LRS Vs. G. KALAWATI BAI(DIED) THROUGH LR

Abhay Manohar Sapre, J. 1. Leave granted. 2. These appeals are filed against a common judgment and order dated 26.09.2018 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in CCCA No.40 of 2002 and TRCCA No.168 of 2003 whereby the High Court dismissed both the appeals filed by the appellants herein. 3. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point. 4. The appellants herein are the legal representatives of the original defendants and the respondents are the plaintiffs of the two suits being O.S. No. 1402 of 1992 and O.S. No.432 of 1993. 5. One suit was for declaration of title and delivery of possession of a major portion of the suit house and other was for grant of perpetual injunction in relation to the suit house. 6. The Trial Court by judgment/decree dated 21.01.2002 decreed the title suit and passed a decree for possession but dismissed the suit for grant of perpetual injunction. 7. This led to filing of two first appeals in the High Court of A.P. During pendency of the appeals, the appellants (defendants) filed an application (IA No.5/2011) under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and the respondents (plaintiffs) also filed an application (IA No.428/2011) under Order 41 Rule 27 of the Code. 8. By these two applications, parties prayed permission from the Appellate Court to file additional evidence (documents) in support of their case. 9. By order dated 11.07.2016, the High Court allowed the application filed by the respondents (IA No. 428/2011) and also admitted the documents in evidence and directed that the impact of the additional evidence admitted in evidence will be examined while hearing the main appeal. So far as IA No.5/2011 filed by the appellants is concerned, no order was passed. 10. By impugned order, both the appeals were dismissed by affirming the judgment/decree of the Trial Court, which has given rise to filing of the two appeals in this Court after obtaining the special leave to appeal. 11. So the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appeals. 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals and while setting aside the impugned order, remand the case to the High Court for hearing the appeals afresh on merits in accordance with law. 13. In our considered opinion, the need to remand the case to the High Court has occasioned for the reason that the High Court committed jurisdictional error while deciding the application filed by the respondents under Order 41 Rule 27 of the Code (428/2011) separately. 14. The question as to how the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das(Dead) by L.Rs., (2008) 8 SCC 511(See paras 13¬17), Shalimar Chemical Works Limited vs. Surendra Oil & Dal Mills(Refineries) & Ors., (2010) 8 SCC 423 (See para 16) and Corporation of Madras & Anr. vs. M. Parthasarathy & Ors., 2018 (9) SCC 445 (See paras 11¬15). 15. Unfortunately, the High Court while deciding the application (428/2011) filed by the respondents under Order 41 Rule 27 of the Code did not notice the law laid down in the aforementioned three decisions and proceeded to decide the application/appeals and thus committed a jurisdictional error. 16. In view of the foregoing discussion, we are unable to concur with the approach, reasoning and the conclusion arrived at by the High Court in the impugned order calling for interference by this Court.

1[ds]12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals and while setting aside the impugned order, remand the case to the High Court for hearing the appeals afresh on merits in accordance with law13. In our considered opinion, the need to remand the case to the High Court has occasioned for the reason that the High Court committed jurisdictional error while deciding the application filed by the respondents under Order 41 Rule 27 of the Code (428/2011) separately14. The question as to how the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das(Dead) by L.Rs., (2008) 8 SCC 511(See paras 13¬17), Shalimar Chemical Works Limited vs. Surendra Oil & Dal Mills(Refineries) & Ors., (2010) 8 SCC 423 (See para 16) and Corporation of Madras & Anr. vs. M. Parthasarathy & Ors., 2018 (9) SCC 445 (See paras 11¬15)15. Unfortunately, the High Court while deciding the application (428/2011) filed by the respondents under Order 41 Rule 27 of the Code did not notice the law laid down in the aforementioned three decisions and proceeded to decide the application/appeals and thus committed a jurisdictional error16. In view of the foregoing discussion, we are unable to concur with the approach, reasoning and the conclusion arrived at by the High Court in the impugned order calling for interference by this Court.

### 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: Abhay Manohar Sapre, J. 1. Leave granted. 2. These appeals are filed against a common judgment and order dated 26.09.2018 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in CCCA No.40 of 2002 and TRCCA No.168 of 2003 whereby the High Court dismissed both the appeals filed by the appellants herein. 3. A few facts need mention hereinbelow for the disposal of these appeals, which involve a short point. 4. The appellants herein are the legal representatives of the original defendants and the respondents are the plaintiffs of the two suits being O.S. No. 1402 of 1992 and O.S. No.432 of 1993. 5. One suit was for declaration of title and delivery of possession of a major portion of the suit house and other was for grant of perpetual injunction in relation to the suit house. 6. The Trial Court by judgment/decree dated 21.01.2002 decreed the title suit and passed a decree for possession but dismissed the suit for grant of perpetual injunction. 7. This led to filing of two first appeals in the High Court of A.P. During pendency of the appeals, the appellants (defendants) filed an application (IA No.5/2011) under Order 41 Rule 27 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and the respondents (plaintiffs) also filed an application (IA No.428/2011) under Order 41 Rule 27 of the Code. 8. By these two applications, parties prayed permission from the Appellate Court to file additional evidence (documents) in support of their case. 9. By order dated 11.07.2016, the High Court allowed the application filed by the respondents (IA No. 428/2011) and also admitted the documents in evidence and directed that the impact of the additional evidence admitted in evidence will be examined while hearing the main appeal. So far as IA No.5/2011 filed by the appellants is concerned, no order was passed. 10. By impugned order, both the appeals were dismissed by affirming the judgment/decree of the Trial Court, which has given rise to filing of the two appeals in this Court after obtaining the special leave to appeal. 11. So the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appeals. 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals and while setting aside the impugned order, remand the case to the High Court for hearing the appeals afresh on merits in accordance with law. 13. In our considered opinion, the need to remand the case to the High Court has occasioned for the reason that the High Court committed jurisdictional error while deciding the application filed by the respondents under Order 41 Rule 27 of the Code (428/2011) separately. 14. The question as to how the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das(Dead) by L.Rs., (2008) 8 SCC 511(See paras 13¬17), Shalimar Chemical Works Limited vs. Surendra Oil & Dal Mills(Refineries) & Ors., (2010) 8 SCC 423 (See para 16) and Corporation of Madras & Anr. vs. M. Parthasarathy & Ors., 2018 (9) SCC 445 (See paras 11¬15). 15. Unfortunately, the High Court while deciding the application (428/2011) filed by the respondents under Order 41 Rule 27 of the Code did not notice the law laid down in the aforementioned three decisions and proceeded to decide the application/appeals and thus committed a jurisdictional error. 16. In view of the foregoing discussion, we are unable to concur with the approach, reasoning and the conclusion arrived at by the High Court in the impugned order calling for interference by this Court. ### Response: 1 ### Explanation: 12. Having heard the learned counsel for the parties and on perusal of the record of the case, we are constrained to allow these appeals and while setting aside the impugned order, remand the case to the High Court for hearing the appeals afresh on merits in accordance with law13. In our considered opinion, the need to remand the case to the High Court has occasioned for the reason that the High Court committed jurisdictional error while deciding the application filed by the respondents under Order 41 Rule 27 of the Code (428/2011) separately14. The question as to how the application filed under Order 41 Rule 27 of the Code in the appeal should be decided by the Appellate Court remains no more res integra and stands decided by the three decisions of this Court in North Eastern Railway Administration, Gorakhpur vs. Bhagwan Das(Dead) by L.Rs., (2008) 8 SCC 511(See paras 13¬17), Shalimar Chemical Works Limited vs. Surendra Oil & Dal Mills(Refineries) & Ors., (2010) 8 SCC 423 (See para 16) and Corporation of Madras & Anr. vs. M. Parthasarathy & Ors., 2018 (9) SCC 445 (See paras 11¬15)15. Unfortunately, the High Court while deciding the application (428/2011) filed by the respondents under Order 41 Rule 27 of the Code did not notice the law laid down in the aforementioned three decisions and proceeded to decide the application/appeals and thus committed a jurisdictional error16. In view of the foregoing discussion, we are unable to concur with the approach, reasoning and the conclusion arrived at by the High Court in the impugned order calling for interference by this Court.

Bhagwan Dass Chopra Vs. United Bank Of India & Ors

company or corporation has become the successor-in-interest of the transferor company or corporation. 6. In the instant case admittedly all the rights and liabilities of the Narang Bank of India Ltd. in its banking business were taken over by the United Bank of India under the agreement of merger dated July 25, 1976. Clause 22 of the agreement of merger provides as follows : "22. The Transferee shall be substituted in place of the Transferor in respect of all Court or Tribunal proceedings, cases, suits and Government and Municipal records and shall apply to the authorities, court, Tribunal or otherwise for being added as the parties hereto and the benefits of all orders, directions, decrees and award or judgment if and when issued will pass on to the Transferee, who shall be bound or abide by the same subject to the liabilities not taken over by the Transferee including those in respect of staff assistants and employees concerned of the Transferor as mentioned in clause 20 hereof. All legal costs for such substitution and/or prosecution or contesting the said action and proceedings existing or binding on the said date shall be borne by the Transferee." 7. In view of the terms of the agreement of merger and in particular clause 22 thereof, the United Bank of India was rightly impleaded as a party to the proceedings before the Tribunal in the place of the Narang Bank of India Ltd., By reason of impleading of the United Bank of India as a party there was no change in the character of the proceedings pending before the Tribunal. The United Bank of India only stepped into the shoes of the Narang Bank of India Ltd., and all proceedings that had gone on till the date on which the United Bank of India was so impleaded were binding on the United Bank of India. The proceedings before the Tribunal could thereafter be continued against the United Bank of India. The United Bank of India could thereafter take part in the further proceedings before the Tribunal in the same capacity in which the Narang Bank of India Ltd., was appearing in the case. It was bound by all proceedings which had taken place till then. It could not go back on the proceedings. Generally speaking, an assignee cannot set up a case inconsistent with the one put forward by his assignor and it is only in exceptional cases an assignee could be permitted to raise any new plea and that too only for avoiding multiplicity of the proceedings. In the instant case there was no such exceptional circumstances which entitled the United Bank of India to take up a plea different from the pleas which had already been taken up by the Narang Bank of India Ltd., and there was also no need to permit it to reopen the proceedings which had gone on till then. The High Court has not adverted to any such exceptional circumstances. The learned Single Judge has not set out any justifiable reason for observing that the principles of natural justice demanded that all those witness whose evidence had been recorded earlier could be recalled at the instance of the United Bank of India and opportunity afforded to the United Bank of India to cross-examine them. The learned Singly Judge was in error in observing that the United Bank of India was appearing before the Tribunal in its own right and was entitled to protect its own interest. As already observed by us the proceeding pending before the Tribunal on the date of merger could not be considered as a new proceeding instituted against the United Bank of India on its being impleaded. It was the same old proceeding to which the Narang Bank of India Ltd., was a party and the rights of the United Bank of India in the conduct of the proceedings could not be larger than the rights which the Narang Bank of India Ltd., itself possessed. If the Narang Bank of India Ltd., had no right to recall the witnesses who had been examined on behalf of the appellant for cross-examination on the date on which the United Bank of India made such prayer before the Tribunal, the United Bank of India also could not be granted permission to do so. In the absence of any exceptional circumstances which would have entitled in the ordinary course a party to a proceeding to recall a witness whose evidence had already been completed for further cross-examination the United Bank of India could not make such a claim at all. The learned Single Judge who set aside the award in the first instance and the Division Bench which merely affirmed the decision of the learned Single Judge have erred in overlooking the true legal position explained above by us. On the facts and in the circumstances of the case the United Bank of India was not entitled to recall any of the witnesses examined on behalf of the appellant for further cross-examination particularly after both the parties had closed their respective cases before the Tribunal. The dismissal of the application made by the United Bank of India for recalling the appellant for further cross-examination, in the absence of any exceptional circumstance, could not be considered as a ground for setting aside the award. The principles of natural justice had not, therefore, been violated by the Tribunal in passing the award. We, therefore, set aside the judgment of the Division Bench of the High Court and also of the learned Single Judge. It is, however, mentioned before us that the United Bank of India had some other grounds to urge before the learned Single Judge and the case may be remanded to the learned Single Judge for considering those grounds. 8. We, therefore, remand this case to the learned Single Judge to consider any other relevant ground that may be urged by the United Bank of India and to dispose of the writ petition in accordance with law.

1[ds]6. In the instant case admittedly all the rights and liabilities of the Narang Bank of India Ltd. in its banking business were taken over by the United Bank of India under the agreement of merger dated July 25, 1976.In view of the terms of the agreement of merger and in particular clause 22 thereof, the United Bank of India was rightly impleaded as a party to the proceedings before the Tribunal in the place of the Narang Bank of India Ltd., By reason of impleading of the United Bank of India as a party there was no change in the character of the proceedings pending before the Tribunal. The United Bank of India only stepped into the shoes of the Narang Bank of India Ltd., and all proceedings that had gone on till the date on which the United Bank of India was so impleaded were binding on the United Bank of India. The proceedings before the Tribunal could thereafter be continued against the United Bank of India. The United Bank of India could thereafter take part in the further proceedings before the Tribunal in the same capacity in which the Narang Bank of India Ltd., was appearing in the case. It was bound by all proceedings which had taken place till then. It could not go back on the proceedings. Generally speaking, an assignee cannot set up a case inconsistent with the one put forward by his assignor and it is only in exceptional cases an assignee could be permitted to raise any new plea and that too only for avoiding multiplicity of the proceedings. In the instant case there was no such exceptional circumstances which entitled the United Bank of India to take up a plea different from the pleas which had already been taken up by the Narang Bank of India Ltd., and there was also no need to permit it to reopen the proceedings which had gone on till then. The High Court has not adverted to any such exceptional circumstances. The learned Single Judge has not set out any justifiable reason for observing that the principles of natural justice demanded that all those witness whose evidence had been recorded earlier could be recalled at the instance of the United Bank of India and opportunity afforded to the United Bank of India to cross-examine them. The learned Singly Judge was in error in observing that the United Bank of India was appearing before the Tribunal in its own right and was entitled to protect its own interest. As already observed by us the proceeding pending before the Tribunal on the date of merger could not be considered as a new proceeding instituted against the United Bank of India on its being impleaded. It was the same old proceeding to which the Narang Bank of India Ltd., was a party and the rights of the United Bank of India in the conduct of the proceedings could not be larger than the rights which the Narang Bank of India Ltd., itself possessed. If the Narang Bank of India Ltd., had no right to recall the witnesses who had been examined on behalf of the appellant for cross-examination on the date on which the United Bank of India made such prayer before the Tribunal, the United Bank of India also could not be granted permission to do so. In the absence of any exceptional circumstances which would have entitled in the ordinary course a party to a proceeding to recall a witness whose evidence had already been completed for further cross-examination the United Bank of India could not make such a claim at all. The learned Single Judge who set aside the award in the first instance and the Division Bench which merely affirmed the decision of the learned Single Judge have erred in overlooking the true legal position explained above by us. On the facts and in the circumstances of the case the United Bank of India was not entitled to recall any of the witnesses examined on behalf of the appellant for further cross-examination particularly after both the parties had closed their respective cases before the Tribunal. The dismissal of the application made by the United Bank of India for recalling the appellant for further cross-examination, in the absence of any exceptional circumstance, could not be considered as a ground for setting aside the award. The principles of natural justice had not, therefore, been violated by the Tribunal in passing the award. We, therefore, set aside the judgment of the Division Bench of the High Court and also of the learned Single Judge. It is, however, mentioned before us that the United Bank of India had some other grounds to urge before the learned Single Judge and the case may be remanded to the learned Single Judge for considering those grounds.We, therefore, remand this case to the learned Single Judge to consider any other relevant ground that may be urged by the United Bank of India and to dispose of the writ petition in accordance with law.

### 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: company or corporation has become the successor-in-interest of the transferor company or corporation. 6. In the instant case admittedly all the rights and liabilities of the Narang Bank of India Ltd. in its banking business were taken over by the United Bank of India under the agreement of merger dated July 25, 1976. Clause 22 of the agreement of merger provides as follows : "22. The Transferee shall be substituted in place of the Transferor in respect of all Court or Tribunal proceedings, cases, suits and Government and Municipal records and shall apply to the authorities, court, Tribunal or otherwise for being added as the parties hereto and the benefits of all orders, directions, decrees and award or judgment if and when issued will pass on to the Transferee, who shall be bound or abide by the same subject to the liabilities not taken over by the Transferee including those in respect of staff assistants and employees concerned of the Transferor as mentioned in clause 20 hereof. All legal costs for such substitution and/or prosecution or contesting the said action and proceedings existing or binding on the said date shall be borne by the Transferee." 7. In view of the terms of the agreement of merger and in particular clause 22 thereof, the United Bank of India was rightly impleaded as a party to the proceedings before the Tribunal in the place of the Narang Bank of India Ltd., By reason of impleading of the United Bank of India as a party there was no change in the character of the proceedings pending before the Tribunal. The United Bank of India only stepped into the shoes of the Narang Bank of India Ltd., and all proceedings that had gone on till the date on which the United Bank of India was so impleaded were binding on the United Bank of India. The proceedings before the Tribunal could thereafter be continued against the United Bank of India. The United Bank of India could thereafter take part in the further proceedings before the Tribunal in the same capacity in which the Narang Bank of India Ltd., was appearing in the case. It was bound by all proceedings which had taken place till then. It could not go back on the proceedings. Generally speaking, an assignee cannot set up a case inconsistent with the one put forward by his assignor and it is only in exceptional cases an assignee could be permitted to raise any new plea and that too only for avoiding multiplicity of the proceedings. In the instant case there was no such exceptional circumstances which entitled the United Bank of India to take up a plea different from the pleas which had already been taken up by the Narang Bank of India Ltd., and there was also no need to permit it to reopen the proceedings which had gone on till then. The High Court has not adverted to any such exceptional circumstances. The learned Single Judge has not set out any justifiable reason for observing that the principles of natural justice demanded that all those witness whose evidence had been recorded earlier could be recalled at the instance of the United Bank of India and opportunity afforded to the United Bank of India to cross-examine them. The learned Singly Judge was in error in observing that the United Bank of India was appearing before the Tribunal in its own right and was entitled to protect its own interest. As already observed by us the proceeding pending before the Tribunal on the date of merger could not be considered as a new proceeding instituted against the United Bank of India on its being impleaded. It was the same old proceeding to which the Narang Bank of India Ltd., was a party and the rights of the United Bank of India in the conduct of the proceedings could not be larger than the rights which the Narang Bank of India Ltd., itself possessed. If the Narang Bank of India Ltd., had no right to recall the witnesses who had been examined on behalf of the appellant for cross-examination on the date on which the United Bank of India made such prayer before the Tribunal, the United Bank of India also could not be granted permission to do so. In the absence of any exceptional circumstances which would have entitled in the ordinary course a party to a proceeding to recall a witness whose evidence had already been completed for further cross-examination the United Bank of India could not make such a claim at all. The learned Single Judge who set aside the award in the first instance and the Division Bench which merely affirmed the decision of the learned Single Judge have erred in overlooking the true legal position explained above by us. On the facts and in the circumstances of the case the United Bank of India was not entitled to recall any of the witnesses examined on behalf of the appellant for further cross-examination particularly after both the parties had closed their respective cases before the Tribunal. The dismissal of the application made by the United Bank of India for recalling the appellant for further cross-examination, in the absence of any exceptional circumstance, could not be considered as a ground for setting aside the award. The principles of natural justice had not, therefore, been violated by the Tribunal in passing the award. We, therefore, set aside the judgment of the Division Bench of the High Court and also of the learned Single Judge. It is, however, mentioned before us that the United Bank of India had some other grounds to urge before the learned Single Judge and the case may be remanded to the learned Single Judge for considering those grounds. 8. We, therefore, remand this case to the learned Single Judge to consider any other relevant ground that may be urged by the United Bank of India and to dispose of the writ petition in accordance with law. ### Response: 1 ### Explanation: 6. In the instant case admittedly all the rights and liabilities of the Narang Bank of India Ltd. in its banking business were taken over by the United Bank of India under the agreement of merger dated July 25, 1976.In view of the terms of the agreement of merger and in particular clause 22 thereof, the United Bank of India was rightly impleaded as a party to the proceedings before the Tribunal in the place of the Narang Bank of India Ltd., By reason of impleading of the United Bank of India as a party there was no change in the character of the proceedings pending before the Tribunal. The United Bank of India only stepped into the shoes of the Narang Bank of India Ltd., and all proceedings that had gone on till the date on which the United Bank of India was so impleaded were binding on the United Bank of India. The proceedings before the Tribunal could thereafter be continued against the United Bank of India. The United Bank of India could thereafter take part in the further proceedings before the Tribunal in the same capacity in which the Narang Bank of India Ltd., was appearing in the case. It was bound by all proceedings which had taken place till then. It could not go back on the proceedings. Generally speaking, an assignee cannot set up a case inconsistent with the one put forward by his assignor and it is only in exceptional cases an assignee could be permitted to raise any new plea and that too only for avoiding multiplicity of the proceedings. In the instant case there was no such exceptional circumstances which entitled the United Bank of India to take up a plea different from the pleas which had already been taken up by the Narang Bank of India Ltd., and there was also no need to permit it to reopen the proceedings which had gone on till then. The High Court has not adverted to any such exceptional circumstances. The learned Single Judge has not set out any justifiable reason for observing that the principles of natural justice demanded that all those witness whose evidence had been recorded earlier could be recalled at the instance of the United Bank of India and opportunity afforded to the United Bank of India to cross-examine them. The learned Singly Judge was in error in observing that the United Bank of India was appearing before the Tribunal in its own right and was entitled to protect its own interest. As already observed by us the proceeding pending before the Tribunal on the date of merger could not be considered as a new proceeding instituted against the United Bank of India on its being impleaded. It was the same old proceeding to which the Narang Bank of India Ltd., was a party and the rights of the United Bank of India in the conduct of the proceedings could not be larger than the rights which the Narang Bank of India Ltd., itself possessed. If the Narang Bank of India Ltd., had no right to recall the witnesses who had been examined on behalf of the appellant for cross-examination on the date on which the United Bank of India made such prayer before the Tribunal, the United Bank of India also could not be granted permission to do so. In the absence of any exceptional circumstances which would have entitled in the ordinary course a party to a proceeding to recall a witness whose evidence had already been completed for further cross-examination the United Bank of India could not make such a claim at all. The learned Single Judge who set aside the award in the first instance and the Division Bench which merely affirmed the decision of the learned Single Judge have erred in overlooking the true legal position explained above by us. On the facts and in the circumstances of the case the United Bank of India was not entitled to recall any of the witnesses examined on behalf of the appellant for further cross-examination particularly after both the parties had closed their respective cases before the Tribunal. The dismissal of the application made by the United Bank of India for recalling the appellant for further cross-examination, in the absence of any exceptional circumstance, could not be considered as a ground for setting aside the award. The principles of natural justice had not, therefore, been violated by the Tribunal in passing the award. We, therefore, set aside the judgment of the Division Bench of the High Court and also of the learned Single Judge. It is, however, mentioned before us that the United Bank of India had some other grounds to urge before the learned Single Judge and the case may be remanded to the learned Single Judge for considering those grounds.We, therefore, remand this case to the learned Single Judge to consider any other relevant ground that may be urged by the United Bank of India and to dispose of the writ petition in accordance with law.

K. Janardhan Vs. United India Insurance Co. Ltd.

Harjit Singh Bedi, J. 1. This appeal is directed against the judgment and order dated 6th October, 2001 of the learned Single Judge of the Karnataka High Court whereby compensation of Rs.2,49,576/- awarded by the Commissioner for Workmens Compensation has been reduced to Rs.1,62,224.40/-. It arises from the following facts. 2. The claimant- appellant a tanker driver, while driving his vehicle from Ayanoor towards Shimoga met with an accident with a tractor coming from the opposite side. As a result of the accident, the appellant suffered serious injuries and also an amputation of the right leg up to the knee joint. He thereupon moved an application before the Commissioner for Workmens Compensation praying that as he was 25 years of age and earning Rs. 3,000/- per month and had suffered 100% disability, he was entitled to a sum of Rs. 5 lac by way of compensation.The Commissioner in his order dated 18th November, 1999 observed that the claimant was 30 years of age and the salary as claimed by him was on the higher side and accordingly determined the same at Rs. 2000/- per month. The Commissioner also found that as the claimant had suffered an amputation of his right leg up to the knee, he was said to have suffered a loss of 100% of his earning capacity as a driver and accordingly determined the compensation payable to him at Rs. 2,49,576/- and interest @ 12% p.a. thereon from the date of the accident. An appeal was thereafter taken to the High Court by the Insurance Company - respondent. The High Court accepted the plea raised in appeal that as per the Schedule to the Workmens Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this court. 3. The learned counsel for the appellant has raised only one argument during the course of the hearing . He has submitted that the claimant - appellant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(e) of the Workmens Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo vs. Srinivas Sabata & Anr. (1976) 1 SCC 289. The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: 4. The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows: "(1) `total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only." This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 5. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence. 6.

1[ds]Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.

### 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: Harjit Singh Bedi, J. 1. This appeal is directed against the judgment and order dated 6th October, 2001 of the learned Single Judge of the Karnataka High Court whereby compensation of Rs.2,49,576/- awarded by the Commissioner for Workmens Compensation has been reduced to Rs.1,62,224.40/-. It arises from the following facts. 2. The claimant- appellant a tanker driver, while driving his vehicle from Ayanoor towards Shimoga met with an accident with a tractor coming from the opposite side. As a result of the accident, the appellant suffered serious injuries and also an amputation of the right leg up to the knee joint. He thereupon moved an application before the Commissioner for Workmens Compensation praying that as he was 25 years of age and earning Rs. 3,000/- per month and had suffered 100% disability, he was entitled to a sum of Rs. 5 lac by way of compensation.The Commissioner in his order dated 18th November, 1999 observed that the claimant was 30 years of age and the salary as claimed by him was on the higher side and accordingly determined the same at Rs. 2000/- per month. The Commissioner also found that as the claimant had suffered an amputation of his right leg up to the knee, he was said to have suffered a loss of 100% of his earning capacity as a driver and accordingly determined the compensation payable to him at Rs. 2,49,576/- and interest @ 12% p.a. thereon from the date of the accident. An appeal was thereafter taken to the High Court by the Insurance Company - respondent. The High Court accepted the plea raised in appeal that as per the Schedule to the Workmens Compensation Act, the loss of a leg on amputation amounted to a 60% reduction in the earning capacity and as the doctor had opined to a 65% disability, this figure was to be accepted and accordingly reduced the compensation as already mentioned above. It is in this circumstance, that the aggrieved claimant has come up to this court. 3. The learned counsel for the appellant has raised only one argument during the course of the hearing . He has submitted that the claimant - appellant being a tanker driver, the loss of his right leg ipso facto meant a total disablement as understood in terms of Section 2(1)(e) of the Workmens Compensation Act and as such the appellant was entitled to have his compensation computed on that basis. In support of this plea, the learned counsel has placed reliance on Pratap Narain Singh Deo vs. Srinivas Sabata & Anr. (1976) 1 SCC 289. The cited case pertained to a carpenter who had suffered an amputation of his left arm from the elbow and this court held that this amounted to a total disability as the injury was of such a nature that the claimant had been disabled from all work which he was capable of performing at the time of the accident. It was observed as under: 4. The expression "total disablement" has been defined in Section 2(1)(e) of the Act as follows: "(1) `total disablement means such disablement whether of a temporary or permanent nature, as incapacitates workman for all work which he was capable of performing at the time of the accident resulting in such disablement." It has not been disputed before us that the injury was of such a nature as to cause permanent disablement to the respondent, and the question for consideration is whether the disablement incapacitated the respondent for all work which he was capable of performing at the time of the accident. The Commissioner has examined the question and recorded his finding as follows: "The injured workman in this case is carpenter by profession .... By loss of the left hand above the elbow, he has evidently been rendered unfit for the work of carpenter as the work of carpentry cannot be done by one hand only." This is obviously a reasonable and correct finding. Counsel for the appellant has not been able to assail it on any ground and it does not require to be corrected in this appeal. There is also no justification for the other argument which has been advanced with reference to Item 3 of Part II of Schedule 1, because it was not the appellants case before the Commissioner that amputation of the arm was from 8" from tip of acromion to less than 4 below the tip of olecranon. A new case cannot therefore be allowed to be set up on facts which have not been admitted or established. 5. Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence. 6. ### Response: 1 ### Explanation: Applying the ratio of the cited judgment to the facts of the present case we are of the opinion that the appellant herein has also suffered a 100% disability and incapacity in earning his keep as a tanker driver as his right leg had been amputated from the knee. Additionally, a perusal of Sections 8 and 9 of the Motor Vehicles Act 1988 would show that the appellant would now be disqualified from even getting a driving licence.

State of Rajasthan and Others Vs. Bhatnagar Cement Company Private Limited

of the Rajasthan Taxation Tribunal Act, 1995. The application challenged the assessment order dated March 24, 1995 of the Commercial Taxes Officer, Bhiwadi Circle, Alwar, under the Rajasthan Sales Tax Act, 1954 and the Central Sales Tax Act, 1956. The application made by the respondent to the Tribunal has been produced before us. It is clear that the only thrust of that application was that the respondent was a small-scale unit entitled to 100 per cent exemption from sales tax under the provisions of the Sales Tax Incentive Scheme for Industries, 1987 and that it was not a mini cement plant entitled only to exemption limited to 50 per cent. The Tribunal, however, formulated the following questions for determination : (i) Could the amendments of January 11, 1990 and February 22, 1990, be given retrospective effect ? (ii) Does the doctrine of promissory estoppel apply in the facts and circumstances of this case, so as to prevent the amendments from even having prospective effect in the case of the present applicant ? (iii) Is the cement plant in question a small-scale unit to which the proviso to sub-clause (a) of clause 4 of the 1987 Incentive Schemes does not apply or is it a mini cement plant to which the proviso applies ? It then said : "Obviously in the present case the third question would arise only if the first two questions are answered in the affirmative. The third question is however a question of fact which cannot be determined on the basis of the material on record in this case". Having considered the position, the Tribunal found that at the time when the respondents cement plant was established, it was found eligible for the benefits under the scheme and entitled to 100 per cent exemption of tax liability for a period of seven years or 100 per cent of fixed capital investment whichever was earlier. By amendments of January 11, 1990 and February 22, 1990 the benefit under the scheme in the case of mini cement plants of a certain category was sought to be restricted with effect from August 6, 1988 to 50 per cent exemption of tax liability for a period of seven years. The Tribunal then concluded : "35. If the cement plant in question is taken to be a mini cement plant of the type specified in the amendments then too the cement plant in question would remain unaffected. For the period from September 12, 1989 to January 11, 1990/February 22, 1990, it would because an exemption granted and availed of cannot be withdrawn with retrospective effect and the applicant cannot be required to deposit sales tax which he was not required to collect and which he did not collect. For the period after January 11, 1990/February 22, 1990 the principle of promissory estoppel shall apply with full force. The promise extended to the applicant in response to which the investment was made was that he would be entitled to 100 per cent exemption of sales tax subject to a ceiling of 100 per cent of investment in fixed capital or seven years whichever was earlier. The promise made by the non-applicants was not in conflict with law or contrary to public policy. It was acted upon in good time by the applicant. The essential ingredients of promissory estoppel exist. This promise cannot be broken and has to be kept. The State Government is free to alter the Incentive Schemes but that would only be with prospective effect for those who respond to the modified schemes. 36. In this view of the matter the third question does not arise. 37. The application is accepted. The impugned assessment order of March 24, 1995, is set aside. It is declared that as long as the applicant is not in breach of the conditions on which the eligibility certificate was granted he would be eligible for 100 per cent exemption of sales tax subject to a ceiling of 100 per cent of investment in fixed capital or for seven years whichever is earlier." * It will be seen that for the period from September 12, 1989 to February 22, 1990 the Tribunal found that the respondent was required to deposit sales tax which he was not required to collect and did not in fact collect. We are, therefore, in any event, not inclined to make any order contrary to that of the Tribunal for this period.However, for the period subsequent to February 22, 1990, the Tribunal proceeded only upon the basis of promissory estoppel. Promissory estoppel has to be pleaded and established. We find nothing in the application made by the respondent to the Tribunal which can be said to be a plea of promissory estoppel supported by the necessary factual particulars. It is only if these factual particulars are pleaded that the other side has an opportunity to answer the same. We think also that before applying the doctrine of promissory estoppel, as it did, the Tribunal should have reached a finding as to whether or not the respondents plant qualified as a small-scale industry or as a mini cement plant within the meaning of the amended scheme. This was the respondents only case before it. If the particulars in this behalf were not, as it stated, before the Tribunal, the Tribunal should have called for the same or sought a finding on this aspect from the tax authorities. In these circumstances, it is appropriate that the appeal should be allowed in so far as it relates to the period subsequent to February 22, 1990 and that the order of the Tribunal should, to that extent, be set aside. The application made by the respondent to the Tribunal under section 8 of the Rajasthan Taxation Tribunal Act, 1995 (Sales Tax Revision No. 94 of 1996) shall now stand restored to the file of the Tribunal to be heard and decided afresh to the aforestated extent in the light of what has been stated in this judgment.

1[ds]It will be seen that for the period from September 12, 1989 to February 22, 1990 the Tribunal found that the respondent was required to deposit sales tax which he was not required to collect and did not in fact collect. We are, therefore, in any event, not inclined to make any order contrary to that of the Tribunal for this period.However, for the period subsequent to February 22, 1990, the Tribunal proceeded only upon the basis of promissory estoppel. Promissory estoppel has to be pleaded and established. We find nothing in the application made by the respondent to the Tribunal which can be said to be a plea of promissory estoppel supported by the necessary factual particulars. It is only if these factual particulars are pleaded that the other side has an opportunity to answer the same. We think also that before applying the doctrine of promissory estoppel, as it did, the Tribunal should have reached a finding as to whether or not the respondents plant qualified as ae industry or as a mini cement plant within the meaning of the amended scheme. This was the respondents only case before it. If the particulars in this behalf were not, as it stated, before the Tribunal, the Tribunal should have called for the same or sought a finding on this aspect from the tax authoritiesIn these circumstances, it is appropriate that the appeal should be allowed in so far as it relates to the period subsequent to February 22, 1990 and that the order of the Tribunal should, to that extent, be set aside. The application made by the respondent to the Tribunal under section 8 of the Rajasthan Taxation Tribunal Act, 1995 (Sales Tax Revision No. 94 of 1996) shall now stand restored to the file of the Tribunal to be heard and decided afresh to the aforestated extent in the light of what has been stated in this judgment.

### 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 Rajasthan Taxation Tribunal Act, 1995. The application challenged the assessment order dated March 24, 1995 of the Commercial Taxes Officer, Bhiwadi Circle, Alwar, under the Rajasthan Sales Tax Act, 1954 and the Central Sales Tax Act, 1956. The application made by the respondent to the Tribunal has been produced before us. It is clear that the only thrust of that application was that the respondent was a small-scale unit entitled to 100 per cent exemption from sales tax under the provisions of the Sales Tax Incentive Scheme for Industries, 1987 and that it was not a mini cement plant entitled only to exemption limited to 50 per cent. The Tribunal, however, formulated the following questions for determination : (i) Could the amendments of January 11, 1990 and February 22, 1990, be given retrospective effect ? (ii) Does the doctrine of promissory estoppel apply in the facts and circumstances of this case, so as to prevent the amendments from even having prospective effect in the case of the present applicant ? (iii) Is the cement plant in question a small-scale unit to which the proviso to sub-clause (a) of clause 4 of the 1987 Incentive Schemes does not apply or is it a mini cement plant to which the proviso applies ? It then said : "Obviously in the present case the third question would arise only if the first two questions are answered in the affirmative. The third question is however a question of fact which cannot be determined on the basis of the material on record in this case". Having considered the position, the Tribunal found that at the time when the respondents cement plant was established, it was found eligible for the benefits under the scheme and entitled to 100 per cent exemption of tax liability for a period of seven years or 100 per cent of fixed capital investment whichever was earlier. By amendments of January 11, 1990 and February 22, 1990 the benefit under the scheme in the case of mini cement plants of a certain category was sought to be restricted with effect from August 6, 1988 to 50 per cent exemption of tax liability for a period of seven years. The Tribunal then concluded : "35. If the cement plant in question is taken to be a mini cement plant of the type specified in the amendments then too the cement plant in question would remain unaffected. For the period from September 12, 1989 to January 11, 1990/February 22, 1990, it would because an exemption granted and availed of cannot be withdrawn with retrospective effect and the applicant cannot be required to deposit sales tax which he was not required to collect and which he did not collect. For the period after January 11, 1990/February 22, 1990 the principle of promissory estoppel shall apply with full force. The promise extended to the applicant in response to which the investment was made was that he would be entitled to 100 per cent exemption of sales tax subject to a ceiling of 100 per cent of investment in fixed capital or seven years whichever was earlier. The promise made by the non-applicants was not in conflict with law or contrary to public policy. It was acted upon in good time by the applicant. The essential ingredients of promissory estoppel exist. This promise cannot be broken and has to be kept. The State Government is free to alter the Incentive Schemes but that would only be with prospective effect for those who respond to the modified schemes. 36. In this view of the matter the third question does not arise. 37. The application is accepted. The impugned assessment order of March 24, 1995, is set aside. It is declared that as long as the applicant is not in breach of the conditions on which the eligibility certificate was granted he would be eligible for 100 per cent exemption of sales tax subject to a ceiling of 100 per cent of investment in fixed capital or for seven years whichever is earlier." * It will be seen that for the period from September 12, 1989 to February 22, 1990 the Tribunal found that the respondent was required to deposit sales tax which he was not required to collect and did not in fact collect. We are, therefore, in any event, not inclined to make any order contrary to that of the Tribunal for this period.However, for the period subsequent to February 22, 1990, the Tribunal proceeded only upon the basis of promissory estoppel. Promissory estoppel has to be pleaded and established. We find nothing in the application made by the respondent to the Tribunal which can be said to be a plea of promissory estoppel supported by the necessary factual particulars. It is only if these factual particulars are pleaded that the other side has an opportunity to answer the same. We think also that before applying the doctrine of promissory estoppel, as it did, the Tribunal should have reached a finding as to whether or not the respondents plant qualified as a small-scale industry or as a mini cement plant within the meaning of the amended scheme. This was the respondents only case before it. If the particulars in this behalf were not, as it stated, before the Tribunal, the Tribunal should have called for the same or sought a finding on this aspect from the tax authorities. In these circumstances, it is appropriate that the appeal should be allowed in so far as it relates to the period subsequent to February 22, 1990 and that the order of the Tribunal should, to that extent, be set aside. The application made by the respondent to the Tribunal under section 8 of the Rajasthan Taxation Tribunal Act, 1995 (Sales Tax Revision No. 94 of 1996) shall now stand restored to the file of the Tribunal to be heard and decided afresh to the aforestated extent in the light of what has been stated in this judgment. ### Response: 1 ### Explanation: It will be seen that for the period from September 12, 1989 to February 22, 1990 the Tribunal found that the respondent was required to deposit sales tax which he was not required to collect and did not in fact collect. We are, therefore, in any event, not inclined to make any order contrary to that of the Tribunal for this period.However, for the period subsequent to February 22, 1990, the Tribunal proceeded only upon the basis of promissory estoppel. Promissory estoppel has to be pleaded and established. We find nothing in the application made by the respondent to the Tribunal which can be said to be a plea of promissory estoppel supported by the necessary factual particulars. It is only if these factual particulars are pleaded that the other side has an opportunity to answer the same. We think also that before applying the doctrine of promissory estoppel, as it did, the Tribunal should have reached a finding as to whether or not the respondents plant qualified as ae industry or as a mini cement plant within the meaning of the amended scheme. This was the respondents only case before it. If the particulars in this behalf were not, as it stated, before the Tribunal, the Tribunal should have called for the same or sought a finding on this aspect from the tax authoritiesIn these circumstances, it is appropriate that the appeal should be allowed in so far as it relates to the period subsequent to February 22, 1990 and that the order of the Tribunal should, to that extent, be set aside. The application made by the respondent to the Tribunal under section 8 of the Rajasthan Taxation Tribunal Act, 1995 (Sales Tax Revision No. 94 of 1996) shall now stand restored to the file of the Tribunal to be heard and decided afresh to the aforestated extent in the light of what has been stated in this judgment.

ARCELOR MITTAL INDIA PRIVATE LIMITED Vs. SATISH KUMAR GUPTA

of the said regulations. Also, as a matter of fact, the sale of the said shares was effected without taking the consent of the lenders of Uttam Galva, which consent was necessary as per the Non Disclosure Undertaking that was executed by AMNLBV. On 7.2.2018, consequent to the aforesaid inter se transfer, the Co-Promotion Agreement is said to have stood automatically terminated. By way of abundant caution, a formal deed of termination was entered into. AMNLBV addressed letters to the NSE and the BSE to record the aforesaid inter se transfer, who accordingly declassified AMNLBV as a promoter of Uttam Galva on 21.3.2018 and 23.3.2018 respectively. 109. It is absolutely clear that Shri L.N. Mittal, who is the ultimate shareholder of the resolution applicant, viz. AMIPL, is directly the ultimate shareholder of AMNLBV as well, which is an L.N. Mittal Group Company. When the corporate veil of the various companies aforementioned is pierced, both AMIPL and AMNLBV are found to be managed and controlled by Shri L.N. Mittal, and are therefore persons deemed to be acting in concert as per Regulation 2(1)(q)(2)(i) of the 2011 Takeover Regulations. That AMNLBV is a promoter of Uttam Galva is clear from the aforementioned facts, being expressly stated as such in Uttam Galva?s annual returns. The reasonably proximate facts prior to the submission of both resolution plans by AMIPL would show that there is no doubt whatsoever that AMNLBV?s shares in Uttam Galva were sold only in order to get out of the ineligibility mentioned by Section 29A(c), and consequently the proviso thereto. The fact that the lenders with whom AMNLBV had a Non Disposal Undertaking have not yet moved any forum for a declaration that the sale of the shares, being without their consent, is non est, does not absolve AMNLBV from having failed to first obtain their consent before selling off its shares in Uttam Galva. Such sale is directly contrary to the Non Disposal Undertaking given to the lenders. Quite apart from this, it is also clear that shares worth Rs.19.50 each were sold at a distress value of Re.1 each, so as to overcome the provisions of Section 29A(c) and the proviso thereto. It is clear therefore that the Uttam Galva transaction clearly renders AMIPL ineligible under Section 29A(c) of the Code. 110. Insofar as the transaction with regard to KSS Petron is concerned, the facts are as follows:- on 3.3.2011, Fraseli, an entity registered and incorporated in Luxemburg, which is managed and controlled by Shri L.N. Mittal, held 32.22% of the shareholding of KSS Global, a company domiciled in the Netherlands. On 19.5.2011, by a Shareholders Agreement entered into between KSS Holding, KSS Infra EALQ, Fraseli and KSS Global, the first three companies were each given a right to appoint an equal number of directors on the board of directors of KSS Global, which in turn held 100% of the share capital of KSS Petron, a company incorporated in India. Fraseli was also granted affirmative voting rights on decisions regarding certain specified matters, both at the board and the shareholder level, in respect of KSS Global and all companies controlled by it, which would include KSS Petron. As has been stated hereinabove, KSS Petron was declared as an NPA on 30.9.2015. As in the case of Uttam Galva, Fraseli divested its shareholding in KSS Petron on 9.2.2018, i.e., only three days before AMIPL submitted its first resolution plan. On the same day, the directors nominated by Shri L.N. Mittal, through Fraseli, resigned from the board of KSS Global. 111. From the aforementioned facts, there can be no doubt whatsoever that Fraseli, being a company managed and controlled by Shri L.N. Mittal, holding one third of the shares in KSS Global, which in turn held 100% of the share capital in KSS Petron, was in joint control of KSS Petron, if the corporate veil of all these companies is disregarded. Further, the Shareholders Agreement of 19.5.2011 makes it clear that the joint control of KSS Global would be between three entities, viz., KSS Holding, KSS Infra EALQ and Fraseli, each of whom had the right to appoint an equal number of directors on the board of directors of KSS Global. Not only this, but Fraseli was also granted affirmative voting rights as aforementioned, on certain important specified matters. There would be no doubt whatsoever that, just before presentation of the resolution plan of 12.2.2018, AMIPL would be hit by Section 29A(c), as a group company of Shri L.N. Mittal exercised positive control, by its shareholding, right to appoint directors and affirmative voting rights, over KSS Global, which in turn held 100% shareholding in KSS Petron. Again, as in the case of Uttam Galva, there can be no doubt whatsoever that the sale of Fraseli?s shareholding in KSS Global, together with the resignation of the Mittal directors from the board of directors of KSS Global, is a transaction reasonably proximate to the date of submission of the resolution plan by AMIPL, undertaken with the sole object of avoiding the consequence mentioned in the proviso to Section 29A(c). Having regard to the law laid down by us in this judgment, it is, therefore, clear that AMIPL is ineligible under Section 29A(c) of the Code, on this account as well. 112. Shri Rohatgi also argued before us that Shri Pramod Mittal, brother of Shri Laxmi Mittal, also held shares in two other companies which were declared to be NPAs more than one year prior to the date of commencement of the corporate insolvency resolution process of ESIL. We have been informed by Shri Salve that Shri Pramod Mittal parted company with Shri L.N. Mittal as far back as 1994, and cannot therefore be regarded as a person acting in concert with Shri L.N. Mittal. Since this aspect of the case has not been argued before the authorities below, though raised in an I.A. by Numetal before the Appellate Authority, we will not countenance such an argument for the first time before this Court.

1[ds]34. It is thus clear that, where a statute itself lifts the corporate veil, or where protection of public interest is of paramount importance, or where a company has been formed to evade obligations imposed by the law, the court will disregard the corporate veil. Further, this principle is applied even to group companies, so that one is able to look at the economic entity of the group as a wholeWe are afraid that these judgments are wholly inapplicable. All that is to be seen by the expression ?acting jointly? is whether certain persons have got together and are acting ?jointly? in the sense of acting together. If this is made out on the facts, no super added element of ?joint venture? as is understood in law is to be seen. The other important phrase is ?in concert?. By Section 3(37) of the Code, words and expressions used but not defined in the Code but defined inter alia by the SEBI Act, 1992, and the Companies Act, 2013, shall have the meanings respectively assigned to them in those Acts. In exercise of powers conferred by Sections 11 and 30 of the SEBI Act, 1992, the 2011 Takeover Regulations have been promulgated by SEBI43. According to us, it is clear that the opening words of Section 29A furnish a clue as to the time at which sub-clause (c) is to operate. The opening words of Section 29A state:?a person shall not be eligible to submit a resolution. It is clear therefore that the stage of ineligibility attaches when the resolution plan is submitted by a resolution applicant. The contrary view expressed by Shri Rohatgi is obviously incorrect, as the date of commencement of the corporate insolvency resolution process is only relevant for the purpose of calculating whether one year has lapsed from the date of classification of a person as a non- performing asset. Further, the expression used is ?has?, which as Dr. Singhvi has correctly argued, is in praesenti. This is to be contrasted with the expression ?has been?, which is used in sub- clauses (d) and (g), which refers to an anterior point of time. Consequently, the amendment of 2018 introducing the words ?at the time of submission of the resolution plan? is clarificatory, as this was always the correct interpretation as to the point of time at which the disqualification in sub-clause (c) of Section 29A will attach44. The ingredients of sub-clause (c) are that, the ineligibility to submit a resolution plan attaches if any person, as is referred to in the opening lines of Section 29A, either itself has an account, or is a promoter of, or in the management or control of, a corporate debtor which has an account, which account has been classified as a non-performing asset, for a period of at least one year from the date of such classification till the date of commencement of the corporate insolvency resolution process. For the purpose of applying this sub-section, any one of three things, which are disjunctive, needs to be established. The corporate debtor may be under the management of the person referred to in Section 29A, the corporate debtor may be a person under the control of such person, or the corporate debtor may be a person of whom such person is a promoter54. The interpretation of Section 29A(c) now becomes clear. Any person who wishes to submit a resolution plan, if he or it does so acting jointly, or in concert with other persons, which person or other persons happen to either manage or control or be promoters of a corporate debtor, who is classified as a non-performing asset and whose debts have not been paid off for a period of at least one year before commencement of the corporate insolvency resolution process, becomes ineligible to submit a resolution plan. This provision therefore ensures that if a person wishes to submit a resolution plan, and if such person or any person acting jointly or any person in concert with such person, happens to either manage, control, or be promoter of a corporate debtor declared as a non-performing asset one year before the corporate insolvency resolution process begins, is ineligible to submit a resolution plan. The first proviso to sub-clause (c) makes it clear that the ineligibility can only be removed if the person submitting a resolution plan makes payment of all overdue amounts with interest thereon and charges relating to the non-performing asset in question before submission of a resolution plan. The position in law is thus clear. Any person who wishes to submit a resolution plan acting jointly or in concert with other persons, any of whom may either manage, control or be a promoter of a corporate debtor classified as a non-performing asset in the period abovementioned, must first pay off the debt of the said corporate debtor classified as a non-performing asset in order to become eligible under Section 29A(c)We are afraid that we cannot accept the aforesaid submission. The plain language of the proviso makes it clear, that ineligibility can only be removed if the necessary payment is made before submission of a resolution plan. It is not possible to accede to the argument that, commercially speaking, no person would ever make a speculative bid, where he would pay off the debt of another related corporate debtor, classified as an NPA, without being certain that his resolution plan would be accepted, as this would narrow the pool of resolution applicants to nil, and therefore stultify the object sought to be achieved by the proviso to Section 29A(c). First, it is clear that there may be persons who may submit resolution plans, either by themselves, or in concert, or jointly with other persons who do not have debts which are declared as NPAs. Also, it is very difficult to say that in no circumstance whatsoever would a person submitting a resolution plan pay off the NPA dues of another person, with whom it is acting in concert or jointly. The dues may be such that it may be worth the while of the person, together with the persons with whom he is acting in concert or jointly, to first pay off the dues of the concerned corporate debtor whose account has been declared to be an NPA, as such dues may be negligible when compared with the gaining of control of the corporate debtor that is sought to be run as a going concern as per a resolution plan submitted. It is, therefore, impossible to say that the plain, literal, meaning of the language used by the proviso leads to absurdity or hardship. This interpretation is also in line with the object sought to be achieved, namely, that other corporate debtors who are declared as NPAs, whose debts may never be cleared in full, are required to be cleared as a condition precedent to submission of a resolution plan under the Code. In order, therefore, to make the statute ?workable?, as is suggested by Messrs Salve and Singhvi, we cannot disregard the plain language of the proviso and substitute words which would have the opposite effect57. It is important for the competent authority to see that persons, who are otherwise ineligible and hit by sub-clause (c), do not wriggle out of the proviso to sub-clause (c) by other means, so as to avoid the consequences of the proviso. For this purpose, despite the fact that the relevant time for the ineligibility under sub- clause (c) to attach is the time of submission of the resolution plan, antecedent facts reasonably proximate to this point of time can always be seen, to determine whether the persons referred to in Section 29A are, in substance, seeking to avoid the consequences of the proviso to sub-clause (c) before submitting a resolution plan. If it is shown, on facts, that, at a reasonably proximate point of time before the submission of the resolution plan, the affairs of the persons referred to in Section 29A are so arranged, as to avoid paying off the debts of the non-performing asset concerned, such persons must be held to be ineligible to submit a resolution plan, or otherwise both the purpose of the first proviso to sub-section (c) of Section 29A, as well as the larger objective sought to be achieved by the said sub-clause in public interest, will be defeated59. In the light thereof, it is clear that if a person is prohibited by a regulator of the securities market in a foreign country from trading in securities or accessing the securities market, the disability under sub-clause (i) would then attach70. The time limit for completion of the insolvency resolution process is laid down in Section 12. A period of 180 days from the date of admission of the application is given by Section 12(1). This is extendable by a maximum period of 90 days only if the Committee of Creditors, by a vote of 66%, votes to extend thesaid period, and only if the Adjudicating Authority is satisfied that such process cannot be completed within 180 days. The authority may then, by order, extend the duration of such process by a maximum period of 90 days (see Sections 12(2) and 12(3)). What is also of importance is the proviso to Section 12(3) which states that any extension of the period under Section 12 cannot be granted more than once. This has to be read with the third proviso to Section 30(4), which states that the maximum period of 30 days mentioned in the second proviso is allowable as the only exception to the extension of the aforesaid period not being granted more than once71. What is important to note is that a consequence is provided, in the event that the said period ends either without receipt of a resolution plan or after rejection of a resolution plan under Section 31. This consequence is provided by Section 33, which makes it clear that when either of these two contingencies occurs, the corporate debtor is required to be liquidated in the manner laid down in Chapter III. Section 12, construed in the light of the object sought to be achieved by the Code, and in the light of the consequence provided by Section 33, therefore, makes it clear that the periods previously mentioned are mandatory and cannot be extended72. In fact, even the literal language of Section 12(1) makes it clear that the provision must read as being mandatory. The expression ?shall be completed? is used. Further, sub-section (3) makes it clear that the duration of 180 days may be extended further ?but not exceeding 90 days?, making it clear that a maximum of 270 days is laid down statutorily. Also, the proviso to Section 12 makes it clear that the extension ?shall not be granted more than once?It is settled law that a statute is designed to be workable, and the interpretation thereof should be designed to make it so workable76. Given the timeline referred to above, and given the fact that a resolution applicant has no vested right that his resolution plan be considered, it is clear that no challenge can be preferred to the Adjudicating Authority at this stage. A writ petition under Article 226 filed before a High Court would also be turned down on the ground that no right, much less a fundamental right, is affected at this stage. This is also made clear by the first proviso to Section 30(4), whereby a Resolution Professional may only invite fresh resolution plans if no other resolution plan has passed muster78. Thus, the importance of the Resolution Professional is to ensure that a resolution plan is complete in all respects, and to conduct a due diligence in order to report to the Committee of Creditors whether or not it is in order. Even though it is not necessary for the Resolution Professional to give reasons while submitting a resolution plan to the Committee of Creditors, it would be in the fitness of things if he appends the due diligence report carried out by him with respect to each of the resolution plans under consideration, and to state briefly as to why it does or does not conform to the lawAs has been mentioned hereinabove, the first proviso to Section 30(4) furnishes the answer, which is that all that can happen at this stage is to require the Resolution Professional to invite a fresh resolution plan within the time limits specified where no other resolution plan is available with him. It is clear that at this stage again no application before the Adjudicating Authority could be entertained as there is no vested right or fundamental right in the resolution applicant to have its resolution plan approved, and as no adjudication has yet taken placeThis regulation shows that the disapproval of the Committee of Creditors on the ground that the resolution plan violates the provisions of any law, including the ground that a resolution plan is ineligible under Section 29A, is not final. The Adjudicating Authority, acting quasi-judicially, can determine whether the resolution plan is violative of the provisions of any law, including Section 29A of the Code, after hearing arguments from the resolution applicant as well as the Committee of Creditors, after which an appeal can be preferred from the decision of the Adjudicating Authority to the Appellate Authority under Section 6181. If, on the other hand, a resolution plan has been approved by the Committee of Creditors, and has passed muster before the Ad- judicating Authority, this determination can be challenged before the Appellate Authority under Section 61, and may further be chal- lenged before the Supreme Court under Section 62, if there is a question of law arising out of such order, within the time specified in Section 62. Section 64 also makes it clear that the timelines that are to be adhered to by the NCLT and NCLAT are of great im- portance, and that reasons must be recorded by either the NCLT or NCLAT if the matter is not disposed of within the time limit spec- ified. Section 60(5), when it speaks of the NCLT having jurisdiction to entertain or dispose of any application or proceeding by or against the corporate debtor or corporate person, does not invest the NCLT with the jurisdiction to interfere at an applicant?s behest at a stage before the quasi-judicial determination made by the Ad- judicating Authority. The non-obstante clause in Section 60(5) is designed for a different purpose: to ensure that the NCLT alone has jurisdiction when it comes to applications and proceedings by or against a corporate debtor covered by the Code, making it clear that no other forum has jurisdiction to entertain or dispose of such applications or proceedings84. Coming to the facts of the present case, let us first examine the resolution plan presented by Numetal. Numetal was incorporated in Mauritius on 13.10.2017, expressly for the purposeof submission of a resolution plan qua the corporate debtor, i.e., ESIL. Two other companies, viz., AHL and AEL, were also incorporated on the same day in Mauritius. Shri Rewant Ruia, son of Shri Ravi Ruia (who was the promoter of ESIL) held the entire share capital of AHL, which in turn held the entire shareholding of AEL, which in turn held the entire share capital of Numetal. At this stage there can be no doubt whatsoever that Shri Rewant Ruia, being the son of Shri Ravi Ruia, would be deemed to be a person acting in concert with the corporate debtor, being covered by Regulation 2(1)(q)(v) of the 2011 Takeover Regulations88. The Resolution Professional, after looking at this affidavit, correctly noted that statements of such a nature would not have been made by a truly independent trustee of a discretionary trust, which demonstrates that the trustee was under the complete control of Shri Rewant Ruia. This in turn indicates that Prisma Trust is one more smokescreen in the chain of control, which would conceal the fact that the actual control over AEL is by none other than Shri Rewant Ruia himselfIt is important to note that, as of this date, Shri Rewant Ruia, who is the ultimate beneficiary in the chain of control of the trusts which in turn controlled AEL, was very much on the scene, holding through AEL 25% of the shareholding of Numetal91. One other extremely important fact needs to be noticed at this stage. The earnest money in the form of Rs. 500 crores, credited to the account of the corporate debtor, has been provided to Numetal by AEL as a shareholder of the resolution applicant, viz. Numetal. It is important to note that this earnest money deposit of Rs.500 crores made by AEL continues to remain with the Resolution Professional till date, despite the fact that, by the time the second resolution plan was submitted by Numetal on 2.4.2018, AEL had exited as a shareholder of Numetal. It is also important to note that under clause 4.4.4 of the request for proposal for submission of resolution plans for ESIL, the earnest money deposit stands to be forfeited if any condition thereof is breached or the qualifications of the potential resolution applicant are found to be untrue93. The excerpted portions of Numetal?s resolution plan make it clear that, since Numetal itself was a newly incorporated entity, with no financial or experience credentials of its own, it therefore relied entirely on the credentials of each of its constituent shareholders. This shows that Numetal itself revealed in its resolution plan that its corporate veil should be lifted, for without lifting this veil, none of the parameters of the request for proposal could have been met by Numetal itself. It is thus clear that the four shareholders of Numetal were persons ?acting jointly? within the meaning of Section 29A. This being the case, it is clear that Shri Salve?s argument that VTB Bank is a ?connected person?, being ineligible under sub-clause (j), would have to be rejected, as VTB Bank is itself, through its wholly owned subsidiary of Crinium Bay, a person acting jointly with the three other shareholders of Numetal, and would, therefore, fall within the first part of Section 29A itself. This being so, it cannot be said that VTB Bank is a person ?connected to? any one of the persons acting jointly, as it is itself a person acting jointly, and therefore covered by the first part of Section 29A94. It is important to note that on 29.3.2018, AEL transferred its 25% shareholding in Numetal to the other three constituent shareholders, thereby leaving its shareholding in Numetal as ‘Nil?. In response to the Resolution Professional?s invitation, the second Resolution Plan, therefore, submitted by Numetal on 2.4.2018, did not have AEL as a constituent of Numetal; instead, Crinium Bay continued with 40% of the shareholding of Numetal, with TPE?s holding now augmented to 29.5% and Indo?s to 34.1%95. Given the fact that Shri Rewant Ruia is a person deemed to be acting in concert with his father Shri Ravi Ruia (who was a promoter of the corporate debtor ESIL), there is no doubt whatsoever that Section 29A(c) would be attracted as on the date of submission of the first resolution plan, viz. 12.2.2018, as AEL was held by Prisma Trust, whose ultimate beneficiary is Shri Rewant Ruia himself. This would show that the NPA declared over a year before the date of commencement of the corporate resolution process of ESIL (i.e. in 2015) would render Numetal ineligible to submit a resolution plan. The only manner in which Numetal could successfully present a resolution plan would be to first pay off the debts of ESIL, as well as those of such other corporate debtors of the Ruia group of companies, which were declared as NPAs prior to the aforesaid period of one year, before submitting its resolution plan. However, if the date of the second resolution plan is to be seen, Shri Rewant Ruia appears to have disappeared from the scene altogether, as the three entities left are stated to be independent entities in the form of two Russian entities and one UAE entity. Viewed on 2.4.2018, therefore, could it be said that Shri Rewant Ruia had disappeared from the scene altogether, so as to obviate the application of Section 29A(c)? The obvious answer is no. This is for two reasons. First, as has been stated earlier, the Rs.500 crores that has been deposited towards submission of earnest money continues to remain deposited by AEL even post 2.4.2018, showing thereby that Shri Rewant Ruia continues to be present, insofar as Numetal?s second resolution plan is concerned. Further, having regard to the reasonably proximate state of affairs before submission of the resolution plan on 2.4.2018, beginning with Numetal?s initial corporate structure, and continuing with the changes made till date, it is evident that, the object of all the transactions that have taken place after Section 29A came into force on 23.11.2017 is undoubtedly to avoid the application of Section 29A(c), including its proviso. We therefore hold that, whether the first or second resolution plan is taken into account, both would clearly be hit by Section 29A(c), as the looming presence of Shri Rewant Ruia has been found all along, from the date of incorporation of Numetal, till the date of submission of the second resolution plan103. What will be noticed is that the sanctions that have been imposed by the authorities of both the United States and the Council of the European Union are not on account of any misconduct on the part of VTB Bank. Rather, they have been imposed politically, because of the conduct of a particular country, i.e. Russia, which has sought to undermine Ukraine?s territorial integrity, sovereignty and independence, by illegally annexing Crimea and Sevastopol. We are of the view that Shri Rohatgi is right, inasmuch as VTB Bank cannot be said to have been prohibited by an authority outside India from trading in securities or accessing the securities markets, due to any fraudulent and/or unfair trade practices relating to the securities market generally. A prohibitory sanction by an authority situate outside India for political reasons would thus not be covered by sub-clause (i)105. A reading of this order makes it clear that, even assuming that the Commodity Futures Trading Commission is an authority which corresponds with SEBI (Shri Rohatgi has argued that in the United States the Securities Exchange Commission is the authority which corresponds with SEBI in India), it is clear that there is no prohibition by the Commodity Futures Trading Commission of the United States interdicting VTB Bank from trading in securities or accessing the securities market. All that VTB Bank has done is consent to a cease and desist order; consent to pay a monetary penalty in the amount of USD five million; and further consent to not enter into privately negotiated futures options with a particular subsidiary, viz. VTB Capital, on or through any US-based futures exchange for a period of two years from the date of the order. Obviously, a prohibition regarding privately negotiated futures options, or combination transactions with one another, is not a prohibition from trading in securities or accessing the securities market. We thus agree with Shri Rohatgi that Crinium Bay, being a wholly owned subsidiary of VTB Bank, does not therefore incur any disqualification under sub-clause (f) read with sub-clause (i) of Section 29AIt is important to note that, in all the annual returns of Uttam Galva till date, AMNLBV?s shareholding has been shown as ‘promoter?s shareholding.? All the annual reports, upto 2017, contained a list of promoters, which included AMNLBV as one such, holding 29.05%% of the share capital of the company, and having significant influence over the company. Shri Salve?s argument that, in point of fact, no control was actually exercised as AMNLBV never appointed any directors or exercised its voting rights, cannot be accepted as that makes no difference to the de jure position of AMNLBV being a ?promoter? as defined in Section 2(69)(a) of the Companies Act, 2013108. On 7.2.2018, a few days before AMIPL submitted its first resolution plan, AMNLBV sold its entire shareholding in Uttam Galva by way of an off market sale, to a company of the Indian co- promoters, viz., ‘Sainath Trading Company Private Limited?. Shares that were purchased for Rs.120 each, were sold for Re.1 each, when the market value of the shares on the said date was admittedly Rs.19.50 per share. The aforesaid sale of shares was done without making an open offer under the 2011 Takeover Regulations, on the basis that it was an inter se transfer of shares between promoters, and therefore exempt from such requirement under Regulation 10 of the said regulations. Also, as a matter of fact, the sale of the said shares was effected without taking the consent of the lenders of Uttam Galva, which consent was necessary as per the Non Disclosure Undertaking that was executed by AMNLBV. On 7.2.2018, consequent to the aforesaid inter se transfer, the Co-Promotion Agreement is said to have stood automatically terminated. By way of abundant caution, a formal deed of termination was entered into. AMNLBV addressed letters to the NSE and the BSE to record the aforesaid inter se transfer, who accordingly declassified AMNLBV as a promoter of Uttam Galva on 21.3.2018 and 23.3.2018 respectively109. It is absolutely clear that Shri L.N. Mittal, who is the ultimate shareholder of the resolution applicant, viz. AMIPL, is directly the ultimate shareholder of AMNLBV as well, which is an L.N. Mittal Group Company. When the corporate veil of the various companies aforementioned is pierced, both AMIPL and AMNLBV are found to be managed and controlled by Shri L.N. Mittal, and are therefore persons deemed to be acting in concert as per Regulation 2(1)(q)(2)(i) of the 2011 Takeover Regulations. That AMNLBV is a promoter of Uttam Galva is clear from the aforementioned facts, being expressly stated as such in Uttam Galva?s annual returns. The reasonably proximate facts prior to the submission of both resolution plans by AMIPL would show that there is no doubt whatsoever that AMNLBV?s shares in Uttam Galva were sold only in order to get out of the ineligibility mentioned by Section 29A(c), and consequently the proviso thereto. The fact that the lenders with whom AMNLBV had a Non Disposal Undertaking have not yet moved any forum for a declaration that the sale of the shares, being without their consent, is non est, does not absolve AMNLBV from having failed to first obtain their consent before selling off its shares in Uttam Galva. Such sale is directly contrary to the Non Disposal Undertaking given to the lenders. Quite apart from this, it is also clear that shares worth Rs.19.50 each were sold at a distress value of Re.1 each, so as to overcome the provisions of Section 29A(c) and the proviso thereto. It is clear therefore that the Uttam Galva transaction clearly renders AMIPL ineligible under Section 29A(c) of the Code110. Insofar as the transaction with regard to KSS Petron is concerned, the facts are as follows:- on 3.3.2011, Fraseli, an entity registered and incorporated in Luxemburg, which is managed and controlled by Shri L.N. Mittal, held 32.22% of the shareholding of KSS Global, a company domiciled in the Netherlands. On 19.5.2011, by a Shareholders Agreement entered into between KSS Holding, KSS Infra EALQ, Fraseli and KSS Global, the first three companies were each given a right to appoint an equal number of directors on the board of directors of KSS Global, which in turn held 100% of the share capital of KSS Petron, a company incorporated in India. Fraseli was also granted affirmative voting rights on decisions regarding certain specified matters, both at the board and the shareholder level, in respect of KSS Global and all companies controlled by it, which would include KSS Petron. As has been stated hereinabove, KSS Petron was declared as an NPA on 30.9.2015. As in the case of Uttam Galva, Fraseli divested its shareholding in KSS Petron on 9.2.2018, i.e., only three days before AMIPL submitted its first resolution plan. On the same day, the directors nominated by Shri L.N. Mittal, through Fraseli, resigned from the board of KSS Global111. From the aforementioned facts, there can be no doubt whatsoever that Fraseli, being a company managed and controlled by Shri L.N. Mittal, holding one third of the shares in KSS Global, which in turn held 100% of the share capital in KSS Petron, was in joint control of KSS Petron, if the corporate veil of all these companies is disregarded. Further, the Shareholders Agreement of 19.5.2011 makes it clear that the joint control of KSS Global would be between three entities, viz., KSS Holding, KSS Infra EALQ and Fraseli, each of whom had the right to appoint an equal number of directors on the board of directors of KSS Global. Not only this, but Fraseli was also granted affirmative voting rights as aforementioned, on certain important specified matters. There would be no doubt whatsoever that, just before presentation of the resolution plan of 12.2.2018, AMIPL would be hit by Section 29A(c), as a group company of Shri L.N. Mittal exercised positive control, by its shareholding, right to appoint directors and affirmative voting rights, over KSS Global, which in turn held 100% shareholding in KSS Petron. Again, as in the case of Uttam Galva, there can be no doubt whatsoever that the sale of Fraseli?s shareholding in KSS Global, together with the resignation of the Mittal directors from the board of directors of KSS Global, is a transaction reasonably proximate to the date of submission of the resolution plan by AMIPL, undertaken with the sole object of avoiding the consequence mentioned in the proviso to Section 29A(c). Having regard to the law laid down by us in this judgment, it is, therefore, clear that AMIPL is ineligible under Section 29A(c) of the Code, on this account as wellSince this aspect of the case has not been argued before the authorities below, though raised in an I.A. by Numetal before the Appellate Authority, we will not countenance such an argument for the first time before this Court.

### 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 the said regulations. Also, as a matter of fact, the sale of the said shares was effected without taking the consent of the lenders of Uttam Galva, which consent was necessary as per the Non Disclosure Undertaking that was executed by AMNLBV. On 7.2.2018, consequent to the aforesaid inter se transfer, the Co-Promotion Agreement is said to have stood automatically terminated. By way of abundant caution, a formal deed of termination was entered into. AMNLBV addressed letters to the NSE and the BSE to record the aforesaid inter se transfer, who accordingly declassified AMNLBV as a promoter of Uttam Galva on 21.3.2018 and 23.3.2018 respectively. 109. It is absolutely clear that Shri L.N. Mittal, who is the ultimate shareholder of the resolution applicant, viz. AMIPL, is directly the ultimate shareholder of AMNLBV as well, which is an L.N. Mittal Group Company. When the corporate veil of the various companies aforementioned is pierced, both AMIPL and AMNLBV are found to be managed and controlled by Shri L.N. Mittal, and are therefore persons deemed to be acting in concert as per Regulation 2(1)(q)(2)(i) of the 2011 Takeover Regulations. That AMNLBV is a promoter of Uttam Galva is clear from the aforementioned facts, being expressly stated as such in Uttam Galva?s annual returns. The reasonably proximate facts prior to the submission of both resolution plans by AMIPL would show that there is no doubt whatsoever that AMNLBV?s shares in Uttam Galva were sold only in order to get out of the ineligibility mentioned by Section 29A(c), and consequently the proviso thereto. The fact that the lenders with whom AMNLBV had a Non Disposal Undertaking have not yet moved any forum for a declaration that the sale of the shares, being without their consent, is non est, does not absolve AMNLBV from having failed to first obtain their consent before selling off its shares in Uttam Galva. Such sale is directly contrary to the Non Disposal Undertaking given to the lenders. Quite apart from this, it is also clear that shares worth Rs.19.50 each were sold at a distress value of Re.1 each, so as to overcome the provisions of Section 29A(c) and the proviso thereto. It is clear therefore that the Uttam Galva transaction clearly renders AMIPL ineligible under Section 29A(c) of the Code. 110. Insofar as the transaction with regard to KSS Petron is concerned, the facts are as follows:- on 3.3.2011, Fraseli, an entity registered and incorporated in Luxemburg, which is managed and controlled by Shri L.N. Mittal, held 32.22% of the shareholding of KSS Global, a company domiciled in the Netherlands. On 19.5.2011, by a Shareholders Agreement entered into between KSS Holding, KSS Infra EALQ, Fraseli and KSS Global, the first three companies were each given a right to appoint an equal number of directors on the board of directors of KSS Global, which in turn held 100% of the share capital of KSS Petron, a company incorporated in India. Fraseli was also granted affirmative voting rights on decisions regarding certain specified matters, both at the board and the shareholder level, in respect of KSS Global and all companies controlled by it, which would include KSS Petron. As has been stated hereinabove, KSS Petron was declared as an NPA on 30.9.2015. As in the case of Uttam Galva, Fraseli divested its shareholding in KSS Petron on 9.2.2018, i.e., only three days before AMIPL submitted its first resolution plan. On the same day, the directors nominated by Shri L.N. Mittal, through Fraseli, resigned from the board of KSS Global. 111. From the aforementioned facts, there can be no doubt whatsoever that Fraseli, being a company managed and controlled by Shri L.N. Mittal, holding one third of the shares in KSS Global, which in turn held 100% of the share capital in KSS Petron, was in joint control of KSS Petron, if the corporate veil of all these companies is disregarded. Further, the Shareholders Agreement of 19.5.2011 makes it clear that the joint control of KSS Global would be between three entities, viz., KSS Holding, KSS Infra EALQ and Fraseli, each of whom had the right to appoint an equal number of directors on the board of directors of KSS Global. Not only this, but Fraseli was also granted affirmative voting rights as aforementioned, on certain important specified matters. There would be no doubt whatsoever that, just before presentation of the resolution plan of 12.2.2018, AMIPL would be hit by Section 29A(c), as a group company of Shri L.N. Mittal exercised positive control, by its shareholding, right to appoint directors and affirmative voting rights, over KSS Global, which in turn held 100% shareholding in KSS Petron. Again, as in the case of Uttam Galva, there can be no doubt whatsoever that the sale of Fraseli?s shareholding in KSS Global, together with the resignation of the Mittal directors from the board of directors of KSS Global, is a transaction reasonably proximate to the date of submission of the resolution plan by AMIPL, undertaken with the sole object of avoiding the consequence mentioned in the proviso to Section 29A(c). Having regard to the law laid down by us in this judgment, it is, therefore, clear that AMIPL is ineligible under Section 29A(c) of the Code, on this account as well. 112. Shri Rohatgi also argued before us that Shri Pramod Mittal, brother of Shri Laxmi Mittal, also held shares in two other companies which were declared to be NPAs more than one year prior to the date of commencement of the corporate insolvency resolution process of ESIL. We have been informed by Shri Salve that Shri Pramod Mittal parted company with Shri L.N. Mittal as far back as 1994, and cannot therefore be regarded as a person acting in concert with Shri L.N. Mittal. Since this aspect of the case has not been argued before the authorities below, though raised in an I.A. by Numetal before the Appellate Authority, we will not countenance such an argument for the first time before this Court. ### Response: 1 ### Explanation: way of an off market sale, to a company of the Indian co- promoters, viz., ‘Sainath Trading Company Private Limited?. Shares that were purchased for Rs.120 each, were sold for Re.1 each, when the market value of the shares on the said date was admittedly Rs.19.50 per share. The aforesaid sale of shares was done without making an open offer under the 2011 Takeover Regulations, on the basis that it was an inter se transfer of shares between promoters, and therefore exempt from such requirement under Regulation 10 of the said regulations. Also, as a matter of fact, the sale of the said shares was effected without taking the consent of the lenders of Uttam Galva, which consent was necessary as per the Non Disclosure Undertaking that was executed by AMNLBV. On 7.2.2018, consequent to the aforesaid inter se transfer, the Co-Promotion Agreement is said to have stood automatically terminated. By way of abundant caution, a formal deed of termination was entered into. AMNLBV addressed letters to the NSE and the BSE to record the aforesaid inter se transfer, who accordingly declassified AMNLBV as a promoter of Uttam Galva on 21.3.2018 and 23.3.2018 respectively109. It is absolutely clear that Shri L.N. Mittal, who is the ultimate shareholder of the resolution applicant, viz. AMIPL, is directly the ultimate shareholder of AMNLBV as well, which is an L.N. Mittal Group Company. When the corporate veil of the various companies aforementioned is pierced, both AMIPL and AMNLBV are found to be managed and controlled by Shri L.N. Mittal, and are therefore persons deemed to be acting in concert as per Regulation 2(1)(q)(2)(i) of the 2011 Takeover Regulations. That AMNLBV is a promoter of Uttam Galva is clear from the aforementioned facts, being expressly stated as such in Uttam Galva?s annual returns. The reasonably proximate facts prior to the submission of both resolution plans by AMIPL would show that there is no doubt whatsoever that AMNLBV?s shares in Uttam Galva were sold only in order to get out of the ineligibility mentioned by Section 29A(c), and consequently the proviso thereto. The fact that the lenders with whom AMNLBV had a Non Disposal Undertaking have not yet moved any forum for a declaration that the sale of the shares, being without their consent, is non est, does not absolve AMNLBV from having failed to first obtain their consent before selling off its shares in Uttam Galva. Such sale is directly contrary to the Non Disposal Undertaking given to the lenders. Quite apart from this, it is also clear that shares worth Rs.19.50 each were sold at a distress value of Re.1 each, so as to overcome the provisions of Section 29A(c) and the proviso thereto. It is clear therefore that the Uttam Galva transaction clearly renders AMIPL ineligible under Section 29A(c) of the Code110. Insofar as the transaction with regard to KSS Petron is concerned, the facts are as follows:- on 3.3.2011, Fraseli, an entity registered and incorporated in Luxemburg, which is managed and controlled by Shri L.N. Mittal, held 32.22% of the shareholding of KSS Global, a company domiciled in the Netherlands. On 19.5.2011, by a Shareholders Agreement entered into between KSS Holding, KSS Infra EALQ, Fraseli and KSS Global, the first three companies were each given a right to appoint an equal number of directors on the board of directors of KSS Global, which in turn held 100% of the share capital of KSS Petron, a company incorporated in India. Fraseli was also granted affirmative voting rights on decisions regarding certain specified matters, both at the board and the shareholder level, in respect of KSS Global and all companies controlled by it, which would include KSS Petron. As has been stated hereinabove, KSS Petron was declared as an NPA on 30.9.2015. As in the case of Uttam Galva, Fraseli divested its shareholding in KSS Petron on 9.2.2018, i.e., only three days before AMIPL submitted its first resolution plan. On the same day, the directors nominated by Shri L.N. Mittal, through Fraseli, resigned from the board of KSS Global111. From the aforementioned facts, there can be no doubt whatsoever that Fraseli, being a company managed and controlled by Shri L.N. Mittal, holding one third of the shares in KSS Global, which in turn held 100% of the share capital in KSS Petron, was in joint control of KSS Petron, if the corporate veil of all these companies is disregarded. Further, the Shareholders Agreement of 19.5.2011 makes it clear that the joint control of KSS Global would be between three entities, viz., KSS Holding, KSS Infra EALQ and Fraseli, each of whom had the right to appoint an equal number of directors on the board of directors of KSS Global. Not only this, but Fraseli was also granted affirmative voting rights as aforementioned, on certain important specified matters. There would be no doubt whatsoever that, just before presentation of the resolution plan of 12.2.2018, AMIPL would be hit by Section 29A(c), as a group company of Shri L.N. Mittal exercised positive control, by its shareholding, right to appoint directors and affirmative voting rights, over KSS Global, which in turn held 100% shareholding in KSS Petron. Again, as in the case of Uttam Galva, there can be no doubt whatsoever that the sale of Fraseli?s shareholding in KSS Global, together with the resignation of the Mittal directors from the board of directors of KSS Global, is a transaction reasonably proximate to the date of submission of the resolution plan by AMIPL, undertaken with the sole object of avoiding the consequence mentioned in the proviso to Section 29A(c). Having regard to the law laid down by us in this judgment, it is, therefore, clear that AMIPL is ineligible under Section 29A(c) of the Code, on this account as wellSince this aspect of the case has not been argued before the authorities below, though raised in an I.A. by Numetal before the Appellate Authority, we will not countenance such an argument for the first time before this Court.

Municipal Corporation of Greater Bombay Vs. Mafatlal Industries and Others

a guest house, it must be held that the premises is exclusively used for its own purpose and accordingly tariff rate meant for Category R should apply. The Division Bench construed that the word private in the expression "exclusively used as a private residential premises" must be read as opposed to public. It further came to hold that since a guest house maintained by the company is not a business proposition it cannot be held to be for commercial purpose and unless the premises is used for any commercial purpose then the same cannot be categorised as Category C. With this conclusion the judgment of the learned Single Judge has been reversed and the appeals having been allowed, the present appeals by special leave have been filed in this Court. 3. Mr Reddy, learned Additional Solicitor General appearing for the appellant, contented that the Division Bench of the Bombay High Court totally misconstrued the expression "exclusively used as a private residential premises" and the said expression has no correlation with either the object of profit-making or it is to be read in contradistinction to the word public. According to Mr Reddy, the expression "exclusively used as a private residential premises" must be given its natural grammatical construction and if such a construction being given it would apply to those premises which are used for residential purpose and will certainly not apply to a guest house maintained by a company or a commercial undertaking where its employees come and reside for some time when they are in Bombay. Mr Naik, learned Senior Counsel appearing for the respondents on the other hand contended that when under the Bombay Electricity Duty Act two different tariffs have been provided for, one for the premises used for residential purpose and the other for premises used for business, trade, commercial undertaking or professional purpose the guest house belonging to the commercial undertaking must come within the first category and therefore the Division Bench was wholly justified in directing the payment of tariff for such guest houses bringing them under Category R. According to learned counsel guest houses are maintained by commercial undertakings to be used by its employees when they come to the cities and therefore the purpose of maintenance of such guest houses is undoubtedly residential and consequently the categorisation must be Category R 4. In view of the rival submissions at the bar the question that arises for consideration is, what is the true meaning of the expression "exclusively used as a private residential premises" ? A premises to come within Category R Part I to the Schedule of Electricity Tariff must be a premises which is exclusively used as a private residential premises. It is a cardinal principle of construction of a statute that the words must be given its natural meaning and must be understood in its ordinary or popular sense and each word must have its play. Natural and ordinary meaning of the words should not be departed from unless it is shown that the context in which the words are used requires a different meaning. Under the Bombay Electricity Duty Act, 1958 (hereinafter referred to as "the Act"), under Section 3(1), Electricity Duty shall be levied and paid on the units of energy consumed at the rates specified in the Schedule to the Act. In the Schedule - Part A provided the tariff for premises used for residential purposes and Part B provided the tariff for premises used for business, trade, commercial undertaking or professional purposes. The said schedule of electricity tariff has been changed from time to time and in the case in hand we are concerned with the tariff which was effective from 20-3-1981. Under the aforesaid 1981 tariff, Category R would apply to premises exclusively used as a private residential premises and Category C would apply, as a residuary category to premises which does not come within Category R, S, RC (LV) and SL. This being the position the question for consideration is whether the guest house maintained by the company for the use of its employees when they come to the city can be held to be a premises "exclusively used as a private residential premises" so as to come within Category R ? On a plain literal meaning being given to each of the words in the expression "exclusive used as a private residential premises" it is difficult for us to hold that the guest house maintained by a company or commercial undertaking would come within the aforesaid expression. The aforesaid expression connotes that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for its own residence for a sufficiently continued period and not a premises where a person can come and spend a day or a night and then go back. The guest houses are maintained by company or commercial undertaking on the other hand as a part of its commercial venture and such premises by no stretch of imagination can be held to be meant for exclusive use as private residential premises. The Division Bench of the Bombay High Court in our considered opinion committed serious error in applying the test of profit-making as well as the test of the word private in contradistinction to public, which in our opinion have no relevance for interpreting the expression "exclusively used as a private residential premises". The context in which the aforesaid expression has been used for determining tariff under the Act, can only apply when any premises is used as a private residential premises. The word exclusively also must be given a rational meaning and viewed from that angle, we are of the considered opinion that the guest house maintained by a company or commercial undertaking in the cities cannot be held a premises which is exclusively used as private residential premises. Therefore, Category R of the tariff cannot be held to be applicable. 5.

1[ds]Under the aforesaid 1981 tariff, Category R would apply to premises exclusively used as a private residential premises and Category C would apply, as a residuary category to premises which does not come within Category R, S, RC (LV) anda plain literal meaning being given to each of the words in the expression "exclusive used as a private residential premises" it is difficult for us to hold that the guest house maintained by a company or commercial undertaking would come within the aforesaid expression. The aforesaid expression connotes that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for its own residence for a sufficiently continued period and not a premises where a person can come and spend a day or a night and then go back. The guest houses are maintained by company or commercial undertaking on the other hand as a part of its commercial venture and such premises by no stretch of imagination can be held to be meant for exclusive use as private residential premises. The Division Bench of the Bombay High Court in our considered opinion committed serious error in applying the test of profit-making as well as the test of the word private in contradistinction to public, which in our opinion have no relevance for interpreting the expression "exclusively used as a private residential premises". The context in which the aforesaid expression has been used for determining tariff under the Act, can only apply when any premises is used as a private residential premises. The word exclusively also must be given a rational meaning and viewed from that angle, we are of the considered opinion that the guest house maintained by a company or commercial undertaking in the cities cannot be held a premises which is exclusively used as private residential premises. Therefore, Category R of the tariff cannot be held to be applicable.

### 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: a guest house, it must be held that the premises is exclusively used for its own purpose and accordingly tariff rate meant for Category R should apply. The Division Bench construed that the word private in the expression "exclusively used as a private residential premises" must be read as opposed to public. It further came to hold that since a guest house maintained by the company is not a business proposition it cannot be held to be for commercial purpose and unless the premises is used for any commercial purpose then the same cannot be categorised as Category C. With this conclusion the judgment of the learned Single Judge has been reversed and the appeals having been allowed, the present appeals by special leave have been filed in this Court. 3. Mr Reddy, learned Additional Solicitor General appearing for the appellant, contented that the Division Bench of the Bombay High Court totally misconstrued the expression "exclusively used as a private residential premises" and the said expression has no correlation with either the object of profit-making or it is to be read in contradistinction to the word public. According to Mr Reddy, the expression "exclusively used as a private residential premises" must be given its natural grammatical construction and if such a construction being given it would apply to those premises which are used for residential purpose and will certainly not apply to a guest house maintained by a company or a commercial undertaking where its employees come and reside for some time when they are in Bombay. Mr Naik, learned Senior Counsel appearing for the respondents on the other hand contended that when under the Bombay Electricity Duty Act two different tariffs have been provided for, one for the premises used for residential purpose and the other for premises used for business, trade, commercial undertaking or professional purpose the guest house belonging to the commercial undertaking must come within the first category and therefore the Division Bench was wholly justified in directing the payment of tariff for such guest houses bringing them under Category R. According to learned counsel guest houses are maintained by commercial undertakings to be used by its employees when they come to the cities and therefore the purpose of maintenance of such guest houses is undoubtedly residential and consequently the categorisation must be Category R 4. In view of the rival submissions at the bar the question that arises for consideration is, what is the true meaning of the expression "exclusively used as a private residential premises" ? A premises to come within Category R Part I to the Schedule of Electricity Tariff must be a premises which is exclusively used as a private residential premises. It is a cardinal principle of construction of a statute that the words must be given its natural meaning and must be understood in its ordinary or popular sense and each word must have its play. Natural and ordinary meaning of the words should not be departed from unless it is shown that the context in which the words are used requires a different meaning. Under the Bombay Electricity Duty Act, 1958 (hereinafter referred to as "the Act"), under Section 3(1), Electricity Duty shall be levied and paid on the units of energy consumed at the rates specified in the Schedule to the Act. In the Schedule - Part A provided the tariff for premises used for residential purposes and Part B provided the tariff for premises used for business, trade, commercial undertaking or professional purposes. The said schedule of electricity tariff has been changed from time to time and in the case in hand we are concerned with the tariff which was effective from 20-3-1981. Under the aforesaid 1981 tariff, Category R would apply to premises exclusively used as a private residential premises and Category C would apply, as a residuary category to premises which does not come within Category R, S, RC (LV) and SL. This being the position the question for consideration is whether the guest house maintained by the company for the use of its employees when they come to the city can be held to be a premises "exclusively used as a private residential premises" so as to come within Category R ? On a plain literal meaning being given to each of the words in the expression "exclusive used as a private residential premises" it is difficult for us to hold that the guest house maintained by a company or commercial undertaking would come within the aforesaid expression. The aforesaid expression connotes that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for its own residence for a sufficiently continued period and not a premises where a person can come and spend a day or a night and then go back. The guest houses are maintained by company or commercial undertaking on the other hand as a part of its commercial venture and such premises by no stretch of imagination can be held to be meant for exclusive use as private residential premises. The Division Bench of the Bombay High Court in our considered opinion committed serious error in applying the test of profit-making as well as the test of the word private in contradistinction to public, which in our opinion have no relevance for interpreting the expression "exclusively used as a private residential premises". The context in which the aforesaid expression has been used for determining tariff under the Act, can only apply when any premises is used as a private residential premises. The word exclusively also must be given a rational meaning and viewed from that angle, we are of the considered opinion that the guest house maintained by a company or commercial undertaking in the cities cannot be held a premises which is exclusively used as private residential premises. Therefore, Category R of the tariff cannot be held to be applicable. 5. ### Response: 1 ### Explanation: Under the aforesaid 1981 tariff, Category R would apply to premises exclusively used as a private residential premises and Category C would apply, as a residuary category to premises which does not come within Category R, S, RC (LV) anda plain literal meaning being given to each of the words in the expression "exclusive used as a private residential premises" it is difficult for us to hold that the guest house maintained by a company or commercial undertaking would come within the aforesaid expression. The aforesaid expression connotes that the premises in question must be exclusively used as a residential premises which in other words would mean where the premises which is used by any person privately for its own residence for a sufficiently continued period and not a premises where a person can come and spend a day or a night and then go back. The guest houses are maintained by company or commercial undertaking on the other hand as a part of its commercial venture and such premises by no stretch of imagination can be held to be meant for exclusive use as private residential premises. The Division Bench of the Bombay High Court in our considered opinion committed serious error in applying the test of profit-making as well as the test of the word private in contradistinction to public, which in our opinion have no relevance for interpreting the expression "exclusively used as a private residential premises". The context in which the aforesaid expression has been used for determining tariff under the Act, can only apply when any premises is used as a private residential premises. The word exclusively also must be given a rational meaning and viewed from that angle, we are of the considered opinion that the guest house maintained by a company or commercial undertaking in the cities cannot be held a premises which is exclusively used as private residential premises. Therefore, Category R of the tariff cannot be held to be applicable.

Zenit Mataplast P. Ltd Vs. State of Maharashtra & Others

prima facie case and balance of convenience." 28. This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure. 29. In Deoraj vs. State of Maharashtra & Ors. AIR 2004 SC 1975 , this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:- "The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice." 30. Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452). 31. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61 , this Court observed as under:- "The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed." 32. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.33. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. (Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors. (1995) 1 SCC 638 ; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).34. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.35. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellants plot no.F-15 vide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such a fact-situation the submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.

1[ds]32. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.33. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. (Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors. (1995) 1 SCC 638 ; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).34. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot(a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.35. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellants plotvide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such athe submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.

### 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: prima facie case and balance of convenience." 28. This Court in Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 held that the civil court has a power to grant interim injunction in exercise of its inherent jurisdiction even if the case does not fall within the ambit of provisions of Order 39 Code of Civil Procedure. 29. In Deoraj vs. State of Maharashtra & Ors. AIR 2004 SC 1975 , this Court considered a case where the courts below had refused the grant of interim relief. While dealing with the appeal, the Court observed that ordinarily in exercise of its jurisdiction under Art.136 of the Constitution, this Court does not interfere with the orders of interim nature passed by the High Court. However, this rule of discretion followed in practice is by way of just self-imposed restriction. An irreparable injury which forcibly tilts the balance in favour of the applicant, may persuade the Court even to grant an interim relief though it may amount to granting the final relief itself. The Court held as under:- "The Court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice." 30. Such a course is permissible when the case of the applicant is based on his fundamental rights guaranteed by the Constitution of India. (vide All India Anna Dravida Munnetra Kazhagam vs. Chief Secretary, Govt. of Tamil Nadu & Ors. (2009) 5 SCC 452). 31. In Bombay Dyeing & Manufacturing Co. Ltd. Vs. Bombay Environmental Action Group & Ors. (2005) 5 SCC 61 , this Court observed as under:- "The courts, however, have to strike a balance between two extreme positions viz. whether the writ petition would itself become infructuous if interim order is refused, on the one hand, and the enormity of losses and hardships which may be suffered by others if an interim order is granted, particularly having regard to the fact that in such an event, the losses sustained by the affected parties thereby may not be possible to be redeemed." 32. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.33. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. (Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors. (1995) 1 SCC 638 ; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).34. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot nos.F-16 and F-17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot no.F-16, (a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.35. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellants plot no.F-15 vide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such a fact-situation the submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous. ### Response: 1 ### Explanation: 32. Thus, the law on the issue emerges to the effect that interim injunction should be granted by the Court after considering all the pros and cons of the case in a given set of facts involved therein on the risk and responsibility of the party or, in case he looses the case, he cannot take any advantage of the same. The order can be passed on settled principles taking into account the three basic grounds i.e. prima facie case, balance of convenience and irreparable loss. The delay in approaching the Court is of course a good ground for refusal of interim relief, but in exceptional circumstances, where the case of a party is based on fundamental rights guaranteed under the Constitution and there is an apprehension that suit property may be developed in a manner that it acquires irretrievable situation, the Court may grant relief even at a belated stage provided the court is satisfied that the applicant has not been negligent in pursuing the case.33. Anything done in undue haste can also be termed as arbitrary and cannot be condoned in law. (Vide Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd. V. Devendra Kumar Jain & Ors. (1995) 1 SCC 638 ; and Bahadursinh Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia & Ors. AIR 2004 SC 1159).34. If the instant case is considered, in the light of the above settled legal propositions and admittedly the whole case of the appellant is based on violation of Article 14 of the Constitution as according to the appellant it has been a case of violation of equality clause enshrined in Article 14, the facts mentioned hereinabove clearly establish that the Corporation and the Government proceeded in haste while considering the application of respondent No.4 which tantamount to arbitrariness, thus violative of the mandate of Article 14 of the Constitution. Application of the appellant was required to be disposed of by a speaking and reasoned order. Admittedly, no reason was assigned for rejecting the same. There is nothing on record to show as on what date and under what circumstances, Plot17 stood decarved and became part of the Open Space No.9. The respondents could not furnish any explanation as in what manner and under what circumstances, the Bharat Sanchar Nigam Ltd. has been made allotment of land from plot(a part of Open Space No.9), without change of user of the land. The respondent no.4 had not initially asked for 17 acres of land which has been allotted to it. There is nothing on record to show as to why the land could not be disposed of by auction. All these circumstances provide for basis to form a tentative opinion that State and its instrumentalities have acted affectionately in the case of respondent no.4.35. Undoubtedly, there has been a delay on the part of the appellant in approaching the court but we cannot be oblivious of the fact that the appellant had been approaching the authorities time and again for allotment of the land. Admittedly, the entire land had not been developed by the respondent no.4 till this Court entertained the Special Leave Petition and directed the parties to maintain status quo with regard to the land measuring 2 acres adjacent to the appellants plotvide order dated 21.7.2008. Therefore, it is not only the appellant who is to be blamed for the delay. The land had been allotted to the respondent no.4 in undue haste and no development could take place therein for more than two years of taking the possession of the land. In such athe submission made on behalf of the respondents that interim stay cannot be granted at a belated stage in preposterous.

Pushpa @ Leela Vs. Shakuntala

of the decision, the Court observed and held as follows: “9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No. 9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so.” (Emphasis added)13. Again, in P.P. Mohammed v. K. Rajappan & Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows: “4. These appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person.” (Emphasis added)14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of Section 2(30) and Section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd. 15. Learned Counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. v. Deepa Devi & Ors., I (2008) SLT 62=I (2008) ACC 25 (SC)=I (2008) CLT 88 (SC)=(2008) 1 SCC 414. The facts of the case in Deepa Devi are entirely different. In that case the vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained under requisition, the owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand. 16. In light of the discussion made above it is held that the compensation amount is equally realisable from respondent No. 3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment.

1[ds]11. It is undeniable that notwithstanding the sale of the vehicle neither the transferor Jitender Gupta nor the transferee Salig Ram took any step for the change of the name of the owner in the certificate of registration of the vehicle. In view of this omission Jitender Gupta must be deemed to continue as the owner of the vehicle for the purposes of the Act, even though under the civil law he ceased to be its owner after its sale on February 2, 1993.12. The question of the liability of the recorded owner of a vehicle after its sale to another person was considered by this Court in Dr. T.V. Jose v. Chacko P.M., VI (2001) SLT 825=II (2001) ACC 626 (SC)=(2001) 8 SCC 748. In paragraphs 9 and 10 of the decision, the Court observed and held asMr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No. 9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to doadded)13. Again, in P.P. Mohammed v. K. Rajappan & Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held asThese appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a thirdadded)14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of Section 2(30) and Section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.Learned Counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. v. Deepa Devi & Ors., I (2008) SLT 62=I (2008) ACC 25 (SC)=I (2008) CLT 88 (SC)=(2008) 1 SCC 414. The facts of the case in Deepa Devi are entirely different. In thatthe vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained underthe owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand.In light of the discussion made above it is held that the compensation amount is equally realisable from respondent No. 3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment.

### 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: of the decision, the Court observed and held as follows: “9. Mr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No. 9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to do so.” (Emphasis added)13. Again, in P.P. Mohammed v. K. Rajappan & Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held as follows: “4. These appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a third person.” (Emphasis added)14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of Section 2(30) and Section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd. 15. Learned Counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. v. Deepa Devi & Ors., I (2008) SLT 62=I (2008) ACC 25 (SC)=I (2008) CLT 88 (SC)=(2008) 1 SCC 414. The facts of the case in Deepa Devi are entirely different. In that case the vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained under requisition, the owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand. 16. In light of the discussion made above it is held that the compensation amount is equally realisable from respondent No. 3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment. ### Response: 1 ### Explanation: Jose v. Chacko P.M., VI (2001) SLT 825=II (2001) ACC 626 (SC)=(2001) 8 SCC 748. In paragraphs 9 and 10 of the decision, the Court observed and held asMr. Iyer appearing for the Appellant submitted that the High Court was wrong in ignoring the oral evidence on record. He submitted that the oral evidence clearly showed that the Appellant was not the owner of the car on the date of the accident. Mr. Iyer submitted that merely because the name had not been changed in the records of R.T.O. did not mean that the ownership of the vehicle had not been transferred. Mr. Iyer submitted that the real owner of the car was Mr. Roy Thomas. Mr. Iyer submitted that Mr. Roy Thomas had been made party-Respondent No. 9 to these Appeals. He pointed out that an Advocate had filed appearance on behalf of Mr. Roy Thomas but had then applied for and was permitted to withdraw the appearance. He pointed out that Mr. Roy Thomas had been duly served and a public notice had also been issued. He pointed out that Mr. Roy Thomas had chosen not to appear in these Appeals. He submitted that the liability, if any, was of Mr. Roy Thomas.10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as the owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against Mr. Roy Thomas if, in law, he is entitled to doadded)13. Again, in P.P. Mohammed v. K. Rajappan & Ors., (2008) 17 SCC 624, this Court examined the same issue under somewhat similar set of facts as in the present case. In paragraph 4 of the decision, this Court observed and held asThese appeals are filed by the appellants. The insurance company has chosen not to file any appeal. The question before this Court is whether by reason of the fact that the vehicle has been transferred to Respondent 4 and thereafter to Respondent 5, the appellant got absolved from liability to the third person who was injured. This question has been answered by this Court in T.V. Jose (Dr.) v. Chacko P.M. wherein it is held that even though in law there would be a transfer of ownership of the vehicle, that, by itself, would not absolve the party, in whose name the vehicle stands in RTO records, from liability to a third person. We are in agreement with the view expressed therein. Merely because the vehicle was transferred does not mean that the appellant stands absolved of his liability to a third person. So long as his name continues in RTO records, he remains liable to a thirdadded)14. The decision in Dr. T.V. Jose was rendered under the Motor Vehicles Act, 1939. But having regard to the provisions of Section 2(30) and Section 50 of the Act, as noted above, the ratio of the decision shall apply with equal force to the facts of the case arising under the 1988 Act. On the basis of these decisions, the inescapable conclusion is that Jitender Gupta, whose name continued in the records of the registering authority as the owner of the truck was equally liable for payment of the compensation amount. Further, since an insurance policy in respect of the truck was taken out in his name he was indemnified and the claim will be shifted to the insurer, Oriental Insurance Company Ltd.Learned Counsel for the insurance company submitted that even though the registered owner of the vehicle was Jitender Gupta, after the sale of the truck he had no control over it and the possession and control of the truck were in the hands of the transferee, Salig Ram. No liability can, therefore, be fastened on Jitender Gupta, the transferor of the truck. In support of this submission he relied upon a decision of this Court in National Insurance Company Ltd. v. Deepa Devi & Ors., I (2008) SLT 62=I (2008) ACC 25 (SC)=I (2008) CLT 88 (SC)=(2008) 1 SCC 414. The facts of the case in Deepa Devi are entirely different. In thatthe vehicle was requisitioned by the District Magistrate in exercise of the powers conferred upon him under the Representation of the People Act, 1951. In that circumstance, this Court observed that the owner of the vehicle cannot refuse to abide by the order of requisition of the vehicle by the Deputy Commissioner. While the vehicle remained underthe owner did not exercise any control over it: the driver might still be the employee of the owner of the vehicle but he had to drive the vehicle according to the direction of the officer of the State, in whose charge the vehicle was given. Save and except the legal ownership, the registered owner of the vehicle had lost all control over the vehicle. The decision in Deepa Devi was rendered on the special facts of that case and it has no application to the facts of the case in hand.In light of the discussion made above it is held that the compensation amount is equally realisable from respondent No. 3, Oriental Insurance Company Ltd. and it is directed to make full payment of the compensation amount as determined by the Claims Tribunal to the appellants within two months from the date of this judgment.

Duvvur Dasratharamma Reddy Vs. State of Andhra Pradesh

mentioned above and they have merely accepted as true his evidence as if he is an independent witness.20. P.W. 3, the widow of the deceased, admits that she was on illicit relationship with her son-in-law, the appellant, and it shows that she is a characterless person. No serious attempt has been made by her to trace the whereabouts of her husband even though he had not come back to the house within a reasonable time after May 9, 1969. No doubt, there is on record a post card Ex.P. 2, written by P.W. 5 on behalf of P.W. 3, dated May 25, 1969 to P.W. 10. That post card refers to so many other matters and there is only a very casual inquiry regarding the whereabouts of the deceased. P.W. 10 has given evidence to the effect that he came to the village and informed P.W. 3 after 10 or 15 days later than the deceased did not come to his house. This only shows the very scanty regard that P.W. 3 had regarding the existence of the deceased. P.Ws. 3, 4 and 5 have stated that on the night in question, the appellant took the axe and left the house with P.W. 2 saying that he is going to the field and that he came back at about midnight or 1 a.m. Their evidence gives an impression that nobody in that house appears to be sleeping because all of them are awake the whole of the night at the material time to see the appellant going out of the house and coming back though very late in the night or even early next morning.21. No doubt there is evidence of P.W. 5 to the effect that the appellant went out with an axe on the night accompanied by P.W. 2, but according to P.W. 5, the purpose of his going out was to watch the theft of mangoes and this by itself does not in any manner implicate the appellant in any crime.22. The evidence of P.Ws. 3 and 5 that the appellant confessed to them that he had murdered his father-in-law, has not been rightly acted upon by the learned Sessions Judge. We have gone through that part of their evidence and we are of the opinion that the evidence in this regard is so artificial that it is not safe to place any reliance on the same. According to P. W. 3 when several weeks after the incident and when rumours were afloat in the village, P.W. 7 came and informed her about the information given by her son P.W. 2 that the appellant has killed his father-in-law and buried him in the field. On this P. W. 3 is stated to have asked the appellant whether the rumour is true and the appellant confessed that he murdered his father-in-law and his body was buried in the field. Similarly, P.W. 5 states that along after the incident, she found the appellant one day in a very distressed mood and when she asked him the reason, the appellant stated to her that he had killed her father. The evidence regarding this confession stated to have been made to P.Ws. 3 and 5 is very artificial and cannot be acted upon. Their evidence does not appear to be true. The High Court was not justified in acting on the basis that the appellant had made any confession to P.Ws. 3 and 5. Their evidence appears to be somewhat unusual and mechanical. They did not evince any anxiety about the whereabouts of the deceased after he failed to return the house within a reasonable time. In view of the above circumstances, it is no safe to place reliance on their evidence. Even otherwise their evidence regarding the appellant going out of the house for the purpose of watching the theft of mangoes by itself will not implicate the appellant in any offence.23. According to P.W. 1 when the accused left the house on the day in question and came back in the night, all were fast asleep, whereas according to P.Ws. 3 to 5 they were all awake when the accused left the house with the axe along with P.W. 2. In fact their further evidence is that the accused stated that he is going to the field to watch as there is theft of mangoes. They have also stated that they saw the accused returning to the house late in the night and putting the axe in the chillis pot. Here again it is to be noted that when the accused had told them that he is going only to watch the theft of mangoes, they never asked him why he has come back even before the day break. The have also stated that the accused was in the habit of taking the axe whenever he went to he field.24. P.W. 15 though in his post-mortem certificate has stated that the deceased would appear to have died of injuries on head and spine, in his evidence he categorically stated that he cannot say whether he injury No. 1, which was a fatal one, is an ante-mortem or post-mortem. This additional circumstance again strengthens the doubt that already exists in the case of the prosecution. In one the case of the prosecution regarding the offence of murder is not accepted, it follows that the appellant cannot be convicted for the officer under Section 201, I.P.C., either because the evidence relating to that offence is common.25. Though normally this Court does not re-appreciate the evidence, which has been accepted concurrently by the two courts, in view of the strong suspicious circumstance, pointed out above, regarding the truth of the evidence given by P.Ws. 1 to 5, we have considered it necessary in the interest of justice to consider their evidence more critically.26. For the above reason we are on the opinion that it cannot be said that the prosecution has been proved the guilt of the accused beyond all reasonable doubt.

1[ds]For all these reasons, the counsel pointed out, that there is a grave doubt created regarding truth about the prosecution evidence and the appellant must be given the benefit of the same.We have given out careful consideration to the various aspects placed before us by the learned counsel on both the sides as also the reasons given by the High Court for agreeing with the conclusions arrived at by the learned Sessions Judge. We are of the opinion that though there may be a very strong suspicion against the appellant, it cannot be stated, in the circumstances of this case, that the prosecution has proved the crime as against the appellant beyond all reasonablethese circumstances, which have not been noted by the two courts clearly indicate that P.W. 1 is not a truthful witness, and there is a considerable doubt caused in the case of theeven if there was any threat by the appellant it must have vanished after the witness left the service and nothing prevented him from mentioning about the incident to any of the villagers, or even to the police authorities. On the other hand, he does nothing of the sort and it is only after four or five weeks after the incident, when his mother P.W. 7 asked him about the rumours in the village that he mentioned to her for the first time that the appellant had murdered hisThe witness does not strike to be a very truthful witness and what part he had in the death of the old man is a mystery. Both the High Court and the learned Sessions Judge have not given due importance to some of the aspects mentioned above and they have merely accepted as true his evidence as if he is an independentonly shows the very scanty regard that P.W. 3 had regarding the existence of the deceased. P.Ws. 3, 4 and 5 have stated that on the night in question, the appellant took the axe and left the house with P.W. 2 saying that he is going to the field and that he came back at about midnight or 1 a.m. Their evidence gives an impression that nobody in that house appears to be sleeping because all of them are awake the whole of the night at the material time to see the appellant going out of the house and coming back though very late in the night or even early nextevidence regarding this confession stated to have been made to P.Ws. 3 and 5 is very artificial and cannot be acted upon. Their evidence does not appear to be true. The High Court was not justified in acting on the basis that the appellant had made any confession to P.Ws. 3 and 5. Their evidence appears to be somewhat unusual and mechanical. They did not evince any anxiety about the whereabouts of the deceased after he failed to return the house within a reasonable time. In view of the above circumstances, it is no safe to place reliance on their evidence. Even otherwise their evidence regarding the appellant going out of the house for the purpose of watching the theft of mangoes by itself will not implicate the appellant in anyadditional circumstance again strengthens the doubt that already exists in the case of the prosecution. In one the case of the prosecution regarding the offence of murder is not accepted, it follows that the appellant cannot be convicted for the officer under Section 201, I.P.C., either because the evidence relating to that offence is common.25. Though normally this Court does notthe evidence, which has been accepted concurrently by the two courts, in view of the strong suspicious circumstance, pointed out above, regarding the truth of the evidence given by P.Ws. 1 to 5, we have considered it necessary in the interest of justice to consider their evidence more critically.26. For the above reason we are on the opinion that it cannot be said that the prosecution has been proved the guilt of the accused beyond all reasonable doubt.

### 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: mentioned above and they have merely accepted as true his evidence as if he is an independent witness.20. P.W. 3, the widow of the deceased, admits that she was on illicit relationship with her son-in-law, the appellant, and it shows that she is a characterless person. No serious attempt has been made by her to trace the whereabouts of her husband even though he had not come back to the house within a reasonable time after May 9, 1969. No doubt, there is on record a post card Ex.P. 2, written by P.W. 5 on behalf of P.W. 3, dated May 25, 1969 to P.W. 10. That post card refers to so many other matters and there is only a very casual inquiry regarding the whereabouts of the deceased. P.W. 10 has given evidence to the effect that he came to the village and informed P.W. 3 after 10 or 15 days later than the deceased did not come to his house. This only shows the very scanty regard that P.W. 3 had regarding the existence of the deceased. P.Ws. 3, 4 and 5 have stated that on the night in question, the appellant took the axe and left the house with P.W. 2 saying that he is going to the field and that he came back at about midnight or 1 a.m. Their evidence gives an impression that nobody in that house appears to be sleeping because all of them are awake the whole of the night at the material time to see the appellant going out of the house and coming back though very late in the night or even early next morning.21. No doubt there is evidence of P.W. 5 to the effect that the appellant went out with an axe on the night accompanied by P.W. 2, but according to P.W. 5, the purpose of his going out was to watch the theft of mangoes and this by itself does not in any manner implicate the appellant in any crime.22. The evidence of P.Ws. 3 and 5 that the appellant confessed to them that he had murdered his father-in-law, has not been rightly acted upon by the learned Sessions Judge. We have gone through that part of their evidence and we are of the opinion that the evidence in this regard is so artificial that it is not safe to place any reliance on the same. According to P. W. 3 when several weeks after the incident and when rumours were afloat in the village, P.W. 7 came and informed her about the information given by her son P.W. 2 that the appellant has killed his father-in-law and buried him in the field. On this P. W. 3 is stated to have asked the appellant whether the rumour is true and the appellant confessed that he murdered his father-in-law and his body was buried in the field. Similarly, P.W. 5 states that along after the incident, she found the appellant one day in a very distressed mood and when she asked him the reason, the appellant stated to her that he had killed her father. The evidence regarding this confession stated to have been made to P.Ws. 3 and 5 is very artificial and cannot be acted upon. Their evidence does not appear to be true. The High Court was not justified in acting on the basis that the appellant had made any confession to P.Ws. 3 and 5. Their evidence appears to be somewhat unusual and mechanical. They did not evince any anxiety about the whereabouts of the deceased after he failed to return the house within a reasonable time. In view of the above circumstances, it is no safe to place reliance on their evidence. Even otherwise their evidence regarding the appellant going out of the house for the purpose of watching the theft of mangoes by itself will not implicate the appellant in any offence.23. According to P.W. 1 when the accused left the house on the day in question and came back in the night, all were fast asleep, whereas according to P.Ws. 3 to 5 they were all awake when the accused left the house with the axe along with P.W. 2. In fact their further evidence is that the accused stated that he is going to the field to watch as there is theft of mangoes. They have also stated that they saw the accused returning to the house late in the night and putting the axe in the chillis pot. Here again it is to be noted that when the accused had told them that he is going only to watch the theft of mangoes, they never asked him why he has come back even before the day break. The have also stated that the accused was in the habit of taking the axe whenever he went to he field.24. P.W. 15 though in his post-mortem certificate has stated that the deceased would appear to have died of injuries on head and spine, in his evidence he categorically stated that he cannot say whether he injury No. 1, which was a fatal one, is an ante-mortem or post-mortem. This additional circumstance again strengthens the doubt that already exists in the case of the prosecution. In one the case of the prosecution regarding the offence of murder is not accepted, it follows that the appellant cannot be convicted for the officer under Section 201, I.P.C., either because the evidence relating to that offence is common.25. Though normally this Court does not re-appreciate the evidence, which has been accepted concurrently by the two courts, in view of the strong suspicious circumstance, pointed out above, regarding the truth of the evidence given by P.Ws. 1 to 5, we have considered it necessary in the interest of justice to consider their evidence more critically.26. For the above reason we are on the opinion that it cannot be said that the prosecution has been proved the guilt of the accused beyond all reasonable doubt. ### Response: 1 ### Explanation: For all these reasons, the counsel pointed out, that there is a grave doubt created regarding truth about the prosecution evidence and the appellant must be given the benefit of the same.We have given out careful consideration to the various aspects placed before us by the learned counsel on both the sides as also the reasons given by the High Court for agreeing with the conclusions arrived at by the learned Sessions Judge. We are of the opinion that though there may be a very strong suspicion against the appellant, it cannot be stated, in the circumstances of this case, that the prosecution has proved the crime as against the appellant beyond all reasonablethese circumstances, which have not been noted by the two courts clearly indicate that P.W. 1 is not a truthful witness, and there is a considerable doubt caused in the case of theeven if there was any threat by the appellant it must have vanished after the witness left the service and nothing prevented him from mentioning about the incident to any of the villagers, or even to the police authorities. On the other hand, he does nothing of the sort and it is only after four or five weeks after the incident, when his mother P.W. 7 asked him about the rumours in the village that he mentioned to her for the first time that the appellant had murdered hisThe witness does not strike to be a very truthful witness and what part he had in the death of the old man is a mystery. Both the High Court and the learned Sessions Judge have not given due importance to some of the aspects mentioned above and they have merely accepted as true his evidence as if he is an independentonly shows the very scanty regard that P.W. 3 had regarding the existence of the deceased. P.Ws. 3, 4 and 5 have stated that on the night in question, the appellant took the axe and left the house with P.W. 2 saying that he is going to the field and that he came back at about midnight or 1 a.m. Their evidence gives an impression that nobody in that house appears to be sleeping because all of them are awake the whole of the night at the material time to see the appellant going out of the house and coming back though very late in the night or even early nextevidence regarding this confession stated to have been made to P.Ws. 3 and 5 is very artificial and cannot be acted upon. Their evidence does not appear to be true. The High Court was not justified in acting on the basis that the appellant had made any confession to P.Ws. 3 and 5. Their evidence appears to be somewhat unusual and mechanical. They did not evince any anxiety about the whereabouts of the deceased after he failed to return the house within a reasonable time. In view of the above circumstances, it is no safe to place reliance on their evidence. Even otherwise their evidence regarding the appellant going out of the house for the purpose of watching the theft of mangoes by itself will not implicate the appellant in anyadditional circumstance again strengthens the doubt that already exists in the case of the prosecution. In one the case of the prosecution regarding the offence of murder is not accepted, it follows that the appellant cannot be convicted for the officer under Section 201, I.P.C., either because the evidence relating to that offence is common.25. Though normally this Court does notthe evidence, which has been accepted concurrently by the two courts, in view of the strong suspicious circumstance, pointed out above, regarding the truth of the evidence given by P.Ws. 1 to 5, we have considered it necessary in the interest of justice to consider their evidence more critically.26. For the above reason we are on the opinion that it cannot be said that the prosecution has been proved the guilt of the accused beyond all reasonable doubt.

MEDICAL COUNCIL OF INDIA Vs. N.C. MEDICAL COLLEGE AND HOSPITAL

to serious jeopardy to the students admitted in these institutions. B. In Medical Council of India v. JSS Medical College and another (2012) 5 SCC 628 , this Court stated :- …..12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by an interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. The High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in a very awkward and difficult situation. If on ultimate analysis it is found that the Colleges claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the Court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis. 13. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the seats, a task entrusted to the Board of Governors and that too by interim order …. C. The observations in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others (2016) 11 SCC 530 , were 27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-20154 . There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved — what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty. 28. Whichever way the matter is looked at, we find no justification for the orders passed by the High Court, particularly the order dated 25-9-2015 and order dated 4-3- 2016 Kalinga Institute of Medical Sciences v. Union of India, 2016 SCC Online Ori 134 . D. Further, in Dental Council of India v. Dr Hedgewar Smruti Rugna Seva Mandal Hingoli and Others (2017) 13 SCC 115 , it was observed :- 22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is the subject-matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations. 23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, … life is a foreign language; all mispronounce it, but it has to be borne in mind that artificial or contrived accident is not the goal of life. ……. 14. In the backdrop of the law laid down by this Court, the High Court was not justified in passing interim directions and permitting the Respondent College to go ahead with provisional admissions for the Academic Session 2018-19. We, therefore, allow this appeal and set aside the order dated 29.05.2018 passed by the High Court.

1[ds]11. The facts on record disclose:b) The conditions subject to which said approval was accorded were not found to have been complied and the deficiencies were found to be persisting. The matter was considered twice by MCI and the Central Government and it was decided to debar the Respondent College for two yearsc) The physical verification in compliance of the order of this Court again found deficiencies. The matter was again considered but resulted in negative recommendationd) The assertion that there had been compliance was, on the strength of documentation itself, found to be inaccurate and wanting in three areas. The subsequent inspection found such assertion completely inaccurate and therefore resulted in negative recommendatione) While the contest was pending at the level of the Central Government, the present Writ Petition was filed in which the interim direction has been issued12. In the face of repeated failures on part of the Respondent College to remove the deficiencies, no permission to make admissions for the current academic session could have been granted unless and until on physical verification everything was found to be in order. A condition such as making students aware about the pendency of the matter and stating that their admissions would be subject to the result of pending litigation, is not a sufficient insulation. We have repeatedly seen cases where after making such provisional admissions the Colleges have been denied permission upon physical verification. Questions then come up as to what is the status of such students and how best their interest can be protected. Theoretically, in 10 terms of conditions of Essentiality Certificate the concerned State Government is obliged to take care of interest of such students. But the harsh reality is such students cannot be accommodated because in normal circumstances all the seats in every Medical College are filled up. It then becomes a case of impossibility of accommodating such students in any existing College. The entire exercise may thus result in great hardship and wastage of academic years of the concerned students. It is for this reason that while granting any interim relief very cautious approach needs to be adopted. It may be possible to expedite the process of physical verification in a given case but to allow provisional admissions and make them subject to the result of the petition may entail tremendous adverse consequences and prejudice to students13. At this juncture we may advert to certain decisions of this Court where the issues regarding propriety and correctness of similar such interim order were put in questionA. In Medical Council of India v. Rajiv Gandhi University of Health Sciences and14. In the normal circumstances, the High Court ought not to issue an interim order when for the earlier year itself permission had not been granted by the Council. Indeed, by grant of such interim orders students who have been admitted in such institutions would be put to serious jeopardy, apart from the fact whether such institutions could run the medical college without following the law. Therefore, we make it clear that the High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of SectionA of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutionsB. In Medical Council of India v. JSS Medical College and, this Court stated :…..12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by an interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. The High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in a very awkward and difficult situation. If on ultimate analysis it is found that the Colleges claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the Court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis13. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase theseats, a task entrusted to the Board of Governors and that too by interim order …C. The observations in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated4 . There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved — what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty28. Whichever way the matter is looked at, we find no justification for the orders passed by the High Court, particularly the order datedD. Further, in Dental Council of India v. Dr Hedgewar Smruti Rugna Seva Mandal Hingoli and6 , it was observed :22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is ther of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, … life is a foreign language; all mispronounce it, but it has to be borne in mind that artificial or contrived accident is not the goal of life. ……14. In the backdrop of the law laid down by this Court, the High Court was not justified in passing interim directions and permitting the Respondent College to go ahead with provisional admissions for the Academic Session. We, therefore, allow this appeal and set aside the order dated 29.05.2018 passed by the High 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: to serious jeopardy to the students admitted in these institutions. B. In Medical Council of India v. JSS Medical College and another (2012) 5 SCC 628 , this Court stated :- …..12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by an interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. The High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in a very awkward and difficult situation. If on ultimate analysis it is found that the Colleges claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the Court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis. 13. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase the seats, a task entrusted to the Board of Governors and that too by interim order …. C. The observations in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others (2016) 11 SCC 530 , were 27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated 25-9-20154 . There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved — what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty. 28. Whichever way the matter is looked at, we find no justification for the orders passed by the High Court, particularly the order dated 25-9-2015 and order dated 4-3- 2016 Kalinga Institute of Medical Sciences v. Union of India, 2016 SCC Online Ori 134 . D. Further, in Dental Council of India v. Dr Hedgewar Smruti Rugna Seva Mandal Hingoli and Others (2017) 13 SCC 115 , it was observed :- 22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is the subject-matter of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations. 23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, … life is a foreign language; all mispronounce it, but it has to be borne in mind that artificial or contrived accident is not the goal of life. ……. 14. In the backdrop of the law laid down by this Court, the High Court was not justified in passing interim directions and permitting the Respondent College to go ahead with provisional admissions for the Academic Session 2018-19. We, therefore, allow this appeal and set aside the order dated 29.05.2018 passed by the High Court. ### Response: 1 ### Explanation: High Court ought not to grant such interim orders in any of the cases where the Council has not granted permission in terms of SectionA of the Medical Council Act. If interim orders are granted to those institutions which have been established without fulfilling the prescribed conditions to admit students, it will lead to serious jeopardy to the students admitted in these institutionsB. In Medical Council of India v. JSS Medical College and, this Court stated :…..12. Without adverting to the aforesaid issues and many other issues which may arise for determination, the High Court, in our opinion, erred in permitting increase in seats by an interim order. In normal circumstances the High Court should not issue interim order granting permission for increase of the seats. The High Court ought to realise that granting such permission by an interim order has a cascading effect. By virtue of such order students are admitted as in the present case and though many of them had taken the risk knowingly but few may be ignorant. In most of such cases when finally the issue is decided against the College the welfare and plight of the students are ultimately projected to arouse sympathy of the Court. It results in a very awkward and difficult situation. If on ultimate analysis it is found that the Colleges claim for increase of seats is untenable, in such an event the admission of students with reference to the increased seats shall be illegal. We cannot imagine anything more destructive of the rule of law than a direction by the Court to allow continuance of such students, whose admissions is found illegal in the ultimate analysis13. This Court is entrusted with the task to administer law and uphold its majesty. Courts cannot by its fiat increase theseats, a task entrusted to the Board of Governors and that too by interim order …C. The observations in Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and27. That apart, we are of the opinion that the High Court ought to have been more circumspect in directing the admission of students by its order dated4 . There was no need for the High Court to rush into an area that MCI feared to tread. Granting admission to students in an educational institution when there is a serious doubt whether admission should at all be granted is not a matter to be taken lightly. First of all the career of a student is involved — what would a student do if his admission is found to be illegal or is quashed? Is it not a huge waste of time for him or her? Is it enough to say that the student will not claim any equity in his or her favour? Is it enough for student to be told that his or her admission is subject to the outcome of a pending litigation? These are all questions that arise and for which there is no easy answer. Generally speaking, it is better to err on the side of caution and deny admission to a student rather than have the sword of Damocles hanging over him or her. There would at least be some certainty28. Whichever way the matter is looked at, we find no justification for the orders passed by the High Court, particularly the order datedD. Further, in Dental Council of India v. Dr Hedgewar Smruti Rugna Seva Mandal Hingoli and6 , it was observed :22. From the aforesaid authorities, it is perspicuous that the court should not pass such interim orders in the matters of admission, more so, when the institution had not been accorded approval. Such kind of interim orders are likely to cause chaos, anarchy and uncertainty. And, there is no reason for creating such situations. There is no justification or requirement. The High Court may feel that while exercising power under Article 226 of the Constitution, it can pass such orders with certain qualifiers as has been done by the impugned order, but it really does not save the situation. It is because an institution which has not been given approval for the course, gets a premium. That apart, by virtue of interim order, the Court grants approval in a way which is ther of final adjudication before it. The anxiety of the students to get admission reigns supreme as they feel that the institution is granting admission on the basis of an order passed by the High Court. The institution might be directed to inform the students that the matter is sub judice, but the career oriented students get into the college with the hope and aspiration that in the ultimate eventuate everything shall be correct for them and they will be saved. It can be thought of from another perspective, that is, the students had deliberately got into such a situation. But it is seemly to note that it is the institution that had approached the High Court and sought a relief of the present nature. By saying that the institution may give admission at its own risk invites further chaotic and unfortunate situations23. The High Court has to realise the nature of the lis or the controversy. It is quite different. It is not a construction which is built at the risk of a plaintiff or the defendant which can be demolished or redeemed by grant of compensation. It is a situation where the order has the potentiality to play with the career and life of young peoples. One may say, … life is a foreign language; all mispronounce it, but it has to be borne in mind that artificial or contrived accident is not the goal of life. ……14. In the backdrop of the law laid down by this Court, the High Court was not justified in passing interim directions and permitting the Respondent College to go ahead with provisional admissions for the Academic Session. We, therefore, allow this appeal and set aside the order dated 29.05.2018 passed by the High Court.

Firm Of Bhagat Ram Mohanlal Vs. The Commissioner Of Excess Profits Tax, Madhya Prades

be done consistently with the principles of Hindu Law, the very pleadings of the appellant are against such a supposition being made, affirming as they do that it was only Mohanlal that was the karta, not the others. The contention, therefore, that Chhotelal and Bansilal should be held to have become partners in the old firm under the agreement dated 23-8-1940 cannot be maintained.9. The question whether there was a change in the persons carrying on the business may now be considered independently of the principles of Hindu Law or the general law of Partnership and with special reference to the provisions of the Indian Excess Profits Tax Act. Section 2(17) of the Act defines a person as including a joint family. Applying this definition, who were the members of the firm when it was constituted on 23-8-1940? Richpal, Gajadhar and "Bhagat Ram Mohanlal, Hindu undivided family" consisting of three coparceners, Mohanlal, Chhotelal and Bansilal, it being immaterial to the present purpose whether the karta of the family was only Mohanlal, or all the three of them. Then, the family became divided in 1944, and the result of it was that one of the three persons who were partners in the old firm, "Bhagat Ram Mohanlal" ceased to exist.On 17-10-1944 the two surviving partners of the old firm, Richpal and Gajadhar, entered into a contract of partnership with Mohanlal, Chhotelal and Bansilal. The erstwhile joint family of which they were members not being a partner in the new firm, it having ceased to exist by reason of the partition, there was, having regard to the definition in S. 2 (17) of the Act, a change. That was the view taken in - "Shanmugavel Nadar and Sons v. Commissioner of Income-tax, 1949 Mad 228 (AIR V 36) (C), and we agree with it. Whether the question is considered on the principles of Hindu Law or on the provisions of the Excess Profits Tax Act, there was a change in the personnel of the firm on 17-10-1944, and the matter falls within section 8 (1) of the Act.10. (2) The next question for determination is whether the order of the Commissioner dated 15-3-1950 is not justified by the provisions of section 20 of the Act for the reason that there was no mistake apparent from the record. The argument in support of this contention is that the record in the Excess Profits. Tax proceedings consisted in the present case of only the order dated 23-12-1946, that the facts on which the proceedings were taken under S. 20, namely, the constitution of the firm on 23-8-1940 were not recited therein, and that, in consequence, there were no materials on which an order could have been passed under that section.It is true that the order of the Excess Profits Tax Officer dated 23-12-1946 does not mention these facts,but they appear from the record of the income-tax proceedings which included the registration certificates of the firm under S. 26-A, Income-tax Act and the returns made by the firm disclosing the names of the partners and their respective shares. It is argued for the appellant that these records were inadmissible for the purpose of proceedings under S. 20 of the Act, because the record referred to and contemplated by that section must be the record of the excess profits tax proceedings, and that the records of the income-tax proceedings could not be used under that section. We are unable to agree with this contention. Section 22(1) of the Act provides that: "Notwithstanding anything contained in the Indian Income-tax Act. 1922, all information contained in any statement or return made or furnished under the provisions of that Act or obtained or collected for the purposes of that Act may be used for the purposes of this Act".Section 22(2) similarly makes the record of the excess profits tax proceedings admissible in proceedings under the Indian Income-tax Act. The fact is that the proceedings under the two Acts are interdependent.Assessments under the Excess Profits Tax Act are, subject to the special provisions of that Act, made on the basis of the assessments made under the provisions of the Indian Income-tax Act. The same officers are in charge of the proceedings under both the enactments. The order of the Excess Profits Tax Officer dated 23-12-1946 refers in terms to the order dated 28-9-1946 passed in the proceedings for assessment of income-tax on the appellant, and the deficiency of profits in worked out on the basis of the loss of Rs. 15,771 as ascertained therein. We see no substance in this contention, which must accordingly be rejected.11. It was finally contended that the particulars recited in the registration certificate as to who were all partners of the firm were not conclusive, and that the appellant was not estopped from proving that even on 23-8-1940 the real partners were all the five persons mentioned in the deed dated 17-10-1944, and the decision in - Shapurii Pallonji and Co. v. Commissioner of Income-tax, 1945 Bom 238 (AIR V 32) (D), was relied on is support of the position. It is undoubted law that the income-tax authorities are not estopped by the fact of registration from going behind the certificate, and deciding who the real partners of the firm are. But can the assessee whose statement is the basis on which the registration is made and who has possibly been benefits thereby deny its correctness, when the facts mentioned therein turn out to his disadvantage? It is unnecessary to consider this point, in view of our decision that on the facts as pleaded by the appellant, Chhotelal and Bansilal could not be regarded as partners in the old firm. We may add that this contention does not appear to have been put forward before the Commissioner when notice was issued to the appellant under S. 20 of the Act. If any such contention had been raised, it would have been open to the Commissioner to have taken action under S. 19 of the Act.

0[ds]6. It is not in dispute that Mohanlal was the Karta of the joint family, and that he entered into the partnership on 23-8-1940 as such karta.It is well settled that when the karta of a joint Hindu family enters into a partnership with strangers, the members of the family do not ipso facto become partners in that firm. They have no right to take part in its management or to sue for itswould therefore follow that when Mohanlal became a partner of the firm on 23-8-1940, Chhotelal and Bansilal could not be held by reason of that fact alone, to have become partnersthe registration certificate of the firm while showing "Bhagat Ram Mohanlal, Hindu undivided family" as a partner, makes no mention of either Chhotelal or Bansilal ascontention that they also became in their individual capacity partners appears therefore to be an afterthought, and is opposed to the findings of the learned judges of the High Court. This is sufficient, without more, to dispose of this contention. But even apart from this, it is difficult to visualise the situation which the appellant contents for, of a Hindu joint family entering into a partnership with strangers through its karta and the junior members of the family also becoming at the same time its partners in their personalin the present case, the basis of the partnership agreement of 1940 is that the family was joint and that Mohanlal was its karta and that he entered into the partnership as karta on behalf of the joint family. It is difficult to reconcile this position with that of Chhotelal and Bansilal being also partners in the firm in their individual capacity, which can only be in respect of their separate or divided property.To get over this difficulty, it was suggested that all the three coparceners might be regarded as having entered into the contract of partnership of kartas of the joint family. But even if that could be done consistently with the principles of Hindu Law, the very pleadings of the appellant are against such a supposition being made, affirming as they do that it was only Mohanlal that was the karta, not the others. The contention, therefore, that Chhotelal and Bansilal should be held to have become partners in the old firm under the agreement dated 23-8-1940 cannot be maintained.9. The question whetherthere was a change in the persons carrying on thebusiness may now be considered independently of the principles of Hindu Law or the general law of Partnership and with special reference to the provisions of the Indian Excess Profits Taxwas the view taken in - "Shanmugavel Nadar and Sons v. Commissioner of Income-tax, 1949 Mad 228 (AIR V 36) (C), and we agree with it. Whether the question is considered on the principles of Hindu Law or on the provisions of the Excess Profits Tax Act, there was a change in the personnel of the firm on 17-10-1944, and the matter falls within section 8 (1) of theue that the order of the Excess Profits Tax Officer dated 23-12-1946 does not mention these facts,but they appear from the record of the income-tax proceedings which included the registration certificates of the firm under S. 26-A, Income-tax Act and the returns made by the firm disclosing the names of the partners and their respectiveare unable to agree with thissee no substance in this contention, which must accordingly beis undoubted law that the income-tax authorities are not estopped by the fact of registration from going behind the certificate, and deciding who the real partners of the firm are. But can the assessee whose statement is the basis on which the registration is made and who has possibly been benefits thereby deny its correctness, when the facts mentioned therein turn out to hisis unnecessary to consider this point, in view of our decision that on the facts as pleaded by the appellant, Chhotelal and Bansilal could not be regarded as partners in the old firm. We may add that this contention does not appear to have been put forward before the Commissioner when notice was issued to the appellant under S. 20 of the Act. If any such contention had been raised, it would have been open to the Commissioner to have taken action under S. 19 of the Act.

### 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: be done consistently with the principles of Hindu Law, the very pleadings of the appellant are against such a supposition being made, affirming as they do that it was only Mohanlal that was the karta, not the others. The contention, therefore, that Chhotelal and Bansilal should be held to have become partners in the old firm under the agreement dated 23-8-1940 cannot be maintained.9. The question whether there was a change in the persons carrying on the business may now be considered independently of the principles of Hindu Law or the general law of Partnership and with special reference to the provisions of the Indian Excess Profits Tax Act. Section 2(17) of the Act defines a person as including a joint family. Applying this definition, who were the members of the firm when it was constituted on 23-8-1940? Richpal, Gajadhar and "Bhagat Ram Mohanlal, Hindu undivided family" consisting of three coparceners, Mohanlal, Chhotelal and Bansilal, it being immaterial to the present purpose whether the karta of the family was only Mohanlal, or all the three of them. Then, the family became divided in 1944, and the result of it was that one of the three persons who were partners in the old firm, "Bhagat Ram Mohanlal" ceased to exist.On 17-10-1944 the two surviving partners of the old firm, Richpal and Gajadhar, entered into a contract of partnership with Mohanlal, Chhotelal and Bansilal. The erstwhile joint family of which they were members not being a partner in the new firm, it having ceased to exist by reason of the partition, there was, having regard to the definition in S. 2 (17) of the Act, a change. That was the view taken in - "Shanmugavel Nadar and Sons v. Commissioner of Income-tax, 1949 Mad 228 (AIR V 36) (C), and we agree with it. Whether the question is considered on the principles of Hindu Law or on the provisions of the Excess Profits Tax Act, there was a change in the personnel of the firm on 17-10-1944, and the matter falls within section 8 (1) of the Act.10. (2) The next question for determination is whether the order of the Commissioner dated 15-3-1950 is not justified by the provisions of section 20 of the Act for the reason that there was no mistake apparent from the record. The argument in support of this contention is that the record in the Excess Profits. Tax proceedings consisted in the present case of only the order dated 23-12-1946, that the facts on which the proceedings were taken under S. 20, namely, the constitution of the firm on 23-8-1940 were not recited therein, and that, in consequence, there were no materials on which an order could have been passed under that section.It is true that the order of the Excess Profits Tax Officer dated 23-12-1946 does not mention these facts,but they appear from the record of the income-tax proceedings which included the registration certificates of the firm under S. 26-A, Income-tax Act and the returns made by the firm disclosing the names of the partners and their respective shares. It is argued for the appellant that these records were inadmissible for the purpose of proceedings under S. 20 of the Act, because the record referred to and contemplated by that section must be the record of the excess profits tax proceedings, and that the records of the income-tax proceedings could not be used under that section. We are unable to agree with this contention. Section 22(1) of the Act provides that: "Notwithstanding anything contained in the Indian Income-tax Act. 1922, all information contained in any statement or return made or furnished under the provisions of that Act or obtained or collected for the purposes of that Act may be used for the purposes of this Act".Section 22(2) similarly makes the record of the excess profits tax proceedings admissible in proceedings under the Indian Income-tax Act. The fact is that the proceedings under the two Acts are interdependent.Assessments under the Excess Profits Tax Act are, subject to the special provisions of that Act, made on the basis of the assessments made under the provisions of the Indian Income-tax Act. The same officers are in charge of the proceedings under both the enactments. The order of the Excess Profits Tax Officer dated 23-12-1946 refers in terms to the order dated 28-9-1946 passed in the proceedings for assessment of income-tax on the appellant, and the deficiency of profits in worked out on the basis of the loss of Rs. 15,771 as ascertained therein. We see no substance in this contention, which must accordingly be rejected.11. It was finally contended that the particulars recited in the registration certificate as to who were all partners of the firm were not conclusive, and that the appellant was not estopped from proving that even on 23-8-1940 the real partners were all the five persons mentioned in the deed dated 17-10-1944, and the decision in - Shapurii Pallonji and Co. v. Commissioner of Income-tax, 1945 Bom 238 (AIR V 32) (D), was relied on is support of the position. It is undoubted law that the income-tax authorities are not estopped by the fact of registration from going behind the certificate, and deciding who the real partners of the firm are. But can the assessee whose statement is the basis on which the registration is made and who has possibly been benefits thereby deny its correctness, when the facts mentioned therein turn out to his disadvantage? It is unnecessary to consider this point, in view of our decision that on the facts as pleaded by the appellant, Chhotelal and Bansilal could not be regarded as partners in the old firm. We may add that this contention does not appear to have been put forward before the Commissioner when notice was issued to the appellant under S. 20 of the Act. If any such contention had been raised, it would have been open to the Commissioner to have taken action under S. 19 of the Act. ### Response: 0 ### Explanation: 6. It is not in dispute that Mohanlal was the Karta of the joint family, and that he entered into the partnership on 23-8-1940 as such karta.It is well settled that when the karta of a joint Hindu family enters into a partnership with strangers, the members of the family do not ipso facto become partners in that firm. They have no right to take part in its management or to sue for itswould therefore follow that when Mohanlal became a partner of the firm on 23-8-1940, Chhotelal and Bansilal could not be held by reason of that fact alone, to have become partnersthe registration certificate of the firm while showing "Bhagat Ram Mohanlal, Hindu undivided family" as a partner, makes no mention of either Chhotelal or Bansilal ascontention that they also became in their individual capacity partners appears therefore to be an afterthought, and is opposed to the findings of the learned judges of the High Court. This is sufficient, without more, to dispose of this contention. But even apart from this, it is difficult to visualise the situation which the appellant contents for, of a Hindu joint family entering into a partnership with strangers through its karta and the junior members of the family also becoming at the same time its partners in their personalin the present case, the basis of the partnership agreement of 1940 is that the family was joint and that Mohanlal was its karta and that he entered into the partnership as karta on behalf of the joint family. It is difficult to reconcile this position with that of Chhotelal and Bansilal being also partners in the firm in their individual capacity, which can only be in respect of their separate or divided property.To get over this difficulty, it was suggested that all the three coparceners might be regarded as having entered into the contract of partnership of kartas of the joint family. But even if that could be done consistently with the principles of Hindu Law, the very pleadings of the appellant are against such a supposition being made, affirming as they do that it was only Mohanlal that was the karta, not the others. The contention, therefore, that Chhotelal and Bansilal should be held to have become partners in the old firm under the agreement dated 23-8-1940 cannot be maintained.9. The question whetherthere was a change in the persons carrying on thebusiness may now be considered independently of the principles of Hindu Law or the general law of Partnership and with special reference to the provisions of the Indian Excess Profits Taxwas the view taken in - "Shanmugavel Nadar and Sons v. Commissioner of Income-tax, 1949 Mad 228 (AIR V 36) (C), and we agree with it. Whether the question is considered on the principles of Hindu Law or on the provisions of the Excess Profits Tax Act, there was a change in the personnel of the firm on 17-10-1944, and the matter falls within section 8 (1) of theue that the order of the Excess Profits Tax Officer dated 23-12-1946 does not mention these facts,but they appear from the record of the income-tax proceedings which included the registration certificates of the firm under S. 26-A, Income-tax Act and the returns made by the firm disclosing the names of the partners and their respectiveare unable to agree with thissee no substance in this contention, which must accordingly beis undoubted law that the income-tax authorities are not estopped by the fact of registration from going behind the certificate, and deciding who the real partners of the firm are. But can the assessee whose statement is the basis on which the registration is made and who has possibly been benefits thereby deny its correctness, when the facts mentioned therein turn out to hisis unnecessary to consider this point, in view of our decision that on the facts as pleaded by the appellant, Chhotelal and Bansilal could not be regarded as partners in the old firm. We may add that this contention does not appear to have been put forward before the Commissioner when notice was issued to the appellant under S. 20 of the Act. If any such contention had been raised, it would have been open to the Commissioner to have taken action under S. 19 of the Act.

Commnr. Of Income Tax, Ahmedabad Vs. Equinox Solution Pvt. Ltd

Act”). 2) We herein set out the facts, in brief, to appreciate the issues involved in this appeal.3) The respondent-assessee was engaged in the business of manufacturing sheet metal components out of CRPA & OP sheds at Ahmadabad. The respondent decided to sell their entire running business in one go. With this aim in view, the respondent sold their entire running business in one go with all its assets and liabilities on 31.12.1990 to a Company called "Amtrex Appliances Ltd" for Rs.58,53,682/-.4) The respondent filed their income tax return for the Assessment Year 1991-1992. In the return, the respondent claimed deduction under Section 48 (2) of the Act as it stood then by treating the sale to be in the nature of "slump sale" of the going concern being in the nature of long term capital gain in the hands of the assessee.(5) The Assessing Officer by his order dated 04.03.1994 did not accept the contention of the assessee in claiming deduction. According to the Assessing Officer, the case of the assessee was covered under Section 50 (2) of the Act because it was in the nature of short term capital gain as specified in Section 50 (2) of the Act and hence did not fall under Section 48 (2) of the Act as claimed by the assessee. The Assessing Officer accordingly reworked the claim of the deduction treating the same to be falling under Section 50 (2) of the Act and framed the assessment order.(6) The assessee, felt aggrieved, filed appeal before the CIT (appeals). By order dated 06.10.1995, the Commissioner of Appeals allowed the assessee’s appeal in so far as it related to the issue of deduction. He held that when it is an undisputed fact that the assessee has sold their entire running business in one go with its assets and liabilities at a slump price and, therefore, the provisions of Section 50 (2) of the Act could not be applied to such sale. He held that it was not a case of sale of any individual or one block asset which may attract the provisions of Section 50 (2) of the Act. He then examined the case of the assessee in the context of definition of "long term capital gain" and "short term capital asset" and held that since the undertaking itself is a capital asset owned by the assessee nearly for six years and being in the nature of long term capital asset and the same having been sold in one go as a running concerned, it cannot be termed a “short terms capital gain” so as to attract the provisions of Section 50 (2) of the Act as was held by the Assessing Officer. The CIT (appeals) accordingly allowed the assessee to claim the deduction as was claimed by them before the Assessing Officer.7) The Revenue, felt aggrieved of the order of the CIT (appeal), filed appeal before the Income Tax Appellate Tribunal. By order dated 27.06.2002, the Tribunal concurred with the reasoning and the conclusion arrived at by the Commissioner of Appeal and accordingly dismissed the Revenues appeal.8) The Revenue, felt aggrieved of the order of the Tribunal, carried the matter to the High Court in further appeal under Section 260-A of the Act. By impugned order, the High Court dismissed the appeal holding that the appeal does not involve any substantial question of law within the meaning of Section 260-A of the Act. It is against this order the Revenue felt aggrieved and carried the matter to this Court in appeal by way of special leave. 9) Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant and Mr. Inder Paul Bansal, learned counsel for the respondent-assessee. 10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered as “short-term capital assets”. In other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of a “long-term capital asset”. It was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437 CIT]. 14) In Premier Automobiles Ltd. vs. Income Tax Officer & Anr., 264 ITR 193 (Bombay) also, the Division Bench of the Bombay High Court examined this question in detail on somewhat similar facts and has taken the same view. The Learned Judge S.H Kapadia - (as His Lordship then was as Judge of the Bombay High Court and later became CJI) speaking for the Bench aptly explained the legal position to which we concur as it correctly summarized the legal position applicable to such facts. 15) Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by the assesse’s counsel referred supra.

0[ds]10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered asIn other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of aIt was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by thecounsel referred supra.

### 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: Act”). 2) We herein set out the facts, in brief, to appreciate the issues involved in this appeal.3) The respondent-assessee was engaged in the business of manufacturing sheet metal components out of CRPA & OP sheds at Ahmadabad. The respondent decided to sell their entire running business in one go. With this aim in view, the respondent sold their entire running business in one go with all its assets and liabilities on 31.12.1990 to a Company called "Amtrex Appliances Ltd" for Rs.58,53,682/-.4) The respondent filed their income tax return for the Assessment Year 1991-1992. In the return, the respondent claimed deduction under Section 48 (2) of the Act as it stood then by treating the sale to be in the nature of "slump sale" of the going concern being in the nature of long term capital gain in the hands of the assessee.(5) The Assessing Officer by his order dated 04.03.1994 did not accept the contention of the assessee in claiming deduction. According to the Assessing Officer, the case of the assessee was covered under Section 50 (2) of the Act because it was in the nature of short term capital gain as specified in Section 50 (2) of the Act and hence did not fall under Section 48 (2) of the Act as claimed by the assessee. The Assessing Officer accordingly reworked the claim of the deduction treating the same to be falling under Section 50 (2) of the Act and framed the assessment order.(6) The assessee, felt aggrieved, filed appeal before the CIT (appeals). By order dated 06.10.1995, the Commissioner of Appeals allowed the assessee’s appeal in so far as it related to the issue of deduction. He held that when it is an undisputed fact that the assessee has sold their entire running business in one go with its assets and liabilities at a slump price and, therefore, the provisions of Section 50 (2) of the Act could not be applied to such sale. He held that it was not a case of sale of any individual or one block asset which may attract the provisions of Section 50 (2) of the Act. He then examined the case of the assessee in the context of definition of "long term capital gain" and "short term capital asset" and held that since the undertaking itself is a capital asset owned by the assessee nearly for six years and being in the nature of long term capital asset and the same having been sold in one go as a running concerned, it cannot be termed a “short terms capital gain” so as to attract the provisions of Section 50 (2) of the Act as was held by the Assessing Officer. The CIT (appeals) accordingly allowed the assessee to claim the deduction as was claimed by them before the Assessing Officer.7) The Revenue, felt aggrieved of the order of the CIT (appeal), filed appeal before the Income Tax Appellate Tribunal. By order dated 27.06.2002, the Tribunal concurred with the reasoning and the conclusion arrived at by the Commissioner of Appeal and accordingly dismissed the Revenues appeal.8) The Revenue, felt aggrieved of the order of the Tribunal, carried the matter to the High Court in further appeal under Section 260-A of the Act. By impugned order, the High Court dismissed the appeal holding that the appeal does not involve any substantial question of law within the meaning of Section 260-A of the Act. It is against this order the Revenue felt aggrieved and carried the matter to this Court in appeal by way of special leave. 9) Heard Mr. K. Radhakrishnan, learned senior counsel for the appellant and Mr. Inder Paul Bansal, learned counsel for the respondent-assessee. 10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered as “short-term capital assets”. In other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of a “long-term capital asset”. It was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437 CIT]. 14) In Premier Automobiles Ltd. vs. Income Tax Officer & Anr., 264 ITR 193 (Bombay) also, the Division Bench of the Bombay High Court examined this question in detail on somewhat similar facts and has taken the same view. The Learned Judge S.H Kapadia - (as His Lordship then was as Judge of the Bombay High Court and later became CJI) speaking for the Bench aptly explained the legal position to which we concur as it correctly summarized the legal position applicable to such facts. 15) Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by the assesse’s counsel referred supra. ### Response: 0 ### Explanation: 10) Having heard the learned Counsel for the parties and on perusal of the record of the case, no fault can be found in the reasoning and the conclusion arrived at by the CIT (appeal) in his order which, in our view, was rightly upheld by the Tribunal and then by the High Court calling no interference by this Court in this appeal.11) In our considered opinion, the case of the respondent (assessee) does not fall within the four corners of Section 50 (2) of the Act. Section 50 (2) applies to a case where any block of assets are transferred by the assessee but where the entire running business with assets and liabilities is sold by the assessee in one go, such sale, in our view, cannot be considered asIn other words, the provisions of Section 50 (2) of the Act would apply to a case where the assessee transfers one or more block of assets, which he was using in running of his business. Such is not the case here because in this case, the assessee sold the entire business as a running concern.12) As rightly noticed by the CIT (appeal) that the entire running business with all assets and liabilities having been sold in one go by the respondent-assessee, it was a slump sale of aIt was, therefore, required to be taxed accordingly.13) Our view finds support with the law laid down by this Court in Commissioner of Income Tax, Gujarat vs. Artex Manufacturing Co. [1997(6) SCC 437Learned Counsel for the appellant (Revenue) was not able to cite any decision taking a contrary view nor was he able to point out any error in the decisions cited at the Bar by thecounsel referred supra.

T. D. Subramaniam Alias Satyapalan Vs. Union of India and Others

Gupta, J.1. This is a somewhat extraordinary case. The special leave petition is directed against an order of a Division Bench of the Delhi High Court affirming an order passed by a Single Judge of that court dismissing a writ petition filed by the petitioner before us. In the writ petition the petitioner questioned the validity of an order of compulsory retirement made against him. He was posted as Directed of Posts and Telegraphs, Orissa Circle, with headquarters at Cuttack, in January 1964 when he was asked to go to Ambala as Director of Posts and Telegraphs. The order of compulsory retirement appears to have been made because the petitioner disobeyed the order of transfer. The petitioner took leave up to August 2, 1964 and even thereafter he did not report for duty at Ambala. The charges against the petitioner were that he had overstayed leave without permission and that he deliberately disobeyed the order of transfer. According to the petitioner the order of transfer was mala fide as it was made under pressure from the Posts and Telegraphs Employees Unions and political leaders associated with them.2. The respondents in their affidavit before the High Court asserted that the transfer was made in the exigencies of service. It appears from the impugned judgment of the High Court that even according to the respondents the petitioner was "a competent and zealous officer who was responsible for bringing to an end a lot of malpractices particularly with regard to medical bills submitted by subordinate staff in the Orissa Circle". It was also not disputed that the "trade unions got rather worked up on the stiff action" taken by the petitioner. A Deputy Director-General of Posts and Telegraphs was sent to Orissa to make an enquiry into the state of affairs there and he submitted a report. In this report also it was acknowledge that the petitioner was "a competent officer with a zeal to root out malpractices". It was however added that he was "lacking in tact in dealing with his subordinates". It was suggested by the Deputy Director-General of Posts and Telegraphs that in the exigencies of the situation it was advisable to transfer the petitioner. A member of the Posts and Telegraphs Board wrote to the petitioner on December 3, 1963 that while the Board appreciated the measures taken by the petitioner to curb malpractices in the claims, the action taken by him which was rather "stiff" had led to deterioration of relations between the trade unions on the one hand and the officers of the Posts and Telegraphs Department on the other, and the petitioner was advised to be tactful with the staff. At about the same time, who posts of Director, Postal Services, were required to be filled and the Board appointed the petitioner to the post of at Ambala.3. Both the learned Single Judge and the Division Bench of the High Court found that the order of transfer was not made as a result of pressure from the trade unions. We find no material on which we can take a different view. It was also found that the relations between the trade unions and the officers of the Posts and Telegraphs Department had deteriorated at Cuttack. The Division Bench of the High Court has described the situation as follows :The Government had problem. On the one hand was a competent and strict officer, though somewhat lacking in tact. On the other hand were a large number of employees who had not been handled tactfully by the appellant when he had tried to put things right... A certain situation existed and a solution had to be found. The solution was found in a particular manner.In the facts of the case we are inclined to agree with the High Court that the order of transfer was made in the exigencies of service.4. The petitioner has been found to be lacking in tact. It seems exercising tact when according to the petitioner firmness was called for was against his principles. Apparently "tact" is also one of the qualities that a government officer is required to possess, and in the situation described above the petitioner left no option to the authorities. However in these circumstances we do not think any stigma in the sense in which the word is ordinarily understood attaches to the petitioner because of the order of compulsory retirement passed against him.

0[ds]In the facts of the case we are inclined to agree with the High Court that the order of transfer was made in the exigencies of service.4. The petitioner has been found to be lacking in tact. It seems exercising tact when according to the petitioner firmness was called for was against his principles. Apparently "tact" is also one of the qualities that a government officer is required to possess, and in the situation described above the petitioner left no option to the authorities. However in these circumstances we do not think any stigma in the sense in which the word is ordinarily understood attaches to the petitioner because of the order of compulsory retirement passed against him.

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: Gupta, J.1. This is a somewhat extraordinary case. The special leave petition is directed against an order of a Division Bench of the Delhi High Court affirming an order passed by a Single Judge of that court dismissing a writ petition filed by the petitioner before us. In the writ petition the petitioner questioned the validity of an order of compulsory retirement made against him. He was posted as Directed of Posts and Telegraphs, Orissa Circle, with headquarters at Cuttack, in January 1964 when he was asked to go to Ambala as Director of Posts and Telegraphs. The order of compulsory retirement appears to have been made because the petitioner disobeyed the order of transfer. The petitioner took leave up to August 2, 1964 and even thereafter he did not report for duty at Ambala. The charges against the petitioner were that he had overstayed leave without permission and that he deliberately disobeyed the order of transfer. According to the petitioner the order of transfer was mala fide as it was made under pressure from the Posts and Telegraphs Employees Unions and political leaders associated with them.2. The respondents in their affidavit before the High Court asserted that the transfer was made in the exigencies of service. It appears from the impugned judgment of the High Court that even according to the respondents the petitioner was "a competent and zealous officer who was responsible for bringing to an end a lot of malpractices particularly with regard to medical bills submitted by subordinate staff in the Orissa Circle". It was also not disputed that the "trade unions got rather worked up on the stiff action" taken by the petitioner. A Deputy Director-General of Posts and Telegraphs was sent to Orissa to make an enquiry into the state of affairs there and he submitted a report. In this report also it was acknowledge that the petitioner was "a competent officer with a zeal to root out malpractices". It was however added that he was "lacking in tact in dealing with his subordinates". It was suggested by the Deputy Director-General of Posts and Telegraphs that in the exigencies of the situation it was advisable to transfer the petitioner. A member of the Posts and Telegraphs Board wrote to the petitioner on December 3, 1963 that while the Board appreciated the measures taken by the petitioner to curb malpractices in the claims, the action taken by him which was rather "stiff" had led to deterioration of relations between the trade unions on the one hand and the officers of the Posts and Telegraphs Department on the other, and the petitioner was advised to be tactful with the staff. At about the same time, who posts of Director, Postal Services, were required to be filled and the Board appointed the petitioner to the post of at Ambala.3. Both the learned Single Judge and the Division Bench of the High Court found that the order of transfer was not made as a result of pressure from the trade unions. We find no material on which we can take a different view. It was also found that the relations between the trade unions and the officers of the Posts and Telegraphs Department had deteriorated at Cuttack. The Division Bench of the High Court has described the situation as follows :The Government had problem. On the one hand was a competent and strict officer, though somewhat lacking in tact. On the other hand were a large number of employees who had not been handled tactfully by the appellant when he had tried to put things right... A certain situation existed and a solution had to be found. The solution was found in a particular manner.In the facts of the case we are inclined to agree with the High Court that the order of transfer was made in the exigencies of service.4. The petitioner has been found to be lacking in tact. It seems exercising tact when according to the petitioner firmness was called for was against his principles. Apparently "tact" is also one of the qualities that a government officer is required to possess, and in the situation described above the petitioner left no option to the authorities. However in these circumstances we do not think any stigma in the sense in which the word is ordinarily understood attaches to the petitioner because of the order of compulsory retirement passed against him. ### Response: 0 ### Explanation: In the facts of the case we are inclined to agree with the High Court that the order of transfer was made in the exigencies of service.4. The petitioner has been found to be lacking in tact. It seems exercising tact when according to the petitioner firmness was called for was against his principles. Apparently "tact" is also one of the qualities that a government officer is required to possess, and in the situation described above the petitioner left no option to the authorities. However in these circumstances we do not think any stigma in the sense in which the word is ordinarily understood attaches to the petitioner because of the order of compulsory retirement passed against him.

Mohan Lal Vs. Nand Lal

the trial Court, dismissed the appeal preferred by the appellant with costs. 2. In the year 1989, the respondent herein instituted a Suit, before the District Judge, Indore seeking ejectment of his brother -the appellant herein from the suit property and also claiming mesne profits. The defendant-appellant herein contested the Suit on the ground that he got half share in the disputed property as it originally belonged to his late maternal grandfather who was survived by only two daughters. On the death of his grandfather his mother entered the succession and he has been staying with his mother in the suit property. Therefore the plaintiff- respondent cannot claim to be the sole owner of the suit property and the Suit itself is misconceived. Subsequently, the respondent -plaintiff amended the plaint to the effect that during the lifetime of his grandfather, late Goverdhanlal bequeathed the house property by executing a Will on 9th September, 1945 in favour of the plaintiff, and after the death of his grandfather in the year 1947, he has become sole owner of the Suit property. Taking into account the Will dated 9.9.1945, the trial Court decreed the Suit in favour of the respondent-plaintiff. The aggrieved defendant- appellant herein filed first appeal before the High Court. By the judgment impugned herein, the High Court confirmed the judgment of the trial Court and dismissed his appeal. Hence, the appellant is before us in this appeal assailing the findings of the Courts below. 3. We have heard learned counsel for the parties and carefully gone through the material on record. 4. The case of the appellant is that he is entitled to half share in the disputed property being grandson of late Goverdhanlal and his name was also mutated in the municipal records. The Will in question was put in evidence by the plaintiff by amending the plaint after the filing of written statement by him. It was not even executed in accordance with the provisions of Sections 61 and 63 of the Indian Succession Act and therefore, it cannot be taken into account as a valid and genuine one under the Evidence Act. Further argument on behalf of the appellant is that late Goverdhanlal has two surviving daughters, namely, Manibai (mother of the parties) and Durgabai and after the death of Durgabai, her daughters Sarjubai and Rajubai also acquired rights on the disputed property and therefore they are necessary parties to the Suit, but none of these legal heirs of Late Goverdhanlal was made a party to the Suit. Under these circumstances, the Courts below could not have believed the Will to be a genuine document, but by decreeing the Suit in favour of the plaintiff-respondent on the basis of the said Will, both the Courts below have committed an error or law. 5. On behalf of the respondent-plaintiff it was submitted that at the time of execution of the Will on 9th September, 1945 the respondent-plaintiff alone was the male child in the family and the Will was written by Late Goverdhanlal, who was an advocate by profession, in his own handwriting. At the time of death of Late Goverdhanlal, the respondent-plaintiff was about 13 years age and the appellant-defendant was born about 8 years after the death of Late Goverdhanlal. The appellant, being younger brother of the respondent, was permitted to live in the disputed property with an assurance from him that he would vacate the house and hand over vacant possession of the house to the respondent when demanded. But the appellant failed to keep his promise and dishonestly got his name mutated in the records of property tax. The Courts below have rightly decided the matter after assessing the witnesses and taking the Will into consideration and therefore the appeal at hand deserves to be dismissed. 6. Now the short question that arises for consideration of this Court in this appeal is whether the Courts below were right in decreeing the suit in favour of the respondent-plaintiff on the basis of the Will. 7. It is not in dispute that the Will was executed by the testator in the year 1945 and it was drawn in the own handwriting of the executant himself. His handwriting was also duly proved by PW5-Nandlal Nagar, grandson-in-law of late Goverdhanlal, who used to correspond with him and thereby well acquainted with the handwriting of the testator. The argument that the Will lacks credibility because the idea of bringing it on record was an afterthought of the respondent-plaintiff, that too after filing the written statement, cannot be sustained for the reason that PW2-Tushar Akolekar, Clerk of Indore Paraspar Sahkari Bank, clearly deposed, supported by documentary evidence, that the respondent secured a loan from the Bank by pledging the Will in the year 1964 and since then the Will was kept in the bank. It is also on record that the said witness (PW2) was not cross-examined at the trial. Going by the material on record, we do not find any suspicious circumstance surrounding the genuineness of the Will. 8. Merely taking the ground that the name of appellant has also been mutated in the municipal record and thereby he acquires right in the property, cannot be given effect to in the absence of any cogent evidence in support of the claim. The record shows that prior to the addition of his name in the municipal records, when the respondents name alone was there, the defendant-appellant had deposited the taxes in the name of plaintiff-respondent, and there was no material on record to show how the name of appellant-defendant was added in the municipal records. In our opinion, the Courts below have thoroughly assessed the material evidences and accordingly came to the right conclusion. Once the will is believed to be a genuine piece of document, there is no need for us to delve into the matter further. In such circumstances, we do not find any reason to disturb the concurrent findings recorded by the Courts below by reasoned judgments.

0[ds]7. It is not in dispute that the Will was executed by the testator in the year 1945 and it was drawn in the own handwriting of the executant himself. His handwriting was also duly proved byw of late Goverdhanlal, who used to correspond with him and thereby well acquainted with the handwriting of the testator. The argument that the Will lacks credibility because the idea of bringing it on record was an afterthought of the, that too after filing the written statement, cannot be sustained for the reason thatr Akolekar, Clerk of Indore Paraspar Sahkari Bank, clearly deposed, supported by documentary evidence, that the respondent secured a loan from the Bank by pledging the Will in the year 1964 and since then the Will was kept in the bank. It is also on record that the said witness (PW2) was notd at the trial. Going by the material on record, we do not find any suspicious circumstance surrounding the genuineness of the Will8. Merely taking the ground that the name of appellant has also been mutated in the municipal record and thereby he acquires right in the property, cannot be given effect to in the absence of any cogent evidence in support of the claim. The record shows that prior to the addition of his name in the municipal records, when the respondents name alone was there, thet had deposited the taxes in the name of, and there was no material on record to show how the name oft was added in the municipal records. In our opinion, the Courts below have thoroughly assessed the material evidences and accordingly came to the right conclusion. Once the will is believed to be a genuine piece of document, there is no need for us to delve into the matter further. In such circumstances, we do not find any reason to disturb the concurrent findings recorded by the Courts below by reasoned judgments.

### 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 trial Court, dismissed the appeal preferred by the appellant with costs. 2. In the year 1989, the respondent herein instituted a Suit, before the District Judge, Indore seeking ejectment of his brother -the appellant herein from the suit property and also claiming mesne profits. The defendant-appellant herein contested the Suit on the ground that he got half share in the disputed property as it originally belonged to his late maternal grandfather who was survived by only two daughters. On the death of his grandfather his mother entered the succession and he has been staying with his mother in the suit property. Therefore the plaintiff- respondent cannot claim to be the sole owner of the suit property and the Suit itself is misconceived. Subsequently, the respondent -plaintiff amended the plaint to the effect that during the lifetime of his grandfather, late Goverdhanlal bequeathed the house property by executing a Will on 9th September, 1945 in favour of the plaintiff, and after the death of his grandfather in the year 1947, he has become sole owner of the Suit property. Taking into account the Will dated 9.9.1945, the trial Court decreed the Suit in favour of the respondent-plaintiff. The aggrieved defendant- appellant herein filed first appeal before the High Court. By the judgment impugned herein, the High Court confirmed the judgment of the trial Court and dismissed his appeal. Hence, the appellant is before us in this appeal assailing the findings of the Courts below. 3. We have heard learned counsel for the parties and carefully gone through the material on record. 4. The case of the appellant is that he is entitled to half share in the disputed property being grandson of late Goverdhanlal and his name was also mutated in the municipal records. The Will in question was put in evidence by the plaintiff by amending the plaint after the filing of written statement by him. It was not even executed in accordance with the provisions of Sections 61 and 63 of the Indian Succession Act and therefore, it cannot be taken into account as a valid and genuine one under the Evidence Act. Further argument on behalf of the appellant is that late Goverdhanlal has two surviving daughters, namely, Manibai (mother of the parties) and Durgabai and after the death of Durgabai, her daughters Sarjubai and Rajubai also acquired rights on the disputed property and therefore they are necessary parties to the Suit, but none of these legal heirs of Late Goverdhanlal was made a party to the Suit. Under these circumstances, the Courts below could not have believed the Will to be a genuine document, but by decreeing the Suit in favour of the plaintiff-respondent on the basis of the said Will, both the Courts below have committed an error or law. 5. On behalf of the respondent-plaintiff it was submitted that at the time of execution of the Will on 9th September, 1945 the respondent-plaintiff alone was the male child in the family and the Will was written by Late Goverdhanlal, who was an advocate by profession, in his own handwriting. At the time of death of Late Goverdhanlal, the respondent-plaintiff was about 13 years age and the appellant-defendant was born about 8 years after the death of Late Goverdhanlal. The appellant, being younger brother of the respondent, was permitted to live in the disputed property with an assurance from him that he would vacate the house and hand over vacant possession of the house to the respondent when demanded. But the appellant failed to keep his promise and dishonestly got his name mutated in the records of property tax. The Courts below have rightly decided the matter after assessing the witnesses and taking the Will into consideration and therefore the appeal at hand deserves to be dismissed. 6. Now the short question that arises for consideration of this Court in this appeal is whether the Courts below were right in decreeing the suit in favour of the respondent-plaintiff on the basis of the Will. 7. It is not in dispute that the Will was executed by the testator in the year 1945 and it was drawn in the own handwriting of the executant himself. His handwriting was also duly proved by PW5-Nandlal Nagar, grandson-in-law of late Goverdhanlal, who used to correspond with him and thereby well acquainted with the handwriting of the testator. The argument that the Will lacks credibility because the idea of bringing it on record was an afterthought of the respondent-plaintiff, that too after filing the written statement, cannot be sustained for the reason that PW2-Tushar Akolekar, Clerk of Indore Paraspar Sahkari Bank, clearly deposed, supported by documentary evidence, that the respondent secured a loan from the Bank by pledging the Will in the year 1964 and since then the Will was kept in the bank. It is also on record that the said witness (PW2) was not cross-examined at the trial. Going by the material on record, we do not find any suspicious circumstance surrounding the genuineness of the Will. 8. Merely taking the ground that the name of appellant has also been mutated in the municipal record and thereby he acquires right in the property, cannot be given effect to in the absence of any cogent evidence in support of the claim. The record shows that prior to the addition of his name in the municipal records, when the respondents name alone was there, the defendant-appellant had deposited the taxes in the name of plaintiff-respondent, and there was no material on record to show how the name of appellant-defendant was added in the municipal records. In our opinion, the Courts below have thoroughly assessed the material evidences and accordingly came to the right conclusion. Once the will is believed to be a genuine piece of document, there is no need for us to delve into the matter further. In such circumstances, we do not find any reason to disturb the concurrent findings recorded by the Courts below by reasoned judgments. ### Response: 0 ### Explanation: 7. It is not in dispute that the Will was executed by the testator in the year 1945 and it was drawn in the own handwriting of the executant himself. His handwriting was also duly proved byw of late Goverdhanlal, who used to correspond with him and thereby well acquainted with the handwriting of the testator. The argument that the Will lacks credibility because the idea of bringing it on record was an afterthought of the, that too after filing the written statement, cannot be sustained for the reason thatr Akolekar, Clerk of Indore Paraspar Sahkari Bank, clearly deposed, supported by documentary evidence, that the respondent secured a loan from the Bank by pledging the Will in the year 1964 and since then the Will was kept in the bank. It is also on record that the said witness (PW2) was notd at the trial. Going by the material on record, we do not find any suspicious circumstance surrounding the genuineness of the Will8. Merely taking the ground that the name of appellant has also been mutated in the municipal record and thereby he acquires right in the property, cannot be given effect to in the absence of any cogent evidence in support of the claim. The record shows that prior to the addition of his name in the municipal records, when the respondents name alone was there, thet had deposited the taxes in the name of, and there was no material on record to show how the name oft was added in the municipal records. In our opinion, the Courts below have thoroughly assessed the material evidences and accordingly came to the right conclusion. Once the will is believed to be a genuine piece of document, there is no need for us to delve into the matter further. In such circumstances, we do not find any reason to disturb the concurrent findings recorded by the Courts below by reasoned judgments.

A.P. Dairy Development Corporation Federation Vs. B. Narasimha Reddy and Ors

composition of the board depend upon bye-laws of the particular society. For admission and expulsion of a member, Registrar is the final authority under the Act 1964, while all such matters fall within the exclusive prerogative of the co-operative society under the Act 1995. The Government and other non-members may contribute share capital in the societies registered under the Act 1964, wherein members alone can contribute share capital in a society registered under the Act 1995. Mobilisation of funds of co-operative society is permissible only within the limits fixed by the Registrar under the Act 1964, while such mobilisation is permissible within the limits fixed by the bye-laws in a co-operative society under the Act 1995. Subsidiary organisations may be up by a co-operative under the Act 1995, while it is not no permissible under the Act 1964. In resolving of disputes, Registrar or his nominee is the sole arbitrator under the Act 1964, while the subject is exclusively governed by the bye-laws under the Act 1995. Role of the Government and Registrar under the Act 1964 is much more than under the Act 1995 as under the Act 1964, the Registrar can postpone the elections; nominate directors to Board; can appoint persons in-charge for State level federations; frame rules; and handle appeals/revisions/reviews; can give directions to co-operatives regarding reservations on staff and set up Special Courts and Tribunals, while so much control is not under the Act 1995. Similarly, Registrar has more say under the Act 1964 in respect of registering of bye-laws; approval of transfer of assets and liabilities or division or amalgamation or in respect of transfer of all members or disqualification of members etc. 40. Statement of objects and reasons of the Act 1995 clearly stipulate that State participation in the financing and management of cooperatives in the past had led to an unfortunate situation and the cooperative societies were not governed/guided by the universally accepted principles of cooperation. Thus, the purpose to enact the Act 1995 was to provide more freedom to conduct the affairs of the cooperative societies by its members. Clause 7 thereof clearly described the salient features of the legislation, inter-alia, to enunciate the cooperative principles which primarily place an assent on voluntarily self-financing autonomous bodies for removal from State control; to accept the cooperative societies to regulate their functioning by framing bye-laws subject to the provisions of the Act and to change the form or extent to their liability, to transfer their assets and liabilities to provide for the constitution of board and functions of the board of directors.Principles of co-operation as incorporated in Section 3 and given effect to in the other provisions of the Act 1995 permit better democratic functioning of the society than under the Act 1964. Whereas the Act 1995 provides for State regulation to the barest minimum, the Act 1964 provides for extensive State control and regulation of cooperative societies which is inconsistent with the national policy with regard to cooperative societies evolved in consultation and collaboration with the States which stands accepted by the State of A.P. and reflected in the Scheme of the Act 1995 which is based on the model law recommended by the Planning Commission of India.Thus, reverting back to the cooperative societies under the Act 1964 is a retrograding process by which the government would enhance its control of these societies registered under the Act 1995. They would be deprived not only of benefits under the said Act, but rights accrued under the Act 1995 would also be taken away with retrospective effect.41. Cooperative law is based on voluntary action of its members. Once a society is formed and its members voluntarily take a decision to get it registered under the Act X, the registration authority may reject the registration application if conditions prescribed under Act X are not fulfilled or for any other permissible reason. The registration authority does not have a right to register the said society under Act Y or even a superior authority is not competent to pass an order that the society would be registered under the Act Y. Such an order, if passed, would be in violation of the first basic cooperative principle that every action shall be as desired by its members voluntarily. Introducing such a concept of compulsion would violate Article 19(1)(c) of the Constitution of India. It is not permissible in law to do something indirectly, if it is not permissible to be done directly. (See: Sant Lal Gupta & Ors v. Modern Co-operative Group Housing Society Ltd. & Ors., JT 2010 (11) SC 273 )42. Act 2006 had been enacted without taking note of the basic principles of co-operatives incorporated in Section 3 of the Act 1995 which provide that membership of a co-operative society would be voluntary and shall be available without any political restriction. The co-operative society under the Act would be a democratic organisation as its affairs would be administered by persons elected or appointed in a manner agreed by members and accountable to them. 43. The legislature has a right to amend the Act 1995 or repeal the same. Even for the sake of the argument, if it is considered that legislature was competent to exclude the milk cooperative dairies from the operation of the Act 1995 and such an Act was valid i.e. not being violative of Article 14 of the Constitution etc., the question does arise as to whether legislature could force the society registered under the Act 1995 to work under the Act 1964. Importing the fiction to the extent that the societies registered under the Act 1995, could be deemed to have been registered under the Act 1964 tantamounts to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations. 44. In view of the above,

0[ds]It is well settled law that Article 14 forbids class legislation, however, it does not forbid reasonable classification for the purpose of legislation. Therefore, it is permissible in law to have class legislation provided the classification is founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and that differentia must have a rational relation to the object sought to be achieved by the statute in question. Law also permits a classification even if it relates to a single individual, if, on account of some special circumstances or reasons applicable to him, and not applicable to others, that single individual may be treated as a class by himself. It should be presumed that legislature has correctly appreciated the need of its people and that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. There is further presumption in favour of the legislature that legislation had been brought with the knowledge of existing conditions. The good faith on the legislature is to be presumed, but if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The law should not be irrational, arbitrary and unreasonable in as much as there must be nexus to the object sought to be achieved byright of the citizens to form the association are different from running the business by that association. Therefore, right of individuals to form a society has to be understood in a completely different context. Once a co- operative society is formed and registered, for the reason that co- operative society itself is a creature of the statute, the rights of the society and that of its members stand abridged by the provisions of the Act. The activities of the society are controlled by the statute. Therefore, there cannot be any objection to statutory interference with their composition or functioning merely on the ground of contravention of individuals right of freedom of association by statutory functionaries.17. It is a settled legal proposition that Article 14 of the Constitution strikes at arbitrariness because an action that is arbitrary, must necessarily involve negation of equality. This doctrine of arbitrariness is not restricted only to executive actions, but also applies to legislature. Thus, a party has to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires of Article 14 of thethe matter of Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of thewithin the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary from the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power.agenda of an individual or a political party should not be subversive of rule ofThe Government has to rise above the nexus of vested interest and nepotism etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must beof objects and reasons of the Act 1995 clearly stipulate that State participation in the financing and management of cooperatives in the past had led to an unfortunate situation and the cooperative societies were not governed/guided by the universally accepted principles of cooperation. Thus, the purpose to enact the Act 1995 was to provide more freedom to conduct the affairs of the cooperative societies by its members. Clause 7 thereof clearly described the salient features of the legislation, inter-alia, to enunciate the cooperative principles which primarily place an assent on voluntarily self-financing autonomous bodies for removal from State control; to accept the cooperative societies to regulate their functioning by framing bye-laws subject to the provisions of the Act and to change the form or extent to their liability, to transfer their assets and liabilities to provide for the constitution of board and functions of the board of directors.Principles of co-operation as incorporated in Section 3 and given effect to in the other provisions of the Act 1995 permit better democratic functioning of the society than under the Act 1964. Whereas the Act 1995 provides for State regulation to the barest minimum, the Act 1964 provides for extensive State control and regulation of cooperative societies which is inconsistent with the national policy with regard to cooperative societies evolved in consultation and collaboration with the States which stands accepted by the State of A.P. and reflected in the Scheme of the Act 1995 which is based on the model law recommended by the Planning Commission of India.Thus, reverting back to the cooperative societies under the Act 1964 is a retrograding process by which the government would enhance its control of these societies registered under the Act 1995. They would be deprived not only of benefits under the said Act, but rights accrued under the Act 1995 would also be taken away with retrospective effect.41. Cooperative law is based on voluntary action of its members. Once a society is formed and its members voluntarily take a decision to get it registered under the Act X, the registration authority may reject the registration application if conditions prescribed under Act X are not fulfilled or for any other permissible reason. The registration authority does not have a right to register the said society under Act Y or even a superior authority is not competent to pass an order that the society would be registered under the Act Y. Such an order, if passed, would be in violation of the first basic cooperative principle that every action shall be as desired by its members voluntarily. Introducing such a concept of compulsion would violate Article 19(1)(c) of the Constitution of India. It is not permissible in law to do something indirectly, if it is not permissible to be done directly. (See: Sant Lal Gupta & Ors v. Modern Co-operative Group Housing Society Ltd. & Ors., JT 2010 (11) SC 273 )42. Act 2006 had been enacted without taking note of the basic principles of co-operatives incorporated in Section 3 of the Act 1995 which provide that membership of a co-operative society would be voluntary and shall be available without any political restriction. The co-operative society under the Act would be a democratic organisation as its affairs would be administered by persons elected or appointed in a manner agreed by members and accountable tolegislature has a right to amend the Act 1995 or repeal the same. Even for the sake of the argument, if it is considered that legislature was competent to exclude the milk cooperative dairies from the operation of the Act 1995 and such an Act was valid i.e. not being violative of Article 14 of the Constitution etc., the question does arise as to whether legislature could force the society registered under the Act 1995 to work under the Act 1964. Importing the fiction to the extent that the societies registered under the Act 1995, could be deemed to have been registered under the Act 1964 tantamounts to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations.

### 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: composition of the board depend upon bye-laws of the particular society. For admission and expulsion of a member, Registrar is the final authority under the Act 1964, while all such matters fall within the exclusive prerogative of the co-operative society under the Act 1995. The Government and other non-members may contribute share capital in the societies registered under the Act 1964, wherein members alone can contribute share capital in a society registered under the Act 1995. Mobilisation of funds of co-operative society is permissible only within the limits fixed by the Registrar under the Act 1964, while such mobilisation is permissible within the limits fixed by the bye-laws in a co-operative society under the Act 1995. Subsidiary organisations may be up by a co-operative under the Act 1995, while it is not no permissible under the Act 1964. In resolving of disputes, Registrar or his nominee is the sole arbitrator under the Act 1964, while the subject is exclusively governed by the bye-laws under the Act 1995. Role of the Government and Registrar under the Act 1964 is much more than under the Act 1995 as under the Act 1964, the Registrar can postpone the elections; nominate directors to Board; can appoint persons in-charge for State level federations; frame rules; and handle appeals/revisions/reviews; can give directions to co-operatives regarding reservations on staff and set up Special Courts and Tribunals, while so much control is not under the Act 1995. Similarly, Registrar has more say under the Act 1964 in respect of registering of bye-laws; approval of transfer of assets and liabilities or division or amalgamation or in respect of transfer of all members or disqualification of members etc. 40. Statement of objects and reasons of the Act 1995 clearly stipulate that State participation in the financing and management of cooperatives in the past had led to an unfortunate situation and the cooperative societies were not governed/guided by the universally accepted principles of cooperation. Thus, the purpose to enact the Act 1995 was to provide more freedom to conduct the affairs of the cooperative societies by its members. Clause 7 thereof clearly described the salient features of the legislation, inter-alia, to enunciate the cooperative principles which primarily place an assent on voluntarily self-financing autonomous bodies for removal from State control; to accept the cooperative societies to regulate their functioning by framing bye-laws subject to the provisions of the Act and to change the form or extent to their liability, to transfer their assets and liabilities to provide for the constitution of board and functions of the board of directors.Principles of co-operation as incorporated in Section 3 and given effect to in the other provisions of the Act 1995 permit better democratic functioning of the society than under the Act 1964. Whereas the Act 1995 provides for State regulation to the barest minimum, the Act 1964 provides for extensive State control and regulation of cooperative societies which is inconsistent with the national policy with regard to cooperative societies evolved in consultation and collaboration with the States which stands accepted by the State of A.P. and reflected in the Scheme of the Act 1995 which is based on the model law recommended by the Planning Commission of India.Thus, reverting back to the cooperative societies under the Act 1964 is a retrograding process by which the government would enhance its control of these societies registered under the Act 1995. They would be deprived not only of benefits under the said Act, but rights accrued under the Act 1995 would also be taken away with retrospective effect.41. Cooperative law is based on voluntary action of its members. Once a society is formed and its members voluntarily take a decision to get it registered under the Act X, the registration authority may reject the registration application if conditions prescribed under Act X are not fulfilled or for any other permissible reason. The registration authority does not have a right to register the said society under Act Y or even a superior authority is not competent to pass an order that the society would be registered under the Act Y. Such an order, if passed, would be in violation of the first basic cooperative principle that every action shall be as desired by its members voluntarily. Introducing such a concept of compulsion would violate Article 19(1)(c) of the Constitution of India. It is not permissible in law to do something indirectly, if it is not permissible to be done directly. (See: Sant Lal Gupta & Ors v. Modern Co-operative Group Housing Society Ltd. & Ors., JT 2010 (11) SC 273 )42. Act 2006 had been enacted without taking note of the basic principles of co-operatives incorporated in Section 3 of the Act 1995 which provide that membership of a co-operative society would be voluntary and shall be available without any political restriction. The co-operative society under the Act would be a democratic organisation as its affairs would be administered by persons elected or appointed in a manner agreed by members and accountable to them. 43. The legislature has a right to amend the Act 1995 or repeal the same. Even for the sake of the argument, if it is considered that legislature was competent to exclude the milk cooperative dairies from the operation of the Act 1995 and such an Act was valid i.e. not being violative of Article 14 of the Constitution etc., the question does arise as to whether legislature could force the society registered under the Act 1995 to work under the Act 1964. Importing the fiction to the extent that the societies registered under the Act 1995, could be deemed to have been registered under the Act 1964 tantamounts to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations. 44. In view of the above, ### Response: 0 ### Explanation: to satisfy that the action was reasonable, not done in unreasonable manner or capriciously or at pleasure without adequate determining principle, rational, and has been done according to reason or judgment, and certainly does not depend on the will alone. However, the action of legislature, violative of Article 14 of the Constitution, should ordinarily be manifestly arbitrary. There must be a case of substantive unreasonableness in the statute itself for declaring the act ultra vires of Article 14 of thethe matter of Government of a State, the succeeding Government is duty bound to continue and carry on the unfinished job of the previous Government, for the reason that the action is that of thewithin the meaning of Article 12 of the Constitution, which continues to subsist and therefore, it is not required that the new Government can plead contrary from the State action taken by the previous Government in respect of a particular subject. The State, being a continuing body can be stopped from changing its stand in a given case, but where after holding enquiry it came to the conclusion that action was not in conformity with law, the doctrine of estoppel would not apply. Thus, unless the act done by the previous Government is found to be contrary to the statutory provisions, unreasonable or against policy, the State should not change its stand merely because the other political party has come into power.agenda of an individual or a political party should not be subversive of rule ofThe Government has to rise above the nexus of vested interest and nepotism etc. as the principles of governance have to be tested on the touchstone of justice, equity and fair play. The decision must be taken in good faith and must beof objects and reasons of the Act 1995 clearly stipulate that State participation in the financing and management of cooperatives in the past had led to an unfortunate situation and the cooperative societies were not governed/guided by the universally accepted principles of cooperation. Thus, the purpose to enact the Act 1995 was to provide more freedom to conduct the affairs of the cooperative societies by its members. Clause 7 thereof clearly described the salient features of the legislation, inter-alia, to enunciate the cooperative principles which primarily place an assent on voluntarily self-financing autonomous bodies for removal from State control; to accept the cooperative societies to regulate their functioning by framing bye-laws subject to the provisions of the Act and to change the form or extent to their liability, to transfer their assets and liabilities to provide for the constitution of board and functions of the board of directors.Principles of co-operation as incorporated in Section 3 and given effect to in the other provisions of the Act 1995 permit better democratic functioning of the society than under the Act 1964. Whereas the Act 1995 provides for State regulation to the barest minimum, the Act 1964 provides for extensive State control and regulation of cooperative societies which is inconsistent with the national policy with regard to cooperative societies evolved in consultation and collaboration with the States which stands accepted by the State of A.P. and reflected in the Scheme of the Act 1995 which is based on the model law recommended by the Planning Commission of India.Thus, reverting back to the cooperative societies under the Act 1964 is a retrograding process by which the government would enhance its control of these societies registered under the Act 1995. They would be deprived not only of benefits under the said Act, but rights accrued under the Act 1995 would also be taken away with retrospective effect.41. Cooperative law is based on voluntary action of its members. Once a society is formed and its members voluntarily take a decision to get it registered under the Act X, the registration authority may reject the registration application if conditions prescribed under Act X are not fulfilled or for any other permissible reason. The registration authority does not have a right to register the said society under Act Y or even a superior authority is not competent to pass an order that the society would be registered under the Act Y. Such an order, if passed, would be in violation of the first basic cooperative principle that every action shall be as desired by its members voluntarily. Introducing such a concept of compulsion would violate Article 19(1)(c) of the Constitution of India. It is not permissible in law to do something indirectly, if it is not permissible to be done directly. (See: Sant Lal Gupta & Ors v. Modern Co-operative Group Housing Society Ltd. & Ors., JT 2010 (11) SC 273 )42. Act 2006 had been enacted without taking note of the basic principles of co-operatives incorporated in Section 3 of the Act 1995 which provide that membership of a co-operative society would be voluntary and shall be available without any political restriction. The co-operative society under the Act would be a democratic organisation as its affairs would be administered by persons elected or appointed in a manner agreed by members and accountable tolegislature has a right to amend the Act 1995 or repeal the same. Even for the sake of the argument, if it is considered that legislature was competent to exclude the milk cooperative dairies from the operation of the Act 1995 and such an Act was valid i.e. not being violative of Article 14 of the Constitution etc., the question does arise as to whether legislature could force the society registered under the Act 1995 to work under the Act 1964. Importing the fiction to the extent that the societies registered under the Act 1995, could be deemed to have been registered under the Act 1964 tantamounts to forcing the members of the society to act under compulsion/direction of the State rather than on their free will. Such a provision is violative of the very first basic principles of cooperatives. More so, the Act is vitiated by non-application of mind and irrelevant and extraneous considerations.

Commissioner Of Customs, Calcutta Vs. M/S. South India Television(P) Ltd

If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege under-valuation, it must make detailed inquiries, collect material and also adequate evidence. When under-valuation is alleged, the Department has to prove it by evidence or information about comparable imports. For proving under-valuation, if the Department relies on declaration made in the exporting country, it has to show how such declaration was procured. We may clarify that strict rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. 7. Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted by the Department. Further, in the present case, the Department has relied upon export declaration made by the foreign supplier in Hong Kong. In this connection, we find that letters were addressed by the Department to the Indian Commission which, in turn, requested detailed investigations to be carried out by Hong Kong Customs Department. The Indian Commission has forwarded the export declarations in original to the Customs Department in India. One such letter is dated 19.9.1996. In the present case, the importer has alleged that the original declarations were with the Department. That certain portions of the originals were not shown to the importer despite the importer calling upon the adjudicating authority to do so. Further, by way of Interlocutory Application No. 4 in the present civil appeal, an application was moved by the importer calling upon the Department to produce the original declaration in the Court. No reply has been filed to the said I.A. till date. In the circumstances, we are of the view that the Department had erred in rejecting the invoice submitted by the importer herein as incorrect. Further, the Department received from the Hong Kong supplier a Fax message dated 22.7.1996. That was produced before the Commissioner. In that message, he had explained that the manufacturer of the impugned goods was getting export rebates and, therefore, it is possible that the manufacturer had over-invoiced the price in order to claim more rebate. The goods were of Chinese origin. In the Fax message it is further stated by the foreign supplier that he was required to show the export value on the higher side in order to claim the incentives given by his Government. This explanation of the foreign supplier, in the present case, had been accepted by the Commissioner. In his order, the Commissioner has not ruled out over-invoicing of the export value by the foreign supplier in order to obtain incentives from his Government. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal.8. Before concluding, we may point out that in the present case at the stage of show cause notice, the Department invoked Rule 8 on the ground that the invoice submitted by the importer was incorrect. In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transaction value. Utilization of the word the as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out in Rule 4(2). In the said judgment, it has been further held that, the word payable in Rule 4(1) also refers to the "transaction value" and payability in respect of the transaction envisaged a situation where payment of price stood deferred. Therefore, this decision of the Supreme Court directs the Revenue to decide the validity of the particular value instead of rejecting the transaction value. We wish, however, to clarify that it is still open to the Department based on evidence, to show that the declared price is not the price at which like goods are sold or offered for sale ordinarily, which words occur in Section 14(1). Lastly, it is important to note that in the above decision of this Court in Eicher Tractors (supra) this Court has held that the Department has to proceed sequentially under Rules 5, 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with Rules 5, 6 and 7 even in cases where the transaction value is to be rejected under Rule 4. In the present case, the show cause notice indicates that the Department had invoked Rule 8 without complying with the earlier rules.

0[ds]find no infirmity in the judgment of the Tribunal which has decided the matter in favour of the Department.Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted by the Department. Further, in the present case, the Department has relied upon export declaration made by the foreign supplier in Hong Kong. In this connection, we find that letters were addressed by the Department to the Indian Commission which, in turn, requested detailed investigations to be carried out by Hong Kong Customs Department. The Indian Commission has forwarded the export declarations in original to the Customs Department in India. One such letter is dated 19.9.1996. In the present case, the importer has alleged that the original declarations were with the Department. That certain portions of the originals were not shown to the importer despite the importer calling upon the adjudicating authority to do so. Further, by way of Interlocutory Application No. 4 in the present civil appeal, an application was moved by the importer calling upon the Department to produce the original declaration in the Court. No reply has been filed to the said I.A. till date. In the circumstances, we are of the view that the Department had erred in rejecting the invoice submitted by the importer herein as incorrect. Further, the Department received from the Hong Kong supplier a Fax message dated 22.7.1996. That was produced before the Commissioner. In that message, he had explained that the manufacturer of the impugned goods was getting export rebates and, therefore, it is possible that the manufacturer hadthe price in order to claim more rebate. The goods were of Chinese origin. In the Fax message it is further stated by the foreign supplier that he was required to show the export value on the higher side in order to claim the incentives given by his Government. This explanation of the foreign supplier, in the present case, had been accepted by the Commissioner. In his order, the Commissioner has not ruled outof the export value by the foreign supplier in order to obtain incentives from his Government. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal.8. Before concluding, we may point out that in the present case at the stage of show cause notice, the Department invoked Rule 8 on the ground that the invoice submitted by the importer was incorrect. In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transaction value. Utilization of the word the as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out in Rule 4(2). In the said judgment, it has been further held that, the word payable in Rule 4(1) also refers to the "transaction value" and payability in respect of the transaction envisaged a situation where payment of price stood deferred. Therefore, this decision of the Supreme Court directs the Revenue to decide the validity of the particular value instead of rejecting the transaction value. We wish, however, to clarify that it is still open to the Department based on evidence, to show that the declared price is not the price at which like goods are sold or offered for sale ordinarily, which words occur in Section 14(1). Lastly, it is important to note that in the above decision of this Court in Eicher Tractors (supra) this Court has held that the Department has to proceed sequentially under Rules 5, 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with Rules 5, 6 and 7 even in cases where the transaction value is to be rejected under Rule 4. In the present case, the show cause notice indicates that the Department had invoked Rule 8 without complying with the earlierAppeal Nos. 5517/2004 and 5518/200410. These two civil appeals are a sequel to our judgment delivered today in the case of Commissioner of Customs v. M/s South India Television (P) Ltd. vide Civil Appeal No. 1137/2002. We need not refer the present set of the facts in detail once again. However, the Tribunal has held on facts that the import invoices issued by Hong Kong traders and the export declarations filed by the same traders before Hong Kong Customs bear different values. No explanation whatsoever has been given for quoting two different values. Further, the importers in the present cases have failed to file the manufacturers invoices in support of the value shown in the import invoices. On the other hand, in the earlier matter (in the case of M/s South India Television (P) Ltd.) a detailed explanation was offered regarding the Government giving incentives to exporters in China, which explanation is not there in the present cases. For the aforestated reasons, wefind no infirmity in the judgment of the Tribunal which has decided the matter in favour of the Department.

### 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: If the charge of under-valuation cannot be supported either by evidence or information about comparable imports, the benefit of doubt must go to the importer. If the Department wants to allege under-valuation, it must make detailed inquiries, collect material and also adequate evidence. When under-valuation is alleged, the Department has to prove it by evidence or information about comparable imports. For proving under-valuation, if the Department relies on declaration made in the exporting country, it has to show how such declaration was procured. We may clarify that strict rules of evidence do not apply to adjudication proceedings. They apply strictly to the courts proceedings. However, even in adjudication proceedings, the AO has to examine the probative value of the documents on which reliance is placed by the Department in support of its allegation of under-valuation. Once the Department discharges the burden of proof to the above extent by producing evidence of contemporaneous imports at higher price, the onus shifts to the importer to establish that the invoice relied on by him is valid. Therefore, the charge of under-invoicing has to be supported by evidence of prices of contemporaneous imports of like goods. Section 14(1) speaks of "deemed value". Therefore, invoice price can be disputed. However, it is for the Department to prove that the invoice price is incorrect. When there is no evidence of contemporaneous imports at a higher price, the invoice price is liable to be accepted. The value in the export declaration may be relied upon for ascertainment of the assessable value under the Customs Valuation Rules and not for determining the price at which goods are ordinarily sold at the time and place of importation. This is where the conceptual difference between value and price comes into discussion. 7. Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted by the Department. Further, in the present case, the Department has relied upon export declaration made by the foreign supplier in Hong Kong. In this connection, we find that letters were addressed by the Department to the Indian Commission which, in turn, requested detailed investigations to be carried out by Hong Kong Customs Department. The Indian Commission has forwarded the export declarations in original to the Customs Department in India. One such letter is dated 19.9.1996. In the present case, the importer has alleged that the original declarations were with the Department. That certain portions of the originals were not shown to the importer despite the importer calling upon the adjudicating authority to do so. Further, by way of Interlocutory Application No. 4 in the present civil appeal, an application was moved by the importer calling upon the Department to produce the original declaration in the Court. No reply has been filed to the said I.A. till date. In the circumstances, we are of the view that the Department had erred in rejecting the invoice submitted by the importer herein as incorrect. Further, the Department received from the Hong Kong supplier a Fax message dated 22.7.1996. That was produced before the Commissioner. In that message, he had explained that the manufacturer of the impugned goods was getting export rebates and, therefore, it is possible that the manufacturer had over-invoiced the price in order to claim more rebate. The goods were of Chinese origin. In the Fax message it is further stated by the foreign supplier that he was required to show the export value on the higher side in order to claim the incentives given by his Government. This explanation of the foreign supplier, in the present case, had been accepted by the Commissioner. In his order, the Commissioner has not ruled out over-invoicing of the export value by the foreign supplier in order to obtain incentives from his Government. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal.8. Before concluding, we may point out that in the present case at the stage of show cause notice, the Department invoked Rule 8 on the ground that the invoice submitted by the importer was incorrect. In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transaction value. Utilization of the word the as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out in Rule 4(2). In the said judgment, it has been further held that, the word payable in Rule 4(1) also refers to the "transaction value" and payability in respect of the transaction envisaged a situation where payment of price stood deferred. Therefore, this decision of the Supreme Court directs the Revenue to decide the validity of the particular value instead of rejecting the transaction value. We wish, however, to clarify that it is still open to the Department based on evidence, to show that the declared price is not the price at which like goods are sold or offered for sale ordinarily, which words occur in Section 14(1). Lastly, it is important to note that in the above decision of this Court in Eicher Tractors (supra) this Court has held that the Department has to proceed sequentially under Rules 5, 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with Rules 5, 6 and 7 even in cases where the transaction value is to be rejected under Rule 4. In the present case, the show cause notice indicates that the Department had invoked Rule 8 without complying with the earlier rules. ### Response: 0 ### Explanation: find no infirmity in the judgment of the Tribunal which has decided the matter in favour of the Department.Applying the above tests to the facts of the present case, we find that there is no evidence from the side of the Department showing contemporaneous imports at higher price. On the contrary, the respondent importer has relied upon contemporaneous imports from the same supplier, namely, M/s Pearl Industrial Company, Hong Kong, which indicates comparable prices of like goods during the same period of importation. This evidence has not been rebutted by the Department. Further, in the present case, the Department has relied upon export declaration made by the foreign supplier in Hong Kong. In this connection, we find that letters were addressed by the Department to the Indian Commission which, in turn, requested detailed investigations to be carried out by Hong Kong Customs Department. The Indian Commission has forwarded the export declarations in original to the Customs Department in India. One such letter is dated 19.9.1996. In the present case, the importer has alleged that the original declarations were with the Department. That certain portions of the originals were not shown to the importer despite the importer calling upon the adjudicating authority to do so. Further, by way of Interlocutory Application No. 4 in the present civil appeal, an application was moved by the importer calling upon the Department to produce the original declaration in the Court. No reply has been filed to the said I.A. till date. In the circumstances, we are of the view that the Department had erred in rejecting the invoice submitted by the importer herein as incorrect. Further, the Department received from the Hong Kong supplier a Fax message dated 22.7.1996. That was produced before the Commissioner. In that message, he had explained that the manufacturer of the impugned goods was getting export rebates and, therefore, it is possible that the manufacturer hadthe price in order to claim more rebate. The goods were of Chinese origin. In the Fax message it is further stated by the foreign supplier that he was required to show the export value on the higher side in order to claim the incentives given by his Government. This explanation of the foreign supplier, in the present case, had been accepted by the Commissioner. In his order, the Commissioner has not ruled outof the export value by the foreign supplier in order to obtain incentives from his Government. For the aforestated reasons, we find no infirmity in the impugned judgment of the Tribunal.8. Before concluding, we may point out that in the present case at the stage of show cause notice, the Department invoked Rule 8 on the ground that the invoice submitted by the importer was incorrect. In Eicher Tractors (supra) this Court observed that Rule 4(1) of the Customs Valuation Rules refers to the transaction value. Utilization of the word the as definite article indicated that what should be accepted as the transaction value for the purpose of assessment under the Customs Act is the price actually paid by the importer for the particular transaction, unless it is unacceptable for the reasons set out in Rule 4(2). In the said judgment, it has been further held that, the word payable in Rule 4(1) also refers to the "transaction value" and payability in respect of the transaction envisaged a situation where payment of price stood deferred. Therefore, this decision of the Supreme Court directs the Revenue to decide the validity of the particular value instead of rejecting the transaction value. We wish, however, to clarify that it is still open to the Department based on evidence, to show that the declared price is not the price at which like goods are sold or offered for sale ordinarily, which words occur in Section 14(1). Lastly, it is important to note that in the above decision of this Court in Eicher Tractors (supra) this Court has held that the Department has to proceed sequentially under Rules 5, 6 onwards and it is not open to the Department to invoke Rule 8 without sequentially complying with Rules 5, 6 and 7 even in cases where the transaction value is to be rejected under Rule 4. In the present case, the show cause notice indicates that the Department had invoked Rule 8 without complying with the earlierAppeal Nos. 5517/2004 and 5518/200410. These two civil appeals are a sequel to our judgment delivered today in the case of Commissioner of Customs v. M/s South India Television (P) Ltd. vide Civil Appeal No. 1137/2002. We need not refer the present set of the facts in detail once again. However, the Tribunal has held on facts that the import invoices issued by Hong Kong traders and the export declarations filed by the same traders before Hong Kong Customs bear different values. No explanation whatsoever has been given for quoting two different values. Further, the importers in the present cases have failed to file the manufacturers invoices in support of the value shown in the import invoices. On the other hand, in the earlier matter (in the case of M/s South India Television (P) Ltd.) a detailed explanation was offered regarding the Government giving incentives to exporters in China, which explanation is not there in the present cases. For the aforestated reasons, wefind no infirmity in the judgment of the Tribunal which has decided the matter in favour of the Department.

Qamar Shaffi Tyabji Vs. Commissioner, Excess Profits Tax, Hyderabad

agent of the two mills; the Trustees employed the appellant on certain terms and gave him certain powers, and therefore the appellant, an individual and not a firm, was not carrying on an independent business of his own; he was just carrying out the duties of an employee of the Trustees in spite of his being described as managing agent in the agreement of December 6, 1938. His income, therefore, was not income derived from business.6. We are unable to accept this line of argument as correct. In Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad, 1955-1 SCR 393 : (AIR 1954 SC 364 ) this Court had occasion to explain the position of an agent, a servant and an independent contractor.It was there pointed out that the difference between the relations of master and servant and of principal and agent lay in this : a principal has the right to direct what work the agent has to do; but a master has the further right to direct how the work is to be done. An agent has to be distinguished on the one hand from a servant and on the other from an independent contractor. A servant acts under the direct control and supervision of his master and is bound to conform to all reasonable orders given in the course of his work. An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal.Indeed, learned counsel for the appellant accepts as correct the distinction made above and also accepts that the true relation between the Mills and the Trustees was that of principal and agent; but he contends that as between the Trustees and the appellant the relation was one of master and servant.We consider that this contention is wholly unsound.We have examined the original agreement between the Mills and the Trustees dated April 12, 1934. Clause 9 of that agreement said that "the agents may regulate and conduct their proceedings in such manner as they may from time to time determine and may delegate all or any of their powers, authorities and discretions as secretaries, treasurers and agents of the company to such person or persons and on such terms and conditions as they may think fit, subject to the approval of the Board of Directors of the company."The delegation in favour of the appellant was made under this clause. The position was therefore this : the Trustees as agents had express authority to name another person to act for the principal in the business of the agency, and they named the appellant with the approval of the Board of Directors. Therefore, the appellant, was neither a servant nor a mere sub-agent. He was an agent of the principal for such part of the business of the agency as was entrusted to him. The position in law was as laid down in S. 194 of the Indian Contract Act.7. In similar circumstances this Court has held that managing agency is business (see 1955-1 SCR 393 : (AIR 1954 SC 364 ) and J. K. Trust, Bombay v. Commissioner of Income-tax Excess Profits Tax, Bombay, 1958 SCR 65 : ( (S) AIR 1957 SC 846 ) ). A consideration of the terms of the agreement of December 6, 1938, also leaves no manner of doubt in the matter. Full powers of the Trustees as managing agents were delegated to the appellant under Cl. (2) of the agreement, subject only to the general control of the Trustees and the clause stated that the appellant was to conduct and manage the business and affairs of the two mills. Clause (3) relating to the tenure of the managing agency, Cl. (4) relating to remuneration,Cl. (7) relating to termination of business and the clauses relating to the eventuality of winding up of the mills-all, these were appropriate to a business undertaking only and quite inappropriate to a relation of master and servant. The extent of the delegation of powers was also indicated by Cl. (5) which said inter alia that the managing agent (meaning the appellant) must observe and perform all the terms and conditions of the earlier managing agency and selling agency agreements in favour and on the part of the Trustees; in other words, the entire managing agency business was handed over to the appellant. Learned counsel for the appellant emphasised Cl. (9) which we had quoted earlier and said that it showed that the appellant could not assign any of the benefits under the agreement, which was personal to himself. We do not think that Cl. (9) changed the quality of the relation between the Trustees and the appellant. The managing agency agreement must be read as a whole, and so read the conclusion which clearly emerges is that the appellant was undertaking a business of his own in accepting the duties and responsibilities of managing agent of the two mills under the general control of the Trustees.The appellant was a man with previous business experience and held an agency of the Eastern Federal Union Insurance Co. which brought him a substantial income. Learned counsel for the appellant has relied on the decision in Inderchand Hari Ram v. Commissioner of Income-tax, U. P. and C. P., 1952-22 ITR 108 : (AIR 1952 All 706 ) (FB) where the distinction between the definitions of managing agent and manager under the Indian Companies Act, 1913, was pointed out. We do not think that decision gives any help to the appellant.The question really is one of construction of the relevant agreements; what do their terms show - a relation of master and servant or an agency business? We have no doubt in our minds that what clearly emerges from the terms of the agreement of December 6, 1938 is a business of managing agency accepted and undertaken by the appellant.

1[ds]5. On behalf of the appellant it has been submitted that on a true construction of the relevant agreements the Industrial Trust Fund was the managing agent as also the selling agent of the two mills; the Trustees employed the appellant on certain terms and gave him certain powers, and therefore the appellant, an individual and not a firm, was not carrying on an independent business of his own; he was just carrying out the duties of an employee of the Trustees in spite of his being described as managing agent in the agreement of December 6, 1938. His income, therefore, was not income derived from business.We are unable to accept this line of argument as correct.Clause 9 of that agreement said that "the agents may regulate and conduct their proceedings in such manner as they may from time to time determine and may delegate all or any of their powers, authorities and discretions as secretaries, treasurers and agents of the company to such person or persons and on such terms and conditions as they may think fit, subject to the approval of the Board of Directors of the company."The delegation in favour of the appellant was made under this clause. The position was therefore this : the Trustees as agents had express authority to name another person to act for the principal in the business of the agency, and they named the appellant with the approval of the Board of Directors. Therefore, the appellant, was neither a servant nor a mere sub-agent. He was an agent of the principal for such part of the business of the agency as was entrusted to him. The position in law was as laid down in S. 194 of the Indian Contract 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: agent of the two mills; the Trustees employed the appellant on certain terms and gave him certain powers, and therefore the appellant, an individual and not a firm, was not carrying on an independent business of his own; he was just carrying out the duties of an employee of the Trustees in spite of his being described as managing agent in the agreement of December 6, 1938. His income, therefore, was not income derived from business.6. We are unable to accept this line of argument as correct. In Lakshminarayan Ram Gopal and Son Ltd. v. Government of Hyderabad, 1955-1 SCR 393 : (AIR 1954 SC 364 ) this Court had occasion to explain the position of an agent, a servant and an independent contractor.It was there pointed out that the difference between the relations of master and servant and of principal and agent lay in this : a principal has the right to direct what work the agent has to do; but a master has the further right to direct how the work is to be done. An agent has to be distinguished on the one hand from a servant and on the other from an independent contractor. A servant acts under the direct control and supervision of his master and is bound to conform to all reasonable orders given in the course of his work. An agent though bound to exercise his authority in accordance with all lawful instructions which may be given to him from time to time by his principal, is not subject in its exercise to the direct control or supervision of the principal.Indeed, learned counsel for the appellant accepts as correct the distinction made above and also accepts that the true relation between the Mills and the Trustees was that of principal and agent; but he contends that as between the Trustees and the appellant the relation was one of master and servant.We consider that this contention is wholly unsound.We have examined the original agreement between the Mills and the Trustees dated April 12, 1934. Clause 9 of that agreement said that "the agents may regulate and conduct their proceedings in such manner as they may from time to time determine and may delegate all or any of their powers, authorities and discretions as secretaries, treasurers and agents of the company to such person or persons and on such terms and conditions as they may think fit, subject to the approval of the Board of Directors of the company."The delegation in favour of the appellant was made under this clause. The position was therefore this : the Trustees as agents had express authority to name another person to act for the principal in the business of the agency, and they named the appellant with the approval of the Board of Directors. Therefore, the appellant, was neither a servant nor a mere sub-agent. He was an agent of the principal for such part of the business of the agency as was entrusted to him. The position in law was as laid down in S. 194 of the Indian Contract Act.7. In similar circumstances this Court has held that managing agency is business (see 1955-1 SCR 393 : (AIR 1954 SC 364 ) and J. K. Trust, Bombay v. Commissioner of Income-tax Excess Profits Tax, Bombay, 1958 SCR 65 : ( (S) AIR 1957 SC 846 ) ). A consideration of the terms of the agreement of December 6, 1938, also leaves no manner of doubt in the matter. Full powers of the Trustees as managing agents were delegated to the appellant under Cl. (2) of the agreement, subject only to the general control of the Trustees and the clause stated that the appellant was to conduct and manage the business and affairs of the two mills. Clause (3) relating to the tenure of the managing agency, Cl. (4) relating to remuneration,Cl. (7) relating to termination of business and the clauses relating to the eventuality of winding up of the mills-all, these were appropriate to a business undertaking only and quite inappropriate to a relation of master and servant. The extent of the delegation of powers was also indicated by Cl. (5) which said inter alia that the managing agent (meaning the appellant) must observe and perform all the terms and conditions of the earlier managing agency and selling agency agreements in favour and on the part of the Trustees; in other words, the entire managing agency business was handed over to the appellant. Learned counsel for the appellant emphasised Cl. (9) which we had quoted earlier and said that it showed that the appellant could not assign any of the benefits under the agreement, which was personal to himself. We do not think that Cl. (9) changed the quality of the relation between the Trustees and the appellant. The managing agency agreement must be read as a whole, and so read the conclusion which clearly emerges is that the appellant was undertaking a business of his own in accepting the duties and responsibilities of managing agent of the two mills under the general control of the Trustees.The appellant was a man with previous business experience and held an agency of the Eastern Federal Union Insurance Co. which brought him a substantial income. Learned counsel for the appellant has relied on the decision in Inderchand Hari Ram v. Commissioner of Income-tax, U. P. and C. P., 1952-22 ITR 108 : (AIR 1952 All 706 ) (FB) where the distinction between the definitions of managing agent and manager under the Indian Companies Act, 1913, was pointed out. We do not think that decision gives any help to the appellant.The question really is one of construction of the relevant agreements; what do their terms show - a relation of master and servant or an agency business? We have no doubt in our minds that what clearly emerges from the terms of the agreement of December 6, 1938 is a business of managing agency accepted and undertaken by the appellant. ### Response: 1 ### Explanation: 5. On behalf of the appellant it has been submitted that on a true construction of the relevant agreements the Industrial Trust Fund was the managing agent as also the selling agent of the two mills; the Trustees employed the appellant on certain terms and gave him certain powers, and therefore the appellant, an individual and not a firm, was not carrying on an independent business of his own; he was just carrying out the duties of an employee of the Trustees in spite of his being described as managing agent in the agreement of December 6, 1938. His income, therefore, was not income derived from business.We are unable to accept this line of argument as correct.Clause 9 of that agreement said that "the agents may regulate and conduct their proceedings in such manner as they may from time to time determine and may delegate all or any of their powers, authorities and discretions as secretaries, treasurers and agents of the company to such person or persons and on such terms and conditions as they may think fit, subject to the approval of the Board of Directors of the company."The delegation in favour of the appellant was made under this clause. The position was therefore this : the Trustees as agents had express authority to name another person to act for the principal in the business of the agency, and they named the appellant with the approval of the Board of Directors. Therefore, the appellant, was neither a servant nor a mere sub-agent. He was an agent of the principal for such part of the business of the agency as was entrusted to him. The position in law was as laid down in S. 194 of the Indian Contract Act.

T.S. Ramachandra Shetty Vs. Chairman, Karnataka Housing Board

acquired land is afforded by transactions of sale in respect of the very acquired land. 7. In the case of Special Tehsildar Land Acquisition, Vishakapatnam v. A. Mangala Gowri (Smt.) (1991) 4 SCC 218 , this Court observed as under: "The market value postulated in Section 23(1) of the Act designed to award just and fair compensation for the lands acquired. The word "market value" would postulate price of the land prevailing on the date of the publication of the notification under Section 4(1)." 8. The acid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal. 9. In the case of Periyar and Pareekanni Rubbers Ltd. v. State of Kerala (1991) 4 SCC 195 , in para 10, this Court observed as under: "10. ..When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands. In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into. These features would be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original sale deed or certified copy thereof should be tendered as evidence. The underlying principle to fix a fair market value with reference to comparable sales is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions." 10. Learned counsel for the respondent also placed reliance on Printers House Pvt. Ltd. v. Cold Storage and Food Products and Ors. (1994) 2 SCC 133. He drew our attention to paragraph 7 of this judgment which deals with the similar proposition that the sale price of the acquired land is an important factor for determining the compensation. 11. Reliance has also been placed on the case of Ranvir Singh and Another v. Union of India (2005) 12 SCC 59. In this case, the Court reiterated the well settled principle that the sale deeds pertaining to the portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands. 12. The facts of the case of The Dollar Company, Madras v. Collector of Madras (1975) 2 SCC 730 are identical to the facts of the instant case. Relevant portion of paragraphs 5 and 6 read as under: "In determining the market value the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property, provided the transaction be bona fide and entered into with due regard to the prevalent market conditions and is proximate in time to the relevant date under Section 23. The best evidence of the value of property is the sale of the very property to which the claimant is a party. If the sale is of a recent date, then all that need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or fall since and that nothing has been done on the land during the short interval to raise its value. But if the sale was long ago, may be the Court would examine more recent sales of comparable lands as throwing better light on current land value. Such lands should be close by and not a mile-and-half away as one of the examples pressed here was. So, an actual transaction with respect to the specific land of recent date is a guide-book that courts may not neglect when called upon to pin the precise compensation." 13. Similarly, in the instant case, only an year ago, the appellant himself purchased this very piece of land for Rs.45,000/- and after an year, the State has given compensation of Rs.1,30,680/-, which cannot be said to be inadequate by any stretch of imagination. The Reference Court was not justified in enhancing the amount of compensation to Rs.2,17,800/-. There is no basis whatsoever. In our considered opinion, the view which has been taken by the High Court in the impugned judgment is based on settled legal position of law, as indicated in some of the cases noted above. No interference is called for.

0[ds]In our considered opinion, the view which has been taken in the impugned judgment is in consonance with the settled legal position. The High Court has taken into consideration all the relevant facts in granting compensation. The High Court was fully justified in giving due weightage to the fact that the sale deed of 1986 in respect of this very acquired land was available and the same ought to be the basis for determining the market value of theacid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviouslyin the instant case, only an year ago, the appellant himself purchased this very piece of land for Rs.45,000/and after an year, the State has given compensation ofwhich cannot be said to be inadequate by any stretch of imagination. The Reference Court was not justified in enhancing the amount of compensation to Rs.There is no basis whatsoever. In our considered opinion, the view which has been taken by the High Court in the impugned judgment is based on settled legal position of law, as indicated in some of the cases noted above. No interference is called for.

### 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: acquired land is afforded by transactions of sale in respect of the very acquired land. 7. In the case of Special Tehsildar Land Acquisition, Vishakapatnam v. A. Mangala Gowri (Smt.) (1991) 4 SCC 218 , this Court observed as under: "The market value postulated in Section 23(1) of the Act designed to award just and fair compensation for the lands acquired. The word "market value" would postulate price of the land prevailing on the date of the publication of the notification under Section 4(1)." 8. The acid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviously illegal. 9. In the case of Periyar and Pareekanni Rubbers Ltd. v. State of Kerala (1991) 4 SCC 195 , in para 10, this Court observed as under: "10. ..When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands. In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into. These features would be established by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc. The original sale deed or certified copy thereof should be tendered as evidence. The underlying principle to fix a fair market value with reference to comparable sales is to reduce the element of speculation. In a comparable sale the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages. These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions. The proof also would focus on the fact whether the transactions are genuine and bona fide transactions." 10. Learned counsel for the respondent also placed reliance on Printers House Pvt. Ltd. v. Cold Storage and Food Products and Ors. (1994) 2 SCC 133. He drew our attention to paragraph 7 of this judgment which deals with the similar proposition that the sale price of the acquired land is an important factor for determining the compensation. 11. Reliance has also been placed on the case of Ranvir Singh and Another v. Union of India (2005) 12 SCC 59. In this case, the Court reiterated the well settled principle that the sale deeds pertaining to the portion of lands which are subject to acquisition would be the most relevant piece of evidence for assessing the market value of the acquired lands. 12. The facts of the case of The Dollar Company, Madras v. Collector of Madras (1975) 2 SCC 730 are identical to the facts of the instant case. Relevant portion of paragraphs 5 and 6 read as under: "In determining the market value the main criterion is what a willing purchaser would pay a willing vendor. Ordinarily a party will be entitled to get the amount that he actually and willingly paid for a particular property, provided the transaction be bona fide and entered into with due regard to the prevalent market conditions and is proximate in time to the relevant date under Section 23. The best evidence of the value of property is the sale of the very property to which the claimant is a party. If the sale is of a recent date, then all that need normally be proved is that the sale was between a willing purchaser and a willing seller, that there has not been any appreciable rise or fall since and that nothing has been done on the land during the short interval to raise its value. But if the sale was long ago, may be the Court would examine more recent sales of comparable lands as throwing better light on current land value. Such lands should be close by and not a mile-and-half away as one of the examples pressed here was. So, an actual transaction with respect to the specific land of recent date is a guide-book that courts may not neglect when called upon to pin the precise compensation." 13. Similarly, in the instant case, only an year ago, the appellant himself purchased this very piece of land for Rs.45,000/- and after an year, the State has given compensation of Rs.1,30,680/-, which cannot be said to be inadequate by any stretch of imagination. The Reference Court was not justified in enhancing the amount of compensation to Rs.2,17,800/-. There is no basis whatsoever. In our considered opinion, the view which has been taken by the High Court in the impugned judgment is based on settled legal position of law, as indicated in some of the cases noted above. No interference is called for. ### Response: 0 ### Explanation: In our considered opinion, the view which has been taken in the impugned judgment is in consonance with the settled legal position. The High Court has taken into consideration all the relevant facts in granting compensation. The High Court was fully justified in giving due weightage to the fact that the sale deed of 1986 in respect of this very acquired land was available and the same ought to be the basis for determining the market value of theacid test that for determining the market value of the land, the price which a willing vendor might reasonably expect to obtain from a willing purchaser would form the basis to fix the market value. For ascertaining the market rate, the Court can rely upon such transactions which would offer a reasonable basis to fix the price. The price paid in sale or purchase of the land acquired within a reasonable time from the date of the acquisition of the land in question would be the best piece of evidence. In its absence the price paid for a land possessing similar advantages to the land in the neighbourhood of the land acquired in or about the time of the notification would supply the data to assess the market value. But exclusion of bona fide and genuine sale transactions in respect of the same land under acquisition and to place reliance on the award of some other land is obviouslyin the instant case, only an year ago, the appellant himself purchased this very piece of land for Rs.45,000/and after an year, the State has given compensation ofwhich cannot be said to be inadequate by any stretch of imagination. The Reference Court was not justified in enhancing the amount of compensation to Rs.There is no basis whatsoever. In our considered opinion, the view which has been taken by the High Court in the impugned judgment is based on settled legal position of law, as indicated in some of the cases noted above. No interference is called for.

GANGA VISHAN GUJRATI Vs. THE STATE OF RAJASTHAN

the law. One who defeats the law by his unjustifiable and unsustainable acts is liable for the consequences of such default. We fail to understand why the Government and its entire hierarchy had shut its eyes to this gross violation of statutory rules over such a long period. The process of selection was held to be in violation of the statutory rules. In this background, this Court noticing the illegality in the process, issued directions for holding a fresh process of selection. 33. Jagdish Prasad is a decision which has been rendered in a situation where the 1979 Rules applicable to the Transport department contained a specific provision for considering the case for promotion of persons who are eligible in the year to which the vacancy relates and who could not be considered as a result of the failure of the DPC to convene. The decision related to a situation where the State Government had acted arbitrarily and even mala fide in failing to hold the qualifying examination for a decade on the specious ground that there was a representation from the union. The action of the State was held to be unsustainable because it was designed to defeat the law. This distinguishing feature is absent in the present case. 34. In the present case, we have dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. We have held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171- A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadre. 35. But the submission which now needs to be analysed is whether a different result would follow from the application of Rule 347-B of the 1957 Rules. Rule 347- B, as we have noted, is prefaced with a non-obstante provision. Consequently, conditions of service which are governed by the rules referred to in the entries of Rule 347-B will govern notwithstanding anything contained in the 1957 Rules. Among them is an entry pertaining to the 1972 Rules. Hence, it is necessary to consider the applicability of the 1972 Rules. Rule 2 contemplates a situation where the service rules regulating recruitment and conditions of service made under the proviso to Article 309 of the Constitution provide for recruitment by both direct recruitment and promotion. Where the promotion quota of a previous year cannot be filled in due to the absence of a DPC recommendation, the appointing authority is to determine the number of vacancies required to be filled up by promotion with reference to the year when the vacancies were required to be filled up. In such a situation, upon a determination of the vacancies by the appointing authority, the DPC is required to convene within a stipulated period. Upon the recommendations of the DPC, the appointing authority must make appointments to promotion quota vacancies relevant to the year in question. Where a vacancy relates to a year earlier than the year in which the appointment has been made, the order of appointment has to be modified so as to take effect from the year in which the promotion is deemed to have been made. A plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment provides for recruitment by both direct recruitment and promotion. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants. 36. The situation, as we have noted has been altered by the rule making authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2) came to be substituted with effect from 8 October 2014. Post amendment, the seniority of LRIs has to be determined on the basis of the recruitment year of promotion. The provision for continuous officiation as embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate departure has been made in the rules which were modified on 8 October 2014. We cannot accept the submission that the amendment was clarificatory in nature. The present case relates to the exercise conducted prior to the amendment of Rule 171- A(2). 37. For the above reasons, we are of the view that the Division Bench of the High Court was justified in coming to the conclusion, though for the reasons which we have indicated, that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen. The view taken by the Division Bench of the Rajasthan High Court is in accord with the principles of law enunciated in the decisions of this Court and consistent with the statutory rules as they held the field at the material time.

0[ds]For the purpose of the present proceedings, we accept the correctness of this view which has been adopted both by the Single Judge and by the Division Bench. This is also the consistent view of the Department of Personnel of the State Government. Hence, we hold that the limited departmental examination for in-service Patwaris under Rule 284(ii) is a means of accelerated promotion. Rule 284 provides for selection by promotion through two streams: one by seniority-cum-merit and the other on the basis of a limited departmental examination for in-service Patwaris27. Mr Paras Kuhad, learned Senior Counsel is justified in his submission that the 1957 Rules did not make a provision specifically for a year-wise determination of vacancies and that such a provision was embodied in the 1960 Rules. The difficulty in accepting the sequitur (as learned Counsel portrayed it) of this submission lies in the fact that Rule 171-A(2) prior to its amendment expressly incorporated the principle of continuous officiation as the basis for determining seniority of LRIs. This principle, which is specifically embodied in Rule 171-A(2) cannot stand overridden by any provision to the contrary contained in the 1960 Rules. This is for the reason that Rule 347-A expressly stipulates that where there is a specific provision contained in the 1957 Rules, that provision will governWhere a limited competitive examination is being held for accelerated promotion, Rule 35 has no application. The procedure for recruitment in Part V of the 2001 Rules does not comprehend a situation involving a limited competitive examination for accelerated promotion. Rule 48 which is the repeal and savings provision stipulates that all rules and orders relating to matters covered by those rules and in force immediately before the commencement of the rules are repealed. The 2001 Rules contains a schedule and as we have seen earlier, Rule 6(a) provides that the service shall consist of persons holding substantive posts or persons recruited to subordinate service posts or persons specified in the schedule, besides persons recruited in accordance with the provisions of the rules30. It is evident from Part V of the 2001 Rules more particularly, the rules governing promotion contained in Rules 34 and 35 that the deeming fiction envisaged in Rule 35(6) applies to promotions made under the auspices of a DPC. In the case of such promotions, Rule 35 mandates that the committee constituted under Rule 34 must consider the cases of persons who were eligible in the year to which the vacancy relates irrespective of the year in which the meeting of the committee is held. The underlying rationale for Rule 35(6) is that on the determination of year-wise vacancies, rights are crystalised with reference to the year in which the vacancy has arisen. Consequently, the delay on the part of the DPC in convening its meeting should not result in a prejudice to those candidates who were eligible for promotion and ought to have been promoted but were not considered with reference to the year in which the vacancy arose. This principle in Rule 35(6) is in the nature of a deeming fiction. Undoubtedly, once a deeming fiction comes into being, full effect must be given to its ambit. Equally, a deeming fiction can apply to the extent to which and in a situation where the law mandates that it be applied. In the present case, it is evident that the deeming fiction which applies in the context of a DPC having been convened beyond the year in which the promotional vacancy arose has no application to candidates who are recruited on the basis of a competitive examination for the grant of accelerated promotion. There is a fundamental reason why the deeming fiction cannot be extended to the situation implicated in Rule 284(ii). In order to appear in the competitive examination contemplated by Rule 284(ii), a candidate must fulfill the conditions of eligibility prescribed in Rule 286. Rule 286 stipulates that in-service Patwaris must have a minimum service of five years before they can appear at the competitive examination under Rule 284(ii). Conferment of a deemed seniority may result in a situation where a candidate secures seniority with effect from an anterior date on which he or she was neither borne on the cadre nor was qualified. Such a consequence would be impermissible, at least in the absence of an express statutory provision to that effect31. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715 33. Jagdish Prasad is a decision which has been rendered in a situation where the 1979 Rules applicable to the Transport department contained a specific provision for considering the case for promotion of persons who are eligible in the year to which the vacancy relates and who could not be considered as a result of the failure of the DPC to convene. The decision related to a situation where the State Government had acted arbitrarily and even mala fide in failing to hold the qualifying examination for a decade on the specious ground that there was a representation from the union. The action of the State was held to be unsustainable because it was designed to defeat the law. This distinguishing feature is absent in the present case34. In the present case, we have dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. We have held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171- A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadreA plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment provides for recruitment by both direct recruitment and promotion. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants36. The situation, as we have noted has been altered by the rule making authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2) came to be substituted with effect from 8 October 2014. Post amendment, the seniority of LRIs has to be determined on the basis of the recruitment year of promotion. The provision for continuous officiation as embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate departure has been made in the rules which were modified on 8 October 2014. We cannot accept the submission that the amendment was clarificatory in nature. The present case relates to the exercise conducted prior to the amendment of Rule 171- A(2)37. For the above reasons, we are of the view that the Division Bench of the High Court was justified in coming to the conclusion, though for the reasons which we have indicated, that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen. The view taken by the Division Bench of the Rajasthan High Court is in accord with the principles of law enunciated in the decisions of this Court and consistent with the statutory rules as they held the field at the material time.

### 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 law. One who defeats the law by his unjustifiable and unsustainable acts is liable for the consequences of such default. We fail to understand why the Government and its entire hierarchy had shut its eyes to this gross violation of statutory rules over such a long period. The process of selection was held to be in violation of the statutory rules. In this background, this Court noticing the illegality in the process, issued directions for holding a fresh process of selection. 33. Jagdish Prasad is a decision which has been rendered in a situation where the 1979 Rules applicable to the Transport department contained a specific provision for considering the case for promotion of persons who are eligible in the year to which the vacancy relates and who could not be considered as a result of the failure of the DPC to convene. The decision related to a situation where the State Government had acted arbitrarily and even mala fide in failing to hold the qualifying examination for a decade on the specious ground that there was a representation from the union. The action of the State was held to be unsustainable because it was designed to defeat the law. This distinguishing feature is absent in the present case. 34. In the present case, we have dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. We have held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171- A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadre. 35. But the submission which now needs to be analysed is whether a different result would follow from the application of Rule 347-B of the 1957 Rules. Rule 347- B, as we have noted, is prefaced with a non-obstante provision. Consequently, conditions of service which are governed by the rules referred to in the entries of Rule 347-B will govern notwithstanding anything contained in the 1957 Rules. Among them is an entry pertaining to the 1972 Rules. Hence, it is necessary to consider the applicability of the 1972 Rules. Rule 2 contemplates a situation where the service rules regulating recruitment and conditions of service made under the proviso to Article 309 of the Constitution provide for recruitment by both direct recruitment and promotion. Where the promotion quota of a previous year cannot be filled in due to the absence of a DPC recommendation, the appointing authority is to determine the number of vacancies required to be filled up by promotion with reference to the year when the vacancies were required to be filled up. In such a situation, upon a determination of the vacancies by the appointing authority, the DPC is required to convene within a stipulated period. Upon the recommendations of the DPC, the appointing authority must make appointments to promotion quota vacancies relevant to the year in question. Where a vacancy relates to a year earlier than the year in which the appointment has been made, the order of appointment has to be modified so as to take effect from the year in which the promotion is deemed to have been made. A plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment provides for recruitment by both direct recruitment and promotion. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants. 36. The situation, as we have noted has been altered by the rule making authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2) came to be substituted with effect from 8 October 2014. Post amendment, the seniority of LRIs has to be determined on the basis of the recruitment year of promotion. The provision for continuous officiation as embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate departure has been made in the rules which were modified on 8 October 2014. We cannot accept the submission that the amendment was clarificatory in nature. The present case relates to the exercise conducted prior to the amendment of Rule 171- A(2). 37. For the above reasons, we are of the view that the Division Bench of the High Court was justified in coming to the conclusion, though for the reasons which we have indicated, that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen. The view taken by the Division Bench of the Rajasthan High Court is in accord with the principles of law enunciated in the decisions of this Court and consistent with the statutory rules as they held the field at the material time. ### Response: 0 ### Explanation: part of the DPC in convening its meeting should not result in a prejudice to those candidates who were eligible for promotion and ought to have been promoted but were not considered with reference to the year in which the vacancy arose. This principle in Rule 35(6) is in the nature of a deeming fiction. Undoubtedly, once a deeming fiction comes into being, full effect must be given to its ambit. Equally, a deeming fiction can apply to the extent to which and in a situation where the law mandates that it be applied. In the present case, it is evident that the deeming fiction which applies in the context of a DPC having been convened beyond the year in which the promotional vacancy arose has no application to candidates who are recruited on the basis of a competitive examination for the grant of accelerated promotion. There is a fundamental reason why the deeming fiction cannot be extended to the situation implicated in Rule 284(ii). In order to appear in the competitive examination contemplated by Rule 284(ii), a candidate must fulfill the conditions of eligibility prescribed in Rule 286. Rule 286 stipulates that in-service Patwaris must have a minimum service of five years before they can appear at the competitive examination under Rule 284(ii). Conferment of a deemed seniority may result in a situation where a candidate secures seniority with effect from an anterior date on which he or she was neither borne on the cadre nor was qualified. Such a consequence would be impermissible, at least in the absence of an express statutory provision to that effect31. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715 33. Jagdish Prasad is a decision which has been rendered in a situation where the 1979 Rules applicable to the Transport department contained a specific provision for considering the case for promotion of persons who are eligible in the year to which the vacancy relates and who could not be considered as a result of the failure of the DPC to convene. The decision related to a situation where the State Government had acted arbitrarily and even mala fide in failing to hold the qualifying examination for a decade on the specious ground that there was a representation from the union. The action of the State was held to be unsustainable because it was designed to defeat the law. This distinguishing feature is absent in the present case34. In the present case, we have dealt with the issue of the applicability of the 1960 Rules in the context of determining the principle of seniority. We have held that in view of the opening words of Rule 347-A, the provisions contained in the 1960 Rules would have to give way and be subject to Rule 171-A(2) which provided for determining seniority on the basis of continuous officiation. In the face of Rule 171- A(2) as it stood prior to amendment, it is not possible to apply a deemed date for determining seniority based on the year of vacancy. Rule 171-A(2) rules out the grant of seniority with effect from a date anterior to the date on which the employee is borne on the cadreA plain reading of the 1972 Rules indicates that they envisage a situation where recruitment is made both by direct recruitment and promotion and the promotional quota is not filled up in the absence of a DPC recommendation. On its terms, Rule 2 of the 1972 Rules has no application to a situation such as the present which is governed by Rule 284 of the 1957 Rules. Under Rule 284, there is no direct recruitment at all. Rule 2 of the 1972 Rules applies in a situation where a service rule regulating recruitment provides for recruitment by both direct recruitment and promotion. In the present case, ex facie Rule 284 of the 1957 Rules is not a provision falling in that category since there is an absence of a service rule requiring recruitment by direct recruitment and promotion. The 1972 Rules have no application. Rule 347-B of the 1957 Rules will hence not come to the aid of the appellants36. The situation, as we have noted has been altered by the rule making authority which amended the provisions contained in Rule 171-A(2) of the 1957 Rules. As a result of the amendment, sub-rule (2) came to be substituted with effect from 8 October 2014. Post amendment, the seniority of LRIs has to be determined on the basis of the recruitment year of promotion. The provision for continuous officiation as embodied in Rule 171-A(2) prior to the amendment was to the contrary. A deliberate departure has been made in the rules which were modified on 8 October 2014. We cannot accept the submission that the amendment was clarificatory in nature. The present case relates to the exercise conducted prior to the amendment of Rule 171- A(2)37. For the above reasons, we are of the view that the Division Bench of the High Court was justified in coming to the conclusion, though for the reasons which we have indicated, that the claim for seniority with reference to the date of the accrual of the vacancy will not be maintainable merely on the ground that no competitive examination was held in the years in which the vacancies had arisen. The view taken by the Division Bench of the Rajasthan High Court is in accord with the principles of law enunciated in the decisions of this Court and consistent with the statutory rules as they held the field at the material time.

S.P. Dubey Vs. M.P.S.R.T. Corpn. And Anr

the following effect: "Resolved that the services of the employees employed under MBR and CPTB on May 31, 1962 are transferred to the Corporation temporarily until further orders from June 1, 1962 on the following conditions(1) The pay scale and conditions of service are not affected by the transfer(2) The transfer will not be considered as interruption of services(3) In case of employees coming under the category of workman as defined under the Industrial Disputes Act, 1947, the Corporation in the event of retrenchment will pay compensation on the basis that the services had been continued and had not been affected by transfer." * 5. The State Government issued directions dated October 28, 1963 to the Corporation under Section 34 of the Act. Relevant part of the directions is as under: "The members of the staff of the Madhya Bharat Roadways and Central Provinces Transport Services, who have opted to serve under the Corporation in pursuance of the notices issued to them by the Commerce and Industry Department or any authority of the Madhya Bharat Roadways and Central Provinces Transport Service shall be employed by the Corporation subject to such regulations as may be made by it under Section 45(2)(c) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950), and subject to such assurance as may have been given to them by the State Government." * 6. The Corporation framed regulations called the "Madhya Pradesh State Road Transport Corporation Employees Service Regulations, 1964". Regulation 59 which provided the age of superannuation was as under: "59. Employees of the State Transport Corporation are liable to compulsory retirement on the date of their completion of 58 years of age unless specifically permitted by the Corporation to continue in service for a specified period thereafter, but he must not be retained after the age of 60 years, without the sanction of State Government." * 7. The Corporation issued a notice dated May 25, 1983 to Dubey informing him that he was due to retire from service on June 30, 1984 on attaining the age of 58 years. He challenged the said notice by way of a writ petition under Article 226/227 of the Constitution of India before the Madhya Pradesh High Court at Jabalpur. The High Court by its judgment dated April 26, 1985 dismissed the writ petition. The present appeal by way of special leave petition is against the judgment of the High Court. 8. The High Court, following its earlier Division Bench judgment, came to the conclusion that on August 31, 1955 when the appellant became State Government employee his age of superannuation came to be governed by the statutory rules under Article 309 of the Constitution of India operating in respect of the government employees of the State of Madhya Pradesh and the age of retirement of the State servants under the said rules being 58 years the appellant was rightly retired. 9. The appellant was in service of the company from 1947 to August 30, 1955. Admittedly, the age of superannuation of the company employees was 60 years. The Government of Madhya Pradesh took over the company with effect from August 31, 1955 by a notification of the same date. The notification specifically stated that the existing staff of the company would not be adversely affected with regard to their conditions of service. It is no doubt correct that on August 31, 1955 rules were operating in respect of the State Government employees according to which the age of superannuation was 58 years but the persons who were serving with the company were taken into government service with a specific assurance that their conditions of service were not to be adversely affected. When the State Government takes over a private company and gives an assurance of the type it is but fair that the State Government should honour the same. Thus, the State Service Rules which fixed the age of superannuation at 58 years could not be made applicable to the appellant and other employees of the taken-over company. We, therefore, do not agree with the reasoning of the High Court. 10. It was then urged that on the transfer of appellants services to the Corporation he was governed by the Regulations framed by the Corporation under the Act and Regulation 59 provided 58 years as the age of superannuation. We do not agree with the contention. The State Government issued directions under Section 34 of the Act which we have reproduced above. The said directions are binding on the Corporation. This Court in General Manager, Mysore State Road Transport Corporation v. Devraj Urs [ 1976 (2) SCC 862 : 1976 SCC(L&S) 345] interpreting Section 34 of the Act held as under : (SCC Headnote) "Directions given by the State Government are binding on the corporation and it cannot depart from any general instructions issued under sub-section (1) of Section 34 except with the previous permission of the State Government. Such instructions have the force of law ... Therefore breach of the directions given by State Government in the matter of disciplinary action against the respondents was a breach of the statutory duty and made the action of the corporation amenable to the jurisdiction of the High Court under Article 226 of the Constitution." * 11. The State Government and also the Corporation had given assurance to the appellant and other employees who were transferred to the Corporation that their conditions of service would not be adversely affected. The said assurance was incorporated in the directions issued under the Act. The Corporation cannot frame regulations contrary to the directions issued by the State Government under Section 34 of the Act. The age of superannuation which the appellant was enjoying under the State Government could not be altered to his disadvantage by the Corporation. We are, therefore, of the view that Regulation 59 framed by the Corporation was not applicable to the appellant. He was entitled to continue in service up to the age of 60 years.

1[ds]11. The State Government and also the Corporation had given assurance to the appellant and other employees who were transferred to the Corporation that their conditions of service would not be adversely affected. The said assurance was incorporated in the directions issued under the Act. The Corporation cannot frame regulations contrary to the directions issued by the State Government under Section 34 of the Act. The age of superannuation which the appellant was enjoying under the State Government could not be altered to his disadvantage by the Corporation. We are, therefore, of the view that Regulation 59 framed by the Corporation was not applicable to the appellant. He was entitled to continue in service up to the age of 60 years

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: the following effect: "Resolved that the services of the employees employed under MBR and CPTB on May 31, 1962 are transferred to the Corporation temporarily until further orders from June 1, 1962 on the following conditions(1) The pay scale and conditions of service are not affected by the transfer(2) The transfer will not be considered as interruption of services(3) In case of employees coming under the category of workman as defined under the Industrial Disputes Act, 1947, the Corporation in the event of retrenchment will pay compensation on the basis that the services had been continued and had not been affected by transfer." * 5. The State Government issued directions dated October 28, 1963 to the Corporation under Section 34 of the Act. Relevant part of the directions is as under: "The members of the staff of the Madhya Bharat Roadways and Central Provinces Transport Services, who have opted to serve under the Corporation in pursuance of the notices issued to them by the Commerce and Industry Department or any authority of the Madhya Bharat Roadways and Central Provinces Transport Service shall be employed by the Corporation subject to such regulations as may be made by it under Section 45(2)(c) of the Road Transport Corporation Act, 1950 (Central Act 64 of 1950), and subject to such assurance as may have been given to them by the State Government." * 6. The Corporation framed regulations called the "Madhya Pradesh State Road Transport Corporation Employees Service Regulations, 1964". Regulation 59 which provided the age of superannuation was as under: "59. Employees of the State Transport Corporation are liable to compulsory retirement on the date of their completion of 58 years of age unless specifically permitted by the Corporation to continue in service for a specified period thereafter, but he must not be retained after the age of 60 years, without the sanction of State Government." * 7. The Corporation issued a notice dated May 25, 1983 to Dubey informing him that he was due to retire from service on June 30, 1984 on attaining the age of 58 years. He challenged the said notice by way of a writ petition under Article 226/227 of the Constitution of India before the Madhya Pradesh High Court at Jabalpur. The High Court by its judgment dated April 26, 1985 dismissed the writ petition. The present appeal by way of special leave petition is against the judgment of the High Court. 8. The High Court, following its earlier Division Bench judgment, came to the conclusion that on August 31, 1955 when the appellant became State Government employee his age of superannuation came to be governed by the statutory rules under Article 309 of the Constitution of India operating in respect of the government employees of the State of Madhya Pradesh and the age of retirement of the State servants under the said rules being 58 years the appellant was rightly retired. 9. The appellant was in service of the company from 1947 to August 30, 1955. Admittedly, the age of superannuation of the company employees was 60 years. The Government of Madhya Pradesh took over the company with effect from August 31, 1955 by a notification of the same date. The notification specifically stated that the existing staff of the company would not be adversely affected with regard to their conditions of service. It is no doubt correct that on August 31, 1955 rules were operating in respect of the State Government employees according to which the age of superannuation was 58 years but the persons who were serving with the company were taken into government service with a specific assurance that their conditions of service were not to be adversely affected. When the State Government takes over a private company and gives an assurance of the type it is but fair that the State Government should honour the same. Thus, the State Service Rules which fixed the age of superannuation at 58 years could not be made applicable to the appellant and other employees of the taken-over company. We, therefore, do not agree with the reasoning of the High Court. 10. It was then urged that on the transfer of appellants services to the Corporation he was governed by the Regulations framed by the Corporation under the Act and Regulation 59 provided 58 years as the age of superannuation. We do not agree with the contention. The State Government issued directions under Section 34 of the Act which we have reproduced above. The said directions are binding on the Corporation. This Court in General Manager, Mysore State Road Transport Corporation v. Devraj Urs [ 1976 (2) SCC 862 : 1976 SCC(L&S) 345] interpreting Section 34 of the Act held as under : (SCC Headnote) "Directions given by the State Government are binding on the corporation and it cannot depart from any general instructions issued under sub-section (1) of Section 34 except with the previous permission of the State Government. Such instructions have the force of law ... Therefore breach of the directions given by State Government in the matter of disciplinary action against the respondents was a breach of the statutory duty and made the action of the corporation amenable to the jurisdiction of the High Court under Article 226 of the Constitution." * 11. The State Government and also the Corporation had given assurance to the appellant and other employees who were transferred to the Corporation that their conditions of service would not be adversely affected. The said assurance was incorporated in the directions issued under the Act. The Corporation cannot frame regulations contrary to the directions issued by the State Government under Section 34 of the Act. The age of superannuation which the appellant was enjoying under the State Government could not be altered to his disadvantage by the Corporation. We are, therefore, of the view that Regulation 59 framed by the Corporation was not applicable to the appellant. He was entitled to continue in service up to the age of 60 years. ### Response: 1 ### Explanation: 11. The State Government and also the Corporation had given assurance to the appellant and other employees who were transferred to the Corporation that their conditions of service would not be adversely affected. The said assurance was incorporated in the directions issued under the Act. The Corporation cannot frame regulations contrary to the directions issued by the State Government under Section 34 of the Act. The age of superannuation which the appellant was enjoying under the State Government could not be altered to his disadvantage by the Corporation. We are, therefore, of the view that Regulation 59 framed by the Corporation was not applicable to the appellant. He was entitled to continue in service up to the age of 60 years

Molly Trading Company Private Limited & Another Vs. Union of India Through The Secretary, Ministry of Finance & Others

that no amount is due to Mr. Jhaveri as on date and no amount is paid to him during the last five years.The Tax Recovery Officer in his order noted that Shri Subhash Arora as a Director of M/s.Subhash Arora Investment P. Ltd., has taken the loan of Rs.1.25 crores from Amit Jhaveri. Shri Subhash Arora is also a Director of the petitioner company which in fact is a sister concern and the petitioners had pledged the shares of HCL Infosystems Ltd., to Mr. Amit Jhaveri. Considering those facts, the Tax Recovery Officer held that the money received from the Molly Trading Company Limited cannot be termed as wrong and hence cannot be refunded.2. We may mention that Subhash Arora Investment Pvt. Ltd., and another had filed Writ Petition bearing No.1456 of 2008 challenging the notice and summons issued to petitioner No.1 and sister concern under Section 226(3) of the IT Act and the order dated 23rd November, 2007 whereby the Tax Recovery Officer had declined to lift the attachment levied on the petitioners, bankers and its depository participants or business associates. After considering the contentions the Tribunal noted that Amit Jhaveri had taken loan and Overdraft facility from Bank of Bank of Baroda and that proceedings had been initiated by the Bank against the said Shri Amit Jhaveri. In those proceedings in the year 1999 it was agreed that the petitioner will pay Rs.1.70 crores on or before 10th June, 1999 and the bank will release the share of the petitioners (Subhash Arora Investment. On proceedings being transferred to D.R.T. by order dated 7th April, 2004 the D.R.T. directed the petitioners to deposit Rs.1.70 crores with 15% interest per annum. Accordingly, the petitioner No.1 deposited a FDR for a sum of Rs.3,51,85,723/-. The bank as well as Amit Jhaveri had filed Writ Petitions challenging that order. It was contended that since the liability of the petitioner had crystallized and arisen before the attachment notice the petitioner could not have been treated as assessee in default. The learned Bench after considering the various contentions held that the decision of the TRO in declining to lift the attachment cannot be faulted.3. It may be noted that in Writ Petition No.8136 of 2004 with Writ Petition No.10325 of 2004 which are against the orders of D.R.T. and order passed in Appeal on behalf of Mr. Arora a statement was made that he wants to apply for withdrawal of the FDR worth about Rs.3.5 crores without prejudice. Liberty has been granted to him.4. Shri Amit Jhaveri has also filed his affidavit and has filed compilation of documents. He has produced first a subscription agreement dated 5th May, 1990 whereby M/s. Molly Trading Company Limited is a party as a guarantor. In terms of Clause 4.5(a) the guarantor has agreed that the guarantee therein is continuing guarantee till the entire liability of the debenture holder is fully met. M/s. Molly Trading Private Limited has also pledged the shares of HCL with Jhaveri. Apart from that, there are atleast two promissory notes dated 5th May, 1993 and 8th April, 1993 in the sum of Rs.25.00 lakhs and Rs.50.00 lakhs wherein M/s.Molly Trading Company Pvt. Ltd., is the guarantor for the money advanced by Jhaveri to M/s.Subhash Arora Investments (I) Pvt. Ltd. Neither in the affidavit filed before the Tax Recovery Officer nor in the petition has the petitioner disclosed these aspects.5. It is, therefore, clear from the pleadings and documents on record that the petitioner is a guarantor for the loan taken by Shri Subhash Arora on behalf of the M/s.Subhash Arora Investments (I) Pvt. Ltd., The amount is crystalized and in respect of which M/s.Subhash Arora Investments (I) Pvt. Ltd., had deposited the F.D.R. before the DRT which FDR they had sought leave to apply for withdrawal.6. During the course of the hearing as it was noticed that the same Lawyers are appearing both for M/s. Molly Trading Company Pvt. Ltd., and another as also M/s.Subhash Arora Investments (I) Pvt. Ltd., learned Counsel was asked whether Subhash Arora as the common Director, would make a statement and give undertaking on behalf of Subhash Investment through Subhash Arora that F.D. deposited before the D.R.T. would not be withdrawn, the learned Counsel on taking instructions states that he has no such instructions.7. From the documents on record once the petitioner is a guarantor for the loan taken by M/s.Subhash Arora (I) Private Limited and that debt has not been discharged, the liability of the petitioners continues to remain joint and several along with M/s.Subhash Investments. Apart from that the petitioners have suppressed the fact that they had stood as guarantors for the loan atleast to the tune of Rs.75.00 lakhs as can be seen from the documents on record. The affidavit filed by the petitioner before the T.R.O., they only averred that they do not owe any monies for the last five years.8. It is true that the Tax Recovery Officer has not dealt with this aspect as this was not set out in the affidavit of the petitioner before the Tax Recovery Officer. We are, however, concerned with the exercise of extra ordinary jurisdiction. Both on merits as also on account of suppression of material facts (that they were guarantors) in our opinion this would not be a fit case to exercise our extra ordinary jurisdiction.9. Learned Counsel has sought to draw our attention to the judgment of the Madhya Pradesh High Court in New Amir Iron Works and Anr. vs. Union of India & Ors., 252 ITR 663 (M.P.). The M.P. High Court proceeded on the footing that it was for the Recovery Officer to show that the affidavit was false and ought to have afforded sufficient opportunity to the assessee. We are really not concerned with the ratio of that judgment for the reasons set out in the order. Even otherwise from the facts on record before the Court it is clear that a false affidavit was filed before the Tax Recovery Officer.

0[ds]It is, therefore, clear from the pleadings and documents on record that the petitioner is a guarantor for the loan taken by Shri Subhash Arora on behalf of the M/s.Subhash Arora Investments (I) Pvt. Ltd., The amount is crystalized and in respect of which M/s.Subhash Arora Investments (I) Pvt. Ltd., had deposited the F.D.R. before the DRT which FDR they had sought leave to apply for withdrawal.6.During the course of the hearing as it was noticed that the same Lawyers are appearing both for M/s. Molly Trading Company Pvt. Ltd., and another as also M/s.Subhash Arora Investments (I) Pvt. Ltd., learned Counsel was asked whether Subhash Arora as the common Director, would make a statement and give undertaking on behalf of Subhash Investment through Subhash Arora that F.D. deposited before the D.R.T. would not be withdrawn, the learned Counsel on taking instructions states that he has no such instructions.7.From the documents on record once the petitioner is a guarantor for the loan taken by M/s.Subhash Arora (I) Private Limited and that debt has not been discharged, the liability of the petitioners continues to remain joint and several along with M/s.Subhash Investments. Apart from that the petitioners have suppressed the fact that they had stood as guarantors for the loan atleast to the tune of Rs.75.00 lakhs as can be seen from the documents on record. The affidavit filed by the petitioner before the T.R.O., they only averred that they do not owe any monies for the last five years.8.It is true that the Tax Recovery Officer has not dealt with this aspect as this was not set out in the affidavit of the petitioner before the Tax Recovery Officer. We are, however, concerned with the exercise of extra ordinary jurisdiction. Both on merits as also on account of suppression of material facts (that they were guarantors) in our opinion this would not be a fit case to exercise our extra ordinary jurisdiction.9.Learned Counsel has sought to draw our attention to the judgment of the Madhya Pradesh High Court in New Amir Iron Works and Anr. vs. Union of IndiaOrs., 252 ITR 663 (M.P.). The M.P. High Court proceeded on the footing that it was for the Recovery Officer to show that the affidavit was false and ought to have afforded sufficient opportunity to the assessee. We are really not concerned with the ratio of that judgment for the reasons set out in the order. Even otherwise from the facts on record before the Court it is clear that a false affidavit was filed before the Tax Recovery Officer.

### 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: that no amount is due to Mr. Jhaveri as on date and no amount is paid to him during the last five years.The Tax Recovery Officer in his order noted that Shri Subhash Arora as a Director of M/s.Subhash Arora Investment P. Ltd., has taken the loan of Rs.1.25 crores from Amit Jhaveri. Shri Subhash Arora is also a Director of the petitioner company which in fact is a sister concern and the petitioners had pledged the shares of HCL Infosystems Ltd., to Mr. Amit Jhaveri. Considering those facts, the Tax Recovery Officer held that the money received from the Molly Trading Company Limited cannot be termed as wrong and hence cannot be refunded.2. We may mention that Subhash Arora Investment Pvt. Ltd., and another had filed Writ Petition bearing No.1456 of 2008 challenging the notice and summons issued to petitioner No.1 and sister concern under Section 226(3) of the IT Act and the order dated 23rd November, 2007 whereby the Tax Recovery Officer had declined to lift the attachment levied on the petitioners, bankers and its depository participants or business associates. After considering the contentions the Tribunal noted that Amit Jhaveri had taken loan and Overdraft facility from Bank of Bank of Baroda and that proceedings had been initiated by the Bank against the said Shri Amit Jhaveri. In those proceedings in the year 1999 it was agreed that the petitioner will pay Rs.1.70 crores on or before 10th June, 1999 and the bank will release the share of the petitioners (Subhash Arora Investment. On proceedings being transferred to D.R.T. by order dated 7th April, 2004 the D.R.T. directed the petitioners to deposit Rs.1.70 crores with 15% interest per annum. Accordingly, the petitioner No.1 deposited a FDR for a sum of Rs.3,51,85,723/-. The bank as well as Amit Jhaveri had filed Writ Petitions challenging that order. It was contended that since the liability of the petitioner had crystallized and arisen before the attachment notice the petitioner could not have been treated as assessee in default. The learned Bench after considering the various contentions held that the decision of the TRO in declining to lift the attachment cannot be faulted.3. It may be noted that in Writ Petition No.8136 of 2004 with Writ Petition No.10325 of 2004 which are against the orders of D.R.T. and order passed in Appeal on behalf of Mr. Arora a statement was made that he wants to apply for withdrawal of the FDR worth about Rs.3.5 crores without prejudice. Liberty has been granted to him.4. Shri Amit Jhaveri has also filed his affidavit and has filed compilation of documents. He has produced first a subscription agreement dated 5th May, 1990 whereby M/s. Molly Trading Company Limited is a party as a guarantor. In terms of Clause 4.5(a) the guarantor has agreed that the guarantee therein is continuing guarantee till the entire liability of the debenture holder is fully met. M/s. Molly Trading Private Limited has also pledged the shares of HCL with Jhaveri. Apart from that, there are atleast two promissory notes dated 5th May, 1993 and 8th April, 1993 in the sum of Rs.25.00 lakhs and Rs.50.00 lakhs wherein M/s.Molly Trading Company Pvt. Ltd., is the guarantor for the money advanced by Jhaveri to M/s.Subhash Arora Investments (I) Pvt. Ltd. Neither in the affidavit filed before the Tax Recovery Officer nor in the petition has the petitioner disclosed these aspects.5. It is, therefore, clear from the pleadings and documents on record that the petitioner is a guarantor for the loan taken by Shri Subhash Arora on behalf of the M/s.Subhash Arora Investments (I) Pvt. Ltd., The amount is crystalized and in respect of which M/s.Subhash Arora Investments (I) Pvt. Ltd., had deposited the F.D.R. before the DRT which FDR they had sought leave to apply for withdrawal.6. During the course of the hearing as it was noticed that the same Lawyers are appearing both for M/s. Molly Trading Company Pvt. Ltd., and another as also M/s.Subhash Arora Investments (I) Pvt. Ltd., learned Counsel was asked whether Subhash Arora as the common Director, would make a statement and give undertaking on behalf of Subhash Investment through Subhash Arora that F.D. deposited before the D.R.T. would not be withdrawn, the learned Counsel on taking instructions states that he has no such instructions.7. From the documents on record once the petitioner is a guarantor for the loan taken by M/s.Subhash Arora (I) Private Limited and that debt has not been discharged, the liability of the petitioners continues to remain joint and several along with M/s.Subhash Investments. Apart from that the petitioners have suppressed the fact that they had stood as guarantors for the loan atleast to the tune of Rs.75.00 lakhs as can be seen from the documents on record. The affidavit filed by the petitioner before the T.R.O., they only averred that they do not owe any monies for the last five years.8. It is true that the Tax Recovery Officer has not dealt with this aspect as this was not set out in the affidavit of the petitioner before the Tax Recovery Officer. We are, however, concerned with the exercise of extra ordinary jurisdiction. Both on merits as also on account of suppression of material facts (that they were guarantors) in our opinion this would not be a fit case to exercise our extra ordinary jurisdiction.9. Learned Counsel has sought to draw our attention to the judgment of the Madhya Pradesh High Court in New Amir Iron Works and Anr. vs. Union of India & Ors., 252 ITR 663 (M.P.). The M.P. High Court proceeded on the footing that it was for the Recovery Officer to show that the affidavit was false and ought to have afforded sufficient opportunity to the assessee. We are really not concerned with the ratio of that judgment for the reasons set out in the order. Even otherwise from the facts on record before the Court it is clear that a false affidavit was filed before the Tax Recovery Officer. ### Response: 0 ### Explanation: It is, therefore, clear from the pleadings and documents on record that the petitioner is a guarantor for the loan taken by Shri Subhash Arora on behalf of the M/s.Subhash Arora Investments (I) Pvt. Ltd., The amount is crystalized and in respect of which M/s.Subhash Arora Investments (I) Pvt. Ltd., had deposited the F.D.R. before the DRT which FDR they had sought leave to apply for withdrawal.6.During the course of the hearing as it was noticed that the same Lawyers are appearing both for M/s. Molly Trading Company Pvt. Ltd., and another as also M/s.Subhash Arora Investments (I) Pvt. Ltd., learned Counsel was asked whether Subhash Arora as the common Director, would make a statement and give undertaking on behalf of Subhash Investment through Subhash Arora that F.D. deposited before the D.R.T. would not be withdrawn, the learned Counsel on taking instructions states that he has no such instructions.7.From the documents on record once the petitioner is a guarantor for the loan taken by M/s.Subhash Arora (I) Private Limited and that debt has not been discharged, the liability of the petitioners continues to remain joint and several along with M/s.Subhash Investments. Apart from that the petitioners have suppressed the fact that they had stood as guarantors for the loan atleast to the tune of Rs.75.00 lakhs as can be seen from the documents on record. The affidavit filed by the petitioner before the T.R.O., they only averred that they do not owe any monies for the last five years.8.It is true that the Tax Recovery Officer has not dealt with this aspect as this was not set out in the affidavit of the petitioner before the Tax Recovery Officer. We are, however, concerned with the exercise of extra ordinary jurisdiction. Both on merits as also on account of suppression of material facts (that they were guarantors) in our opinion this would not be a fit case to exercise our extra ordinary jurisdiction.9.Learned Counsel has sought to draw our attention to the judgment of the Madhya Pradesh High Court in New Amir Iron Works and Anr. vs. Union of IndiaOrs., 252 ITR 663 (M.P.). The M.P. High Court proceeded on the footing that it was for the Recovery Officer to show that the affidavit was false and ought to have afforded sufficient opportunity to the assessee. We are really not concerned with the ratio of that judgment for the reasons set out in the order. Even otherwise from the facts on record before the Court it is clear that a false affidavit was filed before the Tax Recovery Officer.

GOA PUBLIC SERVICE COMMISSION Vs. PANKAJ RANE & ORS

case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] . 18. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case. In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12. 19. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated. 20. As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following: It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground. We would therefore, think that it may not be appropriate to permit the appellant to raise this question. 21. We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows: (A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent No. 1 to prepare a Select List in terms of the Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law; (B) This Honble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017. (C) Pending the hearing and final disposal of this Petition, this Honble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017; (D) Ad-interim relief in terms of prayer clause (C); (E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein; (F) For costs. We have already noticed the relief granted by the High Court. 22. There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition.

0[ds]10. Rule 10 contemplates the holding of a competitive examination and oral interview. The competitive examination is to be conducted by the appellant in the manner notified by the Government from time to time as pointed out by Mr. Vinay Navare, learned senior counsel. The proviso provides the appellant with the power to hold a screening test required for shortlisting of candidates. The manner in which it is to be held is a matter to be decided by the Commission from time to time. It is most pertinent to note that Rule 10(3) specifically declares that a candidate must obtain a minimum passing percentage in the competitive written examination. It is pegged at 65 per cent of the total marks. The percentage is purportedly reduced in the case of certain categories.Next, we must notice that Rule 10(5) declares the marks to be allotted for written examination and oral interview is to be notified in the advertisement inviting the applications by the Commission. Here, as Mr. Pratap Venugopal, learned counsel, rightly points out the Commission cannot be found to have acted contrary to the Rules insofar as, the Commission has, in the advertisement, declared the marks to be alloted for the written examination and oral interview. What is conspicuous by its absence in Rule 10 is any minimum to be obtained by any candidate in the interview. The matter does not end here.11. Bearing considerable resemblance as we shall presently see with the law in the facts is the decision of this Court starting with P. K. Ramachandra Iyer (supra), Rule 12 declares that the Commission is duty bound to forward to the Government the select list. The select list is to be arranged in the order of merit of the candidates. The select list is to be sent arranged in the order of merit which, in turn, is to be determined in accordance with the aggregate marks obtained by each candidate at the competitive written examination and oral interview. The rule maker was conscious of the fact that it has prescribed a separate minimum to be obtained by candidate in the written examination. It also contemplated the holding of an interview but as regards the interview a separate minimum was not stipulated. But at the same time, the law giver has contemplated that the Commission is to prepare a select list wherein merit would dictate the order in which the select list is to be prepared and all that it is to do is to total up the marks obtained by the candidate in the competitive written examination and the oral interview. In other words, the merit list would be dictated by the performance in the competitive examination and interview subject only, no doubt, to the qualification that only those candidates who have obtained 65 marks in the written examination would be qualified. We need not be detained by the proviso to Rule 12.12. Rule 12(2) further provides that in drawing the list of selected candidates it shall limit itself to the declared number of vacancies. Wait list is also contemplated. It is on a consideration of the statutory Rules that the High Court has taken the view that the case must be decided in terms of P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) apart from K. Manjusree (supra).13. We may notice in P. K. Ramachandra Iyer (supra), the following:43. The relevant rules are Rules 13 and 14 of the 1977 Rules, which may be extracted:13.Candidates who obtain such minimum marks in the written examination as may be fixed by the Board in their discretion shall be summoned by them for viva voce.14. After the examination, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to such candidates and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination.44. Mr Ramachandran, learned counsel for the petitioner contended that Rule 13 does not envisage obtaining of minimum marks at the viva voce test even though it contemplates obtaining minimum marks at the written test so as to be eligible for being called for viva voce test. It was further urged that Rule 14 specified the manner in which merit list is to be arranged. Rule 14 provides that after both written and viva voce tests are held, the candidates will be arranged by the Board in the order of merit in each category (professional subjectwise) as disclosed by the aggregate marks finally awarded to each candidate and such candidates as are found by the Board to be qualified by the examination shall be recommended for appointment upto the number of unreserved vacancies decided to be filled on the result of the examination. On a combined reading of Rules 13 and 14, two things emerge. It is open to the Board to prescribe minimum marks which the candidates must obtain at the written test before becoming eligible for viva voce test. After the candidate obtains minimum marks or more at the written test and he becomes eligible for being called for viva voce test, he has to appear at the viva voce test. Neither Rule 13 nor Rule 14 nor any other rule enables the ASRB to prescribe minimum qualifying marks to be obtained by the candidate at the viva voce test. On the contrary, the language of Rule 14 clearly negatives any such power in the ASRB when it provides that after the written test if the candidate has obtained minimum marks, he is eligible for being called for viva voce test and final merit list would be drawn up according to the aggregate of marks obtained by the candidate in written test plus viva voce examination. The additional qualification which ASRB prescribed to itself namely, that the candidate must have a further qualification of obtaining minimum marks in the viva voce test does not find place in Rules 13 and 14, it amounts virtually to a modification of the rules. By necessary inference, there was no such power in the ASRB to add to the required qualifications If such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reason that such deviation from the rules is likely to cause irreparable and irreversible harm. It however does not appear in the facts of the case before us that because of an allocation of 100 marks for viva voce test, the result has been unduly affected. We say so for want of adequate material on the record. In this background we are not inclined to hold that 100 marks for viva voce test was unduly high compared to 600 marks allocated for the written test. But the ASRB in prescribing minimum 40 marks for being qualified for viva voce test contravened Rule 14 inasmuch as there was no such power in the ASRB to prescribe this additional qualification, and this prescription of an impermissible additional qualification has a direct impact on the merit list because the merit list was to be prepared according to the aggregate marks obtained by the candidate at written test plus viva voce test. Once an additional qualification of obtaining minimum marks at the viva voce test is adhered to, a candidate who may figure high up in the merit list was likely to be rejected on the ground that he has not obtained minimum qualifying marks at viva voce test. To illustrate, a candidate who has obtained 400 marks at the written test and obtained 38 marks at the viva voce test, if considered on the aggregate of marks being 438 was likely to come within the zone of selection, but would be eliminated by the ASRB on the ground that he has not obtained qualifying marks at viva voce test. This was impermissible and contrary to rules and the merit list prepared in contravention of rules cannot be sustained.14. We must next notice Durgacharan Misra (supra):6. Rules 16, 17, 18 and 19 are the relevant rules which have a material bearing on the question that falls for determination. These rules read as under:16. The Commission shall summon for the viva voce test all candidates who have secured at the written examination not less than the minimum qualifying marks obtained in all subjects taken together which shall be 30 per cent of the total marks in all the papers:Provided that government may after consultation with the High Court and Commission fix higher qualifying marks in any or all of the subjects in the written examination in respect of any particular recruitment.17. The Chief Justice or any of the other Judges of the High Court nominated by the Chief Justice shall represent the High Court and be present at the viva voce test and advise the Commission on the fitness of candidates at the viva voce test from the point of view of their possession of the special qualities required in the judicial service, but shall not be responsible for selection of candidates.18. The marks obtained at the viva voce test shall be added to the marks obtained in the written examination. The names of candidates will then be arranged by the Commission in order of merit. If two or more candidates obtain equal marks in the aggregate, the order shall be determined in accordance with the marks, secured at the written examination. Should the marks secured at the written examination of the candidate concerned be also equal, then the order shall be decided in accordance with the total number of marks obtained in the optional papers.19. (1) The Commission shall then forward to the government in the Law Department the list of candidates prepared in accordance with Rule 18 indicating therein whether a candidate belongs to Scheduled Caste or Scheduled Tribes.(2) The list prepared shall be published by the Commission for general information.(3) The list, unless the Governor in consultation with the High Court otherwise decides, shall ordinarily be in force for one year from the date of its preparation by the Commission.7. The rule-making authorities have provided a scheme for selection of candidates for appointment to judicial posts. Rules 16 prescribes the minimum qualifying marks to be secured by candidates in the written examination. It is 30 per cent of the total marks in all the papers. The candidates who have secured more than that minimum would alone be called for viva voce test. The Rules do not prescribe any such minimum marks to be secured at the viva voce test. After the viva voce test, the Commission shall add the marks of the viva voce test to the marks in the written examination. There then, Rule 18 states:The names of candidates will then be arranged by the Commission in the order of merit.11. In the light of these decisions the conclusion is inevitable that the Commission in the instant case also has no power to prescribe the minimum standard at viva voce test for determining the suitability of candidates for appointment as Munsifs.15. The Rules have been framed under the proviso to Article 309 read with the Article 234 of the Constitution. Article 234 requires that the appointment of persons other than District Judge to the Judicial Service of State shall be made by the Governor of the State. It shall be in accordance with the Rules made by the Governor in that behalf after consultation with the State Service Commission and with the State High Court. The Rules in question have been made after consultation with the Commission and the State High Court. The Commission which has been constituted under the Rules must, therefore faithfully follow the Rules. It must select candidates in accordance with the Rules. It cannot prescribe additional requirements for selection either as to eligibility or as to suitability. The decision of the Commission to prescribe the minimum marks to be secured at the viva voce test would, therefore, be illegal and without authority.15. A question may arise whether the Public Service Commission can depart from the Rules in this regard. Light is shed by the views expressed by this Court in Manjit Singh and Others (supra). We may refer to the following exposition made by this Court.Where no special qualification or any prescribed standard of efficiency over and above the eligibility criteria is provided by the Rules or the State, it would not be for the Commission to impose any extra qualification/standard supposedly for maintaining minimum efficiency which, it thinks, may be necessary.10. As observed earlier, for the purpose of shortlisting it would not at all be necessary to provide cut-off marks. Any number of given candidates could be taken out from the top of the list up to the number of the candidates required in order of merit. For example, there may be a situation where more than the required number of candidates may obtain marks above the cut-off marks, say for example, out of 10,000 if 8000 or 6000 candidates obtain 45% marks then all of them may have to be called for further tests and interview etc. It would in that event not serve the purpose of shortlisting by this method to obtain the given ratio of candidates, and the vacancy available. For 100 vacancies at the most 500 candidates need be called. If that is so, any candidate who is otherwise eligible up to the 500th position, whatever be the percentage above or below the fixed percentage would be eligible to be called for further tests. Thus the purpose of shortlisting would be achieved without prescribing any minimum cut- off marks.11. In the case in hand, it was not for the Commission to have fixed any cut-off marks in respect of the reserved category candidates. The result has evidently been that candidates otherwise qualified for interview stand rejected on the basis of merit say, they do not have up-to-the-mark merit as prescribed by the Commission. The selection was by interview of the eligible candidates. It is certainly the responsibility of the Commission to make the selection of efficient people amongst those who are eligible for consideration. The unsuitable candidates could well be rejected in the selection by interview. It is not the question of subservience but there are certain matters of policies, on which the decision is to be taken by the Government. The Commission derives its powers under Article 320 of the Constitution as well as its limits too. Independent and fair working of the Commission is of utmost importance. It is also not supposed to function under any pressure of the Government, as submitted on behalf of the appellant Commission. But at the same time it has to conform to the provisions of the law and has also to abide by the rules and regulations on the subject and to take into account the policy decisions which are within the domain of the State Government. It cannot impose its own policy decision in a matter beyond its purview.16. In this regard, we must notice that in the facts of this case of the 1866 candidates who appeared in the screening test / computer test, only 7 candidates which included respondent Nos. 1 to 3 cleared the test. The number stood further reduced to 4 and which again included respondents Nos. 1 to 3. Therefore, when the question arose as to how the interview should be conducted, the Commission decided on 16.05.2017 to fix 26 marks out of 40 as cut off marks. It no doubt works out at 60 per cent of the total marks in the interview segment. Rules did not provide for a separate minimum for the interview. The advertisement did not provide for a separate minimum in the interview. It is almost a week before the interview that the Commission took the decision in this regard. We have stated these facts only to highlight that this is not a case where the Commission was faced with the task of having to interview a very large number of candidates. For 6 unreserved posts and 5 reserved posts finally, only 4 emerged as candidates to be dealt with at the final stage viz., the oral interview. This, therefore, is distinguishable, in other words, from the judgment relied upon by Mr. Pratap Venugopal, learned counsel for the appellant viz. M.P. Public Service Commission (supra). That was a case where this Court noted that the appellant Commission therein noting the large number of applications received from the General Category candidates against four posts decided to call only 71 applicants who had 7 1/2 years of practice although 188 applicants were eligible, in view of the fact that under Section 8(3)(c) of the provisions applicable in the said case, five years of practice as an Advocate or pleader of Madhya Pradesh was a minimum requirement. It was therefore, a case which though relied upon by the appellant is distinguishable on facts. This is apart from noticing that the appellant has not been able to inform the Court as to whether there was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav (supra) is concerned, this again is not a case which involved a Rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the constitution.18. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case.In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12.19. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated.20. As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following:It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground.We would therefore, think that it may not be appropriate to permit the appellant to raise this question.21. We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows:(A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent No. 1 to prepare a Select List in terms of the Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law;(B) This Honble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017.(C) Pending the hearing and final disposal of this Petition, this Honble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017;(D) Ad-interim relief in terms of prayer clause (C);(E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein;(F) For costs.We have already noticed the relief granted by the High Court.22. There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition.

### 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: case of changing the rules of the game. On the contrary in the instant case a decision is taken to give appointment to only those who fulfilled the benchmark prescribed. The fixation of such a benchmark is permissible in law. This is an altogether different situation not covered by Hemani Malhotra case [Hemani Malhotra v. High Court of Delhi, (2008) 7 SCC 11 : (2008) 2 SCC (L&S) 203] . 18. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case. In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12. 19. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated. 20. As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following: It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground. We would therefore, think that it may not be appropriate to permit the appellant to raise this question. 21. We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows: (A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent No. 1 to prepare a Select List in terms of the Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law; (B) This Honble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017. (C) Pending the hearing and final disposal of this Petition, this Honble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017; (D) Ad-interim relief in terms of prayer clause (C); (E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein; (F) For costs. We have already noticed the relief granted by the High Court. 22. There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition. ### Response: 0 ### Explanation: was a Rule in the said case similar to Rule 12 as present in this case. As far as Yogesh Yadav (supra) is concerned, this again is not a case which involved a Rule resembling Rule 12 of the Rules. We further may also notice that in the said case recruitment was carried out by the employer itself and it was not done by the recruiting body which the appellant is and which is limited by statutory rules made under Article 309 of the constitution.18. Though learned counsel for the appellant did emphasise the said observations, we are of the view that it is distinguishable at any rate having regard to Rule 12 which we have already noticed which is applicable to the facts of this case.In other words, we would think that in the facts of this case, they are closer to the facts of the case in P. K. Ramachandra Iyer case and judgment following the same which we have already noted. As far as Tej Prakash Pathak and Others case is concerned, it again did not specifically involve a Rule similar to Rule 12.19. It is true that there is a distinction in the facts with those of the case in K. Manjusree (supra). We notice that that was a case where the requirement of minimum marks for interview was made after the entire selection process consisting of the written examination and interview was completed and noticing the facts, the Court declared that it would amount to changing the Rules after process is completed. In this case, the stipulation as to the minimum to be obtained in the interview was announced prior to the holding of the interview. However, we would think that this case must fall to be decided on the principle which has been laid down in P. K. Ramachandra Iyer (supra) and Durgacharan Misra (supra) for the reasons which we have already indicated.20. As far as the question relating to the respondent No. 3 not being in possession of the essential qualification, we may notice the following:It is true that under the Rules, knowledge of Konkani is declared as an essential qualification which the advertisement also reiterates. The interview was held. The writ petition was filed by all respondents together. The contention which appears to have engaged the High Court in the impugned judgment related to the power of the appellant to stipulate for a separate minimum in the interview. The impugned judgment does not reflect even in the slightest way any attempt on the part of the appellant to non-suit the third respondent on the ground that apart from there being no merit in the contention of respondents that Commission did not have the power to stipulate for a separate minimum, respondent No. 3 was even otherwise disqualified. We do not find even a whisper of such a case in the impugned judgment. We further notice that there is no case that the appellant has urged this as a ground in the special leave petition. It is true in objection filed in this case in this Court in January, 2022, the appellant has produced what is described as its pleadings in the High Court. We have perused the pleadings. The appellant has not been able to specifically point out any allegation as such dealing with the ineligibility of respondent no. 3 on the ground that he is not possessed of the essential qualification of the kind complained of. It is true also no doubt that the question as to whether a candidate is qualified, in that, he is having knowledge of the Konkani language would appear to be tested in the interview. It is equally true that it is an essential qualification. But as to whether a person would be disqualified on the ground that he was not having particular essential qualification in the facts is a pure question of fact. This is not seen pleaded as such. We reiterate that the impugned judgment does not show that the appellant has urged this before the High Court. Apart from the proceedings of the Selection Board, there is no record produced to show that respondent No. 3 was disqualified on this ground.We would therefore, think that it may not be appropriate to permit the appellant to raise this question.21. We do think that the respondents are justified in pointing out that the High Court is right in not permitting the appellant to contend that the respondents cannot be treated as entitled to be recommended. The question however may arise as to what is the nature of the relief which can be granted. We notice from the reliefs which have been set out in the writ petition that it is as follows:(A) This Honble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, commanding the Respondent No. 1 to prepare a Select List in terms of the Advertisement No. 14/2016 and make recommendations to the Government on the basis of the said Select List in accordance with law;(B) This Honble Court also be pleased to issue an appropriate writ, order or direction, to quash and set aside the Advertisement dated 21.07.2017 bearing No. 7/2017.(C) Pending the hearing and final disposal of this Petition, this Honble Court be pleased to stay the execution and operation of the entire Selection Process pursuant to the Advertisement No. 7/2017 dated 21.07.2017;(D) Ad-interim relief in terms of prayer clause (C);(E) Any other relief, as deemed fit and proper may please be granted in favour of the Petitioners herein;(F) For costs.We have already noticed the relief granted by the High Court.22. There is yet another aspect which we must consider. As already noticed, even before the filing of the writ petition, the Commission commenced fresh proceedings. While there is a stay of the impugned judgment, this Court had made it clear that the appointments will be subject to the outcome of the special leave petition.

N. Narasimhaiah & Others Vs. State of Karnataka, Union of India & Others

proceedings are taken. In that case proceedings were taken and order was made within one year, but without any notice to the assessee. The order was quashed. From the date of initial period of limitation the subsequent order was barred. It was contended that the action initiated under Section 132 was required to be done within the original period and an order made after expiry of the period, was invalid in law. This Court considered the contention and held that if the period of time prescribed under Section 132(5) is held to be mandatory, and if any direction was given by a Court in a writ proceedings, an order made in pursuance of such a direction would not be subject to limitation prescribed under Section 132(5). Even if the period of time fixed under Section 132(5) is held to be mandatory that requirement was satisfied when the first order was made. Thereafter, if any direction is given under Section 132(12) or by a court in writ proceedings, as in this case, it cannot be said that an order made in pursuance of such a direction would be subject to the limitation prescribed under Section 132(5). Once the order has been made within ninety days, the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income-tax Officer to pass a fresh order. The contention that even such a fresh order should be passed within ninety days, would make the sub-sections (11) and (12) of Section 132 ridiculous and useless. It cannot be said that what the notified authority could direct under Section 132, could not be done by a High Court while exercising its power under Article 226 of the Constitution. To hold otherwise would make the powers of the Court under Article 226 wholly ineffective. The Court in exercising its powers under Article 226 has to mould the remedy to suit to the facts of a case. When Section 132(5) permits of Income-tax Officer to pass an order within ninety days that power cannot in any way be whittled down by a rule made under that section. 15. It is contended by Shri Naresh Kaushik that ratio as noted above was founded on concession and, therefore, the ratio would not be applied to the facts of this case. We are afraid, we cannot accept the contention. This Court had pointed out at page 111 at D that apart from the consent of the parties, even on point of law, that would be the result. Similar view was taken by a Full Bench of Madras High Court in K.C. Grounder & Anr. v. Govt. of Tamil Nadu & Anr., AIR 1980 Madras 251. 16. We are of the opinion that running of the limitation should be counted from the date of the order of the court received by the Land Acquisition Officer and declaration is published within one year from that date. It would be consistent with the scheme of the Act and it would subserve the public purpose. Parliament amended the Act and prescribed limitation since the acquisition proceedings were unduly delayed for years and the owners of lands were put to hardship. If operation of limitation under clause [ii] of first proviso to Section 6(1) is not applied, we would come back to square and defeat the legislative purpose of limitation prescribed under the Act. The Government is bound under the order of the Court to hold an enquiry under Section 5A. Thereafter, if the Government still opines that the land is needed for publication purpose, declaration under Section 6 should be published within one year as indicated above. This interpretation would render judicial review efficacious and meaningful and public purpose subserved and the aggrieved owner would get an opportunity to vindicate his grievance. Thus, we hold that the limitation prescribed in clause (ii) of the first proviso to sub-section {1) of Section 6 would apply to publication of declaration under Section 6(1) afresh. If it is published within one year from the date of the receipt of the order of the Court by Land Acquisition Officer, declaration published under Section 6(1) would be valid. 17. The second contention that there would be two dates of notification under Section 4(1) as initially published and the one deemed to be published consequence to upholding of second declaration under Section 6(1) and that the compensation under Section 23(1) is required to be determined with reference to second date, is untenable. The declaration under Section 6(1) gives only conclusiveness to the public purpose specified in Section 4(1) and the notification under Section 4(1) still remains valid which is relevant for the purpose of computation of market value as envisaged under Section 23(1) of the Act. When the Court upholds the declaration it would relate back to the date of publication under Section 4(1) Therefore, there are no two dates for the purpose of computation of the market value as contended for the purpose of enquiry under Section 5A is to determine whether the land is needed for the public purpose and the affected owner or interested person gets a right to show that the public purpose mentioned in Section 4(1) is not the public purpose or some other land is more suitable or is available for the public purpose or his lands need to be excluded from public purpose as the proposed land may be in excess of requirement. Once the Government, after holding the enquiry has considered the objections and decided that the land is needed for public purpose, declaration published under Section 6 would become conclusive of the public purpose. Nonetheless, relevant date for Section 23(1) is the date of the publication of the notification under Section 4(1). 18. Admittedly, in this case the second declaration was published within one year even from the date of the order passed by the High Court and, therefore, the view of the Division Bench is required to be upheld.

0[ds]10. The limitation, under the first proviso begins to run from the last of the date on which the notification under Section 4(1) is published. By operation of clause (ii) of first proviso to sub-section (1), the declaration under Section 6 shall be published within one year from the date of the last of the dates of the publication of the notification as required under Section 4(1) of the Act. Explanation I to Section 6(1) postulates that in computing the period referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 (1) is stayed by an order of the Court, the period during which the proceedings are pending, shall be excluded. In other words, before the declaration under Section 6 is published, if further proceedings are stayed by an order of the Court, further action stands interdicted, the running of limitation stops and the time occupied in the Court proceedings should be excluded in computation of the period of limitation mentioned in proviso to Section 6(1). After the said period is excluded and if the declaration published is within the limitation of one year, then necessarily the notification under Section 4(1) would remain valid.11. If that be the position, when the exercise of the power under Section 17(4) dispensing with enquiry under Section 5A is quashed by the Court and liberty is given to the State to proceed further in accordance with law, i.e., to conduct enquiry under Section 5A and even after conducting the enquiry as prescribed under Section 5A the Government forms opinion that the land was needed for public purpose and declaration was published, the question is: whetherthe limitation prescribed under clause (ii) of the first proviso to sub-section (1) would still remain operative and be capable to be compliedHaving considered the respective contentions, we are of the considered view that if the construction as put up by the learned counsel for the appellants is given acceptance, i.e., it should be within one year from the last of the dates of publication under Section 4(1), the public purpose would always be frustrated. It may be illustrated thus: In a given case where the notification under Section 4(1) was published, dispensing with the enquiry under Section 5A and declaration was published within one month and as the urgency in the opinion of the Government was such that it did not brook the delay of 30 days and immediate possession was necessary, but possession was not taken due to dilatory tactics of the interested person and Court ultimately finds after two years that the exercise of urgency power was not warranted and so it was neither valid nor proper and directed the Government to give an opportunity to the interested person and the State to conduct an enquiry under Section 5A, then the exercise of the power pursuant to the direction of the Court will be fruitless as it would take time to conduct enquiry. If the enquiry is dragged for obvious reasons, declaration under Section 6(1) cannot be published within the limitation from the original date of the publication of the notification under Section 4(1). A valid notification under Section 4(1) becomes invalid. On the other hand, after conducting enquiry as per Court order and, if the declaration under Section 6 is published within one year from the date of the receipt of the order passed by the High Court, the notification under Section 4(1) becomes valid since the action was done pursuant to the orders of the Court and compliance with the limitation prescribed in clauses (i) and (ii) of the first proviso to sub-section (1) of the Act would be made.13. It is true that this Court in OxfordSchools case (supra) in paragraph 7 had held that when declaration under Section 6 was quashed and the notification under Section 4(1) was upheld. the second declaration is required to be published within the same period prescribed in clause (i) of first proviso. In that case, the limitation of three years under clause (i) of the first proviso to sub-section <1) could not be complied with. The notification under Section 4(1) was held to be invalid. Unfortunately, the above distinction was not brought to the notice of this Court when the case was considered and decided. Similarly, the ratio in P.Chinnannas case (supra) directly does not deal with the problem but observations in paragraph S do support the contention of the appellants as possession was not taken in these cases and the observations get attracted. But it was not necessary in that case to deal with that question since the possession under Section 17(2) was already taken and the land stood vested in 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: proceedings are taken. In that case proceedings were taken and order was made within one year, but without any notice to the assessee. The order was quashed. From the date of initial period of limitation the subsequent order was barred. It was contended that the action initiated under Section 132 was required to be done within the original period and an order made after expiry of the period, was invalid in law. This Court considered the contention and held that if the period of time prescribed under Section 132(5) is held to be mandatory, and if any direction was given by a Court in a writ proceedings, an order made in pursuance of such a direction would not be subject to limitation prescribed under Section 132(5). Even if the period of time fixed under Section 132(5) is held to be mandatory that requirement was satisfied when the first order was made. Thereafter, if any direction is given under Section 132(12) or by a court in writ proceedings, as in this case, it cannot be said that an order made in pursuance of such a direction would be subject to the limitation prescribed under Section 132(5). Once the order has been made within ninety days, the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income-tax Officer to pass a fresh order. The contention that even such a fresh order should be passed within ninety days, would make the sub-sections (11) and (12) of Section 132 ridiculous and useless. It cannot be said that what the notified authority could direct under Section 132, could not be done by a High Court while exercising its power under Article 226 of the Constitution. To hold otherwise would make the powers of the Court under Article 226 wholly ineffective. The Court in exercising its powers under Article 226 has to mould the remedy to suit to the facts of a case. When Section 132(5) permits of Income-tax Officer to pass an order within ninety days that power cannot in any way be whittled down by a rule made under that section. 15. It is contended by Shri Naresh Kaushik that ratio as noted above was founded on concession and, therefore, the ratio would not be applied to the facts of this case. We are afraid, we cannot accept the contention. This Court had pointed out at page 111 at D that apart from the consent of the parties, even on point of law, that would be the result. Similar view was taken by a Full Bench of Madras High Court in K.C. Grounder & Anr. v. Govt. of Tamil Nadu & Anr., AIR 1980 Madras 251. 16. We are of the opinion that running of the limitation should be counted from the date of the order of the court received by the Land Acquisition Officer and declaration is published within one year from that date. It would be consistent with the scheme of the Act and it would subserve the public purpose. Parliament amended the Act and prescribed limitation since the acquisition proceedings were unduly delayed for years and the owners of lands were put to hardship. If operation of limitation under clause [ii] of first proviso to Section 6(1) is not applied, we would come back to square and defeat the legislative purpose of limitation prescribed under the Act. The Government is bound under the order of the Court to hold an enquiry under Section 5A. Thereafter, if the Government still opines that the land is needed for publication purpose, declaration under Section 6 should be published within one year as indicated above. This interpretation would render judicial review efficacious and meaningful and public purpose subserved and the aggrieved owner would get an opportunity to vindicate his grievance. Thus, we hold that the limitation prescribed in clause (ii) of the first proviso to sub-section {1) of Section 6 would apply to publication of declaration under Section 6(1) afresh. If it is published within one year from the date of the receipt of the order of the Court by Land Acquisition Officer, declaration published under Section 6(1) would be valid. 17. The second contention that there would be two dates of notification under Section 4(1) as initially published and the one deemed to be published consequence to upholding of second declaration under Section 6(1) and that the compensation under Section 23(1) is required to be determined with reference to second date, is untenable. The declaration under Section 6(1) gives only conclusiveness to the public purpose specified in Section 4(1) and the notification under Section 4(1) still remains valid which is relevant for the purpose of computation of market value as envisaged under Section 23(1) of the Act. When the Court upholds the declaration it would relate back to the date of publication under Section 4(1) Therefore, there are no two dates for the purpose of computation of the market value as contended for the purpose of enquiry under Section 5A is to determine whether the land is needed for the public purpose and the affected owner or interested person gets a right to show that the public purpose mentioned in Section 4(1) is not the public purpose or some other land is more suitable or is available for the public purpose or his lands need to be excluded from public purpose as the proposed land may be in excess of requirement. Once the Government, after holding the enquiry has considered the objections and decided that the land is needed for public purpose, declaration published under Section 6 would become conclusive of the public purpose. Nonetheless, relevant date for Section 23(1) is the date of the publication of the notification under Section 4(1). 18. Admittedly, in this case the second declaration was published within one year even from the date of the order passed by the High Court and, therefore, the view of the Division Bench is required to be upheld. ### Response: 0 ### Explanation: 10. The limitation, under the first proviso begins to run from the last of the date on which the notification under Section 4(1) is published. By operation of clause (ii) of first proviso to sub-section (1), the declaration under Section 6 shall be published within one year from the date of the last of the dates of the publication of the notification as required under Section 4(1) of the Act. Explanation I to Section 6(1) postulates that in computing the period referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4 (1) is stayed by an order of the Court, the period during which the proceedings are pending, shall be excluded. In other words, before the declaration under Section 6 is published, if further proceedings are stayed by an order of the Court, further action stands interdicted, the running of limitation stops and the time occupied in the Court proceedings should be excluded in computation of the period of limitation mentioned in proviso to Section 6(1). After the said period is excluded and if the declaration published is within the limitation of one year, then necessarily the notification under Section 4(1) would remain valid.11. If that be the position, when the exercise of the power under Section 17(4) dispensing with enquiry under Section 5A is quashed by the Court and liberty is given to the State to proceed further in accordance with law, i.e., to conduct enquiry under Section 5A and even after conducting the enquiry as prescribed under Section 5A the Government forms opinion that the land was needed for public purpose and declaration was published, the question is: whetherthe limitation prescribed under clause (ii) of the first proviso to sub-section (1) would still remain operative and be capable to be compliedHaving considered the respective contentions, we are of the considered view that if the construction as put up by the learned counsel for the appellants is given acceptance, i.e., it should be within one year from the last of the dates of publication under Section 4(1), the public purpose would always be frustrated. It may be illustrated thus: In a given case where the notification under Section 4(1) was published, dispensing with the enquiry under Section 5A and declaration was published within one month and as the urgency in the opinion of the Government was such that it did not brook the delay of 30 days and immediate possession was necessary, but possession was not taken due to dilatory tactics of the interested person and Court ultimately finds after two years that the exercise of urgency power was not warranted and so it was neither valid nor proper and directed the Government to give an opportunity to the interested person and the State to conduct an enquiry under Section 5A, then the exercise of the power pursuant to the direction of the Court will be fruitless as it would take time to conduct enquiry. If the enquiry is dragged for obvious reasons, declaration under Section 6(1) cannot be published within the limitation from the original date of the publication of the notification under Section 4(1). A valid notification under Section 4(1) becomes invalid. On the other hand, after conducting enquiry as per Court order and, if the declaration under Section 6 is published within one year from the date of the receipt of the order passed by the High Court, the notification under Section 4(1) becomes valid since the action was done pursuant to the orders of the Court and compliance with the limitation prescribed in clauses (i) and (ii) of the first proviso to sub-section (1) of the Act would be made.13. It is true that this Court in OxfordSchools case (supra) in paragraph 7 had held that when declaration under Section 6 was quashed and the notification under Section 4(1) was upheld. the second declaration is required to be published within the same period prescribed in clause (i) of first proviso. In that case, the limitation of three years under clause (i) of the first proviso to sub-section <1) could not be complied with. The notification under Section 4(1) was held to be invalid. Unfortunately, the above distinction was not brought to the notice of this Court when the case was considered and decided. Similarly, the ratio in P.Chinnannas case (supra) directly does not deal with the problem but observations in paragraph S do support the contention of the appellants as possession was not taken in these cases and the observations get attracted. But it was not necessary in that case to deal with that question since the possession under Section 17(2) was already taken and the land stood vested in the

NAND RAM (D) THROUGH LRS. &amp; ORS Vs. JAGDISH PRASAD (D) THROUGH LRS

the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latters title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. 42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance. 43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlords title and his (tenants) liability to pay mesne profits for the use and occupation of the property. 44. T o sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-to- month, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone. 39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside. 40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious. 41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.

1[ds]27. Thus, the finding returned in the award of the Reference Court (Ex. PW1/12) that the lease stood determined on account of non- payment of rent was a finding made by the reference Court for a limited purpose i.e. not to accept the defendants claim for compensation. Such finding cannot be binding on the parties in a suit for possession based on title or as a lessor against a lessee. Section 11 of the Code bars the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided28. In respect of second question of law examined by the High Court that the plaintiffs suit was barred by limitation is based upon the notice dated 23 rd September, 1960 produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex.A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of pay- ment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors.Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.

### 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 doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latters title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. 42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance. 43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlords title and his (tenants) liability to pay mesne profits for the use and occupation of the property. 44. T o sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-to- month, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month. 38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone. 39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside. 40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious. 41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors. Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37. ### Response: 1 ### Explanation: the subsequent Court to try any suit or issue which has been directly and substantially issue in a former suit. The issue before the Reference Court was apportionment of compensation and such issue having been decided against the defendant, the reference to notice for termination of tenancy does not operate as res judicata. Therefore, the finding recorded by the High Court that the order of the Reference Court operates as res judicata was clearly not sustainable. The first substantial question of law has been, thus, wrongly decided28. In respect of second question of law examined by the High Court that the plaintiffs suit was barred by limitation is based upon the notice dated 23 rd September, 1960 produced in proceedings before the Reference Court as Ex.A-3. The reference to such notice was made in an application for amendment of the written statement under Order VI Rule 17 of the Code filed before the First Appellate Court. The First Appellate Court allowed the defendant to raise a plea of limitation without amending the written statement. Thus, the notice (Ex.A-3) in proceedings before the Reference Court was never produced in evidence in the suit for possession and such primary evidence was not before the Court. In terms of Section 62 of the Evidence Act, primary evidence means a document itself produced for inspection by the Court. Section 64 of the Evidence Act stipulates that documents must be proved by primary evidence except in certain cases when secondary evidence can be led. The defendant has not led any evidence, including secondary evidence of the alleged notice said to be served by the plaintiffs. In the absence of primary or secondary evidence available in the suit for possession, the reference to such notice as the starting point of limitation is clearly erroneous and not sustainable29. The defendant was inducted as a lessee for a period of 20 years. The lease period expired on 23 rd September, 1974. Even if the lessee had not paid rent, the status of the lessee would not change during the continuation of the period of lease. The lessor had a right to seek possession in terms of clause 9 of the lease deed. The mere fact that the lessor had not chosen to exercise that right will not foreclose the rights of the lessor as owner of the property leased. After the expiry of lease period, and in the absence of pay- ment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance38. Thus, the suit of the plaintiffs filed within 12 years of the determination of the tenancy by efflux of time is within the period of limitation. The defendant has not proved forfeiture of tenancy prior to the expiry of lease period. Mere non-payment of rent does not amount to forfeiture of tenancy. It only confers a right on the landlord to seek possession. The plaintiffs have filed a suit for possession against the defendant on the basis of determination of tenancy, such suit is governed by Article 67 alone39. In view of the above, the suit for possession would not be covered by Article 65 since there is a specific article i.e. Article 67 dealing with right of the lessor to claim possession after determination of tenancy. The appellants-plaintiffs have claimed possession from the defendant alleging him to be the tenant and that he had not handed over the leased property after determination of the lease. Therefore, such suit would fall within Article 67 of the Limitation Act. Such suit having been filed on 13 th March, 1981 within 12 years of the determination of lease by efflux of time on 23 rd September, 1974, the same is within the period of limitation. Thus, the findings recorded by the High Court are clearly erroneous in law and the same cannot be sustained and are, thus, set aside40. Though, Mr. Vishwanathan has argued that the first appeal stood abated as the legal representatives of one of the deceased respondents was not impleaded but we find that it is not necessary to decide such question as on merits, we have found the claim of the plaintiffs to be meritorious41. The respondent continued to be in possession of the land leased vide registered lease deed dated 22 nd September, 1954. The respondent has admitted the ownership of the appellants before the Reference Court. Such plea operates as estoppel against the respondent in respect of the title of the appellants. However, the claim of compensation put forward by the respondent was declined for the reason that non-payment of rent disentitles the respondent from compensation. In the present proceedings, the respondent has denied his status as that of a tenant but claimed title in himself. The respondent claimed adverse possession and claimed possession as owner against a person, who has inducted him as tenant. The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner at any time before or after the award of the reference Court nor he has surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. The question of adverse possession without admitting the title of the real owner is not tenable. Such question has been examined by this Court in Uttam Chand (D) through LRs. v. Nathu Ram (D) through LRs & Ors.Civil Appeal No. 190 of 2020 decided on 15th January, 2020 : 2020 SCC OnLine SC 37.

Jayanarayan Sukul Vs. State of West Bengal

question of period within which the Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between the cases of Shyamal Chakravarty, W. P. No. 102 of 1969, D/- 4-8-1969 = (AIR 1970 SC 269 ) and Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) (supra).17. In view of the fact that there is a fundamental right of the detenu to have the representation considered by the appropriate Government such right will be rendered meaningless if the Government will not deal with the matter expenditiously but at its own will and convenience. In the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) (supra) the petitioner made a representation on 23rd June, 1969. The Advisory Board made its report in 11th August, 1969 on 12th August, 1969 the Governor confirmed the order of detention. On 29th August, 1969 the Governor rejected the petitioners representation. The delay was not explained in that case. The disposal of the representation by the Government after the receipt of the Report of the Advisory Board was found by this Court to raise a doubt there whether the Government considered the representation in an independent manner. This independent consideration by the appropriate Government is implicit in Article 22 of the Constitution.18. In the case of Durga Show, W. Ps. Nos. 198, 205 of 1969, D/- 2-9-1969 = (reported in 1969-2 SCWR 439) three petitioners were set at liberty. There the representation of one detenu was received on 29th May, 1969, and was rejected on 11th August. In another case the representation of the detenu was received on 18th June, 1969 and was rejected by the Government on 16th August, 1969. In the third case the representation of the detenu was received on 28th June, 1969 and was rejected on 14th July, 1969. In the case of Durga Show, W. P. Nos. 198, 205, 206 of 1969, D/- 2-9-1969 = (reported in 1969-2 SCWR 439) (supra) the opinion of this Court in the case of Sk. Abdul Karim, W. P. No. 327 of 1968, D/- 31-1-1969 = (AIR 1969 SC 1028 ) (supra) was re-stated by emphasising the legal obligation of the appropriate Government to consider the representation of the detenu "as soon as it is received by it".19. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.20. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat. J. who spoke for this Court in the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 = (reported in 1969-2 SCWR 529) (supra)"it is obvious that the obligation to furnish the earlier opportunity to make a representation loses both its purpose and meaning".21. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to Advisory Board. If the appropriate Government will release the detenu the Government will not sent the matter to the Advisory Board. If however the Government will not release the detenu the Government will sent the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.22. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.23.

1[ds]13. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of West Bengal, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) this Court observed that"it is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation".The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment.It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat. J. who spoke for this Court in the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 = (reported in 1969-2 SCWR 529) (supra)"it is obvious that the obligation to furnish the earlier opportunity to make a representation loses both its purpose and meaning".Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to Advisory Board. If the appropriate Government will release the detenu the Government will not sent the matter to the Advisory Board. If however the Government will not release the detenu the Government will sent the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.

### 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: question of period within which the Government could dispose of the representation of the detenu because it was felt that there was an apparent conflict between the cases of Shyamal Chakravarty, W. P. No. 102 of 1969, D/- 4-8-1969 = (AIR 1970 SC 269 ) and Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) (supra).17. In view of the fact that there is a fundamental right of the detenu to have the representation considered by the appropriate Government such right will be rendered meaningless if the Government will not deal with the matter expenditiously but at its own will and convenience. In the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) (supra) the petitioner made a representation on 23rd June, 1969. The Advisory Board made its report in 11th August, 1969 on 12th August, 1969 the Governor confirmed the order of detention. On 29th August, 1969 the Governor rejected the petitioners representation. The delay was not explained in that case. The disposal of the representation by the Government after the receipt of the Report of the Advisory Board was found by this Court to raise a doubt there whether the Government considered the representation in an independent manner. This independent consideration by the appropriate Government is implicit in Article 22 of the Constitution.18. In the case of Durga Show, W. Ps. Nos. 198, 205 of 1969, D/- 2-9-1969 = (reported in 1969-2 SCWR 439) three petitioners were set at liberty. There the representation of one detenu was received on 29th May, 1969, and was rejected on 11th August. In another case the representation of the detenu was received on 18th June, 1969 and was rejected by the Government on 16th August, 1969. In the third case the representation of the detenu was received on 28th June, 1969 and was rejected on 14th July, 1969. In the case of Durga Show, W. P. Nos. 198, 205, 206 of 1969, D/- 2-9-1969 = (reported in 1969-2 SCWR 439) (supra) the opinion of this Court in the case of Sk. Abdul Karim, W. P. No. 327 of 1968, D/- 31-1-1969 = (AIR 1969 SC 1028 ) (supra) was re-stated by emphasising the legal obligation of the appropriate Government to consider the representation of the detenu "as soon as it is received by it".19. It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.20. No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat. J. who spoke for this Court in the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 = (reported in 1969-2 SCWR 529) (supra)"it is obvious that the obligation to furnish the earlier opportunity to make a representation loses both its purpose and meaning".21. Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to Advisory Board. If the appropriate Government will release the detenu the Government will not sent the matter to the Advisory Board. If however the Government will not release the detenu the Government will sent the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.22. In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.23. ### Response: 1 ### Explanation: 13. It, therefore, follows that the appropriate authority is to consider the representation of the detenu uninfluenced by any opinion or consideration of the Advisory Board. In the case of Khairul Haque v. State of West Bengal, W. P. No. 246 of 1969, D/- 10-9-1969 (reported in 1969-2 SCWR 529) this Court observed that"it is implicit in the language of Article 22 that the appropriate Government, while discharging its duty to consider the representation cannot depend upon the views of the Board on such representation".The logic behind this proposition is that the Government should immediately consider the representation of the detenu before sending the matter to the Advisory Board and further that such action will then have the real flavour of independent judgment.It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible. It will depend upon the facts and circumstances of each case whether the appropriate Government has disposed of the case as expeditiously as possible for otherwise in the words of Shelat. J. who spoke for this Court in the case of Khairul Haque, W. P. No. 246 of 1969, D/- 10-9-1969 = (reported in 1969-2 SCWR 529) (supra)"it is obvious that the obligation to furnish the earlier opportunity to make a representation loses both its purpose and meaning".Broadly stated, four principles are to be followed in regard to representation of detenus. First, the appropriate authority is bound to give an opportunity to the detenu to make a representation and to consider the representation of the detenu as early as possible.Secondly, the consideration of the representation of the detenu by the appropriate authority is entirely independent of any action by the Advisory Board including the consideration of the representation of the detenu by the Advisory Board. Thirdly, there should not be any delay in the matter of consideration. It is true that no hard and fast rule can be laid down as to measure of time taken by the appropriate authority for consideration but it has to be remembered that the Government has to be vigilant in the governance of the citizens. A citizens right raises a correlative duty of the State. Fourthly, the appropriate Government is to exercise its opinion and judgment on the representation before sending the case along with the detenus representation to Advisory Board. If the appropriate Government will release the detenu the Government will not sent the matter to the Advisory Board. If however the Government will not release the detenu the Government will sent the case along with the detenus representation to the Advisory Board. If thereafter the Advisory Board will express an opinion in favour of release of the detenu the Government will release the detenu. If the advisory Board will express any opinion against the release of the detenu the Government may still exercise the power to release the detenu.In the present case, the State of West Bengal is guilty of infraction of the constitutional provisions not only by inordinate delay of the consideration of the representation but also by putting off the consideration till after the receipt of the opinion of the Advisory Board. As we have already observed there is no explanation for this inordinate delay. The Superintendent who made the enquiry did not affirm an affidavit. The State has given no information as to why this long delay occurred. The inescapable conclusion in the present case is that the appropriate authority failed to discharge its constitutional obligation by inactivity and lack of independent judgment.

Garib Das &amp; Others Vs. Munshi Abdul Hamid &amp; Others

the law seems to be clear that a wakf inter vivos is completed by a mere declaration of endowment by the owner. According to Mullas Principles of Mahomedan Law, 16th Edition, page 178, Article 186, this view had been adopted by the High Courts of Calcutta, Rangoon, Patna, Lahore, Madras Bombay, Oudh Chief Court and recently by the Allahabad High Court and the Nagpur High Court. Further, the founder of a wakf may constitute himself the first mutawalli and when the founder and the mutwalli are the same person, no transfer of physical possession is necessary. Nor is it necessary that the property should be transferred from the name of the donor as owner into his name as mutawalli. An apparent transaction must be presumed to be real and the onus of proving the contrary is on the person alleging that the wakf was not intended to be acted upon.9. It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon. For the purpose of such enquiry subsequent conduct, if it is merely a continuation of conduct at the time of execution, is irrelevant.10. On the question of intention, we see no reason to take a view different from that adopted by the High Court, specially as the contesting respondents had failed to discharge the onus which lay heavily on them to prove that Tasaduk Hussain did not intend to create a wakf in respect of the disputed property or that it was not acted upon.11. Counsel for the appellant relied on the Mussalman Wakf Validating Act, 1923 and specially to Sections 3 and 10 thereof and contended that the non-furnishing of particulars relating to the wakf in terms of Section 3 when it was alleged that account books were written in respect of the income from the mosque went to show that no wakf was really created inasmuch as failure to comply with Section 3 attracted the penalties prescribed in Section 10.This contention had been rejected by the High Court which held that no account books were ever written.Reference may also be made in this connection to a statement of law in Mullas treatise of Mahomedan Law, 12th Edition, Page 175 under Article 171A that the Act of 1923 did not apply to any wakf under which any benefit was, for the time being, claimable by the wakif or any of his family descendants.12. On the third point our attention was drawn to the deed of wakf which merely mentions that Tasaduk Hussain had settled the whole and entire property to "the mosque and Madarsa at Mohalla Nathnagar" and the surplus of the usufruct thereof was to be spent over the same. If the document had stood by itself and if there were more than one mosque in Nathnagar there might be scope for contention that the donor had no particular mosque in mind when he created the wafk. But the doubt, if any, is resolved by the High Court relying on the document dated 10th December 1949 executed by Tasaduk Hussain showing that in the deed of 1914 the mosque referred to was "Barhi Masjid and Madarsa".As the donor was the best person to know which mosque and Madarsa he had in mind and he had identified the same by the document of 1949 we see no reason to take a view different from that of the High Court or hold the deed void for uncertainty.13. The fourth point has no substance inasmuch as Article 142 of the Limitation Act was not applicable to the facts of the case. The suit was filed in 1955 within six years after the death of Tasaduk Hussain who died only a few months after the execution of the documents relied on by the appellants.14. We however find that we must remand the matter for determination of the first point raised by the counsel for the appellants. The issues settled by the Subordinate Judge on 30th August, 1957 at page 17 of the printed record include issue 10, namely, Are the plaintiffs entitled to get a decree for recovery of possession of the properties in the suit?" and issue 12 reading "Are the plaintiffs entitled to get a decree for mesne profits and if so, to what extent?" Our attention was drawn to the judgment of the Subordinate Judge at page 81 of the printed record which shows that the learned Judge only considered nine issues which do not include the above issues 10 and 12. But it may be that in view of issue 8 as finally recast by the learned Judge in delivering his judgment and reading "Are the plaintiffs entitled to any decree as prayed for"? original issues 10 and 12 became superfluous. Besides, the learned Judge did not have to give any decision on issue 8 as he found that the wakf was not valid. In the judgment of the High Court there is no reference to all this and in the concluding paragraph it was recorded that in view of the finding that the sale deed in favour of the contesting respondents did not confer any title on them they were trespassers after 27th December, 1949 though they were tenants of some portions before that date.15. Reference was made to Sections 11 and 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Ac, 1947 under which a decree for eviction could only be passed at the relevant time by the Controller appointed under the Act. As the High Court judgment is not explicit on this point, we think it only proper to remand the matter to the High Court for determination of issue 8 above with special reference to the prayer for eviction and mesne profits.

0[ds]8. We propose to deal with the first of these points last. On the second point the law seems to be clear that a wakf inter vivos is completed by a mere declaration of endowment by the owner.9. It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon. For the purpose of such enquiry subsequent conduct, if it is merely a continuation of conduct at the time of execution, is irrelevant.10. On the question of intention, we see no reason to take a view different from that adopted by the High Court, specially as the contesting respondents had failed to discharge the onus which lay heavily on them to prove that Tasaduk Hussain did not intend to create a wakf in respect of the disputed property or that it was not actedcontention had been rejected by the High Court which held that no account books were ever written.Reference may also be made in this connection to a statement of law in Mullas treatise of Mahomedan Law, 12th Edition, Page 175 under Article 171A that the Act of 1923 did not apply to any wakf under which any benefit was, for the time being, claimable by the wakif or any of his familythe document had stood by itself and if there were more than one mosque in Nathnagar there might be scope for contention that the donor had no particular mosque in mind when he created the wafk. But the doubt, if any, is resolved by the High Court relying on the document dated 10th December 1949 executed by Tasaduk Hussain showing that in the deed of 1914 the mosque referred to was "Barhi Masjid and Madarsa".As the donor was the best person to know which mosque and Madarsa he had in mind and he had identified the same by the document of 1949 we see no reason to take a view different from that of the High Court or hold the deed void for uncertainty.13. The fourth point has no substance inasmuch as Article 142 of the Limitation Act was not applicable to the facts of the case. The suit was filed in 1955 within six years after the death of Tasaduk Hussain who died only a few months after the execution of the documents relied on by the appellants.14. We however find that we must remand the matter for determination of the first point raised by the counsel for the appellants. The issues settled by the Subordinate Judge on 30th August, 1957 at page 17 of the printed record include issue 10, namely, Are the plaintiffs entitled to get a decree for recovery of possession of the properties in the suit?" and issue 12 reading "Are the plaintiffs entitled to get a decree for mesne profits and if so, to what extent?" Our attention was drawn to the judgment of the Subordinate Judge at page 81 of the printed record which shows that the learned Judge only considered nine issues which do not include the above issues 10 and 12. But it may be that in view of issue 8 as finally recast by the learned Judge in delivering his judgment and reading "Are the plaintiffs entitled to any decree as prayed for"? original issues 10 and 12 became superfluous. Besides, the learned Judge did not have to give any decision on issue 8 as he found that the wakf was not valid. In the judgment of the High Court there is no reference to all this and in the concluding paragraph it was recorded that in view of the finding that the sale deed in favour of the contesting respondents did not confer any title on them they were trespassers after 27th December, 1949 though they were tenants of some portions before that date.15. Reference was made to Sections 11 and 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Ac, 1947 under which a decree for eviction could only be passed at the relevant time by the Controller appointed under the Act. As the High Court judgment is not explicit on this point, we think it only proper to remand the matter to the High Court for determination of issue 8 above with special reference to the prayer for eviction and mesne profits. Except as above, the appeal is dismissed and the judgment of the High Court upholding the validity of the wakf and its binding character if affirmed.

### 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 law seems to be clear that a wakf inter vivos is completed by a mere declaration of endowment by the owner. According to Mullas Principles of Mahomedan Law, 16th Edition, page 178, Article 186, this view had been adopted by the High Courts of Calcutta, Rangoon, Patna, Lahore, Madras Bombay, Oudh Chief Court and recently by the Allahabad High Court and the Nagpur High Court. Further, the founder of a wakf may constitute himself the first mutawalli and when the founder and the mutwalli are the same person, no transfer of physical possession is necessary. Nor is it necessary that the property should be transferred from the name of the donor as owner into his name as mutawalli. An apparent transaction must be presumed to be real and the onus of proving the contrary is on the person alleging that the wakf was not intended to be acted upon.9. It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon. For the purpose of such enquiry subsequent conduct, if it is merely a continuation of conduct at the time of execution, is irrelevant.10. On the question of intention, we see no reason to take a view different from that adopted by the High Court, specially as the contesting respondents had failed to discharge the onus which lay heavily on them to prove that Tasaduk Hussain did not intend to create a wakf in respect of the disputed property or that it was not acted upon.11. Counsel for the appellant relied on the Mussalman Wakf Validating Act, 1923 and specially to Sections 3 and 10 thereof and contended that the non-furnishing of particulars relating to the wakf in terms of Section 3 when it was alleged that account books were written in respect of the income from the mosque went to show that no wakf was really created inasmuch as failure to comply with Section 3 attracted the penalties prescribed in Section 10.This contention had been rejected by the High Court which held that no account books were ever written.Reference may also be made in this connection to a statement of law in Mullas treatise of Mahomedan Law, 12th Edition, Page 175 under Article 171A that the Act of 1923 did not apply to any wakf under which any benefit was, for the time being, claimable by the wakif or any of his family descendants.12. On the third point our attention was drawn to the deed of wakf which merely mentions that Tasaduk Hussain had settled the whole and entire property to "the mosque and Madarsa at Mohalla Nathnagar" and the surplus of the usufruct thereof was to be spent over the same. If the document had stood by itself and if there were more than one mosque in Nathnagar there might be scope for contention that the donor had no particular mosque in mind when he created the wafk. But the doubt, if any, is resolved by the High Court relying on the document dated 10th December 1949 executed by Tasaduk Hussain showing that in the deed of 1914 the mosque referred to was "Barhi Masjid and Madarsa".As the donor was the best person to know which mosque and Madarsa he had in mind and he had identified the same by the document of 1949 we see no reason to take a view different from that of the High Court or hold the deed void for uncertainty.13. The fourth point has no substance inasmuch as Article 142 of the Limitation Act was not applicable to the facts of the case. The suit was filed in 1955 within six years after the death of Tasaduk Hussain who died only a few months after the execution of the documents relied on by the appellants.14. We however find that we must remand the matter for determination of the first point raised by the counsel for the appellants. The issues settled by the Subordinate Judge on 30th August, 1957 at page 17 of the printed record include issue 10, namely, Are the plaintiffs entitled to get a decree for recovery of possession of the properties in the suit?" and issue 12 reading "Are the plaintiffs entitled to get a decree for mesne profits and if so, to what extent?" Our attention was drawn to the judgment of the Subordinate Judge at page 81 of the printed record which shows that the learned Judge only considered nine issues which do not include the above issues 10 and 12. But it may be that in view of issue 8 as finally recast by the learned Judge in delivering his judgment and reading "Are the plaintiffs entitled to any decree as prayed for"? original issues 10 and 12 became superfluous. Besides, the learned Judge did not have to give any decision on issue 8 as he found that the wakf was not valid. In the judgment of the High Court there is no reference to all this and in the concluding paragraph it was recorded that in view of the finding that the sale deed in favour of the contesting respondents did not confer any title on them they were trespassers after 27th December, 1949 though they were tenants of some portions before that date.15. Reference was made to Sections 11 and 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Ac, 1947 under which a decree for eviction could only be passed at the relevant time by the Controller appointed under the Act. As the High Court judgment is not explicit on this point, we think it only proper to remand the matter to the High Court for determination of issue 8 above with special reference to the prayer for eviction and mesne profits. ### Response: 0 ### Explanation: 8. We propose to deal with the first of these points last. On the second point the law seems to be clear that a wakf inter vivos is completed by a mere declaration of endowment by the owner.9. It is also settled law that the settler and those claiming under him are not precluded from showing that no wakf had been created and that the deed was not intended to operate as a wakf but was illusory and fictitious. This is a question of intention evidenced by facts and circumstances showing that it was not to be acted upon. For the purpose of such enquiry subsequent conduct, if it is merely a continuation of conduct at the time of execution, is irrelevant.10. On the question of intention, we see no reason to take a view different from that adopted by the High Court, specially as the contesting respondents had failed to discharge the onus which lay heavily on them to prove that Tasaduk Hussain did not intend to create a wakf in respect of the disputed property or that it was not actedcontention had been rejected by the High Court which held that no account books were ever written.Reference may also be made in this connection to a statement of law in Mullas treatise of Mahomedan Law, 12th Edition, Page 175 under Article 171A that the Act of 1923 did not apply to any wakf under which any benefit was, for the time being, claimable by the wakif or any of his familythe document had stood by itself and if there were more than one mosque in Nathnagar there might be scope for contention that the donor had no particular mosque in mind when he created the wafk. But the doubt, if any, is resolved by the High Court relying on the document dated 10th December 1949 executed by Tasaduk Hussain showing that in the deed of 1914 the mosque referred to was "Barhi Masjid and Madarsa".As the donor was the best person to know which mosque and Madarsa he had in mind and he had identified the same by the document of 1949 we see no reason to take a view different from that of the High Court or hold the deed void for uncertainty.13. The fourth point has no substance inasmuch as Article 142 of the Limitation Act was not applicable to the facts of the case. The suit was filed in 1955 within six years after the death of Tasaduk Hussain who died only a few months after the execution of the documents relied on by the appellants.14. We however find that we must remand the matter for determination of the first point raised by the counsel for the appellants. The issues settled by the Subordinate Judge on 30th August, 1957 at page 17 of the printed record include issue 10, namely, Are the plaintiffs entitled to get a decree for recovery of possession of the properties in the suit?" and issue 12 reading "Are the plaintiffs entitled to get a decree for mesne profits and if so, to what extent?" Our attention was drawn to the judgment of the Subordinate Judge at page 81 of the printed record which shows that the learned Judge only considered nine issues which do not include the above issues 10 and 12. But it may be that in view of issue 8 as finally recast by the learned Judge in delivering his judgment and reading "Are the plaintiffs entitled to any decree as prayed for"? original issues 10 and 12 became superfluous. Besides, the learned Judge did not have to give any decision on issue 8 as he found that the wakf was not valid. In the judgment of the High Court there is no reference to all this and in the concluding paragraph it was recorded that in view of the finding that the sale deed in favour of the contesting respondents did not confer any title on them they were trespassers after 27th December, 1949 though they were tenants of some portions before that date.15. Reference was made to Sections 11 and 18 of the Bihar Buildings (Lease, Rent and Eviction) Control Ac, 1947 under which a decree for eviction could only be passed at the relevant time by the Controller appointed under the Act. As the High Court judgment is not explicit on this point, we think it only proper to remand the matter to the High Court for determination of issue 8 above with special reference to the prayer for eviction and mesne profits. Except as above, the appeal is dismissed and the judgment of the High Court upholding the validity of the wakf and its binding character if affirmed.

State Of Assam Vs. Horizon Union &amp; Anr

This submission involves consideration of the question whether Shri Dutta, while working as Registrar of the Assam High Court, held the office of an Additional District Judge. 4. The Assam Judicial Service (Senior) Rules, 1952 show that the strength of the Assam Judicial Service (Senior) and of each kind of post therein is as follows: -"Senior Grade I Registrar 1 District Judges 3 Senior Grade II. Additional District Judges 3." The Governor has power to increase the cadre by the creation of additional permanent or temporary posts. The post of Registrar is filled up by the Chief Justice preferably from Grade I or Grade II of the Service. Other posts in the cadre are filled up by the Government in consultation with the High Court. 5. On August 16, 1954, Shri Dutta, then Officiating Subordinate and Assistant Sessions Judge, was appointed a temporary Additional District and Sessions Judge. While he was officiating as an Additional District Judge, his services were lent by the State Government to the High Court, he was temporary promoted to Senior Grade I and on March 8, 1957 was appointed by the Chief Justice as the Registrar of the Assam High Court. It is not disputed that between August 16, 1954 and March 8, 1957 Shri Dutta held the office of an Additional District Judge. The records show that until April 24,1958 the Government continued to retain Shri Dutta in his office of Additional District Judge. On this footing, the Government passed an order on March 26, 1958, whereby Shri Dutta, then Officiating Registrar of the High Court, was confirmed in Senior Grade II with effect from February 16, 1957. On April 24, 1958, he was confirmed in Senior Grade I with effect from May 2, 1957. On June 30, 1959, he retired from the office of the Registrar. The High Court was right in saying that under the Assam Judicial Services (Senior) Rules, 1952 the post of the Registrar was separate from that of the District Judge and Shri Dutta never held the office of the District Judge. But the High Court omitted to consider whether he continued to hold the office of an Additional District Judge after March 8, 1957. We are satisfied that during the period from March 8, 1957 up to April 24, 1958, Shri Dutta, while officiating as a Registrar of the High Court, continued to hold the office of an Additional District Judge.The High Court was in error in thinking that in order to satisfy the conditions of S. 7-A (3) (aa), Shri Dutta should have actually worked as an Additional District Judge for a period of not less than three years. For over three years Shri Dutta held the post of an Additional District Judge. Consequently, during this period he had been an Additional District Judge as required by S. 7-A (3) (aa). To satisfy the requirements of S. 7-A (3) (aa) it was not necessary that he must have actually worked as an Additional District Judge for this period. 6. The appointment of Shri Dutta as the Presiding Officer of the Industrial Tribunal was made without consultation with the High Court. Respondent No. 1 submitted that, consequently, there was no compliance with the proviso to S. 7-A (3) (aa) inserted by Assam Act No. 8 of 1962. This contention has no force.In respect of the subject-matter of the appointment of a person who has for a period of not less than three years been a District Judge or an Additional District Judge, Cl. (aa) inserted by Central Act No. 36 of 1964 impliedly repealed Cl. (aa) inserted by the Assam Act. Clause (aa) inserted by the Central Act is intended to be an exhaustive code in respect of this subject-matter. The Central Act now occupies this field. The provisions of Cl. (aa) inserted by the Assam Act on this subject are repugnant to Cl. (aa) inserted by the Central Act and by Art. 254 of the Constitution, to the extent of this repugnancy, is void. Clause (aa) of S. 7-A (3) inserted by the Central Act does not require any consultation with the High Court. 7. It follows that Shri Dutta was duly qualified for appointment under S. 7-A (3) (aa), and the order of the High Court must be set aside. 8. We may add that in respect of the subject of appointment of a person who is qualified for appointment as a Judge of a High Court, clause (aa) inserted by Assam Act No. 8 of 1962 including its proviso continues to be in force. But counsel for the State of Assam did not seek to justify the appointment of Shri Dutta under Cl. (aa) inserted by the Assam Act. 9. It appears that before December 7, 1965, Shri Dutta had been the Presiding Officer of a Labour Court for over two years. Counsel for Shri Dutta submitted that he, therefore, held the office of a member of a Tribunal and was qualified for appointment under S. 7-A (3) (b). There is no force in this contention. Section 2 (r) defines Tribunal. It reads:"Tribunal" means an Industrial Tribunal constituted under Section 7-A and includes an Industrial Tribunal "constituted before the 10th day of March, 1957 under this Act." Obviously, the first part of the definition in S. 2 (r) cannot be fitted in S. 7-A (3) (b). The expression Tribunal in S. 7-A (3) (b), therefore, means "an Industrial Tribunal constituted before the 10th day of March, 1957 under this Act." Thus, a person who held the office of the Chairman or any other member of an Industrial Tribunal constituted under S. 7 as it stood before March 10, 1957 is qualified for appointment under S. 7-A (3) (b), though he may not be qualified otherwise for appointment under S. 7-A (3). But a Labour Court is not a Tribunal within the meaning of S. 7-A (3) (b) read with S. 2 (r). Shri Dutta was, therefore, not qualified for appointment under S. 7-A (3) (b).

1[ds]6. The appointment of Shri Dutta as the Presiding Officer of the Industrial Tribunal was made without consultation with the High Court. Respondent No. 1 submitted that, consequently, there was no compliance with the proviso to S. 7-A (3) (aa) inserted by Assam Act No. 8 of 1962. This contention has no force.In respect of the subject-matter of the appointment of a person who has for a period of not less than three years been a District Judge or anAdditional DistrictJudge, Cl. (aa) inserted by Central Act No. 36 of 1964 impliedly repealed Cl. (aa) inserted by the Assam Act. Clause (aa) inserted by the Central Act is intended to be an exhaustive code in respect of this subject-matter. The Central Act now occupies this field. The provisions of Cl. (aa) inserted by the Assam Act on this subject are repugnant to Cl. (aa) inserted by the Central Act and by Art. 254 of the Constitution, to the extent of this repugnancy, is void. Clause (aa) of S. 7-A (3) inserted by the Central Act does not require any consultation with the High Court7. It follows that Shri Dutta was duly qualified for appointment under S. 7-A (3) (aa), and the order of the High Court must be set aside8. We may add that in respect of the subject of appointment of a person who is qualified for appointment as a Judge of a High Court, clause (aa) inserted by Assam Act No. 8 of 1962 including its proviso continues to be in force. But counsel for the State of Assam did not seek to justify the appointment of Shri Dutta under Cl. (aa) inserted by the Assam ActThere is no force in this contention. Section 2 (r) defines Tribunal. It reads:"Tribunal" means an Industrial Tribunal constituted under Section 7-A and includes an Industrial Tribunal "constituted before the 10th day of March, 1957 under this Act." Obviously, the first part of the definition in S. 2 (r) cannot be fitted in S. 7-A (3) (b). The expression Tribunal in S. 7-A (3) (b), therefore, means "an Industrial Tribunal constituted before the 10th day of March, 1957 under this Act."Thus, a person who held the office of the Chairman or any other member of an Industrial Tribunal constituted under S. 7 as it stood before March 10, 1957 is qualified for appointment under S. 7-A (3) (b), though he may not be qualified otherwise for appointment under S. 7-A (3). But a Labour Court is not a Tribunal within the meaning of S. 7-A (3) (b) read with S. 2 (r). Shri Dutta was, therefore, not qualified for appointment under S. 7-A (3) (b).

### 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: This submission involves consideration of the question whether Shri Dutta, while working as Registrar of the Assam High Court, held the office of an Additional District Judge. 4. The Assam Judicial Service (Senior) Rules, 1952 show that the strength of the Assam Judicial Service (Senior) and of each kind of post therein is as follows: -"Senior Grade I Registrar 1 District Judges 3 Senior Grade II. Additional District Judges 3." The Governor has power to increase the cadre by the creation of additional permanent or temporary posts. The post of Registrar is filled up by the Chief Justice preferably from Grade I or Grade II of the Service. Other posts in the cadre are filled up by the Government in consultation with the High Court. 5. On August 16, 1954, Shri Dutta, then Officiating Subordinate and Assistant Sessions Judge, was appointed a temporary Additional District and Sessions Judge. While he was officiating as an Additional District Judge, his services were lent by the State Government to the High Court, he was temporary promoted to Senior Grade I and on March 8, 1957 was appointed by the Chief Justice as the Registrar of the Assam High Court. It is not disputed that between August 16, 1954 and March 8, 1957 Shri Dutta held the office of an Additional District Judge. The records show that until April 24,1958 the Government continued to retain Shri Dutta in his office of Additional District Judge. On this footing, the Government passed an order on March 26, 1958, whereby Shri Dutta, then Officiating Registrar of the High Court, was confirmed in Senior Grade II with effect from February 16, 1957. On April 24, 1958, he was confirmed in Senior Grade I with effect from May 2, 1957. On June 30, 1959, he retired from the office of the Registrar. The High Court was right in saying that under the Assam Judicial Services (Senior) Rules, 1952 the post of the Registrar was separate from that of the District Judge and Shri Dutta never held the office of the District Judge. But the High Court omitted to consider whether he continued to hold the office of an Additional District Judge after March 8, 1957. We are satisfied that during the period from March 8, 1957 up to April 24, 1958, Shri Dutta, while officiating as a Registrar of the High Court, continued to hold the office of an Additional District Judge.The High Court was in error in thinking that in order to satisfy the conditions of S. 7-A (3) (aa), Shri Dutta should have actually worked as an Additional District Judge for a period of not less than three years. For over three years Shri Dutta held the post of an Additional District Judge. Consequently, during this period he had been an Additional District Judge as required by S. 7-A (3) (aa). To satisfy the requirements of S. 7-A (3) (aa) it was not necessary that he must have actually worked as an Additional District Judge for this period. 6. The appointment of Shri Dutta as the Presiding Officer of the Industrial Tribunal was made without consultation with the High Court. Respondent No. 1 submitted that, consequently, there was no compliance with the proviso to S. 7-A (3) (aa) inserted by Assam Act No. 8 of 1962. This contention has no force.In respect of the subject-matter of the appointment of a person who has for a period of not less than three years been a District Judge or an Additional District Judge, Cl. (aa) inserted by Central Act No. 36 of 1964 impliedly repealed Cl. (aa) inserted by the Assam Act. Clause (aa) inserted by the Central Act is intended to be an exhaustive code in respect of this subject-matter. The Central Act now occupies this field. The provisions of Cl. (aa) inserted by the Assam Act on this subject are repugnant to Cl. (aa) inserted by the Central Act and by Art. 254 of the Constitution, to the extent of this repugnancy, is void. Clause (aa) of S. 7-A (3) inserted by the Central Act does not require any consultation with the High Court. 7. It follows that Shri Dutta was duly qualified for appointment under S. 7-A (3) (aa), and the order of the High Court must be set aside. 8. We may add that in respect of the subject of appointment of a person who is qualified for appointment as a Judge of a High Court, clause (aa) inserted by Assam Act No. 8 of 1962 including its proviso continues to be in force. But counsel for the State of Assam did not seek to justify the appointment of Shri Dutta under Cl. (aa) inserted by the Assam Act. 9. It appears that before December 7, 1965, Shri Dutta had been the Presiding Officer of a Labour Court for over two years. Counsel for Shri Dutta submitted that he, therefore, held the office of a member of a Tribunal and was qualified for appointment under S. 7-A (3) (b). There is no force in this contention. Section 2 (r) defines Tribunal. It reads:"Tribunal" means an Industrial Tribunal constituted under Section 7-A and includes an Industrial Tribunal "constituted before the 10th day of March, 1957 under this Act." Obviously, the first part of the definition in S. 2 (r) cannot be fitted in S. 7-A (3) (b). The expression Tribunal in S. 7-A (3) (b), therefore, means "an Industrial Tribunal constituted before the 10th day of March, 1957 under this Act." Thus, a person who held the office of the Chairman or any other member of an Industrial Tribunal constituted under S. 7 as it stood before March 10, 1957 is qualified for appointment under S. 7-A (3) (b), though he may not be qualified otherwise for appointment under S. 7-A (3). But a Labour Court is not a Tribunal within the meaning of S. 7-A (3) (b) read with S. 2 (r). Shri Dutta was, therefore, not qualified for appointment under S. 7-A (3) (b). ### Response: 1 ### Explanation: 6. The appointment of Shri Dutta as the Presiding Officer of the Industrial Tribunal was made without consultation with the High Court. Respondent No. 1 submitted that, consequently, there was no compliance with the proviso to S. 7-A (3) (aa) inserted by Assam Act No. 8 of 1962. This contention has no force.In respect of the subject-matter of the appointment of a person who has for a period of not less than three years been a District Judge or anAdditional DistrictJudge, Cl. (aa) inserted by Central Act No. 36 of 1964 impliedly repealed Cl. (aa) inserted by the Assam Act. Clause (aa) inserted by the Central Act is intended to be an exhaustive code in respect of this subject-matter. The Central Act now occupies this field. The provisions of Cl. (aa) inserted by the Assam Act on this subject are repugnant to Cl. (aa) inserted by the Central Act and by Art. 254 of the Constitution, to the extent of this repugnancy, is void. Clause (aa) of S. 7-A (3) inserted by the Central Act does not require any consultation with the High Court7. It follows that Shri Dutta was duly qualified for appointment under S. 7-A (3) (aa), and the order of the High Court must be set aside8. We may add that in respect of the subject of appointment of a person who is qualified for appointment as a Judge of a High Court, clause (aa) inserted by Assam Act No. 8 of 1962 including its proviso continues to be in force. But counsel for the State of Assam did not seek to justify the appointment of Shri Dutta under Cl. (aa) inserted by the Assam ActThere is no force in this contention. Section 2 (r) defines Tribunal. It reads:"Tribunal" means an Industrial Tribunal constituted under Section 7-A and includes an Industrial Tribunal "constituted before the 10th day of March, 1957 under this Act." Obviously, the first part of the definition in S. 2 (r) cannot be fitted in S. 7-A (3) (b). The expression Tribunal in S. 7-A (3) (b), therefore, means "an Industrial Tribunal constituted before the 10th day of March, 1957 under this Act."Thus, a person who held the office of the Chairman or any other member of an Industrial Tribunal constituted under S. 7 as it stood before March 10, 1957 is qualified for appointment under S. 7-A (3) (b), though he may not be qualified otherwise for appointment under S. 7-A (3). But a Labour Court is not a Tribunal within the meaning of S. 7-A (3) (b) read with S. 2 (r). Shri Dutta was, therefore, not qualified for appointment under S. 7-A (3) (b).

NIRAVKUMAR DILIPBHAI MAKWANA Vs. GUJRAT PUBLIC SERVICE COMMISSION AND ORS

In this case, this Court was considering the interpretation of Sub-section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub¬ section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under:"(6) If a person belonging to any categories mentioned in sub¬section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub¬section (1)."27. The State of U.P. issued Instructions dated 25.03.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public Services. Last line of these instructions is as under:¬"It shall be immaterial that he has availed any facility or relaxation (like relaxation in age¬ limit) available to reserved category."28. On consideration of sub¬section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.29. In Deepa (supra), the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under:"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies."30. The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.31. Similar question arose in Gaurav Pradhan (supra). In this case the Government had issued Circular dated 24.06.2008 which is as under:?Circular dated 24¬6¬20086.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.?32. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under:"32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25¬3¬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 the Circular dated 24¬6¬2008."33. The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the respondents.34. The judgment in Ajithkumar (supra) relied on by the learned senior counsel for the appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the appellant in any manner36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.

0[ds]15. The State Government, in exercise of its powers conferred under Article 309 of the Constitution of India made Rules of 1967 vide notification dated 10.10.1967. As per sub¬rule (2) of Rule 8, the appointing authority has been given powers to relax age limit in favour of the candidates belonging to SC/ST and SEBC and in favour of women candidates to the extent indicated therein. The Ministry of Personnel, Public Grievances and Pensions vide Office Memorandum dated 22.05.1989 formulated a policy in tune with Article 16(4) of the Constitution of India, which enables the State Government to provide for reservation for the category of persons belonging to backward classes. Thereafter, the Ministry of Personnel, Public Grievances and Pensions vide Office Memorandum dated 01.07.1998 clarified the earlier O.M dated 22.05.1989.Thus, the appointments in the category of SC/ST and other backward classes to the post of class I and class III in the State Services are being governed by the aforesaid policies and the State Government and/or any Authorities effecting direct appointments are required to give effect to the aforesaid policy decision at the time of recruitment process viz. preparing the select list etc.19. It is evident from the above two circulars that a candidate who has availed of age relaxation in the selection process as a result of belonging to a reserved category cannot, thereafter, seek to be accommodated in or migrated to the general category seats.Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time.25. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post.On consideration of sub¬section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held asWe are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25¬3¬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 the Circular dated 24¬6¬2008.The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the respondents.34. The judgment in Ajithkumar (supra) relied on by the learned senior counsel for the appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the appellant in any manner36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.

### 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 this case, this Court was considering the interpretation of Sub-section (6) of Section 3 of U.P. Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (for short "1994 Act") and the Government Instructions dated 25.03.1994. Sub¬ section (6) of Section 3 of this Act provided for reservation in favour of Scheduled Castes, Scheduled Tribes and other Backward Classes which is as under:"(6) If a person belonging to any categories mentioned in sub¬section (1) gets selected on the basis of merit in an open competition with general candidates, he shall not be adjusted against the vacancies reserved for such category under sub¬section (1)."27. The State of U.P. issued Instructions dated 25.03.1994 on the subject of reservation for Scheduled Castes, Scheduled Tribes and Other Backward Groups in the Uttar Pradesh Public Services. Last line of these instructions is as under:¬"It shall be immaterial that he has availed any facility or relaxation (like relaxation in age¬ limit) available to reserved category."28. On consideration of sub¬section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.29. In Deepa (supra), the appellant had applied for the post of Laboratory Assistant Grade II in Export Inspection Council of India functioning under the Ministry of Commerce and Industry, Government of India under OBC category by availing age relaxation. The Department of Personnel and Training had issued proceedings O.M. dated 22.05.1989 laying down the stipulation to be followed by various Ministries/Departments for recruitment to various posts under the Central Government and the reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates. Paragraph 3 of the said O.M. is as under:"3. In this connection, it is clarified that only such SC/ST/OBC candidates who are selected on the same standards as applied to general candidates shall not be adjusted against reserved vacancies."30. The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.31. Similar question arose in Gaurav Pradhan (supra). In this case the Government had issued Circular dated 24.06.2008 which is as under:?Circular dated 24¬6¬20086.2. In the State, members of the SC/ST/OBC can compete against non-reserved vacancies and be counted against them, in case they have not taken any concession (like that of age, etc.) payment of examination fee in case of direct recruitment.?32. Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held as under:"32. We are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25¬3¬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 the Circular dated 24¬6¬2008."33. The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the respondents.34. The judgment in Ajithkumar (supra) relied on by the learned senior counsel for the appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the appellant in any manner36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India. ### Response: 0 ### Explanation: Constitution of India, which enables the State Government to provide for reservation for the category of persons belonging to backward classes. Thereafter, the Ministry of Personnel, Public Grievances and Pensions vide Office Memorandum dated 01.07.1998 clarified the earlier O.M dated 22.05.1989.Thus, the appointments in the category of SC/ST and other backward classes to the post of class I and class III in the State Services are being governed by the aforesaid policies and the State Government and/or any Authorities effecting direct appointments are required to give effect to the aforesaid policy decision at the time of recruitment process viz. preparing the select list etc.19. It is evident from the above two circulars that a candidate who has availed of age relaxation in the selection process as a result of belonging to a reserved category cannot, thereafter, seek to be accommodated in or migrated to the general category seats.Article 16(4) of the Constitution is an enabling provision empowering the State to make any provision or reservation of appointments or posts in favour of any backward class of citizens which in the opinion of the State is not adequately represented in the service under the State. It is purely a matter of discretion of the State Government to formulate a policy for concession, exemption, preference or relaxation either conditionally or unconditionally in favour of the backward classes of citizens. The reservation being the enabling provision, the manner and the extent to which reservation is provided has to be spelled out from the orders issued by the Government from time to time.25. In the instant case, State Government has framed policy for the grant of reservation in favour of SC/ST and OBC by the Circulars dated 21.01.2000 and 23.07.2004. The State Government has clarified that when a relaxed standard is applied in selecting a candidate for SC/ST, SEBC category in the age limit, experience, qualification, permitting number of chances in the written examination etc., then candidate of such category selected in the said manner, shall have to be considered only against his/her reserved post. Such a candidate would be deemed as unavailable for consideration against unreserved post.On consideration of sub¬section (3) of Section 6 of the 1994 Act and the Instructions dated 25.03.1994, this Court held that grant of age relaxation to a reserved category candidate does not militate against him as general category candidate if he has obtained more marks than any general category candidates. This judgment was based on the statutory interpretation of 1994 Act and the Instructions dated25.03.1994 which is entirely different from the statutory scheme under consideration in the instant appeal. Hence, the principle laid down in Jitendra Kumar Singh (supra) has no application to the facts of the present case.The judgment in Jitendra Kumar Singh (supra), was pressed into service in support of the contention that when a relaxed standard is applied in selecting Scheduled Castes, Scheduled Tribes and Other Backward Classes candidates, the same cannot be treated as a bar on such candidates for being considered for general category vacancies. This Court did not agree with the said proposition. It was held that Jitendra Kumar Singh (supra) was based on the statutory interpretation of the U.P. Act, 1994, and the GO dated 25.03.1994 which provides for an entirely different scheme. Therefore, the principles laid down in Jitendra Kumar Singh (supra) cannot be applied to the said case.Taking into consideration the above circular, this Court held that the ratio of the judgment in Jitendra Kumar Singh (supra) has to be read in the context of statutory provisions and the GO dated 25.03.1994 and the said observation cannot be applied in a case where the Government Orders are to the converse effect. It was held asWe are of the view that the judgment of this Court in Jitendra Kumar Singh which was based on statutory scheme and the Circular dated 25¬3¬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 the Circular dated 24¬6¬2008.The judgments in Deepa (supra) and Gaurav Pradhan (supra) fully support the case of the respondents.34. The judgment in Ajithkumar (supra) relied on by the learned senior counsel for the appellant has no application to the facts of the instant appeal. In that case, this Court was not examining the effect of a statutory provision/circular granting age relaxation to the candidates belonging to the reserved category.35. Similarly, in Vikas Sankhala (supra), relaxation of marks of TET was allowed to different categories (under the orders of the State Government dated 23.03.2011). After such relaxation, the reserved category candidates were selected as having obtained more marks than the last general candidate and were included as general category candidates. The general category candidates contended that since relaxation was obtained prior to the circular dated 11.05.2011, reserved category candidates were not eligible to be included as general category candidates. This Court, after noticing the circulars issued from time to time, held that relaxation given in the marks in the TET examination was not part of the recruitment process. This judgment also does not assist the appellant in any manner36. There is also no merit in the submission of the learned counsel for the appellant that relaxation in age at the initial qualifying stage would not fall foul of the circulars dated 29.01.2000 and 23.07.2004. The distinction sought to be drawn between the preliminary and final examination is totally misconceived. It is evident from the advertisement that a person who avails of an age relaxation at the initial stage will necessarily avail of the same relaxation even at the final stage. We are of the view that the age relaxation granted to the candidates belonging to SC/ST and SEBC category in the instant case is an incident of reservation under Article 16(4) of the Constitution of India.

Mohd. Rajab Gujari Vs. The State of Jammu and Kashmir and Anr

aside. That is how the appeal has come up for hearing again.3. The facts of the case lie in a short compass. The appellant offered to supply milk to the S.M.H.S. Hospital, Srinagar, in pursuance to a tender notice issued by the Superintendent of the hospital at the rate of Rs. 15.90 per maund. The offer was accepted on March 20, 1961, and the agreement was for supply of milk from April 1, 1961, to March 31, 1962. A formal contract recording the agreement was drawn up on May 17, 1961. One of the conditions in the agreement was that if milk became a controlled article during the period of agreement, the contractor shall be paid at the controlled rate for the supply of the articles made by him. This is practically the same as paragraph 12 of tender notice. In pursuance to the agreement, the appellant supplied milk to the hospital during the period of the agreement. The price of milk was controlled by virtue of a notification issued on May 2, 1961, and this control remained in force till the end of the contract period, namely, March 31, 1962. The case of the appellant was that although he agreed to supply milk at the rate of Rs. 15.90 per maund, as the controlled price Rs. 25 per maund, he was entitled to be paid at this rate after the date of the notification controlling the price. He therefore, claimed price of milk at the rate of Rs. 25 per maund from May 2, 1961, to the end of March, 1962, and filed the suit.4. The defendants contended that there was no control by Government of the price of milk in the strict sense of the term and that the appellant, having agreed to supply milk at the rate of Rs. 15.90 per maund, could not take advantage of the control of the price of milk, and, therefore, he was not entitled to be paid at the rate of Rs. 25 per maund for the period in question.5. A learned Single Judge of the High Court, who tried the case, came to the conclusion that the appellant was entitled to the price mentioned in the notification and decreed the suit on that basis. The State filed an appeal against the decree before the Division Bench. The Division Bench reversed the decision dismissed the suit.6. The only question for consideration is whether the appellant was entitled to get Rs. 25 per maund as the price for the milk supplied by him from the date of the notification.7. The Division Bench was of the view that the notification did not control price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.8. The notification in question runs as follows :In exercise of the powers vested in me under Section 3 of the Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I. S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designed controller General under 2(c) of the said Act vide notification dated 3-7-1959 issued under Home Secretariat No. S. 7/I-S/59 dated 8-7-1959 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each :* * * *Milk Rs. -/10/- per seer.When a government fixes the maximum price of a commodity, it is because the price, if uncontrolled, is likely to rise very high. There can be no doubt also that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even through there is no bar to his selling the same at a lower price.9. In fact, the appellant has examined eight witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk by the notification, the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk went up in the market after the notification. As already stated, the positive evidence of PWs 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.10. The relevant clause in the agreement runs as follows :The contractor shall be paid at the rates against each of the article was as below for the supplies to be made by him :Cr. No. S. No. Name of articles Approved rate/Quantity requiredII 3 Milk 4200 maunds; Rs. 15.90 (Rupeesfifteen and ninety naya paise).Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him.11. The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".

1[ds]7. The Division Bench wasthe view that the notification did not control price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.8. The notification in question runs as follows :In exercise of the powers vested in me under Section 3 of the Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I. S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designed controller General under 2(c) of the said Act vide notification datedissued under Home Secretariat No. S.59 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each :* * * *Milk Rs.per seer.When a government fixes the maximum price of a commodity, it is because the price, if uncontrolled, is likely to rise very high. There can be no doubt also that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even through there is no bar to his selling the same at a lower price.9. In fact, the appellant has examined eight witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk by the notification, the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk went up in the market after the notification. As already stated, the positive evidence of PWs 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.10. The relevant clause in the agreement runs as follows :The contractor shall be paid at the rates against each of the article was as below for the supplies to be made by him :Cr. No. S. No. Name of articles Approved rate/Quantity requiredII 3 Milk 4200 maunds; Rs. 15.90 (Rupeesfifteen and ninety naya paise).Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him.11. The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".

### 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: aside. That is how the appeal has come up for hearing again.3. The facts of the case lie in a short compass. The appellant offered to supply milk to the S.M.H.S. Hospital, Srinagar, in pursuance to a tender notice issued by the Superintendent of the hospital at the rate of Rs. 15.90 per maund. The offer was accepted on March 20, 1961, and the agreement was for supply of milk from April 1, 1961, to March 31, 1962. A formal contract recording the agreement was drawn up on May 17, 1961. One of the conditions in the agreement was that if milk became a controlled article during the period of agreement, the contractor shall be paid at the controlled rate for the supply of the articles made by him. This is practically the same as paragraph 12 of tender notice. In pursuance to the agreement, the appellant supplied milk to the hospital during the period of the agreement. The price of milk was controlled by virtue of a notification issued on May 2, 1961, and this control remained in force till the end of the contract period, namely, March 31, 1962. The case of the appellant was that although he agreed to supply milk at the rate of Rs. 15.90 per maund, as the controlled price Rs. 25 per maund, he was entitled to be paid at this rate after the date of the notification controlling the price. He therefore, claimed price of milk at the rate of Rs. 25 per maund from May 2, 1961, to the end of March, 1962, and filed the suit.4. The defendants contended that there was no control by Government of the price of milk in the strict sense of the term and that the appellant, having agreed to supply milk at the rate of Rs. 15.90 per maund, could not take advantage of the control of the price of milk, and, therefore, he was not entitled to be paid at the rate of Rs. 25 per maund for the period in question.5. A learned Single Judge of the High Court, who tried the case, came to the conclusion that the appellant was entitled to the price mentioned in the notification and decreed the suit on that basis. The State filed an appeal against the decree before the Division Bench. The Division Bench reversed the decision dismissed the suit.6. The only question for consideration is whether the appellant was entitled to get Rs. 25 per maund as the price for the milk supplied by him from the date of the notification.7. The Division Bench was of the view that the notification did not control price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.8. The notification in question runs as follows :In exercise of the powers vested in me under Section 3 of the Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I. S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designed controller General under 2(c) of the said Act vide notification dated 3-7-1959 issued under Home Secretariat No. S. 7/I-S/59 dated 8-7-1959 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each :* * * *Milk Rs. -/10/- per seer.When a government fixes the maximum price of a commodity, it is because the price, if uncontrolled, is likely to rise very high. There can be no doubt also that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even through there is no bar to his selling the same at a lower price.9. In fact, the appellant has examined eight witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk by the notification, the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk went up in the market after the notification. As already stated, the positive evidence of PWs 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.10. The relevant clause in the agreement runs as follows :The contractor shall be paid at the rates against each of the article was as below for the supplies to be made by him :Cr. No. S. No. Name of articles Approved rate/Quantity requiredII 3 Milk 4200 maunds; Rs. 15.90 (Rupeesfifteen and ninety naya paise).Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him.11. The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates". ### Response: 1 ### Explanation: 7. The Division Bench wasthe view that the notification did not control price of milk but only fixed the maximum price at which milk could be bought and sold in the market and that did not deter any person from selling milk at a price lower than that fixed by the notification and so, the appellant could have purchased milk in the market at a lower price and supplied it to the hospital in accordance with the terms of the agreement, namely, at Rs. 15.90 per maund.8. The notification in question runs as follows :In exercise of the powers vested in me under Section 3 of the Hoarding and Profiteering Prevention Ordinance 2000, as amended to date, I. S. A. S. Qaidri, Director, Food and Supplies, Kashmir Province, designed controller General under 2(c) of the said Act vide notification datedissued under Home Secretariat No. S.59 hereby fix maximum price of sale for the following essential commodities in the following localities as shown against each :* * * *Milk Rs.per seer.When a government fixes the maximum price of a commodity, it is because the price, if uncontrolled, is likely to rise very high. There can be no doubt also that when a Government regulates the price of a commodity, it begets a tendency in the market to raise the price of the commodity at least to the level of the price fixed by the government. No person would normally agree, after the notification, to sell or supply milk at a price lower than the one fixed by the Government even through there is no bar to his selling the same at a lower price.9. In fact, the appellant has examined eight witnesses to show that, after the notification, the price of milk went up and they supplied milk to the appellant at Rs. 23.50 per maund. The witnesses examined on behalf of the respondents have also stated that after the control of the price of milk by the notification, the price of milk went up in the market. Thus, the evidence adduced on behalf of the respondents also shows that the price of milk went up in the market after the notification. As already stated, the positive evidence of PWs 1 to 8 is to the effect that the appellant himself purchased milk from them at the rate of Rs. 23.50 per maund after the aforesaid notification.10. The relevant clause in the agreement runs as follows :The contractor shall be paid at the rates against each of the article was as below for the supplies to be made by him :Cr. No. S. No. Name of articles Approved rate/Quantity requiredII 3 Milk 4200 maunds; Rs. 15.90 (Rupeesfifteen and ninety naya paise).Cost : Rs. 66780.00Provided if any of the articles is controlled during the period of operation of this agreement the contractor shall be paid at controlled rates for the supplies of that article made by him.11. The mere fact that a commodity could be sold in the market below the price fixed by a notification fixing the maximum price by government would not indicate that there was no control. Control of any of the articles contemplated by the parties under the agreement was a control of the price of the articles. We do not think that the parties could have visualized any other control in the context of "the contractor being paid at the controlled rates".

Gurbachan Singh And Others Vs. Puran Singh And Others

by the exercise of undue influence or coercion or fraud and that the land had not been proved to be ancestral. An appeal was taken against this decree to the District Judge who held that out of 66 Kanals, 2 Marlas of land in dispute an area of 28 Kanals, 3 Marlas was ancestral as it was held by Himmat Singh, father of Mehtab Singh the common ancestor. The District Judge also held that Mehtab Singh had predeceased Himmat Singh but of this there seems to be no proof. On appeal the High Court reversed the judgment of the District Judge and restored that of the trial Court and the appellant have come in appeal to this Court by special leave.3. The sole question for decision in this appeal is whether 28 Kanals, 3 Marlas out of the land in suit by the appellants is proved to be ancestral qua them. Out of the land claimed 20 Kanals, 19 Marlas described in Para A-2 had been proved to have been acquired by Mangal Singh by pre-emption and another portion was his self-acquired mortgagee land. Therefore the dispute was confined to certain Khasra numbers which had fallen to the share of the testator in consolidation proceedings in lieu of his share in land held by him. The excerpt P. W. 6/1 prepared by the Special Kanungo shows that some of those Khasra numbers were traced to the possession of Himmat Singh s/o. Milkhi in 1849 and some Khasra numbers were traced to the possession of Himmat Singh and others and the remaining were traced to strangers. The District Judge held that only the land which was held in 1849 by Himmat Singh could be ancestral qua the plaintiffs and, therefore, decreed the suit in regard to that portion which was 28 Kanals and 3 Marlas and that is the area of the land which is now in dispute.4. In order to come to this conclusion the learned District Judge in an elaborate judgment has traced the history of each Khasra number and decreed only those Khasras which were held by Himmat Singh. The High Court did not accept this finding but, in our opinion, the High Court was in error in interfering with that finding. At the first regular settlement the land decreed was held by. Himmat Singh and the revenue pedigree shows that in 1885 the three branches descending from Himmat Singh, i.e., Gulab Singh who was alive, sons of Mehtab Singh and Leekar son of Fattu held khewat Nos. 34, 35 and 36 which were equal in area and each branch was paying land revenue of Rs. 13/-. The excerpt Ex. P. W. 6/1 prepared by the Kanungo further shows that the land held by the sons of Mehtab Singh, i.e., Khata No. 34 was held by them jointly and in equal shares. On these facts the finding in regard to the land decreed was held to be ancestral.5. It was argues on behalf of the respondents that the land was not ancestral and that it cannot be ancestral unless it was shown that it was held by the common ancestor, i.e., Mehtab Singh and as there was no revenue by entry showing the land to have been held by him the land could not be said to be ancestral. Support for this was sought from a judgment of the Privy Council in Attar Singh v. Thakar Singh, 35 Ind App 206 (211) were Lord Collins observed as follows :-"It is through their father, as heir of the above-named Dhanna Singh that the plaintiffs claimed and unless the lands came to Dhanna Singh by descent from a lineal male ancestor in the male line through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law."But this does not support the submission of counsel for the respondents. It is true that in the present case the land was held by a remote ancestor and not by the immediate common ancestor but the history of the land which has been referred to above clearly shows the ancestral nature of the land in the hand of the descendants, the parties to the present appeal. It, therefore, is ancestral. The contention of the respondents does not find support from decided cases and it is an erroneous view to take that merely because the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is, it is non-ancestral even though the history of the land gives no indication of its acquisition by the descendants except by inheritance.6. It was then argued that as the land claimed had been consolidated and both ancestral and non-ancestral land had got mixed up it cannot be said as to what portion is ancestral and what is non-ancestral. This again is not a correct approach to the question. Where land has been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area is given to a proprietor then such of the portion of the consolidated area which corresponds to the area of land which was ancestral will be ancestral land. It was so held in Haveldar Mihan Singh v. Piara Singh, 48 Pun LR 536 which is a decision of Abdul Rashid and Mehr Chand Mahajan JJ. (as they then were). The same view has taken in a later judgment of the East Punjab High Court in Gurdev Singh v. Dasaundhi, AIR 1948 EP 22 (25), where it was observed :"However, where the ancestral portion of the land so given or thrown was by no means negligible and bore a definite proportion to the whole of the land there can be no difficulty in apportioning the land acquired according to the areas of the two classes of such land, namely, ancestral and non-ancestral."7. The District Judge in our view rightly held that 28 Kanals and 3 Marlas were ancestral and he has rightly decreed the suit qua that portion.

1[ds]4. In order to come to this conclusion the learned District Judge in an elaborate judgment has traced the history of each Khasra number and decreed only those Khasras which were held by Himmat Singh. The High Court did not accept this finding but, in our opinion, the High Court was in error in interfering with that finding. At the first regular settlement the land decreed was held by. Himmat Singh and the revenue pedigree shows that in 1885 the three branches descending from Himmat Singh, i.e., Gulab Singh who was alive, sons of Mehtab Singh and Leekar son of Fattu held khewat Nos. 34, 35 and 36 which were equal in area and each branch was paying land revenue of Rs. 13/-. The excerpt Ex. P. W. 6/1 prepared by the Kanungo further shows that the land held by the sons of Mehtab Singh, i.e., Khata No. 34 was held by them jointly and in equal shares. On these facts the finding in regard to the land decreed was held to bethis does not support the submission of counsel for the respondents. It is true that in the present case the land was held by a remote ancestor and not by the immediate common ancestor but the history of the land which has been referred to above clearly shows the ancestral nature of the land in the hand of the descendants, the parties to the present appeal. It, therefore, is ancestral. The contention of the respondents does not find support from decided cases and it is an erroneous view to take that merely because the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is, it is non-ancestral even though the history of the land gives no indication of its acquisition by the descendants except byagain is not a correct approach to the question. Where land has been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area is given to a proprietor then such of the portion of the consolidated area which corresponds to the area of land which was ancestral will be ancestral land.The District Judge in our view rightly held that 28 Kanals and 3 Marlas were ancestral and he has rightly decreed the suit qua that portion.

### 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: by the exercise of undue influence or coercion or fraud and that the land had not been proved to be ancestral. An appeal was taken against this decree to the District Judge who held that out of 66 Kanals, 2 Marlas of land in dispute an area of 28 Kanals, 3 Marlas was ancestral as it was held by Himmat Singh, father of Mehtab Singh the common ancestor. The District Judge also held that Mehtab Singh had predeceased Himmat Singh but of this there seems to be no proof. On appeal the High Court reversed the judgment of the District Judge and restored that of the trial Court and the appellant have come in appeal to this Court by special leave.3. The sole question for decision in this appeal is whether 28 Kanals, 3 Marlas out of the land in suit by the appellants is proved to be ancestral qua them. Out of the land claimed 20 Kanals, 19 Marlas described in Para A-2 had been proved to have been acquired by Mangal Singh by pre-emption and another portion was his self-acquired mortgagee land. Therefore the dispute was confined to certain Khasra numbers which had fallen to the share of the testator in consolidation proceedings in lieu of his share in land held by him. The excerpt P. W. 6/1 prepared by the Special Kanungo shows that some of those Khasra numbers were traced to the possession of Himmat Singh s/o. Milkhi in 1849 and some Khasra numbers were traced to the possession of Himmat Singh and others and the remaining were traced to strangers. The District Judge held that only the land which was held in 1849 by Himmat Singh could be ancestral qua the plaintiffs and, therefore, decreed the suit in regard to that portion which was 28 Kanals and 3 Marlas and that is the area of the land which is now in dispute.4. In order to come to this conclusion the learned District Judge in an elaborate judgment has traced the history of each Khasra number and decreed only those Khasras which were held by Himmat Singh. The High Court did not accept this finding but, in our opinion, the High Court was in error in interfering with that finding. At the first regular settlement the land decreed was held by. Himmat Singh and the revenue pedigree shows that in 1885 the three branches descending from Himmat Singh, i.e., Gulab Singh who was alive, sons of Mehtab Singh and Leekar son of Fattu held khewat Nos. 34, 35 and 36 which were equal in area and each branch was paying land revenue of Rs. 13/-. The excerpt Ex. P. W. 6/1 prepared by the Kanungo further shows that the land held by the sons of Mehtab Singh, i.e., Khata No. 34 was held by them jointly and in equal shares. On these facts the finding in regard to the land decreed was held to be ancestral.5. It was argues on behalf of the respondents that the land was not ancestral and that it cannot be ancestral unless it was shown that it was held by the common ancestor, i.e., Mehtab Singh and as there was no revenue by entry showing the land to have been held by him the land could not be said to be ancestral. Support for this was sought from a judgment of the Privy Council in Attar Singh v. Thakar Singh, 35 Ind App 206 (211) were Lord Collins observed as follows :-"It is through their father, as heir of the above-named Dhanna Singh that the plaintiffs claimed and unless the lands came to Dhanna Singh by descent from a lineal male ancestor in the male line through whom the plaintiffs also in like manner claimed, they are not deemed ancestral in Hindu law."But this does not support the submission of counsel for the respondents. It is true that in the present case the land was held by a remote ancestor and not by the immediate common ancestor but the history of the land which has been referred to above clearly shows the ancestral nature of the land in the hand of the descendants, the parties to the present appeal. It, therefore, is ancestral. The contention of the respondents does not find support from decided cases and it is an erroneous view to take that merely because the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is, it is non-ancestral even though the history of the land gives no indication of its acquisition by the descendants except by inheritance.6. It was then argued that as the land claimed had been consolidated and both ancestral and non-ancestral land had got mixed up it cannot be said as to what portion is ancestral and what is non-ancestral. This again is not a correct approach to the question. Where land has been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area is given to a proprietor then such of the portion of the consolidated area which corresponds to the area of land which was ancestral will be ancestral land. It was so held in Haveldar Mihan Singh v. Piara Singh, 48 Pun LR 536 which is a decision of Abdul Rashid and Mehr Chand Mahajan JJ. (as they then were). The same view has taken in a later judgment of the East Punjab High Court in Gurdev Singh v. Dasaundhi, AIR 1948 EP 22 (25), where it was observed :"However, where the ancestral portion of the land so given or thrown was by no means negligible and bore a definite proportion to the whole of the land there can be no difficulty in apportioning the land acquired according to the areas of the two classes of such land, namely, ancestral and non-ancestral."7. The District Judge in our view rightly held that 28 Kanals and 3 Marlas were ancestral and he has rightly decreed the suit qua that portion. ### Response: 1 ### Explanation: 4. In order to come to this conclusion the learned District Judge in an elaborate judgment has traced the history of each Khasra number and decreed only those Khasras which were held by Himmat Singh. The High Court did not accept this finding but, in our opinion, the High Court was in error in interfering with that finding. At the first regular settlement the land decreed was held by. Himmat Singh and the revenue pedigree shows that in 1885 the three branches descending from Himmat Singh, i.e., Gulab Singh who was alive, sons of Mehtab Singh and Leekar son of Fattu held khewat Nos. 34, 35 and 36 which were equal in area and each branch was paying land revenue of Rs. 13/-. The excerpt Ex. P. W. 6/1 prepared by the Kanungo further shows that the land held by the sons of Mehtab Singh, i.e., Khata No. 34 was held by them jointly and in equal shares. On these facts the finding in regard to the land decreed was held to bethis does not support the submission of counsel for the respondents. It is true that in the present case the land was held by a remote ancestor and not by the immediate common ancestor but the history of the land which has been referred to above clearly shows the ancestral nature of the land in the hand of the descendants, the parties to the present appeal. It, therefore, is ancestral. The contention of the respondents does not find support from decided cases and it is an erroneous view to take that merely because the possession by the common ancestor itself is not shown in the revenue records but that of a more remote direct ancestor is, it is non-ancestral even though the history of the land gives no indication of its acquisition by the descendants except byagain is not a correct approach to the question. Where land has been consolidated and in lieu of ancestral lands and non-ancestral land a consolidated area is given to a proprietor then such of the portion of the consolidated area which corresponds to the area of land which was ancestral will be ancestral land.The District Judge in our view rightly held that 28 Kanals and 3 Marlas were ancestral and he has rightly decreed the suit qua that portion.

State Of Kerala Vs. Peoples Union For Civil Liberties

20 of the U.P. General Clauses Act. In the absence of application of Section 6-C to the statutory instrument, including the statutory rule, which is the case before us, the contention of the respondents deserves to be rejected. Since Section 6-C of the U.P. General Clauses Act has not been applied to the statutory rule framed by the Government of Uttar Pradesh, the substituted rule after it became inoperative, the old Rule 49 would not revive." The aforementioned observations were, thus, made having regard to the fact that Section 6-C of the U.P. General Clauses Act had not been applied to the statutory Rules, which reads as under :- "6-C. Repeal or expiration of law-making textual amendments in other laws.--(1) Except as provided by sub-section (2), where any Uttar Pradesh Act amends the text of any Uttar Pradesh Act or Regulation by the express omission, insertion or substitution of any matter, the amending enactment is subsequently repealed, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. (2) Where any such amendment of text is made by any temporary Uttar Pradesh Act or by an Ordinance or by any law made in exercise of the power of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution, and such Act, Ordinance or other law ceases to operate without being re-enacted (with or without modifications) the amendment of text made thereby shall also cease to operate." However, the Bench opined:- "15. It would have been a different case where a subsequent law which modified the earlier law was held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded of the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here." Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC 376] is a case where the statute was modified and a different view was taken. But the principle laid down therein has been held to be inapplicable in Indian Express Newspapers v. Union of India, [ (1985) 1 SCC 641 ] "106. The rule in Mohd. Shaukat Hussain Khan v. State of A.P. is inapplicable to these cases. In that case the subsequent law which modified the earlier one and which was held to be void was one which according to the Court could not have been passed at all by the State Legislature. In such a case the earlier law could be deemed to have never been modified or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on the striking down of a later law which purported to modify or repeal the earlier one. It was a case where the earlier law had not been either modified or repealed effectively." Repeal of a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. In Southern Petrochemical Industries (supra), the subsequent Act did not contain the words "unless a different intention appears". It was held that the later Act was not different from the earlier Act. This Court is required to assume that the Legislature did so deliberately.In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayan Krishnan. AGRICULTURAL AND NON-AGRICULTURAL LAND Classification between agricultural and non-agricultural land is a valid one. It is, however, accepted that all forest areas comprise of the agricultural land. The State has admittedly no legislative competence to enact a legislation in exercise of its power of Entry No. 49, List II of the Seventh Schedule of the Constitution of India in relation to non-agricultural land. Such a power has been noticed hereinbefore. It exists only in terms of Entry 6, List III of the Seventh Schedule of the Constitution of India. While enacting the 1999 Act, the State could not have deprived the persons who hold non-agricultural land, having enacted the 1975 Act and, thus, could not have repealed a portion thereof by raising the following contention: "...If in a given situation a tribal possess non- agricultural land that only indicates that though the person is a tribal by birth he has come a long way from the way of Scheduled Tribe and has acquired the trappings of non tribals and thereafter has come to own immovable property other than the agricultural land. The exploitation of the tribals has studied would indicate (sic) has always taken place by deprivation of the agricultural land of the tribals..." Once they have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act.

1[ds]We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest of the small land holders who were in possession and enjoyment of property which had belonged to tribal community and at the same time ensured that the tribals are not thrown out of their land and rendered homeless. Having regard to the studies conducted by the State Government and as a balance of interest between tribals and non-tribals which has been sought to be achieved, the provisions of the 1999 Act are intraare, however, not concerned therewith. Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved would be entitled to take recourse to such remedies which are available to them in law.We must also make it clear that while allotting land to the members of the Scheduled Tribe, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purpose. The lands, which are to be allotted, must be similar in nature to the land possessed by the members of Scheduled Tribe. If in the past, such allotments have been made, as has been contended before us by the learned counsel for the respondent, the State must allot them other lands which are fit for agricultural purposes. Such a process should be undertaken and completed as expeditiously as possible and preferably within a period of six months fromour opinion, there exists a distinction between a statutory rule and a Legislative Act. The Legislature did not want a vacuum to be created. The 1999 Act was enacted repealing the 1975 Act only for certain purposes.Section 22(2) of the 1999 Act upheld certain actions taken under the 1975 Act as if they had been taken in terms thereof. The procedure for determining the rights and obligations of the parties by the Revenue Officers, under both the Acts, are more or less the same.We may notice Sections 19 and 22 of 1999 Act, which are relevant.It is, therefore, evident that only those laws which are in derogation of the provisions of the 1999 Act would stand repealed.We may in this connection notice certain decisions relied upon by Mr. Krishnan.A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC 928 = [1963] Supp (2) SCR 435 ] was a case of substitution of an old rule by a new rule. It, therefore, ceased to exist and did not automatically get revived when new rule was held to be invalid.We are, however, dealing with a Legislative Act, validity whereof was determined in the light of constitutionalof a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to aCourt is required to assume that the Legislature did so deliberately.In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayanthey have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act.

### Instruction: Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages. ### Input: 20 of the U.P. General Clauses Act. In the absence of application of Section 6-C to the statutory instrument, including the statutory rule, which is the case before us, the contention of the respondents deserves to be rejected. Since Section 6-C of the U.P. General Clauses Act has not been applied to the statutory rule framed by the Government of Uttar Pradesh, the substituted rule after it became inoperative, the old Rule 49 would not revive." The aforementioned observations were, thus, made having regard to the fact that Section 6-C of the U.P. General Clauses Act had not been applied to the statutory Rules, which reads as under :- "6-C. Repeal or expiration of law-making textual amendments in other laws.--(1) Except as provided by sub-section (2), where any Uttar Pradesh Act amends the text of any Uttar Pradesh Act or Regulation by the express omission, insertion or substitution of any matter, the amending enactment is subsequently repealed, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal. (2) Where any such amendment of text is made by any temporary Uttar Pradesh Act or by an Ordinance or by any law made in exercise of the power of the State Legislature by the President or other authority referred to in sub-clause (a) of clause (1) of Article 357 of the Constitution, and such Act, Ordinance or other law ceases to operate without being re-enacted (with or without modifications) the amendment of text made thereby shall also cease to operate." However, the Bench opined:- "15. It would have been a different case where a subsequent law which modified the earlier law was held to be void. In such a case, the earlier law shall be deemed to have never been modified or repealed and, therefore, continued to be in force. Where it is found that the legislature lacked competence to enact a law, still amends the existing law and subsequently it is found that the legislature or the authority was denuded of the power to amend the existing law, in such a case the old law would revive and continue. But it is not the case here." Mohd. Shaukat Hussain Khan v. State of A.P., [(1974) 2 SCC 376] is a case where the statute was modified and a different view was taken. But the principle laid down therein has been held to be inapplicable in Indian Express Newspapers v. Union of India, [ (1985) 1 SCC 641 ] "106. The rule in Mohd. Shaukat Hussain Khan v. State of A.P. is inapplicable to these cases. In that case the subsequent law which modified the earlier one and which was held to be void was one which according to the Court could not have been passed at all by the State Legislature. In such a case the earlier law could be deemed to have never been modified or repealed and would, therefore, continue to be in force. It was strictly not a case of revival of an earlier law which had been repealed or modified on the striking down of a later law which purported to modify or repeal the earlier one. It was a case where the earlier law had not been either modified or repealed effectively." Repeal of a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to a repeal. In Southern Petrochemical Industries (supra), the subsequent Act did not contain the words "unless a different intention appears". It was held that the later Act was not different from the earlier Act. This Court is required to assume that the Legislature did so deliberately.In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayan Krishnan. AGRICULTURAL AND NON-AGRICULTURAL LAND Classification between agricultural and non-agricultural land is a valid one. It is, however, accepted that all forest areas comprise of the agricultural land. The State has admittedly no legislative competence to enact a legislation in exercise of its power of Entry No. 49, List II of the Seventh Schedule of the Constitution of India in relation to non-agricultural land. Such a power has been noticed hereinbefore. It exists only in terms of Entry 6, List III of the Seventh Schedule of the Constitution of India. While enacting the 1999 Act, the State could not have deprived the persons who hold non-agricultural land, having enacted the 1975 Act and, thus, could not have repealed a portion thereof by raising the following contention: "...If in a given situation a tribal possess non- agricultural land that only indicates that though the person is a tribal by birth he has come a long way from the way of Scheduled Tribe and has acquired the trappings of non tribals and thereafter has come to own immovable property other than the agricultural land. The exploitation of the tribals has studied would indicate (sic) has always taken place by deprivation of the agricultural land of the tribals..." Once they have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act. ### Response: 1 ### Explanation: We are satisfied that the legislature of Kerala kept in view the necessity of protecting the interest of the small land holders who were in possession and enjoyment of property which had belonged to tribal community and at the same time ensured that the tribals are not thrown out of their land and rendered homeless. Having regard to the studies conducted by the State Government and as a balance of interest between tribals and non-tribals which has been sought to be achieved, the provisions of the 1999 Act are intraare, however, not concerned therewith. Keeping in view the promises made by the 1999 Act, it is obligatory on the part of the State to provide the land meant for the members of the Scheduled Tribe. If they do not have sufficient land, they may have to take recourse to the acquisition proceedings but we are clear in our mind that the State in all situations will fulfill its legislative promise failing which the persons aggrieved would be entitled to take recourse to such remedies which are available to them in law.We must also make it clear that while allotting land to the members of the Scheduled Tribe, the State cannot and must not allot them hilly or other types of lands which are not at all fit for agricultural purpose. The lands, which are to be allotted, must be similar in nature to the land possessed by the members of Scheduled Tribe. If in the past, such allotments have been made, as has been contended before us by the learned counsel for the respondent, the State must allot them other lands which are fit for agricultural purposes. Such a process should be undertaken and completed as expeditiously as possible and preferably within a period of six months fromour opinion, there exists a distinction between a statutory rule and a Legislative Act. The Legislature did not want a vacuum to be created. The 1999 Act was enacted repealing the 1975 Act only for certain purposes.Section 22(2) of the 1999 Act upheld certain actions taken under the 1975 Act as if they had been taken in terms thereof. The procedure for determining the rights and obligations of the parties by the Revenue Officers, under both the Acts, are more or less the same.We may notice Sections 19 and 22 of 1999 Act, which are relevant.It is, therefore, evident that only those laws which are in derogation of the provisions of the 1999 Act would stand repealed.We may in this connection notice certain decisions relied upon by Mr. Krishnan.A.T.B. Mehtab Majid & Co. v. State of Madras, [ AIR 1963 SC 928 = [1963] Supp (2) SCR 435 ] was a case of substitution of an old rule by a new rule. It, therefore, ceased to exist and did not automatically get revived when new rule was held to be invalid.We are, however, dealing with a Legislative Act, validity whereof was determined in the light of constitutionalof a statute, it is well known, is not a matter of mere form but one of substance. It, however, depends upon the intention of the legislature. If by reason of a subsequent statute, the legislature intended to abrogate or wipe off the former enactment, wholly or in part, then it would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by engrafting an exception or granting an exemption, or by adding conditions, or by restricting, intercepting or suspending its operation, such modification would not amount to aCourt is required to assume that the Legislature did so deliberately.In this case, however, the repealing clause is clear and unambiguous. We, therefore, cannot accept the submission of Mr. Dayanthey have made an enactment, the legislative intent is clear and unambiguous, viz., such exploitation was possible also in so far as non-agricultural lands are concerned. Such a right conferred on the owners of the non-agricultural land, therefore, could not have taken away without payment of compensation. We, therefore, are of the opinion that to that extent the 1975 Act would continue to be applied. The State has no legislative competence to repeal that portion of the 1975 Act.

Hardip Singh Vs. State of Punjab

directed a police officer, Puran Singh to go to Batala and verify the version given by those accused. The investigation was carried on and ultimately Santokh Singh, Jagdish Singh and Balkar Singh were not arrested and challaned. Instead Balraj Singh, Khajan Singh and Ranjit Singh were challaned as accused along with Hardip Singh, the appellant. The driver of the bus Ram Lubhaya and the conductor Lakhwinder Singh were examined and according to them the occurrence took place in the bus-stand but it was Hardip Singh, the appellant + From the Judgment and Order dated December 23, 1981 of the Punjab and Haryana High Court in Crl. Appeal No. 475 D.B. of 1981 armed with a rifle, Balraj Singh and Khajan Singh armed with gandasis and Ranjit Singh armed with a dang, who caused the death of the deceased Jarnail Singh.3. Dissatisfied with this police investigation, Kamail Singh filed a complaint in which he repeated the allegations made in the FIR. Therefore there were two cases and the learned Magistrate committed both the cases to the Court of Session and they were numbered as Sessions Case No. 51 of 1980 arising out of police challan and Sessions Case No. 56 of 1980 arising out of the complaint. The learned trial Judge consolidated the complainants case with the challan case and with the consent of the parties recorded the evidence in the latter case and the witnesses were examined. Practically there appeared to be two sets of eyewitnesses. Accordingly Karnail Singh, PW 2 and Chhinda, PW 3 appeared as witnesses and gave their own ocular account in accordance with the FIR and the complaint given by PW 2. Ram Lubhaya, the driver and Lakhwinder Singh, the conductor, PWs 6 and 7 also figured as witnesses. They gave their own version of the occurrence as found in the police challan. According to PWs 2 and 3, Santokh Singh fired a shot at the deceased and Hardip Singh and Balkar Singh inflicted gandasi blows and thereafter Jagdish Singh took over the rifle from Santokh Singh and fired again at the stomach of the deceased. But according to PWs 6 an d 7, Hardip Singh, the appellant was the first person who fired a shot with the rifle and thereafter the deceased was attacked by Balraj Singh, Khajan Singh and Ranjit Singh, It is also their version that Hardip Singh fired another shot in the abdomen of Jarnail Singh. 4. The medical evidence, however, shows that there were two gunshot injuries on the deceased and some incised injuries. From the above narration, it can be seen that Santokh Singh, Jagdish Singh and Balkar Singh, who figured as accused in the FIR, do not figure as accused in the challan and in their place three other persons figured as accused but those three do not figure as accused in the complaint. The learned Sessions Judge held that the prosecution version in the challan case is not proved and the version given in the complaint was proved but only against Santokh Singh and Hardip Singh and convicted them under Sections 302/34 IPC. They preferred an appeal to the High Court. The State did not prefer any appeal. The High Court, on the other hand, taking the two versions into consideration and mainly relying on the evidence of PWs 6 and 7, the driver and the conductor of the bus, accepted the version given in the challan only against the appellant and convicted him under Section 302 IPC simpliciter and sentenced him to undergo imprisonment for life. Santokh Singh was, however, acquitted. This virtually amounts to reversal of the order of the Sessions Judge. The appeal before us is filed by Hardip Singh. 5. It can be seen that there are some strange features in this case. The Sessions Judge accepted the version given by PWs 2 and 3, the brothers of the deceased and according to them, it was Santokh Singh and Jagdish Singh, who fired at the deceased. Hardip Singh only gave a gandasi blow along with others mentioned in the complaint. The Sessions Judge gave a categorical finding that he was not prepared to believe the version giv en in the police challan. The High Court, on the other hand, took a quite contrary view and held that the challan version was proved and the version in the complaint was not proved. The High Court also held that Hardip Singh, the appellant shot at the deceased twice. It has to be noted that it was PW 2, the complainant who gave the first information to the police and it was only on that basis that the investigation commenced. PWs 6 and 7 were examined at a later stage. It appears that they were not even examined during the inquest but on the other hand PWs 2 and 3 were examined during the inquest. We have gone through the evidence of PWs 2 and 3 as well as PWs 6 and 7 and the two versions given by them are completely at variance with each other. Likewise both the trial court and the High Court have taken two conflicting views. As a matter of fact, the State did not prefer any appeal to the High Court against the judgment of the Sessions Court acquitting the accused in the challan case which was prosecuted by the State. The two convicted accused in the sessions case that arose out of the private complaint only preferred an appeal to the High Court and the High Court did not accept the evidence in t he complainants case which was accepted by the trial court and reversed the order of the trial court and as a matter of fact acquitted Santokh Singh but in the same breath, accepted the evidence in the challan case and applied the same against the appellant. Thus there are many incongruities in this case. At any rate the two sets of eyewitnesses contradicted each other. Therefore the benefit of the same should go to the appellant.

1[ds]It appears that they were not even examined during the inquest but on the other hand PWs 2 and 3 were examined during the inquest. We have gone through the evidence of PWs 2 and 3 as well as PWs 6 and 7 and the two versions given by them are completely at variance with each other. Likewise both the trial court and the High Court have taken two conflicting views. As a matter of fact, the State did not prefer any appeal to the High Court against the judgment of the Sessions Court acquitting the accused in the challan case which was prosecuted by the State. The two convicted accused in the sessions case that arose out of the private complaint only preferred an appeal to the High Court and the High Court did not accept the evidence in t he complainants case which was accepted by the trial court and reversed the order of the trial court and as a matter of fact acquitted Santokh Singh but in the same breath, accepted the evidence in the challan case and applied the same against the appellant. Thus there are many incongruities in this case. At any rate the two sets of eyewitnesses contradicted each other. Therefore the benefit of the same should go to the appellant.

### 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: directed a police officer, Puran Singh to go to Batala and verify the version given by those accused. The investigation was carried on and ultimately Santokh Singh, Jagdish Singh and Balkar Singh were not arrested and challaned. Instead Balraj Singh, Khajan Singh and Ranjit Singh were challaned as accused along with Hardip Singh, the appellant. The driver of the bus Ram Lubhaya and the conductor Lakhwinder Singh were examined and according to them the occurrence took place in the bus-stand but it was Hardip Singh, the appellant + From the Judgment and Order dated December 23, 1981 of the Punjab and Haryana High Court in Crl. Appeal No. 475 D.B. of 1981 armed with a rifle, Balraj Singh and Khajan Singh armed with gandasis and Ranjit Singh armed with a dang, who caused the death of the deceased Jarnail Singh.3. Dissatisfied with this police investigation, Kamail Singh filed a complaint in which he repeated the allegations made in the FIR. Therefore there were two cases and the learned Magistrate committed both the cases to the Court of Session and they were numbered as Sessions Case No. 51 of 1980 arising out of police challan and Sessions Case No. 56 of 1980 arising out of the complaint. The learned trial Judge consolidated the complainants case with the challan case and with the consent of the parties recorded the evidence in the latter case and the witnesses were examined. Practically there appeared to be two sets of eyewitnesses. Accordingly Karnail Singh, PW 2 and Chhinda, PW 3 appeared as witnesses and gave their own ocular account in accordance with the FIR and the complaint given by PW 2. Ram Lubhaya, the driver and Lakhwinder Singh, the conductor, PWs 6 and 7 also figured as witnesses. They gave their own version of the occurrence as found in the police challan. According to PWs 2 and 3, Santokh Singh fired a shot at the deceased and Hardip Singh and Balkar Singh inflicted gandasi blows and thereafter Jagdish Singh took over the rifle from Santokh Singh and fired again at the stomach of the deceased. But according to PWs 6 an d 7, Hardip Singh, the appellant was the first person who fired a shot with the rifle and thereafter the deceased was attacked by Balraj Singh, Khajan Singh and Ranjit Singh, It is also their version that Hardip Singh fired another shot in the abdomen of Jarnail Singh. 4. The medical evidence, however, shows that there were two gunshot injuries on the deceased and some incised injuries. From the above narration, it can be seen that Santokh Singh, Jagdish Singh and Balkar Singh, who figured as accused in the FIR, do not figure as accused in the challan and in their place three other persons figured as accused but those three do not figure as accused in the complaint. The learned Sessions Judge held that the prosecution version in the challan case is not proved and the version given in the complaint was proved but only against Santokh Singh and Hardip Singh and convicted them under Sections 302/34 IPC. They preferred an appeal to the High Court. The State did not prefer any appeal. The High Court, on the other hand, taking the two versions into consideration and mainly relying on the evidence of PWs 6 and 7, the driver and the conductor of the bus, accepted the version given in the challan only against the appellant and convicted him under Section 302 IPC simpliciter and sentenced him to undergo imprisonment for life. Santokh Singh was, however, acquitted. This virtually amounts to reversal of the order of the Sessions Judge. The appeal before us is filed by Hardip Singh. 5. It can be seen that there are some strange features in this case. The Sessions Judge accepted the version given by PWs 2 and 3, the brothers of the deceased and according to them, it was Santokh Singh and Jagdish Singh, who fired at the deceased. Hardip Singh only gave a gandasi blow along with others mentioned in the complaint. The Sessions Judge gave a categorical finding that he was not prepared to believe the version giv en in the police challan. The High Court, on the other hand, took a quite contrary view and held that the challan version was proved and the version in the complaint was not proved. The High Court also held that Hardip Singh, the appellant shot at the deceased twice. It has to be noted that it was PW 2, the complainant who gave the first information to the police and it was only on that basis that the investigation commenced. PWs 6 and 7 were examined at a later stage. It appears that they were not even examined during the inquest but on the other hand PWs 2 and 3 were examined during the inquest. We have gone through the evidence of PWs 2 and 3 as well as PWs 6 and 7 and the two versions given by them are completely at variance with each other. Likewise both the trial court and the High Court have taken two conflicting views. As a matter of fact, the State did not prefer any appeal to the High Court against the judgment of the Sessions Court acquitting the accused in the challan case which was prosecuted by the State. The two convicted accused in the sessions case that arose out of the private complaint only preferred an appeal to the High Court and the High Court did not accept the evidence in t he complainants case which was accepted by the trial court and reversed the order of the trial court and as a matter of fact acquitted Santokh Singh but in the same breath, accepted the evidence in the challan case and applied the same against the appellant. Thus there are many incongruities in this case. At any rate the two sets of eyewitnesses contradicted each other. Therefore the benefit of the same should go to the appellant. ### Response: 1 ### Explanation: It appears that they were not even examined during the inquest but on the other hand PWs 2 and 3 were examined during the inquest. We have gone through the evidence of PWs 2 and 3 as well as PWs 6 and 7 and the two versions given by them are completely at variance with each other. Likewise both the trial court and the High Court have taken two conflicting views. As a matter of fact, the State did not prefer any appeal to the High Court against the judgment of the Sessions Court acquitting the accused in the challan case which was prosecuted by the State. The two convicted accused in the sessions case that arose out of the private complaint only preferred an appeal to the High Court and the High Court did not accept the evidence in t he complainants case which was accepted by the trial court and reversed the order of the trial court and as a matter of fact acquitted Santokh Singh but in the same breath, accepted the evidence in the challan case and applied the same against the appellant. Thus there are many incongruities in this case. At any rate the two sets of eyewitnesses contradicted each other. Therefore the benefit of the same should go to the appellant.

Shivdev Singh Vs. Sucha Singh

bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor." 10. In Pomal Kanji Govindji & Ors. v. Vrajlal Karsandas Purohit & Ors., AIR 1989 SC 436 this Court held that "freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail ones right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not, must, however, depend upon the facts and the circumstances of each case." The doctrine "clog on equity of redemption" was held to be a rule of justice, equity and good conscience. It must be adopted to the reality of situation and the individuality of transaction. The Court should take not to the time, the condition, the price spiral, the term bargain and the other obligations in the background of the financial conditions of the parties. After referring to various judgments of the High Courts in the country this Court held: "Whether in the facts and the circumstances of these cases, the mortgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. Courts do not look with favour at any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unjust and unequitable. The principles of English law, as we have noticed from the decision referred to hereinbefore which have been accepted by this Court in this country, look with disfavour at clogs on the equity of redemption. Section 60 of the Transfer of Property Act in India, also recognises the same position.It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or it prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it. Bearing the aforesaid background in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction there is a clog on the equity of redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-a-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage, to manage as a matter of prudent management, these factors must be correlated to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption." 11. It was further held that Section 60 of the Transfer of Property Act confers on the mortgagor right of redemption which is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of the background of a particular case. The doctrine of clog on equity of redemption has to be moulded in modern conditions. In this regard the Court held: "It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything to the contrary in the statute, law must take congnizance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged." 12. In the present case all the Courts below on facts held that the mortgage deed being for a period of 99 years was a clog on the equity of redemption. Such findings were returned keeping in view the facts and circumstances of the case and the financial position under which the mortgagor Shri Prakash Singh was placed at the time of execution of the mortgage deed on 19.3.1968. The appellants were found to be in an advantageous position qua the mortgagor. They were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of meagre sum of Rs. 7,000- only to the mortgagor. The findings of the facts returned by the Courts below do not require any interference particularly when the learned counsel appearing for the appellants has not contended that such findings were perverse or uncalled for or against the evidence.

0[ds]nt was held to have proved that he was entitled to get whole of the disputed land redeemed by payment of the mortgage money of Rs. 7,00080 of the Transfer of Property Act provides that at any time after the money has become due, the mortgagor has a right, on payment or tender, at a proper time and place of theto require the mortgagee to deliver theand all documents relating to the mortgaged property and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Such a right of the mortgagor is called, in English Law, the equity of redemption. The mortgagor being an owner who has parted with some rights of ownership has a right to get back the mortgage deed or mortgaged property, in exercise of this right of ownership. The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgageright of redemption, therefore, cannot be taken away. The Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgage property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for "once a mortgage always a mortgage" and therefore always redeemable.It was further held that Section 60 of the Transfer of Property Act confers on the mortgagor right of redemption which is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of the background of a particular case. The doctrine of clog on equity of redemption has to be moulded in modern conditions.In the present case all the Courts below on facts held that the mortgage deed being for a period of 99 years was a clog on the equity of redemption. Such findings were returned keeping in view the facts and circumstances of the case and the financial position under which the mortgagor Shri Prakash Singh was placed at the time of execution of the mortgage deed on 19.3.1968. The appellants were found to be in an advantageous position qua the mortgagor. They were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of meagre sum of Rs. 7,000only to the mortgagor. The findings of the facts returned by the Courts below do not require any interference particularly when the learned counsel appearing for the appellants has not contended that such findings were perverse or uncalled for or against the evidence.

### 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: bargain was oppressive. We do not desire to say anything on that question in this case. We think it enough to say that we have nothing here to show that the length of the term was in any way disadvantageous to the mortgagor." 10. In Pomal Kanji Govindji & Ors. v. Vrajlal Karsandas Purohit & Ors., AIR 1989 SC 436 this Court held that "freedom of contract is permissible provided it does not lead to taking advantage of the oppressed or depressed people. The law must transform itself to the social awareness. Poverty should not be unduly permitted to curtail ones right to borrow money on the ground of justice, equity and good conscience on just terms. If it does, it is bad. Whether it does or does not, must, however, depend upon the facts and the circumstances of each case." The doctrine "clog on equity of redemption" was held to be a rule of justice, equity and good conscience. It must be adopted to the reality of situation and the individuality of transaction. The Court should take not to the time, the condition, the price spiral, the term bargain and the other obligations in the background of the financial conditions of the parties. After referring to various judgments of the High Courts in the country this Court held: "Whether in the facts and the circumstances of these cases, the mortgage transaction amounted to clog on the equity of redemption, is a mixed question of law and fact. Courts do not look with favour at any clause or stipulation which clogs equity of redemption. A clog on the equity of redemption is unjust and unequitable. The principles of English law, as we have noticed from the decision referred to hereinbefore which have been accepted by this Court in this country, look with disfavour at clogs on the equity of redemption. Section 60 of the Transfer of Property Act in India, also recognises the same position.It is a right of the mortgagor on redemption, by reason of the very nature of the mortgage, to get back the subject of the mortgage and to hold and enjoy as he was entitled to hold and enjoy it before the mortgage. If he is prevented from doing so or it prevented from redeeming the mortgage, such prevention is bad in law. If he is so prevented, the equity of redemption is affected by that whether aptly or not, and it has always been termed as a clog. Such a clog is inequitable. The law does not countenance it. Bearing the aforesaid background in mind, each case has to be judged and decided in its own perspective. As has been observed by this Court that long term for redemption by itself, is not a clog on equity of redemption. Whether or not in a particular transaction there is a clog on the equity of redemption, depends primarily upon the period of redemption, the circumstances under which the mortgage was created, the economic and financial position of the mortgagor, and his relationship vis-a-vis him and the mortgagee, the economic and social conditions in a particular country at a particular point of time, custom if any, prevalent in the community or the society in which the transaction takes place, and the totality of the circumstances under which a mortgage is created, namely, circumstances of the parties, the time, the situation, the clauses for redemption either for payment of interest or any other sum, the obligations of the mortgagee to construct or repair or maintain the mortgaged property in cases of usufructuary mortgage, to manage as a matter of prudent management, these factors must be correlated to each other and viewed in a comprehensive conspectus in the background of the facts and the circumstances of each case, to determine whether these are clogs on equity of redemption." 11. It was further held that Section 60 of the Transfer of Property Act confers on the mortgagor right of redemption which is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of the background of a particular case. The doctrine of clog on equity of redemption has to be moulded in modern conditions. In this regard the Court held: "It is a settled law in England and in India that a mortgage cannot be made altogether irredeemable or redemption made illusory. The law must respond and be responsive to the felt and discernible compulsions of circumstances that would be equitable, fair and just, and unless there is anything to the contrary in the statute, law must take congnizance of that fact and act accordingly. In the context of fast changing circumstances and economic stability, long term for redemption makes a mortgage an illusory mortgage, though not decisive. It should prima facie be an indication as to how clogs on equity of redemption should be judged." 12. In the present case all the Courts below on facts held that the mortgage deed being for a period of 99 years was a clog on the equity of redemption. Such findings were returned keeping in view the facts and circumstances of the case and the financial position under which the mortgagor Shri Prakash Singh was placed at the time of execution of the mortgage deed on 19.3.1968. The appellants were found to be in an advantageous position qua the mortgagor. They were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of meagre sum of Rs. 7,000- only to the mortgagor. The findings of the facts returned by the Courts below do not require any interference particularly when the learned counsel appearing for the appellants has not contended that such findings were perverse or uncalled for or against the evidence. ### Response: 0 ### Explanation: nt was held to have proved that he was entitled to get whole of the disputed land redeemed by payment of the mortgage money of Rs. 7,00080 of the Transfer of Property Act provides that at any time after the money has become due, the mortgagor has a right, on payment or tender, at a proper time and place of theto require the mortgagee to deliver theand all documents relating to the mortgaged property and where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Such a right of the mortgagor is called, in English Law, the equity of redemption. The mortgagor being an owner who has parted with some rights of ownership has a right to get back the mortgage deed or mortgaged property, in exercise of this right of ownership. The right of redemption recognised under the Transfer of Property Act is thus a statutory and legal right which cannot be extinguished by any agreement made at the time of mortgage as part of the mortgageright of redemption, therefore, cannot be taken away. The Court will ignore any contract the effect of which is to deprive the mortgagor of his right to redeem the mortgage. One thing, therefore, is clear, namely, that the term in the mortgage contract, that on the failure of the mortgagor to redeem the mortgage within the specified period of six months the mortgagor will have no claim over the mortgage property, and the mortgage deed will be deemed to be a deed of sale in favour of the mortgagee, cannot be sustained. It plainly takes away altogether, the mortgagors right to redeem the mortgage after the specified period. This is not permissible, for "once a mortgage always a mortgage" and therefore always redeemable.It was further held that Section 60 of the Transfer of Property Act confers on the mortgagor right of redemption which is a statutory right. The right of redemption is an incident of a subsisting mortgage and it subsists so long as the mortgage subsists. Whether in a particular case there is any clog on the equity of redemption, has to be decided in view of the background of a particular case. The doctrine of clog on equity of redemption has to be moulded in modern conditions.In the present case all the Courts below on facts held that the mortgage deed being for a period of 99 years was a clog on the equity of redemption. Such findings were returned keeping in view the facts and circumstances of the case and the financial position under which the mortgagor Shri Prakash Singh was placed at the time of execution of the mortgage deed on 19.3.1968. The appellants were found to be in an advantageous position qua the mortgagor. They were also found to be deriving the usufructs of the mortgaged land for a period of over 26 years at the time of filing of the suit on payment of meagre sum of Rs. 7,000only to the mortgagor. The findings of the facts returned by the Courts below do not require any interference particularly when the learned counsel appearing for the appellants has not contended that such findings were perverse or uncalled for or against the evidence.

Ram Swaroop Rai Vs. Lilavathi

implies s o, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.8. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed? An analysis of Explanation 1 to s.2(2) of the U.P. Act indicates:(1) Where a building has not been assessed, it is the date on which the completion was reported to, or other wise recorded by the local authority having jurisdiction.(2) Where a building has been assessed, it is the date on which the first assessment comes into effect.Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction ).9. It is common case that Shop Nos. 65 and 66 were owned by a common owner, Shri Brij Mohan, DW2. He sold only Shop No. 66 to the respondent. So, there is no doubt, that there was an existing building, Shop No. 66, long prior to the ten-year period mentioned in the statute. According to the testimony of Shri Brij Mohan, DW2, the old construction continued, but certain additions and remodelling were done. He had submitted a plan to the local authority indicating the original construction and the proposed additions, and that is marked as Exhibit in the case. This shows the existence of a prior building, the proposal being for addition or partial reconstruction and not for total demolition. If we go by the plan, it is not possible to conclude automatically that there is a new construction. If we go by Brij Mohans evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed. Indeed, his evidence is to the effect that the construction such a s was made was beyond the 10 year period.10. Unfortunately, it is not possible for the purchaser- respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been re modelled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even the recital in the rent deed that there was a new construction is 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.11. Viewed in this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re-building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case.12. We do not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished.13.

1[ds]The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates. Therefore, the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years. But it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting necessarily implies s o, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove thetherefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quotedis common case that Shop Nos. 65 and 66 were owned by a common owner, Shri Brij Mohan, DW2. He sold only Shop No. 66 to the respondent. So, there is no doubt, that there was an existing building, Shop No. 66, long prior to the ten-year period mentioned in the statute. According to the testimony of Shri Brij Mohan, DW2, the old construction continued, but certain additions and remodelling were done. He had submitted a plan to the local authority indicating the original construction and the proposed additions, and that is marked as Exhibit in the case. This shows the existence of a prior building, the proposal being for addition or partial reconstruction and not for total demolition. If we go by the plan, it is not possible to conclude automatically that there is a new construction. If we go by Brij Mohans evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed. Indeed, his evidence is to the effect that the construction such a s was made was beyond the 10 yearit is not possible for the purchaser- respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been re modelled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even the recital in the rent deed that there was a new construction is 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by thein this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re-building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the presentdo not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to beparting with the case, we wish to notice a submission made by Shri Goel that the landladys son was an unemployed engineer who needed the premises for personal requirement. Even if the Act applies, it is open to the landlady to make out any of the grounds under the Act for eviction. To avoid prolixity and delay of the proceedings, we permit the trial court to allow the landlady, if she applies in that behalf, to plead on an alternative basis, for eviction on any of the specified grounds under thewe will probe the matter further to explorewhether there is any substance in Shri A.K. Sens argument of fundamental failure bearing on the legality of the conclusions.The anatomy of the Act is substantially the same as that of other similar legislations. The most important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of newn and its construction is decisive of the fate of the appeal. Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date on which its construction is completed."The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates. Therefore, the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years. But it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting necessarily implies s o, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: implies s o, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the fact.8. Firstly, therefore, we must examine whether the respondent has made out her case for exemption from the operation of the Act based on the vital fact that the building has been completed only within ten years of the suit. The second thing we have to remember is Explanation 1 quoted above. When is a building deemed to have been completed? An analysis of Explanation 1 to s.2(2) of the U.P. Act indicates:(1) Where a building has not been assessed, it is the date on which the completion was reported to, or other wise recorded by the local authority having jurisdiction.(2) Where a building has been assessed, it is the date on which the first assessment comes into effect.Provided that if the date on which the completion was reported to, or otherwise recorded by, the local authority is earlier than the date of the first assessment, the date of completion will be such earlier date.(3) Where there is no report, record or assessment, it is the date of actual occupation for the first time (not being an occupation for the purpose of supervising the construction or guarding the building under construction ).9. It is common case that Shop Nos. 65 and 66 were owned by a common owner, Shri Brij Mohan, DW2. He sold only Shop No. 66 to the respondent. So, there is no doubt, that there was an existing building, Shop No. 66, long prior to the ten-year period mentioned in the statute. According to the testimony of Shri Brij Mohan, DW2, the old construction continued, but certain additions and remodelling were done. He had submitted a plan to the local authority indicating the original construction and the proposed additions, and that is marked as Exhibit in the case. This shows the existence of a prior building, the proposal being for addition or partial reconstruction and not for total demolition. If we go by the plan, it is not possible to conclude automatically that there is a new construction. If we go by Brij Mohans evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed. Indeed, his evidence is to the effect that the construction such a s was made was beyond the 10 year period.10. Unfortunately, it is not possible for the purchaser- respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been re modelled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even the recital in the rent deed that there was a new construction is 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by the statute.11. Viewed in this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re-building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the present case.12. We do not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to be demolished.13. ### Response: 1 ### Explanation: of a prior building, the proposal being for addition or partial reconstruction and not for total demolition. If we go by the plan, it is not possible to conclude automatically that there is a new construction. If we go by Brij Mohans evidence, the owner of the building at the relevant time, we cannot necessarily hold that the existing building has been substantially demolished and reconstructed. Indeed, his evidence is to the effect that the construction such a s was made was beyond the 10 yearit is not possible for the purchaser- respondent or the tenant-appellant to give direct testimony about the time of the construction or the nature of the construction vis-a-vis Explanation (b) or (c). The best testimony is the municipal records about the completion of the building and the verification by the municipal authorities as to whether a new construction has come into being or an old construction has been re modelled and, if so, when exactly the completion took effect. The municipal assessment record produced in the court merely state "increased assessment". It may suggest the existence of an assessment which has been increased or it may perhaps be argued that when the building was reconstructed a new assessment was made which was more than the previous assessment and, therefore, was described as increased assessment. The oral evidence in the case, apart from what we have set out, is inconsequential, being second hand testimony. Even the recital in the rent deed that there was a new construction is 1965-66 is by the appellant and the respondent, neither of whom has any direct knowledge about the construction. Of course, an admission by the appellant is evidence against him but an admission is not always conclusive especially in the light of the municipal records such as are available and the burden such as has been laid by thein this perspective, the failure of the trial court specifically to record when the building was completed and what was the extent of re-building, whether it was a case of total demolition and reconstruction or such extensive additions as to push the existing building into a minor part, becomes fatal. These basic issues have failed to receive any attention from the courts below. A finding recorded on speculative basis is no finding and that is the fate of the holding in the presentdo not want to dwell on the evidence in greater detail because we propose to remit the case to the trial court (Court of the First Additional District Judge, Jhansi). It is quite conceivable that the municipal records bearing on the completion of the construction may throw conclusive light, whatever might have been the original proposal in the plan submitted. It is perfectly possible that on a view of the earlier construction, vis a vis the completed new building, the former may form but a small part. It may also be that the implication of the expression "increased assessment" may be explained with reference to earlier assessment records in the municipality. Moreover, whenever a new building is completed, a report has statutorily to be made and only on a completion survey and certificate, occupation is ordinarily permitted. These records must also be available in the office of the local authority. The statute makes it clear that reliance upon the municipal records, rather than on the lips of witnesses, is indicated to determine the date of completion and the nature of the construction. This statutory guideline has been wholly overlooked and the burden lying on the landlord has not been appreciated. The result is that the eviction order has to beparting with the case, we wish to notice a submission made by Shri Goel that the landladys son was an unemployed engineer who needed the premises for personal requirement. Even if the Act applies, it is open to the landlady to make out any of the grounds under the Act for eviction. To avoid prolixity and delay of the proceedings, we permit the trial court to allow the landlady, if she applies in that behalf, to plead on an alternative basis, for eviction on any of the specified grounds under thewe will probe the matter further to explorewhether there is any substance in Shri A.K. Sens argument of fundamental failure bearing on the legality of the conclusions.The anatomy of the Act is substantially the same as that of other similar legislations. The most important feature we have to notice is the exemption from application of the provisions of the Act for the period of ten years in respect of newn and its construction is decisive of the fate of the appeal. Nothing in the rent control legislation shall apply to a building "during a period of ten years from the date on which its construction is completed."The first thing that falls to be emphasised is that in regard to all buildings the Act applies save where this exemption operates. Therefore, the landlord who seeks exemption must prove that exception. The burden is on him to make out that notwithstanding the rent control legislation, his building is out of its ambit. It is not for the tenant to prove that the building has been constructed beyond a period of ten years. But it is for the landlady to make out that the construction has been completed within ten years of the suit. This is sensible not merely because the statute expressly states so and the setting necessarily implies s o, but also because it is the landlady who knows best when the building was completed, and not the tenant. As between the two, the owner of the building must tell the court when the building was constructed, and not the tenant thereof. Speaking generally, it is fair that the onus of establishing the date of construction of the building is squarely laid on the landlord, although in a small category of cases where the landlord is a purchaser from another, he will have to depend on his assignor to prove the

Gambhir Mal Pandiya Vs. J. K. Jote Mills Co., Ltd., Kanpur And Another

passed against a firm, an individual partner who was not summoned personally may be summoned in the execution proceedings, and can contended that he was not a partner but cannot be allowed to challenge the authority of the other partner or partners to enter the transaction in dispute. In Bhagvan v. Hiraji, AIR 1932 Bom 516 Patkar and Murphy, JJ. took a different view. In that case, a plea that the partners were not authorised to refer a dispute to arbitration was allowed to be raised. Reliance was placed upon the fourth sub-rule of O.21, R. 50. In Cooverji Varjang v. Cooverbai Nagsey, AIR 1940 Bom 330 the judgment of Wadia, J. from which an appeal was taken to the Divisional Bench is printed. In that judgment, Wadia, J. held that under O.21 R. 50(2), the person summoned to show cause may not only prove that he was not a partner but take other defences appropriate to his own liability. The learned Judge apparently differed from Mirza, J. and preferred the view in AIR 1932 Bom 516 , and pointed out that the view was accepted in Tolaram Nathmull Firm v. Firm Mahomed Valli Patel, ILR (1939) 2 Cal 312: (AIR 1940 Cal 28 ) and Chhatoo Lal Misser and Co. v. Naraindas Baijnath Prasad, ILR R.56 Cal 704: (AIR 1930 Cal 53 ). In the last mentioned case, two defences were raised- (1) that the person summoned was not a partner, and (2) that the decree could not be, personally executed against him as he was a ward under the U.P. Court of Wards Act. The second plea was one of a special protection under law, and the case is thus distinguishable. 18. The Bombay view has, however, changed in recent years. In Rana Harkishandas v. Rana Gulabdas, ILR (1956) Bom 193 : ((S) AIR 1956 Bom 513 ) Gajendragadkar and Gokhale, JJ. dissented from AIR 1932 Bom 516 and laid down that in an enquiry contemplated under O.21, R.50(2), the only question that can be gone into is whether the person summoned as a partner to show cause was a partner at the material time or not. The learned Judges observed that unless the plea on this point by the person summoned to show cause succeeded, leave could not be withheld. According to the learned Judges, liability in sub-r.(2) of R. 50 means liability as a partner. They relied upon the decision of the Calcutta High Court in G. M. Shahani v. Havero Trading Co. Ltd., 51 Cal WN 488 in which Das, J. (as he then was and on appeal. Mc Nair and Gentle, JJ. had taken the same view and had dissented from the earlier Calcutta view. Rana Harikrishandass case ILR 1956 Bom 193 : (S) AIR 1956 Bom 513 ) was followed by another Division Bench of the Bombay High Court in Mandalsa Kumari Devi v. M. Ramnarain Private Ltd., ILR 1959 Bom 1468 : (AIR 1959 Bom 529 ). A similar view was earlier expressed by the Madras High Court in Kuppuswami v. Polite Pictures, ILR (1955) Mad 1106: (S) AIR 1955 Mad 154 ). 19. In our judgment, the view expressed in these later cases is the correct one.As we have pointed out O.30 of the Code permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds only against the firm. Any person who is summoned can appear, and prove that he is not a partner and never was; but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm take as many pleas as they like but no enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are (1) persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so, and (2) persons who were summoned as partners but stayed away. The decree can also be executed against persons who were not summoned in the suit as partners, but R. 50 (2) of O.21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does not entitle the person summoned to reopen the decree. He can only prove that he was not a partner, and in a proper case, that the decree is the result of collusion, fraud or the like. But, he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has no special defence of collusion, fraud, etc. the Court must give leave forthwith. 20. In our opinion, of the three constructions suggested by the learned Attorney-General the widest meaning cannot be attributed to the word liability. The proper meaning thus is that primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the ground of collusion, fraud or the like but so as not to have the suit tried over again or to raise issues between himself and his other partners. It is to be remembered that the leave that is sought is in respect of execution against the personal property of such partner and the leave that is granted or refused affects only such property and not the property of the firm. Ordinarily, when the person summoned admits that he is a partner, leave would be granted, unless he alleges collusion fraud or the like. No such question has been raised in this case, and the decision given by the High Court cannot be disturbed.

0[ds]8. From the above analysis, it is clear that a plaintiff need sue only the firm, but if he wants to bind the partners individually he must serve them personally, for which purpose he can get a discovery of the names of partners of the firm. Persons served individually may appear and file written statements, but the proceedings go on against the firm only. They may, however, appear and plead that they are not partners or were not partners when the cause of action arose. But even if no other partner appears there may be a decree against the firm if the firm has been served with the summons. The gist of O. 30 thus is that the action proceeds against the firm, and the defence to the action by persons admitting that they are partners is on behalf of the firm. Persons sued as partners may, however, appear and seek to establish that they are not partners or were not partners when the cause of action arose ; but if they arise this special plea, they cannot defend the firm. This was laid down in connection with the analogous provisions of the English rule in Weirand Co. v. Mc Vicar and Co. 1925-2 KB127. Parners appearing and admitting their positions as partners can only defend the firm, because the suit continues in the firms name. The law is thus not concerned with a fight between the partners inter se, and an action between the partners is not to be tried within the action between the firm and the plaintiff. Of course, the partners who admit that they are partners need not raise a common defence. They may raise inconsistent defences, but all such defences must be directed to defend the firm and the plaintiff must surmount all such defences. Sees v. Wadeson (1889) 1 QB714. The purport of the rules as well as the two English cases which have correctly analysed the rules on the subject (the English and the Indian rules being alike ) is that the partnership is sued as a partnership and though the partners may put in separate defences, those defences must be on behalf of the firm. If some of the partners do not appear, those that do, must defend the firm; but if no proper defence is raised by them, the plaintiff cannot be deprived of a judgment. The judgment and decree thus obtained are executable against the partnership assets. This brings in the provisions of O. 21. R. 50 of the Code9. That rule enables a decree obtained against a partnership firm to be executed against the property of the partnership. Next, it enables the decree to be executed individually against a person who appeared in his own name under R. 6 or R. 7 of O. 30 or who admitted on the record or was adjudged to be a partner. Next, the decree can be executed against any person who is served individually as a partner but has failed to appear. Next, it permits the decree to be executed with the leave of the Court against persons belonging to the category of the person above mentioned, provided that they are summoned and either admit their liability or after an issue is tried, their liability is determined10. A large number of cases decided in India and England have laid down the kind of issue which may be tried under O. 21 R. 50(2) of the Code and the cognate provisions of the English rules. Since the English cases are first in point of time, we shall begin with them. It must be remembered in this connection that the English rules prescribe forms for recording appearance by persons summoned in actions against firms19. In our judgment, the view expressed in these later cases is the correct one.As we have pointed out O.30 of the Code permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds only against the firm. Any person who is summoned can appear, and prove that he is not a partner and never was; but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm take as many pleas as they like but no enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are (1) persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so, and (2) persons who were summoned as partners but stayed away. The decree can also be executed against persons who were not summoned in the suit as partners, but R. 50 (2) of O.21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does not entitle the person summoned to reopen the decree. He can only prove that he was not a partner, and in a proper case, that the decree is the result of collusion, fraud or the like. But, he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has no special defence of collusion, fraud, etc. the Court must give leave forthwith20. In our opinion, of the three constructions suggested by the learned Attorney-General the widest meaning cannot be attributed to the wordliability. The proper meaning thus is that primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the ground of collusion, fraud or the like but so as not to have the suit tried over again or to raise issues between himself and his other partners. It is to be remembered that the leave that is sought is in respect of execution against the personal property of such partner and the leave that is granted or refused affects only such property and not the property of the firm. Ordinarily, when the person summoned admits that he is a partner, leave would be granted, unless he alleges collusion fraud or the like. No such question has been raised in this case, and the decision given by the High Court cannot be disturbed.

### 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: passed against a firm, an individual partner who was not summoned personally may be summoned in the execution proceedings, and can contended that he was not a partner but cannot be allowed to challenge the authority of the other partner or partners to enter the transaction in dispute. In Bhagvan v. Hiraji, AIR 1932 Bom 516 Patkar and Murphy, JJ. took a different view. In that case, a plea that the partners were not authorised to refer a dispute to arbitration was allowed to be raised. Reliance was placed upon the fourth sub-rule of O.21, R. 50. In Cooverji Varjang v. Cooverbai Nagsey, AIR 1940 Bom 330 the judgment of Wadia, J. from which an appeal was taken to the Divisional Bench is printed. In that judgment, Wadia, J. held that under O.21 R. 50(2), the person summoned to show cause may not only prove that he was not a partner but take other defences appropriate to his own liability. The learned Judge apparently differed from Mirza, J. and preferred the view in AIR 1932 Bom 516 , and pointed out that the view was accepted in Tolaram Nathmull Firm v. Firm Mahomed Valli Patel, ILR (1939) 2 Cal 312: (AIR 1940 Cal 28 ) and Chhatoo Lal Misser and Co. v. Naraindas Baijnath Prasad, ILR R.56 Cal 704: (AIR 1930 Cal 53 ). In the last mentioned case, two defences were raised- (1) that the person summoned was not a partner, and (2) that the decree could not be, personally executed against him as he was a ward under the U.P. Court of Wards Act. The second plea was one of a special protection under law, and the case is thus distinguishable. 18. The Bombay view has, however, changed in recent years. In Rana Harkishandas v. Rana Gulabdas, ILR (1956) Bom 193 : ((S) AIR 1956 Bom 513 ) Gajendragadkar and Gokhale, JJ. dissented from AIR 1932 Bom 516 and laid down that in an enquiry contemplated under O.21, R.50(2), the only question that can be gone into is whether the person summoned as a partner to show cause was a partner at the material time or not. The learned Judges observed that unless the plea on this point by the person summoned to show cause succeeded, leave could not be withheld. According to the learned Judges, liability in sub-r.(2) of R. 50 means liability as a partner. They relied upon the decision of the Calcutta High Court in G. M. Shahani v. Havero Trading Co. Ltd., 51 Cal WN 488 in which Das, J. (as he then was and on appeal. Mc Nair and Gentle, JJ. had taken the same view and had dissented from the earlier Calcutta view. Rana Harikrishandass case ILR 1956 Bom 193 : (S) AIR 1956 Bom 513 ) was followed by another Division Bench of the Bombay High Court in Mandalsa Kumari Devi v. M. Ramnarain Private Ltd., ILR 1959 Bom 1468 : (AIR 1959 Bom 529 ). A similar view was earlier expressed by the Madras High Court in Kuppuswami v. Polite Pictures, ILR (1955) Mad 1106: (S) AIR 1955 Mad 154 ). 19. In our judgment, the view expressed in these later cases is the correct one.As we have pointed out O.30 of the Code permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds only against the firm. Any person who is summoned can appear, and prove that he is not a partner and never was; but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm take as many pleas as they like but no enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are (1) persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so, and (2) persons who were summoned as partners but stayed away. The decree can also be executed against persons who were not summoned in the suit as partners, but R. 50 (2) of O.21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does not entitle the person summoned to reopen the decree. He can only prove that he was not a partner, and in a proper case, that the decree is the result of collusion, fraud or the like. But, he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has no special defence of collusion, fraud, etc. the Court must give leave forthwith. 20. In our opinion, of the three constructions suggested by the learned Attorney-General the widest meaning cannot be attributed to the word liability. The proper meaning thus is that primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the ground of collusion, fraud or the like but so as not to have the suit tried over again or to raise issues between himself and his other partners. It is to be remembered that the leave that is sought is in respect of execution against the personal property of such partner and the leave that is granted or refused affects only such property and not the property of the firm. Ordinarily, when the person summoned admits that he is a partner, leave would be granted, unless he alleges collusion fraud or the like. No such question has been raised in this case, and the decision given by the High Court cannot be disturbed. ### Response: 0 ### Explanation: decree against the firm if the firm has been served with the summons. The gist of O. 30 thus is that the action proceeds against the firm, and the defence to the action by persons admitting that they are partners is on behalf of the firm. Persons sued as partners may, however, appear and seek to establish that they are not partners or were not partners when the cause of action arose ; but if they arise this special plea, they cannot defend the firm. This was laid down in connection with the analogous provisions of the English rule in Weirand Co. v. Mc Vicar and Co. 1925-2 KB127. Parners appearing and admitting their positions as partners can only defend the firm, because the suit continues in the firms name. The law is thus not concerned with a fight between the partners inter se, and an action between the partners is not to be tried within the action between the firm and the plaintiff. Of course, the partners who admit that they are partners need not raise a common defence. They may raise inconsistent defences, but all such defences must be directed to defend the firm and the plaintiff must surmount all such defences. Sees v. Wadeson (1889) 1 QB714. The purport of the rules as well as the two English cases which have correctly analysed the rules on the subject (the English and the Indian rules being alike ) is that the partnership is sued as a partnership and though the partners may put in separate defences, those defences must be on behalf of the firm. If some of the partners do not appear, those that do, must defend the firm; but if no proper defence is raised by them, the plaintiff cannot be deprived of a judgment. The judgment and decree thus obtained are executable against the partnership assets. This brings in the provisions of O. 21. R. 50 of the Code9. That rule enables a decree obtained against a partnership firm to be executed against the property of the partnership. Next, it enables the decree to be executed individually against a person who appeared in his own name under R. 6 or R. 7 of O. 30 or who admitted on the record or was adjudged to be a partner. Next, the decree can be executed against any person who is served individually as a partner but has failed to appear. Next, it permits the decree to be executed with the leave of the Court against persons belonging to the category of the person above mentioned, provided that they are summoned and either admit their liability or after an issue is tried, their liability is determined10. A large number of cases decided in India and England have laid down the kind of issue which may be tried under O. 21 R. 50(2) of the Code and the cognate provisions of the English rules. Since the English cases are first in point of time, we shall begin with them. It must be remembered in this connection that the English rules prescribe forms for recording appearance by persons summoned in actions against firms19. In our judgment, the view expressed in these later cases is the correct one.As we have pointed out O.30 of the Code permits suits to be brought against firms. The summons may be issued against the firm or against persons who are alleged to be partners individually. The suit, however, proceeds only against the firm. Any person who is summoned can appear, and prove that he is not a partner and never was; but if he raises that defence, he cannot defend the firm. Persons who admit that they are partners may defend the firm take as many pleas as they like but no enter upon issues between themselves. When the decree is passed, it is against the firm. Such a decree is capable of being executed against the property of the partnership and also against two classes of persons individually. They are (1) persons who appeared in answer to summons served on them as partners and either admitted that they were partners or were found to be so, and (2) persons who were summoned as partners but stayed away. The decree can also be executed against persons who were not summoned in the suit as partners, but R. 50 (2) of O.21 gives them an opportunity of showing cause and the plaintiff must prove their liability. This enquiry does not entitle the person summoned to reopen the decree. He can only prove that he was not a partner, and in a proper case, that the decree is the result of collusion, fraud or the like. But, he cannot claim to have other matters tried, so to speak, between himself and his other partners. Once he admits that he is a partner and has no special defence of collusion, fraud, etc. the Court must give leave forthwith20. In our opinion, of the three constructions suggested by the learned Attorney-General the widest meaning cannot be attributed to the wordliability. The proper meaning thus is that primarily the question to try would be whether the person against whom the decree is sought to be executed was a partner of the firm, when the cause of action accrued, but he may question the decree on the ground of collusion, fraud or the like but so as not to have the suit tried over again or to raise issues between himself and his other partners. It is to be remembered that the leave that is sought is in respect of execution against the personal property of such partner and the leave that is granted or refused affects only such property and not the property of the firm. Ordinarily, when the person summoned admits that he is a partner, leave would be granted, unless he alleges collusion fraud or the like. No such question has been raised in this case, and the decision given by the High Court cannot be disturbed.

Lila Filomena Braganza Vs. Hong Kong Investment Company Private Limited (In Liquidation), Through The Official Liquidator High Court, Bombay &amp; Others

legal representative has filed the appeal against the preliminary decree before any final decree is passed. By the preliminary decree, only rights in the immovable properties were declared. The demarcation of the property which would go to the share of the party is yet to be done, and therefore, in our opinion, it cannot be said that there is absolutely no justification for entertaining the appeal against the preliminary decree. One more aspect that is to be noted is that the present appellant was brought on record of final decree proceedings on 15.12.2008. Thus, taking overall view of the matter, therefore, in our opinion, it will be in the interest of justice to consider this appeal on merits.5. So far as the merits of the matter are concerned, it was contended on behalf of the appellant that the decree of declaration that the plaintiff has one half share in the land, is absolutely illegal. It was contended that in the absence of a registered document, right of the original defendants in the one half land owned by them cannot be extinguished and one half right in favour of the plaintiff in the land cannot be created without there being a registered document to that effect. Reliance was placed on the provisions of Section 17 of the Registration Act to claim that any conveyance of immovable property can be brought about only by a registered document. It was further contended that the deed of partnership is alleged to have been signed in 25.5.1974 and as per the averments in the plaint itself, the defendants denied their signature on the partnership deed in July,1974 and the partnership was dissolved by the plaintiff in September,1974, and therefore, it cannot be said that the partnership has started carrying on any business. It was, therefore, contended that no partnership had come into existence. It was also contended that even assuming that the immovable property is brought as capital by one of the parties in the partnership business and the other party bringing some other property or money, then the property becomes the asset of the partnership firm. In the present case, there is no capital contribution made by the plaintiff at all. According to the averments in the plaint, the plaintiff was to contribute for development of the property to the extent of Rs.3,00,000/-. Before the dissolution of the firm, no development of the property took place nor is there any evidence or averments that the plaintiff contributed anything towards the business of the firm before September,1974, and therefore, it cannot be said that in view of this situation, the plaintiff gets one half share in the immovable property.6. We have heard the learned Counsel appearing for original plaintiff. His basic submission was in relation to the application for condonation of delay which we have dealt with above. So far as the learned Counsel appearing for applicant who has filed the chamber summons for permission to intervene is concerned, we find that he has no locus in the matter because he claims to be the legal heir of the major shareholder and the Director of the plaintiff Company which is under liquidation. We do not find that when the company is a plaintiff and it is represented by the official liquidator, the legal representative of the share holder or the Director of the Company under liquidation will have any locus, and would either be a necessary or proper party in the Civil Suit. This is an appeal filed against a preliminary decree, and therefore, only those parties who are parties to the suit can be the parties to the appeal. If the applicant wanted to join as party in the appeal, he should have first taken up the proceedings in the pending civil suit for being joined as a party. Unless the applicant is permitted by the trial Court to be joined as a party, the appeal Court cannot permit anybody to be joined as a party. In any case, in our opinion, according to the settled Law the applicant cannot be termed either as a necessary party or as a proper party, and therefore, his application could not have been considered.7. As pointed above, the applicant has no locus in this proceeding and so far as the Official Liquidator is concerned, his only contention was in relation to the delay in filing of the appeal. Therefore, the only question that we have to consider is, in the facts and circumstances, whether it would be in the interest of justice to set aside the preliminary decree. In our opinion, it would be in the interest of justice to set aside the preliminary decree for the following reasons:-(i) That by the preliminary decree which is ex-parte decree, it has been declared that the plaintiff has one half share in the vast immovable property and that share has been given to the plaintiff only because the defendants and the plaintiff had signed partnership deed in the month of May,1974 without the plaintiff contributing any money towards business of the firm. In our opinion, it will be highly improper if a person is given share in the immovable property without spending anything for acquiring the property. We find no consideration whatsoever for which one half share could be given to the plaintiff in the immovable property. We find that it cannot be said on the basis of the material presently available on record that the partnership had commenced the business for which it was entered into. There was no business carried out by the firm. Addressing merely letters, making inquiries from the various agencies, in our opinion, does not amount to carrying out any business.(ii) We further find that the question whether without there being any registered deed, it can be said that the defendants have divested themselves of 50% ownership in the immovable property, has also to be considered in the light of the provisions of Section 17 of the Registration Act, which has not been done.8.

1[ds]Perusal of the above quoted Section 5 shows that the Court gets power to admit the appeal which is filed after expiry of period of limitation only after the appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the period of limitation. Thus, when a Court of law admits an appeal for final hearing which is filed beyond the period of limitation, it implies that the Court is satisfied before making the order of admission of appeal that there was sufficient cause shown for not filing the appeal within limitation. That the Court has not given reasons for recording its satisfaction that the sufficient cause has been shown, may be the ground for challenging the order of the Court admitting the appeal either by filing an appeal against that order or by making an application for recall or review of that order. But without making an application for recall or review of that order, it cannot be urged either before the same Court or before theCourt that the order admitting the appeal should be ignored and the question that the sufficient cause has been shown by the appellant or not should be reconsidered. In our opinion, following such course of action would not be in accordance with law. In our opinion, if it was the grievance of the original plaintiffs that the appeal has been admitted without condoning the delay and without considering the sufficient cause, then its remedy was either to apply for recall or review of the order, or to challenge the order of admission of the appeal in an appeal. Having done none of these things, now the order passed by the Appeal Court admitting the appeal for final hearing is binding on the original plaintiffs, and therefore, the question of delay in filing the appeal cannot be reagitated.4.We also find from the record that the appeal has been filed by the legal representative of the original defendants. The legal representative has filed the appeal against the preliminary decree before any final decree is passed. By the preliminary decree, only rights in the immovable properties were declared. The demarcation of the property which would go to the share of the party is yet to be done, and therefore, in our opinion, it cannot be said that there is absolutely no justification for entertaining the appeal against the preliminary decree. One more aspect that is to be noted is that the present appellant was brought on record of final decree proceedings on 15.12.2008. Thus, taking overall view of the matter, therefore, in our opinion, it will be in the interest of justice to consider this appeal on merits.5.So far as the merits of the matter are concerned, it was contended on behalf of the appellant that the decree of declaration that the plaintiff has one half share in the land, is absolutely illegal. It was contended that in the absence of a registered document, right of the original defendants in the one half land owned by them cannot be extinguished and one half right in favour of the plaintiff in the land cannot be created without there being a registered document to that effect. Reliance was placed on the provisions of Section 17 of the Registration Act to claim that any conveyance of immovable property can be brought about only by a registered document. It was further contended that the deed of partnership is alleged to have been signed in 25.5.1974 and as per the averments in the plaint itself, the defendants denied their signature on the partnership deed in July,1974 and the partnership was dissolved by the plaintiff in September,1974, and therefore, it cannot be said that the partnership has started carrying on any business. It was, therefore, contended that no partnership had come into existence. It was also contended that even assuming that the immovable property is brought as capital by one of the parties in the partnership business and the other party bringing some other property or money, then the property becomes the asset of the partnership firm. In the present case, there is no capital contribution made by the plaintiff at all. According to the averments in the plaint, the plaintiff was to contribute for development of the property to the extent of Rs.Before the dissolution of the firm, no development of the property took place nor is there any evidence or averments that the plaintiff contributed anything towards the business of the firm before September,1974, and therefore, it cannot be said that in view of this situation, the plaintiff gets one half share in the immovable property.6.We have heard the learned Counsel appearing for original plaintiff. His basic submission was in relation to the application for condonation of delay which we have dealt with above. So far as the learned Counsel appearing for applicant who has filed the chamber summons for permission to intervene is concerned, we find that he has no locus in the matter because he claims to be the legal heir of the major shareholder and the Director of the plaintiff Company which is under liquidation. We do not find that when the company is a plaintiff and it is represented by the official liquidator, the legal representative of the share holder or the Director of the Company under liquidation will have any locus, and would either be a necessary or proper party in the Civil Suit. This is an appeal filed against a preliminary decree, and therefore, only those parties who are parties to the suit can be the parties to the appeal. If the applicant wanted to join as party in the appeal, he should have first taken up the proceedings in the pending civil suit for being joined as a party. Unless the applicant is permitted by the trial Court to be joined as a party, the appeal Court cannot permit anybody to be joined as a party. In any case, in our opinion, according to the settled Law the applicant cannot be termed either as a necessary party or as a proper party, and therefore, his application could not have been considered.7.As pointed above, the applicant has no locus in this proceeding and so far as the Official Liquidator is concerned, his only contention was in relation to the delay in filing of the appeal. Therefore, the only question that we have to consider is, in the facts and circumstances, whether it would be in the interest of justice to set aside the preliminary decree. In our opinion, it would be in the interest of justice to set aside the preliminary decree for the followingThat by the preliminary decree which isdecree, it has been declared that the plaintiff has one half share in the vast immovable property and that share has been given to the plaintiff only because the defendants and the plaintiff had signed partnership deed in the month of May,1974 without the plaintiff contributing any money towards business of the firm. In our opinion, it will be highly improper if a person is given share in the immovable property without spending anything for acquiring the property. We find no consideration whatsoever for which one half share could be given to the plaintiff in the immovable property. We find that it cannot be said on the basis of the material presently available on record that the partnership had commenced the business for which it was entered into. There was no business carried out by the firm. Addressing merely letters, making inquiries from the various agencies, in our opinion, does not amount to carrying out any business.(ii) We further find that the question whether without there being any registered deed, it can be said that the defendants have divested themselves of 50% ownership in the immovable property, has also to be considered in the light of the provisions of Section 17 of the Registration Act, which has not been done.

### 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: legal representative has filed the appeal against the preliminary decree before any final decree is passed. By the preliminary decree, only rights in the immovable properties were declared. The demarcation of the property which would go to the share of the party is yet to be done, and therefore, in our opinion, it cannot be said that there is absolutely no justification for entertaining the appeal against the preliminary decree. One more aspect that is to be noted is that the present appellant was brought on record of final decree proceedings on 15.12.2008. Thus, taking overall view of the matter, therefore, in our opinion, it will be in the interest of justice to consider this appeal on merits.5. So far as the merits of the matter are concerned, it was contended on behalf of the appellant that the decree of declaration that the plaintiff has one half share in the land, is absolutely illegal. It was contended that in the absence of a registered document, right of the original defendants in the one half land owned by them cannot be extinguished and one half right in favour of the plaintiff in the land cannot be created without there being a registered document to that effect. Reliance was placed on the provisions of Section 17 of the Registration Act to claim that any conveyance of immovable property can be brought about only by a registered document. It was further contended that the deed of partnership is alleged to have been signed in 25.5.1974 and as per the averments in the plaint itself, the defendants denied their signature on the partnership deed in July,1974 and the partnership was dissolved by the plaintiff in September,1974, and therefore, it cannot be said that the partnership has started carrying on any business. It was, therefore, contended that no partnership had come into existence. It was also contended that even assuming that the immovable property is brought as capital by one of the parties in the partnership business and the other party bringing some other property or money, then the property becomes the asset of the partnership firm. In the present case, there is no capital contribution made by the plaintiff at all. According to the averments in the plaint, the plaintiff was to contribute for development of the property to the extent of Rs.3,00,000/-. Before the dissolution of the firm, no development of the property took place nor is there any evidence or averments that the plaintiff contributed anything towards the business of the firm before September,1974, and therefore, it cannot be said that in view of this situation, the plaintiff gets one half share in the immovable property.6. We have heard the learned Counsel appearing for original plaintiff. His basic submission was in relation to the application for condonation of delay which we have dealt with above. So far as the learned Counsel appearing for applicant who has filed the chamber summons for permission to intervene is concerned, we find that he has no locus in the matter because he claims to be the legal heir of the major shareholder and the Director of the plaintiff Company which is under liquidation. We do not find that when the company is a plaintiff and it is represented by the official liquidator, the legal representative of the share holder or the Director of the Company under liquidation will have any locus, and would either be a necessary or proper party in the Civil Suit. This is an appeal filed against a preliminary decree, and therefore, only those parties who are parties to the suit can be the parties to the appeal. If the applicant wanted to join as party in the appeal, he should have first taken up the proceedings in the pending civil suit for being joined as a party. Unless the applicant is permitted by the trial Court to be joined as a party, the appeal Court cannot permit anybody to be joined as a party. In any case, in our opinion, according to the settled Law the applicant cannot be termed either as a necessary party or as a proper party, and therefore, his application could not have been considered.7. As pointed above, the applicant has no locus in this proceeding and so far as the Official Liquidator is concerned, his only contention was in relation to the delay in filing of the appeal. Therefore, the only question that we have to consider is, in the facts and circumstances, whether it would be in the interest of justice to set aside the preliminary decree. In our opinion, it would be in the interest of justice to set aside the preliminary decree for the following reasons:-(i) That by the preliminary decree which is ex-parte decree, it has been declared that the plaintiff has one half share in the vast immovable property and that share has been given to the plaintiff only because the defendants and the plaintiff had signed partnership deed in the month of May,1974 without the plaintiff contributing any money towards business of the firm. In our opinion, it will be highly improper if a person is given share in the immovable property without spending anything for acquiring the property. We find no consideration whatsoever for which one half share could be given to the plaintiff in the immovable property. We find that it cannot be said on the basis of the material presently available on record that the partnership had commenced the business for which it was entered into. There was no business carried out by the firm. Addressing merely letters, making inquiries from the various agencies, in our opinion, does not amount to carrying out any business.(ii) We further find that the question whether without there being any registered deed, it can be said that the defendants have divested themselves of 50% ownership in the immovable property, has also to be considered in the light of the provisions of Section 17 of the Registration Act, which has not been done.8. ### Response: 1 ### Explanation: the legal representative of the original defendants. The legal representative has filed the appeal against the preliminary decree before any final decree is passed. By the preliminary decree, only rights in the immovable properties were declared. The demarcation of the property which would go to the share of the party is yet to be done, and therefore, in our opinion, it cannot be said that there is absolutely no justification for entertaining the appeal against the preliminary decree. One more aspect that is to be noted is that the present appellant was brought on record of final decree proceedings on 15.12.2008. Thus, taking overall view of the matter, therefore, in our opinion, it will be in the interest of justice to consider this appeal on merits.5.So far as the merits of the matter are concerned, it was contended on behalf of the appellant that the decree of declaration that the plaintiff has one half share in the land, is absolutely illegal. It was contended that in the absence of a registered document, right of the original defendants in the one half land owned by them cannot be extinguished and one half right in favour of the plaintiff in the land cannot be created without there being a registered document to that effect. Reliance was placed on the provisions of Section 17 of the Registration Act to claim that any conveyance of immovable property can be brought about only by a registered document. It was further contended that the deed of partnership is alleged to have been signed in 25.5.1974 and as per the averments in the plaint itself, the defendants denied their signature on the partnership deed in July,1974 and the partnership was dissolved by the plaintiff in September,1974, and therefore, it cannot be said that the partnership has started carrying on any business. It was, therefore, contended that no partnership had come into existence. It was also contended that even assuming that the immovable property is brought as capital by one of the parties in the partnership business and the other party bringing some other property or money, then the property becomes the asset of the partnership firm. In the present case, there is no capital contribution made by the plaintiff at all. According to the averments in the plaint, the plaintiff was to contribute for development of the property to the extent of Rs.Before the dissolution of the firm, no development of the property took place nor is there any evidence or averments that the plaintiff contributed anything towards the business of the firm before September,1974, and therefore, it cannot be said that in view of this situation, the plaintiff gets one half share in the immovable property.6.We have heard the learned Counsel appearing for original plaintiff. His basic submission was in relation to the application for condonation of delay which we have dealt with above. So far as the learned Counsel appearing for applicant who has filed the chamber summons for permission to intervene is concerned, we find that he has no locus in the matter because he claims to be the legal heir of the major shareholder and the Director of the plaintiff Company which is under liquidation. We do not find that when the company is a plaintiff and it is represented by the official liquidator, the legal representative of the share holder or the Director of the Company under liquidation will have any locus, and would either be a necessary or proper party in the Civil Suit. This is an appeal filed against a preliminary decree, and therefore, only those parties who are parties to the suit can be the parties to the appeal. If the applicant wanted to join as party in the appeal, he should have first taken up the proceedings in the pending civil suit for being joined as a party. Unless the applicant is permitted by the trial Court to be joined as a party, the appeal Court cannot permit anybody to be joined as a party. In any case, in our opinion, according to the settled Law the applicant cannot be termed either as a necessary party or as a proper party, and therefore, his application could not have been considered.7.As pointed above, the applicant has no locus in this proceeding and so far as the Official Liquidator is concerned, his only contention was in relation to the delay in filing of the appeal. Therefore, the only question that we have to consider is, in the facts and circumstances, whether it would be in the interest of justice to set aside the preliminary decree. In our opinion, it would be in the interest of justice to set aside the preliminary decree for the followingThat by the preliminary decree which isdecree, it has been declared that the plaintiff has one half share in the vast immovable property and that share has been given to the plaintiff only because the defendants and the plaintiff had signed partnership deed in the month of May,1974 without the plaintiff contributing any money towards business of the firm. In our opinion, it will be highly improper if a person is given share in the immovable property without spending anything for acquiring the property. We find no consideration whatsoever for which one half share could be given to the plaintiff in the immovable property. We find that it cannot be said on the basis of the material presently available on record that the partnership had commenced the business for which it was entered into. There was no business carried out by the firm. Addressing merely letters, making inquiries from the various agencies, in our opinion, does not amount to carrying out any business.(ii) We further find that the question whether without there being any registered deed, it can be said that the defendants have divested themselves of 50% ownership in the immovable property, has also to be considered in the light of the provisions of Section 17 of the Registration Act, which has not been done.

Dunlop India Ltd Vs. A.A.Rahna

Board or the Appellate Authority or a sanctioned scheme is under implementation without the consent of the Board or the Appellate Authority. It could not be the intention of Parliament in enacting the said provision to aggravate the financial difficulties of a sick industrial company while the said matters were pending before the Board or the Appellate Authority by enabling a sick industrial company to continue to incur further liabilities during this period. This would be the consequence if sub-section (1) of Section 22 is construed to bring about suspension of proceedings for eviction instituted by landlord against a sick industrial company which has ceased to enjoy the protection of the relevant rent law on account of default in payment of rent. It would also mean that the landlord of such a company must continue to suffer a loss by permitting the tenant (sick industrial company) to occupy the premises even though it is not in a position to pay the rent. Such an intention cannot be imputed to Parliament. We are, therefore, of the view that Section 22(1) does not cover a proceeding instituted by a landlord of a sick industrial company for the eviction of the company premises let out to it." (emphasis supplied) 31. In Gujarat Steel Tube Co. Ltd. v. Virchandbhai B. Shah (1999) 8 SCC 11 , it was argued on behalf of the appellant that suit for recovery of rent etc. is not maintainable in view of the prohibition contained in Section 22(1). While affirming the judgment of the High Court, the Court referred to the earlier judgment in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (supra) and held: "Section 22 no doubt, inter alia, states that notwithstanding any other law no suit for recovery of money shall lie or be proceeded with except with the consent of the Board, but as we look at it the filing of an eviction petition on the ground of non-payment of rent cannot be regarded as filing of a suit for recovery of money. If a tenant does not pay the rent, then the protection which is given by the Rent Control Act against his eviction is taken away and with the non-payment of rent order of eviction may be passed. It may be possible that in view of the provisions of Section 22, the trial court may not be in a position to pass a decree for the payment of rent but when an application under Section 11(4) is filed, the trial court in effect gives an opportunity to the tenant to pay the rent failing which the consequences provided for in the sub-section would follow. An application under Section 11(4), or under any other similar provision, cannot, in our opinion, be regarded as being akin to a suit for recovery of money." (emphasis supplied) The same view was reiterated in Carona Ltd. v. Parvathy Swaminathan and Sons (2007) 8 SCC 559. 32. We shall now examine whether pendency of the proceedings under the 1985 Act, which implies that the appellant was facing financial difficulty in conducting its business constituted reasonable cause for cessation of occupation of the premises. The appellant was declared a sick industrial company on 22.6.1998 and IDBI was appointed as the Operating Agency under Section 17(3) of the 1985 Act to examine the viability of the company. Subsequently, State Bank of India was appointed as the Operating Agency. After several hearings, the BIFR passed order dated 19.10.2001 and directed the appellant to sort out all pending issues with secured creditors, Central/State Governments, TIIC, KSIIDC and TNSEP and submit a revised comprehensive and fully tied up rehabilitation scheme to the Operating Agency. For the next about five years, no tangible step is shown to have taken by the appellant for revival of its business activities. In August and November, 2006, the appellant filed applications before the BIFR seeking its permission for issue of two crore equity shares of Rs. 10/- each fully paid up at par to the companys promoters and/or its associates on private placement basis against full consideration to be utilized for rehabilitation. Thereupon, the BIFR passed order dated 16.3.2007. Three appeals were filed against that order. The AAIFR dismissed the appeals after taking note of order passed by the Madras High Court in Writ Petition (C) No. 24422 of 2006, order dated 25.4.2007 passed by the Orissa High Court in W.P (C) No. 344 of 2008, order dated 5.2.2008 passed by this Court in SLP(C) CC Nos. 1943-1944 of 2008 and held that in view of the various orders, the net worth of the appellant having turned positive and it can no longer be treated as sick industrial company. Before the Rent Control Court, the appellant had neither pleaded nor any evidence was produced to show that due to financial stringency was due to the reasons beyond its control and on that account, the suit premises could not be used from September, 2001 onwards for the purpose specified in the lease deeds. Therefore, the so called financial stringency cannot be construed as reasonable cause within the meaning of Section 11(4)(v). 33. We are also of the view that order dated 3.3.2008 passed by the AAIFR has no bearing on the decision of the issues raised by the respondents in the context of Section 11(4)(v) of the 1965 Act because what was required to be considered by the Rent Control Court was whether as on the date of filing the petition the appellant had ceased to occupy the premises continuously for a period of six months without reasonable cause. The improvement in the financial health of the appellant after many years cannot impinge upon the concurrent finding recorded by the Rent Control Court and the Appellate Authority that the respondents had succeeded in making out a case for eviction under Section 11(4)(v) and that there was no reasonable cause for the appellant to have ceased to occupy the suit premises continuously for a period of six months.

0[ds]28. In this case, the Rent Control Court, after detailed scrutiny of the pleadings and the evidence of the parties recorded a finding that while the landowners (respondents herein) succeeded in proving that the tenant (appellant herein) had ceased to occupy the suit premises for a period exceeding six months, the latter could not prove that it was occupying the premises or that non occupation thereof was for a reasonable cause. The Rent Control Court took cognizance of the appellants plea that it was carrying on business activities from the suit premises with reduced staff strength but discarded the same by observing that the relevant records like the attendance register, muster roll, wage register had not been produced and no evidence was adduced to prove payment of electricity bills and sale and purchase of goods. The High Court also analysed the pleadings and evidence of the parties and concurred with the findings recorded by the Rent Control Court. As against this, the appellant did not produce any evidence to prove physical occupation of the premises or any business transaction. It also failed to produce any evidence to show that there was reasonable cause for non occupation of the suit premises29. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June, 1998. In the second set of petitions, the period of non occupation commenced from September, 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the Appellate Authority because till 2.8.1999, the premises were found kept open and alive for operation. The Appellate Authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September, 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K. Agarwal on 1.10.2001 that the company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1.10.2001; that no activity had been done in the premises with effect from 1.10.2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the Appellate Authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause33. We are also of the view that order dated 3.3.2008 passed by the AAIFR has no bearing on the decision of the issues raised by the respondents in the context of Section 11(4)(v) of the 1965 Act because what was required to be considered by the Rent Control Court was whether as on the date of filing the petition the appellant had ceased to occupy the premises continuously for a period of six months without reasonable cause. The improvement in the financial health of the appellant after many years cannot impinge upon the concurrent finding recorded by the Rent Control Court and the Appellate Authority that the respondents had succeeded in making out a case for eviction under Section 11(4)(v) and that there was no reasonable cause for the appellant to have ceased to occupy the suit premises continuously for a period of six months

### 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: Board or the Appellate Authority or a sanctioned scheme is under implementation without the consent of the Board or the Appellate Authority. It could not be the intention of Parliament in enacting the said provision to aggravate the financial difficulties of a sick industrial company while the said matters were pending before the Board or the Appellate Authority by enabling a sick industrial company to continue to incur further liabilities during this period. This would be the consequence if sub-section (1) of Section 22 is construed to bring about suspension of proceedings for eviction instituted by landlord against a sick industrial company which has ceased to enjoy the protection of the relevant rent law on account of default in payment of rent. It would also mean that the landlord of such a company must continue to suffer a loss by permitting the tenant (sick industrial company) to occupy the premises even though it is not in a position to pay the rent. Such an intention cannot be imputed to Parliament. We are, therefore, of the view that Section 22(1) does not cover a proceeding instituted by a landlord of a sick industrial company for the eviction of the company premises let out to it." (emphasis supplied) 31. In Gujarat Steel Tube Co. Ltd. v. Virchandbhai B. Shah (1999) 8 SCC 11 , it was argued on behalf of the appellant that suit for recovery of rent etc. is not maintainable in view of the prohibition contained in Section 22(1). While affirming the judgment of the High Court, the Court referred to the earlier judgment in Shree Chamundi Mopeds Ltd. v. Church of South India Trust Association (supra) and held: "Section 22 no doubt, inter alia, states that notwithstanding any other law no suit for recovery of money shall lie or be proceeded with except with the consent of the Board, but as we look at it the filing of an eviction petition on the ground of non-payment of rent cannot be regarded as filing of a suit for recovery of money. If a tenant does not pay the rent, then the protection which is given by the Rent Control Act against his eviction is taken away and with the non-payment of rent order of eviction may be passed. It may be possible that in view of the provisions of Section 22, the trial court may not be in a position to pass a decree for the payment of rent but when an application under Section 11(4) is filed, the trial court in effect gives an opportunity to the tenant to pay the rent failing which the consequences provided for in the sub-section would follow. An application under Section 11(4), or under any other similar provision, cannot, in our opinion, be regarded as being akin to a suit for recovery of money." (emphasis supplied) The same view was reiterated in Carona Ltd. v. Parvathy Swaminathan and Sons (2007) 8 SCC 559. 32. We shall now examine whether pendency of the proceedings under the 1985 Act, which implies that the appellant was facing financial difficulty in conducting its business constituted reasonable cause for cessation of occupation of the premises. The appellant was declared a sick industrial company on 22.6.1998 and IDBI was appointed as the Operating Agency under Section 17(3) of the 1985 Act to examine the viability of the company. Subsequently, State Bank of India was appointed as the Operating Agency. After several hearings, the BIFR passed order dated 19.10.2001 and directed the appellant to sort out all pending issues with secured creditors, Central/State Governments, TIIC, KSIIDC and TNSEP and submit a revised comprehensive and fully tied up rehabilitation scheme to the Operating Agency. For the next about five years, no tangible step is shown to have taken by the appellant for revival of its business activities. In August and November, 2006, the appellant filed applications before the BIFR seeking its permission for issue of two crore equity shares of Rs. 10/- each fully paid up at par to the companys promoters and/or its associates on private placement basis against full consideration to be utilized for rehabilitation. Thereupon, the BIFR passed order dated 16.3.2007. Three appeals were filed against that order. The AAIFR dismissed the appeals after taking note of order passed by the Madras High Court in Writ Petition (C) No. 24422 of 2006, order dated 25.4.2007 passed by the Orissa High Court in W.P (C) No. 344 of 2008, order dated 5.2.2008 passed by this Court in SLP(C) CC Nos. 1943-1944 of 2008 and held that in view of the various orders, the net worth of the appellant having turned positive and it can no longer be treated as sick industrial company. Before the Rent Control Court, the appellant had neither pleaded nor any evidence was produced to show that due to financial stringency was due to the reasons beyond its control and on that account, the suit premises could not be used from September, 2001 onwards for the purpose specified in the lease deeds. Therefore, the so called financial stringency cannot be construed as reasonable cause within the meaning of Section 11(4)(v). 33. We are also of the view that order dated 3.3.2008 passed by the AAIFR has no bearing on the decision of the issues raised by the respondents in the context of Section 11(4)(v) of the 1965 Act because what was required to be considered by the Rent Control Court was whether as on the date of filing the petition the appellant had ceased to occupy the premises continuously for a period of six months without reasonable cause. The improvement in the financial health of the appellant after many years cannot impinge upon the concurrent finding recorded by the Rent Control Court and the Appellate Authority that the respondents had succeeded in making out a case for eviction under Section 11(4)(v) and that there was no reasonable cause for the appellant to have ceased to occupy the suit premises continuously for a period of six months. ### Response: 0 ### Explanation: 28. In this case, the Rent Control Court, after detailed scrutiny of the pleadings and the evidence of the parties recorded a finding that while the landowners (respondents herein) succeeded in proving that the tenant (appellant herein) had ceased to occupy the suit premises for a period exceeding six months, the latter could not prove that it was occupying the premises or that non occupation thereof was for a reasonable cause. The Rent Control Court took cognizance of the appellants plea that it was carrying on business activities from the suit premises with reduced staff strength but discarded the same by observing that the relevant records like the attendance register, muster roll, wage register had not been produced and no evidence was adduced to prove payment of electricity bills and sale and purchase of goods. The High Court also analysed the pleadings and evidence of the parties and concurred with the findings recorded by the Rent Control Court. As against this, the appellant did not produce any evidence to prove physical occupation of the premises or any business transaction. It also failed to produce any evidence to show that there was reasonable cause for non occupation of the suit premises29. The arguments of Shri Nariman that the second set of rent control petitions should have been dismissed as barred by res judicata because the issue raised therein was directly and substantially similar to the one raised in the first set of rent control petitions does not merit acceptance for the simple reason that while in the first set of petitions, the respondents had sought eviction on the ground that the appellant had ceased to occupy the premises from June, 1998. In the second set of petitions, the period of non occupation commenced from September, 2001 and continued till the filing of the eviction petitions. That apart, the evidence produced in the first set of petitions was not found acceptable by the Appellate Authority because till 2.8.1999, the premises were found kept open and alive for operation. The Appellate Authority also found that in spite of extreme financial crisis, the management had kept the business premises open for operation till 1999. In the second round, the appellant did not adduce any evidence worth the name to show that the premises were kept open or used from September, 2001 onwards. The Rent Controller took cognizance of the notice fixed on the front shutter of the building by A.K. Agarwal on 1.10.2001 that the company is a sick industrial company under the 1985 Act and operation has been suspended with effect from 1.10.2001; that no activity had been done in the premises with effect from 1.10.2001 and no evidence was produced to show attendance of the staff, payment of salary to the employees, payment of electricity bills from September, 2001 or that any commercial transaction was done from the suit premises. It is, thus, evident that even though the ground of eviction in the two sets of petitions was similar, the same were based on different causes. Therefore, the evidence produced by the parties in the second round was rightly treated as sufficient by the Rent Control Court and the Appellate Authority for recording a finding that the appellant had ceased to occupy the suit premises continuously for six months without any reasonable cause33. We are also of the view that order dated 3.3.2008 passed by the AAIFR has no bearing on the decision of the issues raised by the respondents in the context of Section 11(4)(v) of the 1965 Act because what was required to be considered by the Rent Control Court was whether as on the date of filing the petition the appellant had ceased to occupy the premises continuously for a period of six months without reasonable cause. The improvement in the financial health of the appellant after many years cannot impinge upon the concurrent finding recorded by the Rent Control Court and the Appellate Authority that the respondents had succeeded in making out a case for eviction under Section 11(4)(v) and that there was no reasonable cause for the appellant to have ceased to occupy the suit premises continuously for a period of six months

Devidas Vithaldas and Co Vs. Commissioner of Income Tax, Bombay

be made. 19.The clause, no doubt, prescribes the mode and the quantum of the payment, that is, a share of five annas four pies in the rupee in the net profits of the business, payable during the lifetime of Padamsi and after him during the lifetime of his wife Bai Premlata if she were to survive him, and then to their son during his lifetime. Two things, however, may at once be observed, firstly, that the duration of payment is indefinite, unlike Ramsays case, (1936) 20 Tax Cas 80 and secondly, the amount is indefinite, depending as it does upon the rise and fall in the profits of the business. Obviously, the payment is not related to any lump sum fixed as the purchase price. On the contrary, it is directly related to and dependent upon whether at all and what profits are made. Further, the document is totally silent as to what is to happen to the goodwill if Amratlal Parikh or his partners, if he were to enter into a partnership, cease to carry on the business in the name of Devidas Vithaldas and Co. or at all. It is silent as to whether the goodwill would remain with him and/or his partners or whether it would revert to Padamsi or his heirs. The transactiond thus contains all the grounds given in the case of Travancore Sugars and Chemicals Ltd., 62 ITR 566 = (AIR 1967 SC 477 ), upon which this Court concluded there that such payments could not be treated as capital disbursements, namely, an indefinite period, absence of any expressed lump sum, and payment relating to profits and not being tied up with any fixed sum agreed to as the purchase price of a capital asset. 20. Quite apart from these considerations, clause (6) itself contains indications of the transaction not being an outright purchase of the goodwill. It will be recalled that that clause provides that in the event of Amratlal transferring or assigning his business to any one else or entering into partnership or otherwise remaining interested in the said business, by whomsoever carried on in the name of Devidas Vithaldas and Co., then in any such events and "so long as any such business be carried on in the name, style and firm of Devidas Vithaldas and Co. or any other name resembling or similar thereto", the assignees of Amratlal and/or any such other person or persons as aforesaid, carrying on the business in the said name, shall pay the said share in the profits to Padamsi, after him to his widow and after her to his son. The clause thus indicates that the payment is to be made so long as the business is carried on in the name of Devidas Vithaldas and Co. and not otherwise. The clause further provides that the said Amratlal shall not assign or transfer or otherwise dispose of the said business or the goodwill thereto meaning thereby the business carried on in the said name except upon a condition that such an assignee or transferee shall enter into a similar agreement with Padamsi or his wife or his said son, as the case may be, whomsoever required to do so. When Amratlal took Chandrakant Parikh as his partner, it was in pursuance of this covenant that the deed of partnership between them expressly provided for the paydment of 0/5/4 in a rupee in the net profits and further provided that it would be after such payment was made that the parties could divide the balance left as their shares of the profits. 21. If the transaction embodied in the deed, dated January 2, 1951 was an outright purchase of goodwill, there was no necessity of clause (6) in that deed providing for the partnership which Amratlal would enter into in the future or his assignee or transferee having to pay the said share so long as he or they continued to carry on business in the said name. It is also inconceivable that if Padamsi was selling the goodwill, he would enter into an agreement which provided no fixed purchase price, no specific period during which the purchaser would be liable to pay it except an indefidnite period, i.e., until the business was carried on in the said name, leaving to the volition of the other party to use the said name or not or to cease to do so at any time. If the transaction was intended to be an outright sale of a capital asset, the deed incorporating it would have contained a fixed purchase price and even if such a fixed purchase price were to be payable not at once but by instalments, such payments would be relatable to and tied up with such a lump sum. Even if such instalments were to be payable out of the profits of the business, such instalments would be relatable to the price, and for a period until it was satisfied and ndot to the profits which would fluctuate from year to year. In such a case, even if the purchase price is payable by instalments and out of profits, the document would contain both a fixed purchase price and a defidnite period during which such price would have to be liquidated. 22.On the facts of the case, the conclusion is inescapable, even apart from the ratio in the Travancore Sugars and Chemicals case, 62 ITR 566 = (AIR 1967 SC 477 ) being applicable, that the transaction was, as held by the Tribunal, a licence and not a sale of the goodwill. The disbursements in question, therefore, were in the nature of royalty and must be treated as admissible deductions. In this view, it does not become necessary to go into the question whether clause (6) in the deed, dated January 2, 1951 and clause (5) in the deed, dated October 18, 1951 contained overriding provisions by reason of which payments in questions could not form part of the assessable profits of the firm.

1[ds]18. The question whether the disbursements in question partake the character of one or the other mainly depends upon the construction of the document of January 2, 1951 andthe true nature of the transaction embodied therein. Cl. (2) of the document, no doubt, uses expressions, such as "agreed to sell" and "the purchase price of the goodwill". These expressions, however, are as repeatedly stated in a number of cases, not determinative of the exact nature of the transaction or the relationship between the parties arising therefrom. Though clause (2) uses expressions which on a superficial view might appear to indicate a sale of the goodwill, neither that nor any other clause mentions what its purchase price was. The documents is not one of those where the price is expressed at a lump sum, and is made payable by specific instalments within a specified period. In some cases, it may even be possible that parties might agree to a lump sum as the price and yet, as in Ramsays case, (1936) 20 Tax Cas 80 agree that such sum should be payable out of the profits at a certain percentage where the purchaser is not in a position to pay the price at a time or even by instalments, except at a particular rate from out of the profits of the business taken over by him. But in such a case the payment, even if out of the profits, is tied up with a lump sum, that is, with the purchase price agreed to between the parties and which assumes the character of a fixed debt, cl. (2) clearly does not fix such a price nor mentions a lump sum in respect of which annual payments as provided therein are to be made19.The clause, no doubt, prescribes the mode and the quantum of the payment, that is, a share of five annas four pies in the rupee in the net profits of the business, payable during the lifetime of Padamsi and after him during the lifetime of his wife Bai Premlata if she were to survive him, and then to their son during his lifetime. Two things, however, may at once be observed, firstly, that the duration of payment is indefinite, unlike Ramsays case, (1936) 20 Tax Cas 80 and secondly, the amount is indefinite, depending as it does upon the rise and fall in the profits of the business. Obviously, the payment is not related to any lump sum fixed as the purchase price. On the contrary, it is directly related to and dependent upon whether at all and what profits are made. Further, the document is totally silent as to what is to happen to the goodwill if Amratlal Parikh or his partners, if he were to enter into a partnership, cease to carry on the business in the name of Devidas Vithaldas and Co. or at all. It is silent as to whether the goodwill would remain with him and/or his partners or whether it would revert to Padamsi or his heirs. The transactiond thus contains all the grounds given in the case of Travancore Sugars and Chemicals Ltd., 62 ITR 566 = (AIR 1967 SC 477 ), upon which this Court concluded there that such payments could not be treated as capital disbursements, namely, an indefinite period, absence of any expressed lump sum, and payment relating to profits and not being tied up with any fixed sum agreed to as the purchase price of a capital asset20. Quite apart from these considerations, clause (6) itself contains indications of the transaction not being an outright purchase of the goodwill. It will be recalled that that clause provides that in the event of Amratlal transferring or assigning his business to any one else or entering into partnership or otherwise remaining interested in the said business, by whomsoever carried on in the name of Devidas Vithaldas and Co., then in any such events and "so long as any such business be carried on in the name, style and firm of Devidas Vithaldas and Co. or any other name resembling or similar thereto", the assignees of Amratlal and/or any such other person or persons as aforesaid, carrying on the business in the said name, shall pay the said share in the profits to Padamsi, after him to his widow and after her to his son. The clause thus indicates that the payment is to be made so long as the business is carried on in the name of Devidas Vithaldas and Co. and not otherwise. The clause further provides that the said Amratlal shall not assign or transfer or otherwise dispose of the said business or the goodwill thereto meaning thereby the business carried on in the said name except upon a condition that such an assignee or transferee shall enter into a similar agreement with Padamsi or his wife or his said son, as the case may be, whomsoever required to do so. When Amratlal took Chandrakant Parikh as his partner, it was in pursuance of this covenant that the deed of partnership between them expressly provided for the paydment of 0/5/4 in a rupee in the net profits and further provided that it would be after such payment was made that the parties could divide the balance left as their shares of the profits21. If the transaction embodied in the deed, dated January 2, 1951 was an outright purchase of goodwill, there was no necessity of clause (6) in that deed providing for the partnership which Amratlal would enter into in the future or his assignee or transferee having to pay the said share so long as he or they continued to carry on business in the said name. It is also inconceivable that if Padamsi was selling the goodwill, he would enter into an agreement which provided no fixed purchase price, no specific period during which the purchaser would be liable to pay it except an indefidnite period, i.e., until the business was carried on in the said name, leaving to the volition of the other party to use the said name or not or to cease to do so at any time. If the transaction was intended to be an outright sale of a capital asset, the deed incorporating it would have contained a fixed purchase price and even if such a fixed purchase price were to be payable not at once but by instalments, such payments would be relatable to and tied up with such a lump sum. Even if such instalments were to be payable out of the profits of the business, such instalments would be relatable to the price, and for a period until it was satisfied and ndot to the profits which would fluctuate from year to year. In such a case, even if the purchase price is payable by instalments and out of profits, the document would contain both a fixed purchase price and a defidnite period during which such price would have to be liquidated22.On the facts of the case, the conclusion is inescapable, even apart from the ratio in the Travancore Sugars and Chemicals case, 62 ITR 566 = (AIR 1967 SC 477 ) being applicable, that the transaction was, as held by the Tribunal, a licence and not a sale of the goodwill. The disbursements in question, therefore, were in the nature of royalty and must be treated as admissible deductions. In this view, it does not become necessary to go into the question whether clause (6) in the deed, dated January 2, 1951 and clause (5) in the deed, dated October 18, 1951 contained overriding provisions by reason of which payments in questions could not form part of the assessable profits of the firm.

### 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: be made. 19.The clause, no doubt, prescribes the mode and the quantum of the payment, that is, a share of five annas four pies in the rupee in the net profits of the business, payable during the lifetime of Padamsi and after him during the lifetime of his wife Bai Premlata if she were to survive him, and then to their son during his lifetime. Two things, however, may at once be observed, firstly, that the duration of payment is indefinite, unlike Ramsays case, (1936) 20 Tax Cas 80 and secondly, the amount is indefinite, depending as it does upon the rise and fall in the profits of the business. Obviously, the payment is not related to any lump sum fixed as the purchase price. On the contrary, it is directly related to and dependent upon whether at all and what profits are made. Further, the document is totally silent as to what is to happen to the goodwill if Amratlal Parikh or his partners, if he were to enter into a partnership, cease to carry on the business in the name of Devidas Vithaldas and Co. or at all. It is silent as to whether the goodwill would remain with him and/or his partners or whether it would revert to Padamsi or his heirs. The transactiond thus contains all the grounds given in the case of Travancore Sugars and Chemicals Ltd., 62 ITR 566 = (AIR 1967 SC 477 ), upon which this Court concluded there that such payments could not be treated as capital disbursements, namely, an indefinite period, absence of any expressed lump sum, and payment relating to profits and not being tied up with any fixed sum agreed to as the purchase price of a capital asset. 20. Quite apart from these considerations, clause (6) itself contains indications of the transaction not being an outright purchase of the goodwill. It will be recalled that that clause provides that in the event of Amratlal transferring or assigning his business to any one else or entering into partnership or otherwise remaining interested in the said business, by whomsoever carried on in the name of Devidas Vithaldas and Co., then in any such events and "so long as any such business be carried on in the name, style and firm of Devidas Vithaldas and Co. or any other name resembling or similar thereto", the assignees of Amratlal and/or any such other person or persons as aforesaid, carrying on the business in the said name, shall pay the said share in the profits to Padamsi, after him to his widow and after her to his son. The clause thus indicates that the payment is to be made so long as the business is carried on in the name of Devidas Vithaldas and Co. and not otherwise. The clause further provides that the said Amratlal shall not assign or transfer or otherwise dispose of the said business or the goodwill thereto meaning thereby the business carried on in the said name except upon a condition that such an assignee or transferee shall enter into a similar agreement with Padamsi or his wife or his said son, as the case may be, whomsoever required to do so. When Amratlal took Chandrakant Parikh as his partner, it was in pursuance of this covenant that the deed of partnership between them expressly provided for the paydment of 0/5/4 in a rupee in the net profits and further provided that it would be after such payment was made that the parties could divide the balance left as their shares of the profits. 21. If the transaction embodied in the deed, dated January 2, 1951 was an outright purchase of goodwill, there was no necessity of clause (6) in that deed providing for the partnership which Amratlal would enter into in the future or his assignee or transferee having to pay the said share so long as he or they continued to carry on business in the said name. It is also inconceivable that if Padamsi was selling the goodwill, he would enter into an agreement which provided no fixed purchase price, no specific period during which the purchaser would be liable to pay it except an indefidnite period, i.e., until the business was carried on in the said name, leaving to the volition of the other party to use the said name or not or to cease to do so at any time. If the transaction was intended to be an outright sale of a capital asset, the deed incorporating it would have contained a fixed purchase price and even if such a fixed purchase price were to be payable not at once but by instalments, such payments would be relatable to and tied up with such a lump sum. Even if such instalments were to be payable out of the profits of the business, such instalments would be relatable to the price, and for a period until it was satisfied and ndot to the profits which would fluctuate from year to year. In such a case, even if the purchase price is payable by instalments and out of profits, the document would contain both a fixed purchase price and a defidnite period during which such price would have to be liquidated. 22.On the facts of the case, the conclusion is inescapable, even apart from the ratio in the Travancore Sugars and Chemicals case, 62 ITR 566 = (AIR 1967 SC 477 ) being applicable, that the transaction was, as held by the Tribunal, a licence and not a sale of the goodwill. The disbursements in question, therefore, were in the nature of royalty and must be treated as admissible deductions. In this view, it does not become necessary to go into the question whether clause (6) in the deed, dated January 2, 1951 and clause (5) in the deed, dated October 18, 1951 contained overriding provisions by reason of which payments in questions could not form part of the assessable profits of the firm. ### Response: 1 ### Explanation: clause, no doubt, prescribes the mode and the quantum of the payment, that is, a share of five annas four pies in the rupee in the net profits of the business, payable during the lifetime of Padamsi and after him during the lifetime of his wife Bai Premlata if she were to survive him, and then to their son during his lifetime. Two things, however, may at once be observed, firstly, that the duration of payment is indefinite, unlike Ramsays case, (1936) 20 Tax Cas 80 and secondly, the amount is indefinite, depending as it does upon the rise and fall in the profits of the business. Obviously, the payment is not related to any lump sum fixed as the purchase price. On the contrary, it is directly related to and dependent upon whether at all and what profits are made. Further, the document is totally silent as to what is to happen to the goodwill if Amratlal Parikh or his partners, if he were to enter into a partnership, cease to carry on the business in the name of Devidas Vithaldas and Co. or at all. It is silent as to whether the goodwill would remain with him and/or his partners or whether it would revert to Padamsi or his heirs. The transactiond thus contains all the grounds given in the case of Travancore Sugars and Chemicals Ltd., 62 ITR 566 = (AIR 1967 SC 477 ), upon which this Court concluded there that such payments could not be treated as capital disbursements, namely, an indefinite period, absence of any expressed lump sum, and payment relating to profits and not being tied up with any fixed sum agreed to as the purchase price of a capital asset20. Quite apart from these considerations, clause (6) itself contains indications of the transaction not being an outright purchase of the goodwill. It will be recalled that that clause provides that in the event of Amratlal transferring or assigning his business to any one else or entering into partnership or otherwise remaining interested in the said business, by whomsoever carried on in the name of Devidas Vithaldas and Co., then in any such events and "so long as any such business be carried on in the name, style and firm of Devidas Vithaldas and Co. or any other name resembling or similar thereto", the assignees of Amratlal and/or any such other person or persons as aforesaid, carrying on the business in the said name, shall pay the said share in the profits to Padamsi, after him to his widow and after her to his son. The clause thus indicates that the payment is to be made so long as the business is carried on in the name of Devidas Vithaldas and Co. and not otherwise. The clause further provides that the said Amratlal shall not assign or transfer or otherwise dispose of the said business or the goodwill thereto meaning thereby the business carried on in the said name except upon a condition that such an assignee or transferee shall enter into a similar agreement with Padamsi or his wife or his said son, as the case may be, whomsoever required to do so. When Amratlal took Chandrakant Parikh as his partner, it was in pursuance of this covenant that the deed of partnership between them expressly provided for the paydment of 0/5/4 in a rupee in the net profits and further provided that it would be after such payment was made that the parties could divide the balance left as their shares of the profits21. If the transaction embodied in the deed, dated January 2, 1951 was an outright purchase of goodwill, there was no necessity of clause (6) in that deed providing for the partnership which Amratlal would enter into in the future or his assignee or transferee having to pay the said share so long as he or they continued to carry on business in the said name. It is also inconceivable that if Padamsi was selling the goodwill, he would enter into an agreement which provided no fixed purchase price, no specific period during which the purchaser would be liable to pay it except an indefidnite period, i.e., until the business was carried on in the said name, leaving to the volition of the other party to use the said name or not or to cease to do so at any time. If the transaction was intended to be an outright sale of a capital asset, the deed incorporating it would have contained a fixed purchase price and even if such a fixed purchase price were to be payable not at once but by instalments, such payments would be relatable to and tied up with such a lump sum. Even if such instalments were to be payable out of the profits of the business, such instalments would be relatable to the price, and for a period until it was satisfied and ndot to the profits which would fluctuate from year to year. In such a case, even if the purchase price is payable by instalments and out of profits, the document would contain both a fixed purchase price and a defidnite period during which such price would have to be liquidated22.On the facts of the case, the conclusion is inescapable, even apart from the ratio in the Travancore Sugars and Chemicals case, 62 ITR 566 = (AIR 1967 SC 477 ) being applicable, that the transaction was, as held by the Tribunal, a licence and not a sale of the goodwill. The disbursements in question, therefore, were in the nature of royalty and must be treated as admissible deductions. In this view, it does not become necessary to go into the question whether clause (6) in the deed, dated January 2, 1951 and clause (5) in the deed, dated October 18, 1951 contained overriding provisions by reason of which payments in questions could not form part of the assessable profits of the firm.

Vasanthi Vs. Venugopal (D) Thr. Lrs

others sought to rely on the testimony of DW1 to the effect that he had always been ready and willing to perform the contract and also in the reply to the notice sent by the vendors of the appellant/plaintiff conveying the cancellation of the agreement, he reiterated his readiness and willingness to get the sale deed, on the basis of the agreement for sale, executed.24. The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the appellant/plaintiff and the original defendant and that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the appellant/plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.25. The fact that at the first instance, the appellant/plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.26. This Court in Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi by Lrs. and others 2002(1) R.C.R.(Rent) 302 : (2002) 3 SCC 676 , while tracing the incorporation of Section 53A in the TP Act, vide Act of 1929, acting on the recommendations of the Special Committee on the issue, had ruled that mere expiration of the period of limitation for bringing a suit for specific performance would not debar a person in possession of an immovable property by way of part performance from setting up a plea, as contemplated therein in defence to protect his possession of the property involved. It was however underlined that if the conditions precedent, as enumerated, in Section 53A of the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part performance of a contract for transfer thereof for consideration to assert the shield of Section 53A of T.P. Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential pre-requisites therefor would have to be obligatorily complied with.27. In A. Lewis and another v. M.T. Ramamurthy and others 2008(1) R.C.R.(Civil) 77 : (2007) 14 SCC 87 , it was propounded that the right to claim protection under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect.28. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.31. Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.32. On an overall view of the matter, we are of the opinion that the conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.

1[ds]16. As the contextual facts in these decisions are inessential, having regard to the hyaline legal postulations as above, elaboration thereof is avoided. The dismissal of the LPA of the appellant/plaintiff, in the face of the above judicially adumbrated explication of Section 100-A of CPC by this Court, cannot thus be faulted with.17. Reverting to the availability of the protection of Section 53A of TP Act to the original defendant and on his death, to the present respondents, to reiterate, the evidence on record does proclaim that the agreement for sale dated 20.5.1975 had indeed been executed between the predecessors-in-interest of the vendors of the appellant/plaintiff and the respondents herein, pursuant whereto, an amount of Rs. 26,000/- in all had been paid by the proposed purchaser and the possession of the suit property had been handed over to him in consideration thereof. As a matter of fact, at the time of execution of said agreement, the suit property was in occupation of a tenant of the proposed seller i.e. the predecessor-in-interest of the vendors of the appellant/plaintiff and that following a compromise, the tenant delivered possession of the suit property to the predecessor-in-interest of the present respondents and since thereafter, they are in occupation thereof. The evidence on record, however, does not in very clear terms establish that the appellant/plaintiff had conscious notice or knowledge of this agreement for sale at the time of her purchase. Admittedly as well, neither the predecessor-in-interest of the respondents nor they had taken recourse to law for specific performance of the agreement. This assumes importance in view of the averment made in the written statement that even prior to the demise of the predecessor-in-interest of the vendors of the appellant/plaintiff, he did not comply with the requests of the original defendant to get the sale deed executed and his legal heirs, after his demise, also adopted the same non-cooperative stance.In terms of this provision, if the above pre-conditions stand complied with, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person(s) claiming under him, any right in respect of the property of which the transferee has taken or continue in possession, other than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, as contemplated, had not been completed in the manner prescribed therefor by the law for the time being in force. Noticeably, an exception to this restraint is carved out qua a transferee for consideration, who has no notice of the contract or of the part performance thereof.The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the appellant/plaintiff and the original defendant and that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the appellant/plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.25. The fact that at the first instance, the appellant/plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.31. Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.32. On an overall view of the matter, we are of the opinion that the conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.

### 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: others sought to rely on the testimony of DW1 to the effect that he had always been ready and willing to perform the contract and also in the reply to the notice sent by the vendors of the appellant/plaintiff conveying the cancellation of the agreement, he reiterated his readiness and willingness to get the sale deed, on the basis of the agreement for sale, executed.24. The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the appellant/plaintiff and the original defendant and that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the appellant/plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.25. The fact that at the first instance, the appellant/plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.26. This Court in Shrimant Shamrao Suryavanshi and another v. Pralhad Bhairoba Suryavanshi by Lrs. and others 2002(1) R.C.R.(Rent) 302 : (2002) 3 SCC 676 , while tracing the incorporation of Section 53A in the TP Act, vide Act of 1929, acting on the recommendations of the Special Committee on the issue, had ruled that mere expiration of the period of limitation for bringing a suit for specific performance would not debar a person in possession of an immovable property by way of part performance from setting up a plea, as contemplated therein in defence to protect his possession of the property involved. It was however underlined that if the conditions precedent, as enumerated, in Section 53A of the Act, are complied with, the law of limitation would not come in the way of the said person to avail the benefit of the protection to his possession as extended thereby even though a suit for specific performance of a contract by him had gone barred by limitation. Explicitly therefore, though mere expiry of the period of limitation for a suit for specific performance may not be a bar for a person in possession of an immovable property in part performance of a contract for transfer thereof for consideration to assert the shield of Section 53A of T.P. Act, it is nevertheless imperative that to avail the benefit of such protection, all the essential pre-requisites therefor would have to be obligatorily complied with.27. In A. Lewis and another v. M.T. Ramamurthy and others 2008(1) R.C.R.(Civil) 77 : (2007) 14 SCC 87 , it was propounded that the right to claim protection under Section 53A of T.P. Act would not be available, if the transferee remains passive without taking effective steps and abstains from performing his part of the contract or conveying his readiness and willingness to that effect.28. Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.31. Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.32. On an overall view of the matter, we are of the opinion that the conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained. ### Response: 1 ### Explanation: of the protection of Section 53A of TP Act to the original defendant and on his death, to the present respondents, to reiterate, the evidence on record does proclaim that the agreement for sale dated 20.5.1975 had indeed been executed between the predecessors-in-interest of the vendors of the appellant/plaintiff and the respondents herein, pursuant whereto, an amount of Rs. 26,000/- in all had been paid by the proposed purchaser and the possession of the suit property had been handed over to him in consideration thereof. As a matter of fact, at the time of execution of said agreement, the suit property was in occupation of a tenant of the proposed seller i.e. the predecessor-in-interest of the vendors of the appellant/plaintiff and that following a compromise, the tenant delivered possession of the suit property to the predecessor-in-interest of the present respondents and since thereafter, they are in occupation thereof. The evidence on record, however, does not in very clear terms establish that the appellant/plaintiff had conscious notice or knowledge of this agreement for sale at the time of her purchase. Admittedly as well, neither the predecessor-in-interest of the respondents nor they had taken recourse to law for specific performance of the agreement. This assumes importance in view of the averment made in the written statement that even prior to the demise of the predecessor-in-interest of the vendors of the appellant/plaintiff, he did not comply with the requests of the original defendant to get the sale deed executed and his legal heirs, after his demise, also adopted the same non-cooperative stance.In terms of this provision, if the above pre-conditions stand complied with, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person(s) claiming under him, any right in respect of the property of which the transferee has taken or continue in possession, other than a right expressly provided by the terms of the contract, notwithstanding the fact, that the transfer, as contemplated, had not been completed in the manner prescribed therefor by the law for the time being in force. Noticeably, an exception to this restraint is carved out qua a transferee for consideration, who has no notice of the contract or of the part performance thereof.The attendant facts and the evidence on record, though demonstrate that an agreement for sale of the suit property had been entered into on 20.5.1975 between the predecessor-in-interest of the vendors of the appellant/plaintiff and the original defendant and that an amount of Rs. 26,000/- had been paid by the latter for which the possession of the suit property had been delivered to him, to reiterate, adequate evidence is not forthcoming to convincingly authenticate that the proposed purchaser and thereafter his heirs i.e. the present respondents, had always been ready and willing to perform his/their part of the contract, which amongst others, is attested by his/their omission to enforce the contract in law. His/their readiness and willingness to perform his/their part of the contract is also not pleaded in the written statement in clear and specific term as required. Further the materials on record also do not testify in unequivocal terms that at the time of purchase, the appellant/plaintiff had the knowledge/information of such agreement for sale or the part performance as claimed, so as to repudiate her transaction to be neither bona fide nor one with notice of such contract or the part performance thereof, as comprehended in the proviso to Section 53A of the T.P. Act.25. The fact that at the first instance, the appellant/plaintiff had filed an application before the Rent Controller, Cuddalore for eviction of the original defendant as a tenant, also attests her ignorance at that point of time of the agreement for sale and his occupation of the premises in part performance thereof.Added to this, to reiterate, is the proviso to Section 53A of T.P. Act which excludes from the rigour of the said provision a transferee for consideration, who has no notice of the contract or of the part performance thereof.29. In the contextual facts, as obtained herein, the materials on record do not unmistakably demonstrate that the original defendant during his lifetime and on his demise, his heirs i.e. the respondents had been always and ever ready and willing to perform his/their part of the contract and that the appellant/plaintiff had notice either of the agreement for sale or the fact that the original defendant had been in occupation of the suit premises by way of part performance of the contract.30. Apropos, Section 16 of the Act, 1963, specific performance of a contract cannot be enforced in favour of a person who, inter alia, fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him unless prevented or waived by the other party thereto. As mentioned hereinabove, though there is an averment in the written statement that before the death of the predecessor-in-interest of the vendors of the appellant/plaintiff, the original defendant had requested him to execute the sale deed and after his demise, he made similar demands with them, evidence is jejune to irrefutably establish the readiness and willingness of his, during his lifetime and after his death, of the respondents, to perform his/their part of the contract. It is also not the case of either the original defendant or the present respondents that his/their performance of the contract had been either prevented or waived by either the vendors of the appellant/plaintiff or their predecessor-in-interest at any point of time.31. Noticeably, the sale deed executed in favour of the appellant/plaintiff and proved in evidence has not been annulled as on date and is thus valid and subsisting.32. On an overall view of the matter, we are of the opinion that the conclusions recorded by the courts below are based on an erroneous understanding of the prescriptions of Sections 53A of T.P. Act. The determinations made thus cannot be sustained.

Rahul Yadav Vs. M/S. Indian Oil Corporation Ltd.

and the lease deed does lay down that the lessee has the freedom to sublet and appoint another dealer. The lease would remain in force till the dealership of the appellant continued and the licence remained in vogue. At this juncture, it is pertinent to reproduce certain clauses of the dealership agreement which would clearly spell out the purpose. They read as follows:- 2. The Corporation do hereby grant to the Dealer leave and licence and permission for the duration of this Agreement to enter on the said premises and to use the premises and outfit for the sole and exclusive purpose of storing, selling and handling the products purchased by the Dealer from the Corporation, Save as aforesaid, the Dealer shall have no right, title or interest in the said premises or outfit and shall not be entitled to claim the right of lessee, sub-lessee, tenant or any other interest in the premises or outfit, is being specifically agreed and declared in particular that the Dealer shall not be deemed to be in exclusive possession of the premises. 3. This Agreement shall remain in force for five years from 14th day of May, 2002 and continue thereafter for successive periods of one year each until determined by either party by giving three months notice in writing to the other of its intention to terminate this Agreement, and upon the expiration of any such notice this Agreement and the Licence granted as aforesaid shall stand cancelled and revoked but without prejudice to the rights of either party against the other in respect of any matter or thing antecedent to such termination provided that nothing contained in this clause shall prejudice the rights of the corporation to terminate this Agreement earlier on the happening of the events mentioned in clause 56 of this Agreement. xxx xxx xxx 7. Nothing contained in this Agreement shall be construed to prohibit the Corporation from making direct and/or indirect sales to any person whomsoever or from appointing other dealers for the purpose of direct or indirect sales at such places as the Corporation may think fit. The dealer shall not be entitled to any claim or allowance for such direct or indirect sales. 17. It is appropriate to mention here that clause 56 of the said agreement stipulates that notwithstanding anything to the contrary containing before the said clause, the Corporation would be at liberty to terminate the agreement forthwith upon any time after happening of certain events. The conditions are manifold. We may, for the sake of completeness, reproduce two conditions:- (h) If the Dealer does not adhere to the instructions issued from time to time by the Corporation in connection with safe practices to be followed by him in the supply/storage of the Corporations products or otherwise. (i) If the Dealer shall deliberately contaminate of temper with the quality of any of the Corporations products. 18. On a plain reading of the aforesaid agreement, it is clear as noon day that it has no connection whatsoever with the lease agreement. Both the agreements are independent of each other. The appellant was a dealer under the lessee, that is, the Corporation. The dealership is liable to be cancelled on many a ground. In case there is a termination, dealership is bound to be cancelled and at that juncture, if the lease deed is treated to have been terminated along with the dealership, it will lead to a situation which does not flow from the interpretation of the instruments. The dealership agreement has been terminated because of the decision rendered by this Court in Mukund Swarup Mishra (supra). The consequence of cancellation of the dealership is a sequitur of the judgment. The inevitable consequence of that is the appellant has to vacate the premises and the Corporation has the liberty to operate either independently or through another dealer. The appellant cannot be allowed to cause obstruction or create an impediment. The submission that the appellant entered into the lease agreement at a monthly rent of Rs.10,000/- as it was given the dealership is a mercurial plea, only to be noted to be rejected. The dealership was availed of as has been held by this Court in an inapposite manner. In such a situation, consequences are to be faced by the appellant. 19. The second issue which has been feebly raised by the learned senior counsel for the appellant that the 1971 Act would not be applicable has really no force. Admittedly, the respondent is a public sector undertaking. The appellant whose dealership has been cancelled, cannot claim possession to retain possession on the basis of ownership of the land as the lease is in continuance. Therefore, he is a trespasser. Thus, the provisions of the 1971 Act apply on all fours and accordingly we repel the said submission. 20. We will be failing in our duty if we do not take note of another submission which has been alternatively and assiduously canvassed by Mr. Sibal, learned senior counsel for the appellant. It is urged by him as the termination was directed by the Corporation by virtue of the judgment of this Court and not because of any wrong committed by the appellant and hence, his case should be reconsidered for grant of dealership under the new policy. Ms. Meenakshi Arora, learned senior counsel for the Corporation has filed the prevalent policy. We do not intend to allude to the same and issue any direction. Once there is a policy and any candidate fits in, needless to say, when there is an advertisement; he is at liberty to apply. We are not disposed to advert to the policy at this juncture. If the policy permits, as we have said, the appellant is at liberty to apply. However, we must clarify that our grant of liberty does not mean that the appellant shall create an impediment for the Corporation to enter into and take possession and run the petrol pump on its own or appoint a dealer.

0[ds]18. On a plain reading of the aforesaid agreement, it is clear as noon day that it has no connection whatsoever with the lease agreement. Both the agreements are independent of each other. The appellant was a dealer under the lessee, that is, the Corporation. The dealership is liable to be cancelled on many a ground. In case there is a termination, dealership is bound to be cancelled and at that juncture, if the lease deed is treated to have been terminated along with the dealership, it will lead to a situation which does not flow from the interpretation of the instruments. The dealership agreement has been terminated because of the decision rendered by this Court in Mukund Swarup Mishra (supra). The consequence of cancellation of the dealership is a sequitur of the judgment. The inevitable consequence of that is the appellant has to vacate the premises and the Corporation has the liberty to operate either independently or through another dealer. The appellant cannot be allowed to cause obstruction or create an impediment. The submission that the appellant entered into the lease agreement at a monthly rent of Rs.10,000/as it was given the dealership is a mercurial plea, only to be noted to be rejected. The dealership was availed of as has been held by this Court in an inapposite manner. In such a situation, consequences are to be faced by the appellant19. The second issue which has been feebly raised by the learned senior counsel for the appellant that the 1971 Act would not be applicable has really no force. Admittedly, the respondent is a public sector undertaking. The appellant whose dealership has been cancelled, cannot claim possession to retain possession on the basis of ownership of the land as the lease is in continuance. Therefore, he is a trespasser. Thus, the provisions of the 1971 Act apply on all fours and accordingly we repel the said submission20. We will be failing in our duty if we do not take note of another submission which has been alternatively and assiduously canvassed by Mr. Sibal, learned senior counsel for the appellant. It is urged by him as the termination was directed by the Corporation by virtue of the judgment of this Court and not because of any wrong committed by the appellant and hence, his case should be reconsidered for grant of dealership under the new policy. Ms. Meenakshi Arora, learned senior counsel for the Corporation has filed the prevalent policy. We do not intend to allude to the same and issue any direction. Once there is a policy and any candidate fits in, needless to say, when there is an advertisement; he is at liberty to apply. We are not disposed to advert to the policy at this juncture. If the policy permits, as we have said, the appellant is at liberty to apply. However, we must clarify that our grant of liberty does not mean that the appellant shall create an impediment for the Corporation to enter into and take possession and run the petrol pump on its own or appoint a dealer21. In view of the aforesaid analysis, it is directed that the appellant shall hand over the peaceful possession of the land and the structure and other fixtures standing thereon to the Corporation after demolishing the wall on his own within four weeks hence, failing which he shall be liable for contempt of this Court.

### 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: and the lease deed does lay down that the lessee has the freedom to sublet and appoint another dealer. The lease would remain in force till the dealership of the appellant continued and the licence remained in vogue. At this juncture, it is pertinent to reproduce certain clauses of the dealership agreement which would clearly spell out the purpose. They read as follows:- 2. The Corporation do hereby grant to the Dealer leave and licence and permission for the duration of this Agreement to enter on the said premises and to use the premises and outfit for the sole and exclusive purpose of storing, selling and handling the products purchased by the Dealer from the Corporation, Save as aforesaid, the Dealer shall have no right, title or interest in the said premises or outfit and shall not be entitled to claim the right of lessee, sub-lessee, tenant or any other interest in the premises or outfit, is being specifically agreed and declared in particular that the Dealer shall not be deemed to be in exclusive possession of the premises. 3. This Agreement shall remain in force for five years from 14th day of May, 2002 and continue thereafter for successive periods of one year each until determined by either party by giving three months notice in writing to the other of its intention to terminate this Agreement, and upon the expiration of any such notice this Agreement and the Licence granted as aforesaid shall stand cancelled and revoked but without prejudice to the rights of either party against the other in respect of any matter or thing antecedent to such termination provided that nothing contained in this clause shall prejudice the rights of the corporation to terminate this Agreement earlier on the happening of the events mentioned in clause 56 of this Agreement. xxx xxx xxx 7. Nothing contained in this Agreement shall be construed to prohibit the Corporation from making direct and/or indirect sales to any person whomsoever or from appointing other dealers for the purpose of direct or indirect sales at such places as the Corporation may think fit. The dealer shall not be entitled to any claim or allowance for such direct or indirect sales. 17. It is appropriate to mention here that clause 56 of the said agreement stipulates that notwithstanding anything to the contrary containing before the said clause, the Corporation would be at liberty to terminate the agreement forthwith upon any time after happening of certain events. The conditions are manifold. We may, for the sake of completeness, reproduce two conditions:- (h) If the Dealer does not adhere to the instructions issued from time to time by the Corporation in connection with safe practices to be followed by him in the supply/storage of the Corporations products or otherwise. (i) If the Dealer shall deliberately contaminate of temper with the quality of any of the Corporations products. 18. On a plain reading of the aforesaid agreement, it is clear as noon day that it has no connection whatsoever with the lease agreement. Both the agreements are independent of each other. The appellant was a dealer under the lessee, that is, the Corporation. The dealership is liable to be cancelled on many a ground. In case there is a termination, dealership is bound to be cancelled and at that juncture, if the lease deed is treated to have been terminated along with the dealership, it will lead to a situation which does not flow from the interpretation of the instruments. The dealership agreement has been terminated because of the decision rendered by this Court in Mukund Swarup Mishra (supra). The consequence of cancellation of the dealership is a sequitur of the judgment. The inevitable consequence of that is the appellant has to vacate the premises and the Corporation has the liberty to operate either independently or through another dealer. The appellant cannot be allowed to cause obstruction or create an impediment. The submission that the appellant entered into the lease agreement at a monthly rent of Rs.10,000/- as it was given the dealership is a mercurial plea, only to be noted to be rejected. The dealership was availed of as has been held by this Court in an inapposite manner. In such a situation, consequences are to be faced by the appellant. 19. The second issue which has been feebly raised by the learned senior counsel for the appellant that the 1971 Act would not be applicable has really no force. Admittedly, the respondent is a public sector undertaking. The appellant whose dealership has been cancelled, cannot claim possession to retain possession on the basis of ownership of the land as the lease is in continuance. Therefore, he is a trespasser. Thus, the provisions of the 1971 Act apply on all fours and accordingly we repel the said submission. 20. We will be failing in our duty if we do not take note of another submission which has been alternatively and assiduously canvassed by Mr. Sibal, learned senior counsel for the appellant. It is urged by him as the termination was directed by the Corporation by virtue of the judgment of this Court and not because of any wrong committed by the appellant and hence, his case should be reconsidered for grant of dealership under the new policy. Ms. Meenakshi Arora, learned senior counsel for the Corporation has filed the prevalent policy. We do not intend to allude to the same and issue any direction. Once there is a policy and any candidate fits in, needless to say, when there is an advertisement; he is at liberty to apply. We are not disposed to advert to the policy at this juncture. If the policy permits, as we have said, the appellant is at liberty to apply. However, we must clarify that our grant of liberty does not mean that the appellant shall create an impediment for the Corporation to enter into and take possession and run the petrol pump on its own or appoint a dealer. ### Response: 0 ### Explanation: 18. On a plain reading of the aforesaid agreement, it is clear as noon day that it has no connection whatsoever with the lease agreement. Both the agreements are independent of each other. The appellant was a dealer under the lessee, that is, the Corporation. The dealership is liable to be cancelled on many a ground. In case there is a termination, dealership is bound to be cancelled and at that juncture, if the lease deed is treated to have been terminated along with the dealership, it will lead to a situation which does not flow from the interpretation of the instruments. The dealership agreement has been terminated because of the decision rendered by this Court in Mukund Swarup Mishra (supra). The consequence of cancellation of the dealership is a sequitur of the judgment. The inevitable consequence of that is the appellant has to vacate the premises and the Corporation has the liberty to operate either independently or through another dealer. The appellant cannot be allowed to cause obstruction or create an impediment. The submission that the appellant entered into the lease agreement at a monthly rent of Rs.10,000/as it was given the dealership is a mercurial plea, only to be noted to be rejected. The dealership was availed of as has been held by this Court in an inapposite manner. In such a situation, consequences are to be faced by the appellant19. The second issue which has been feebly raised by the learned senior counsel for the appellant that the 1971 Act would not be applicable has really no force. Admittedly, the respondent is a public sector undertaking. The appellant whose dealership has been cancelled, cannot claim possession to retain possession on the basis of ownership of the land as the lease is in continuance. Therefore, he is a trespasser. Thus, the provisions of the 1971 Act apply on all fours and accordingly we repel the said submission20. We will be failing in our duty if we do not take note of another submission which has been alternatively and assiduously canvassed by Mr. Sibal, learned senior counsel for the appellant. It is urged by him as the termination was directed by the Corporation by virtue of the judgment of this Court and not because of any wrong committed by the appellant and hence, his case should be reconsidered for grant of dealership under the new policy. Ms. Meenakshi Arora, learned senior counsel for the Corporation has filed the prevalent policy. We do not intend to allude to the same and issue any direction. Once there is a policy and any candidate fits in, needless to say, when there is an advertisement; he is at liberty to apply. We are not disposed to advert to the policy at this juncture. If the policy permits, as we have said, the appellant is at liberty to apply. However, we must clarify that our grant of liberty does not mean that the appellant shall create an impediment for the Corporation to enter into and take possession and run the petrol pump on its own or appoint a dealer21. In view of the aforesaid analysis, it is directed that the appellant shall hand over the peaceful possession of the land and the structure and other fixtures standing thereon to the Corporation after demolishing the wall on his own within four weeks hence, failing which he shall be liable for contempt of this Court.

Dr. T.V. Jose Vs. Chacko P.M. @ Thankachan

payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay the compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger............. The scale of compensation is fixed at Rs. 15,000. The insurance company is ready and willing to pay compensation to the extent of Rs. 15,000 according to this endorsement but the learned Counsel for the insured submitted that the liability of the insurance company is unlimited with regard to risk to the passengers. The counsel relied on Section II of the Policy which relates to liability to third parties. The clause relied on is extracted in full : Section II - Liability to Third Parties 1. The Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of (a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such persons by the insured. It was submitted that the wording of clause 1 is wide enough to cover all risks including injuries to passengers. The clause provides that the Company will indemnify the insured against all sums including claimants costs and expenses which the insured shall become legally liable. This according to the learned Counsel would include legal liability to pay for risk to passengers. The legal liability is restricted to clause 1(a) which states that the indemnity is in relation to the legal liability to pay in respect of death of or bodily injury to any person but except so far as in necessary to meet the requirements of Section 95 of the Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. Clauses 1 and 1(a) are not very clearly worded but the words except so far as is necessary to meet the requirements of the Section 95 of the Motor Vehicles Act, 1939. would indicate that the liability is restricted to the liability arising out of the statutory requirements under Section 95. The second part of the clause 1(a) refers to the non-liability for injuries arising in the course of the employment of such person. The meaning of this sub-clause becomes clear when we look to the other clauses of the insurance policy. The policy also provides for insurance of risks which are not covered under Section 95 of the Act by stipulating payment of extra premium. These clauses would themselves indicate that what was intended to be covered under clause 1 and 1(a) is the risk required to be covered under Section 95 of the Motor Vehicles Act. 17. Mr. Vishnu Mehra further pointed out that in Amrit Lal Soods case (supra) also it has been held that the Section 95 of the Motor Vehicles Act does not require a policy to cover the risk to passengers who are not carried for hire or reward. He submitted that in that case the Policy was a comprehensive policy and because of that it was held that the risk passengers was covered. 18. Mr. Vishnu Mehra also relied upon the case of National Insurance Co. Ltd. v. Jugal Kishore reported in 1988(1) SCC 626, wherein it has been held that as the liability under the policy was in excess of the statutory liability the award against the insurance company could only be in accordance with the statutory liability. 19. In this case only the first sheet of the policy is on record. This clearly shows that the policy is a third party policy. The terms and conditions governing this Policy are not on record. What was shown to Court was terms and conditions of a comprehensive policy relating to private cars. These cannot apply to this policy. In the absence of terms and conditions governing this policy it is not possible to accept the submission of Mr. Iyer that this policy covered liability to occupants of the car. As has been set out hereinabove, the law on this subject is clear, a third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. The 8th Respondent Company will, therefore, not be liable to reimburse the Appellant. 20. Faced with this situation, Mr. Iyer relied upon Jugal Kishores case (supra) and submitted that it was the duty of the Insurance Company to have produced the terms and conditions of the original Policy. He submits that they should even now be called upon to produce the terms and conditions governing this policy. We are unable to accept this submission. It has not been the Appellants case, either before MACT or before the High Court, that the policy contained any term which covered liability to passengers. Before MACT the case was that the Appellant was not the owner and was, therefore, not liable. Before the High Court the case that because of the Circular issued by the Tariff Advisory Committee the Insurance Company was liable. The High Court held that the Circular only dealt with comprehensive policy. That Circular has not been produced before us. Therefore, the finding of the High Court that the Circular only covered comprehensive policies cannot be challenged. Now a new case cannot be allowed to be made out. Section II(1)(a) relied upon is a term which is incorporated pursuant to that Circular. If the Circular only applies to comprehensive policies then this terms also applies to comprehensive policies only. In our view it is now too late in the day to call upon the 8th Respondent to produce the original terms and conditions. 21.

0[ds]10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against the Mr. Roy Thomas if, in law, he is entitled to do so.19. In this case only the first sheet of the policy is on record. This clearly shows that the policy is a third party policy. The terms and conditions governing this Policy are not on record. What was shown to Court was terms and conditions of a comprehensive policy relating to private cars. These cannot apply to this policy. In the absence of terms and conditions governing this policy it is not possible to accept the submission of Mr. Iyer that this policy covered liability to occupants of the car. As has been set out hereinabove, the law on this subject is clear, a third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. The 8th Respondent Company will, therefore, not be liable to reimburse the Appellant.We are unable to accept this submission. It has not been the Appellants case, either before MACT or before the High Court, that the policy contained any term which covered liability to passengers. Before MACT the case was that the Appellant was not the owner and was, therefore, not liable. Before the High Court the case that because of the Circular issued by the Tariff Advisory Committee the Insurance Company was liable. The High Court held that the Circular only dealt with comprehensive policy. That Circular has not been produced before us. Therefore, the finding of the High Court that the Circular only covered comprehensive policies cannot be challenged. Now a new case cannot be allowed to be made out. Section II(1)(a) relied upon is a term which is incorporated pursuant to that Circular. If the Circular only applies to comprehensive policies then this terms also applies to comprehensive policies only. In our view it is now too late in the day to call upon the 8th Respondent to produce the original terms and conditions.

### 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: payment of an additional premium it is hereby understood and agreed that the Company undertakes to pay the compensation on the scale provided below for bodily injury as hereinafter defined sustained by any passenger............. The scale of compensation is fixed at Rs. 15,000. The insurance company is ready and willing to pay compensation to the extent of Rs. 15,000 according to this endorsement but the learned Counsel for the insured submitted that the liability of the insurance company is unlimited with regard to risk to the passengers. The counsel relied on Section II of the Policy which relates to liability to third parties. The clause relied on is extracted in full : Section II - Liability to Third Parties 1. The Company will indemnify the insured in the event of accident caused by or arising out of the use of the Motor Car against all sums including claimants costs and expenses which the insured shall become legally liable to pay in respect of (a) death of or bodily injury to any person but except so far as is necessary to meet the requirements of Section 95 of the Motor Vehicles Act, 1939, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such persons by the insured. It was submitted that the wording of clause 1 is wide enough to cover all risks including injuries to passengers. The clause provides that the Company will indemnify the insured against all sums including claimants costs and expenses which the insured shall become legally liable. This according to the learned Counsel would include legal liability to pay for risk to passengers. The legal liability is restricted to clause 1(a) which states that the indemnity is in relation to the legal liability to pay in respect of death of or bodily injury to any person but except so far as in necessary to meet the requirements of Section 95 of the Motor Vehicles Act, the Company shall not be liable where such death or injury arises out of and in the course of the employment of such person by the insured. Clauses 1 and 1(a) are not very clearly worded but the words except so far as is necessary to meet the requirements of the Section 95 of the Motor Vehicles Act, 1939. would indicate that the liability is restricted to the liability arising out of the statutory requirements under Section 95. The second part of the clause 1(a) refers to the non-liability for injuries arising in the course of the employment of such person. The meaning of this sub-clause becomes clear when we look to the other clauses of the insurance policy. The policy also provides for insurance of risks which are not covered under Section 95 of the Act by stipulating payment of extra premium. These clauses would themselves indicate that what was intended to be covered under clause 1 and 1(a) is the risk required to be covered under Section 95 of the Motor Vehicles Act. 17. Mr. Vishnu Mehra further pointed out that in Amrit Lal Soods case (supra) also it has been held that the Section 95 of the Motor Vehicles Act does not require a policy to cover the risk to passengers who are not carried for hire or reward. He submitted that in that case the Policy was a comprehensive policy and because of that it was held that the risk passengers was covered. 18. Mr. Vishnu Mehra also relied upon the case of National Insurance Co. Ltd. v. Jugal Kishore reported in 1988(1) SCC 626, wherein it has been held that as the liability under the policy was in excess of the statutory liability the award against the insurance company could only be in accordance with the statutory liability. 19. In this case only the first sheet of the policy is on record. This clearly shows that the policy is a third party policy. The terms and conditions governing this Policy are not on record. What was shown to Court was terms and conditions of a comprehensive policy relating to private cars. These cannot apply to this policy. In the absence of terms and conditions governing this policy it is not possible to accept the submission of Mr. Iyer that this policy covered liability to occupants of the car. As has been set out hereinabove, the law on this subject is clear, a third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. The 8th Respondent Company will, therefore, not be liable to reimburse the Appellant. 20. Faced with this situation, Mr. Iyer relied upon Jugal Kishores case (supra) and submitted that it was the duty of the Insurance Company to have produced the terms and conditions of the original Policy. He submits that they should even now be called upon to produce the terms and conditions governing this policy. We are unable to accept this submission. It has not been the Appellants case, either before MACT or before the High Court, that the policy contained any term which covered liability to passengers. Before MACT the case was that the Appellant was not the owner and was, therefore, not liable. Before the High Court the case that because of the Circular issued by the Tariff Advisory Committee the Insurance Company was liable. The High Court held that the Circular only dealt with comprehensive policy. That Circular has not been produced before us. Therefore, the finding of the High Court that the Circular only covered comprehensive policies cannot be challenged. Now a new case cannot be allowed to be made out. Section II(1)(a) relied upon is a term which is incorporated pursuant to that Circular. If the Circular only applies to comprehensive policies then this terms also applies to comprehensive policies only. In our view it is now too late in the day to call upon the 8th Respondent to produce the original terms and conditions. 21. ### Response: 0 ### Explanation: 10. We agree with Mr. Iyer that the High Court was not right in holding that the Appellant continued to be the owner as the name had not been changed in the records of R.T.O. There can be transfer of title by payment of consideration and delivery of the car. The evidence on record shows that ownership of the car had been transferred. However the Appellant still continued to remain liable to third parties as his name continued in the records of R.T.O. as owner. The Appellant could not escape that liability by merely joining Mr. Roy Thomas in these Appeals. Mr. Roy Thomas was not a party either before MACT or the High Court. In these Appeals we cannot and will not go into the question of inter se liability between the Appellant and Mr. Roy Thomas. It will be for the Appellant to adopt appropriate proceedings against the Mr. Roy Thomas if, in law, he is entitled to do so.19. In this case only the first sheet of the policy is on record. This clearly shows that the policy is a third party policy. The terms and conditions governing this Policy are not on record. What was shown to Court was terms and conditions of a comprehensive policy relating to private cars. These cannot apply to this policy. In the absence of terms and conditions governing this policy it is not possible to accept the submission of Mr. Iyer that this policy covered liability to occupants of the car. As has been set out hereinabove, the law on this subject is clear, a third party policy does not cover liability to gratuitous passengers who are not carried for hire or reward. The 8th Respondent Company will, therefore, not be liable to reimburse the Appellant.We are unable to accept this submission. It has not been the Appellants case, either before MACT or before the High Court, that the policy contained any term which covered liability to passengers. Before MACT the case was that the Appellant was not the owner and was, therefore, not liable. Before the High Court the case that because of the Circular issued by the Tariff Advisory Committee the Insurance Company was liable. The High Court held that the Circular only dealt with comprehensive policy. That Circular has not been produced before us. Therefore, the finding of the High Court that the Circular only covered comprehensive policies cannot be challenged. Now a new case cannot be allowed to be made out. Section II(1)(a) relied upon is a term which is incorporated pursuant to that Circular. If the Circular only applies to comprehensive policies then this terms also applies to comprehensive policies only. In our view it is now too late in the day to call upon the 8th Respondent to produce the original terms and conditions.

Dena Bank Vs. Gautam Ratilal Shah &amp; Others

certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience of expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."18. Based on the last mentioned judgment, it was contented by Mr. Chinai that the present case was one where there was a defective cause of action, which defect was sought to be cured by the amendment. On the other hand, Counsel on behalf of the respondents have been at pains to point out that defect could not be regarded as one made bona fide or through inadvertence but that it was a deliberate carse of actions adopted on legal advise by the plaintiffs whereby they sought to see advantage of provisions for a summary decision under the Code and under the Rules of High Court, which summary procedure would not have been available had all facts been properly indicated in the plaint initially.19. In our opinion, the point being considered by us does not strictly fit in with the facts indicated in any of the judgments which are cited at the bar. We will make the position clear. As the facts are now brought out, the claim is made by a nationalised Bank against four persons who were the Directors of Private Limited Company and who had guaranteed the amount borrowed by the said company form the Bank and signed various documents in favour of the Bank. The Company went into liquidation and the securities became non-existent and were not available to the Bank. No purpose would be served by the Company or its Liquidator. In the circumstances the Bank chose to file a money claim only against the Directors but based only on some of the documents executed by the defendants, viz., the promissory notes. It did not choose to indicate its pleading viz., the plaint, all the documents though the defendants were aware of them at all times and indeed have referred to them both in their affidavit in reply and in the Written Statement. 20. In 1982 a suit based on the letter of guarantee or against the defendants as guarantors would perhaps be barred by the law of limitation and this seems to be borne out by observation made in (Margaret Lalita Samuel v. indo commrl. Bank )8, (1979)2 S.C.C 396. However, apart from this plea the two points which are required to be considered according to us are (1) whether the case made by the plaintiffs is a totally new case based on a new set of ideas and (2) would the defendant be prejudice in their defence if these additional facts were allowed to be pleaded, in the sense that necessary evidence would not be available. 21. Apart from these aspects, we are faced with the facts that the plaintiffs had deliberately opted to file a suit on the promissory note and excluding the deed of hypothecation and the letters of continuity and guarantee to ensure that the same was within the parameters of Order XXXVII of the Code of Civil Procedure. Further even after the affidavit in reply were filed and unconditional leave to defend was generated in 1977, no amendment of the plaintiff was sought until 1982. No real explanations has been offered in Balans affidavit filed in March 1985 although it indicates that the frame of the suit and the maintenance of that frame despite submissions to the contrary were principally at the instance of the plaintiffs Advocate and his obduracy in maintaining that the pleading as it stood was a proper pleading.22. The defendants have not denied that a letter of hypothecation have been executed by the Company and its Directors or that letters of continuity and guaranted had been signed by all of them on 31st Januay, 1973. Subsequently we find that statements have been sent and acknowledged though these may not bring the claim within three years from 1982. Principally, however, what the plaintiffs have claimed in the plaint as it stands is a money decree against the defendants. The prayer is not sought to be altered, but what is sought is to give support to that prayer by additional documents and additional facts although it must be conceded that they were fully within the knowledge of the plaintiffs from the very beginning and the plaintiffs had deliberately on legal advise choose not to mention the same in the plaint. Does it make any difference We think not. If ineffectiveness or incompetence on the part of the pleader is to be forgiven then so must be obduracy and obstinacy. It must be fairly conceded, that we have before us a border-line case, but on the balance we are of opinion that interests of justice require that the amendment should not be allowed since, in our opinion this is not a case where the defendants cannot be compensated in terms of money. To insist that they must be protected by the law of limitation against the claim as now made on a proper basis would be to make a fetish of upholding procedural technicalities at the cost of substantial justice. 23. In other words we are inclined to allow the appeal through the amendment will have to be permitted on terms. 24. We have considered idea as to the proceedings taken in and after 1982. Even the appeal adjournments had to be taken to enable the appellants to explain the circumstances under which it took more than five years for making the application for amendment (after the order on the Summons for Judgment). We have also to consider the position and allegations made by the defendants Nos. 1, 2, 3 & 4 against the first defendant. Baring all these circumstances in mind and since we are now permitting introduction of additional facts to complete a defective cause of action we think fairly stringent terms may be imposed on the appellants.

0[ds]19. In our opinion, the point being considered by us does not strictly fit in with the facts indicated in any of the judgments which are cited at the bar. We will make the position clear. As the facts are now brought out, the claim is made by a nationalised Bank against four persons who were the Directors of Private Limited Company and who had guaranteed the amount borrowed by the said company form the Bank and signed various documents in favour of the Bank. The Company went into liquidation and the securities becameand were not available to the Bank. No purpose would be served by the Company or its Liquidator. In the circumstances the Bank chose to file a money claim only against the Directors but based only on some of the documents executed by the defendants, viz., the promissory notes. It did not choose to indicate its pleading viz., the plaint, all the documents though the defendants were aware of them at all times and indeed have referred to them both in their affidavit in reply and in the Written Statement.In 1982 a suit based on the letter of guarantee or against the defendants as guarantors would perhaps be barred by the law of limitation and this seems to be borne out by observation made in (Margaret Lalita Samuel v. indo commrl. Bank )8, (1979)2 S.C.C 396. However, apart from this plea the two points which are required to be considered according to us are (1) whether the case made by the plaintiffs is a totally new case based on a new set of ideas and (2) would the defendant be prejudice in their defence if these additional facts were allowed to be pleaded, in the sense that necessary evidence would not be available.Apart from these aspects, we are faced with the facts that the plaintiffs had deliberately opted to file a suit on the promissory note and excluding the deed of hypothecation and the letters of continuity and guarantee to ensure that the same was within the parameters of Order XXXVII of the Code of Civil Procedure. Further even after the affidavit in reply were filed and unconditional leave to defend was generated in 1977, no amendment of the plaintiff was sought until 1982. No real explanations has been offered in Balans affidavit filed in March 1985 although it indicates that the frame of the suit and the maintenance of that frame despite submissions to the contrary were principally at the instance of the plaintiffs Advocate and his obduracy in maintaining that the pleading as it stood was a proper pleading.The defendants have not denied that a letter of hypothecation have been executed by the Company and its Directors or that letters of continuity and guaranted had been signed by all of them on 31st Januay, 1973. Subsequently we find that statements have been sent and acknowledged though these may not bring the claim within three years from 1982. Principally, however, what the plaintiffs have claimed in the plaint as it stands is a money decree against the defendants. The prayer is not sought to be altered, but what is sought is to give support to that prayer by additional documents and additional facts although it must be conceded that they were fully within the knowledge of the plaintiffs from the very beginning and the plaintiffs had deliberately on legal advise choose not to mention the same in the plaint. Does it make any difference We think not. If ineffectiveness or incompetence on the part of the pleader is to be forgiven then so must be obduracy and obstinacy. It must be fairly conceded, that we have before us acase, but on the balance we are of opinion that interests of justice require that the amendment should not be allowed since, in our opinion this is not a case where the defendants cannot be compensated in terms of money. To insist that they must be protected by the law of limitation against the claim as now made on a proper basis would be to make a fetish of upholding procedural technicalities at the cost of substantial justice.In other words we are inclined to allow the appeal through the amendment will have to be permitted on terms.We have considered idea as to the proceedings taken in and after 1982. Even the appeal adjournments had to be taken to enable the appellants to explain the circumstances under which it took more than five years for making the application for amendment (after the order on the Summons for Judgment). We have also to consider the position and allegations made by the defendants Nos. 1, 2, 34 against the first defendant. Baring all these circumstances in mind and since we are now permitting introduction of additional facts to complete a defective cause of action we think fairly stringent terms may be imposed on the appellants.

### 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: certainly be removed generally by appropriate steps taken by a party which must no doubt pay costs for the inconvenience of expense caused to the other side from its omissions. The error is not incapable of being rectified so long as remedial steps do not unjustifiably injure rights accrued."18. Based on the last mentioned judgment, it was contented by Mr. Chinai that the present case was one where there was a defective cause of action, which defect was sought to be cured by the amendment. On the other hand, Counsel on behalf of the respondents have been at pains to point out that defect could not be regarded as one made bona fide or through inadvertence but that it was a deliberate carse of actions adopted on legal advise by the plaintiffs whereby they sought to see advantage of provisions for a summary decision under the Code and under the Rules of High Court, which summary procedure would not have been available had all facts been properly indicated in the plaint initially.19. In our opinion, the point being considered by us does not strictly fit in with the facts indicated in any of the judgments which are cited at the bar. We will make the position clear. As the facts are now brought out, the claim is made by a nationalised Bank against four persons who were the Directors of Private Limited Company and who had guaranteed the amount borrowed by the said company form the Bank and signed various documents in favour of the Bank. The Company went into liquidation and the securities became non-existent and were not available to the Bank. No purpose would be served by the Company or its Liquidator. In the circumstances the Bank chose to file a money claim only against the Directors but based only on some of the documents executed by the defendants, viz., the promissory notes. It did not choose to indicate its pleading viz., the plaint, all the documents though the defendants were aware of them at all times and indeed have referred to them both in their affidavit in reply and in the Written Statement. 20. In 1982 a suit based on the letter of guarantee or against the defendants as guarantors would perhaps be barred by the law of limitation and this seems to be borne out by observation made in (Margaret Lalita Samuel v. indo commrl. Bank )8, (1979)2 S.C.C 396. However, apart from this plea the two points which are required to be considered according to us are (1) whether the case made by the plaintiffs is a totally new case based on a new set of ideas and (2) would the defendant be prejudice in their defence if these additional facts were allowed to be pleaded, in the sense that necessary evidence would not be available. 21. Apart from these aspects, we are faced with the facts that the plaintiffs had deliberately opted to file a suit on the promissory note and excluding the deed of hypothecation and the letters of continuity and guarantee to ensure that the same was within the parameters of Order XXXVII of the Code of Civil Procedure. Further even after the affidavit in reply were filed and unconditional leave to defend was generated in 1977, no amendment of the plaintiff was sought until 1982. No real explanations has been offered in Balans affidavit filed in March 1985 although it indicates that the frame of the suit and the maintenance of that frame despite submissions to the contrary were principally at the instance of the plaintiffs Advocate and his obduracy in maintaining that the pleading as it stood was a proper pleading.22. The defendants have not denied that a letter of hypothecation have been executed by the Company and its Directors or that letters of continuity and guaranted had been signed by all of them on 31st Januay, 1973. Subsequently we find that statements have been sent and acknowledged though these may not bring the claim within three years from 1982. Principally, however, what the plaintiffs have claimed in the plaint as it stands is a money decree against the defendants. The prayer is not sought to be altered, but what is sought is to give support to that prayer by additional documents and additional facts although it must be conceded that they were fully within the knowledge of the plaintiffs from the very beginning and the plaintiffs had deliberately on legal advise choose not to mention the same in the plaint. Does it make any difference We think not. If ineffectiveness or incompetence on the part of the pleader is to be forgiven then so must be obduracy and obstinacy. It must be fairly conceded, that we have before us a border-line case, but on the balance we are of opinion that interests of justice require that the amendment should not be allowed since, in our opinion this is not a case where the defendants cannot be compensated in terms of money. To insist that they must be protected by the law of limitation against the claim as now made on a proper basis would be to make a fetish of upholding procedural technicalities at the cost of substantial justice. 23. In other words we are inclined to allow the appeal through the amendment will have to be permitted on terms. 24. We have considered idea as to the proceedings taken in and after 1982. Even the appeal adjournments had to be taken to enable the appellants to explain the circumstances under which it took more than five years for making the application for amendment (after the order on the Summons for Judgment). We have also to consider the position and allegations made by the defendants Nos. 1, 2, 3 & 4 against the first defendant. Baring all these circumstances in mind and since we are now permitting introduction of additional facts to complete a defective cause of action we think fairly stringent terms may be imposed on the appellants. ### Response: 0 ### Explanation: 19. In our opinion, the point being considered by us does not strictly fit in with the facts indicated in any of the judgments which are cited at the bar. We will make the position clear. As the facts are now brought out, the claim is made by a nationalised Bank against four persons who were the Directors of Private Limited Company and who had guaranteed the amount borrowed by the said company form the Bank and signed various documents in favour of the Bank. The Company went into liquidation and the securities becameand were not available to the Bank. No purpose would be served by the Company or its Liquidator. In the circumstances the Bank chose to file a money claim only against the Directors but based only on some of the documents executed by the defendants, viz., the promissory notes. It did not choose to indicate its pleading viz., the plaint, all the documents though the defendants were aware of them at all times and indeed have referred to them both in their affidavit in reply and in the Written Statement.In 1982 a suit based on the letter of guarantee or against the defendants as guarantors would perhaps be barred by the law of limitation and this seems to be borne out by observation made in (Margaret Lalita Samuel v. indo commrl. Bank )8, (1979)2 S.C.C 396. However, apart from this plea the two points which are required to be considered according to us are (1) whether the case made by the plaintiffs is a totally new case based on a new set of ideas and (2) would the defendant be prejudice in their defence if these additional facts were allowed to be pleaded, in the sense that necessary evidence would not be available.Apart from these aspects, we are faced with the facts that the plaintiffs had deliberately opted to file a suit on the promissory note and excluding the deed of hypothecation and the letters of continuity and guarantee to ensure that the same was within the parameters of Order XXXVII of the Code of Civil Procedure. Further even after the affidavit in reply were filed and unconditional leave to defend was generated in 1977, no amendment of the plaintiff was sought until 1982. No real explanations has been offered in Balans affidavit filed in March 1985 although it indicates that the frame of the suit and the maintenance of that frame despite submissions to the contrary were principally at the instance of the plaintiffs Advocate and his obduracy in maintaining that the pleading as it stood was a proper pleading.The defendants have not denied that a letter of hypothecation have been executed by the Company and its Directors or that letters of continuity and guaranted had been signed by all of them on 31st Januay, 1973. Subsequently we find that statements have been sent and acknowledged though these may not bring the claim within three years from 1982. Principally, however, what the plaintiffs have claimed in the plaint as it stands is a money decree against the defendants. The prayer is not sought to be altered, but what is sought is to give support to that prayer by additional documents and additional facts although it must be conceded that they were fully within the knowledge of the plaintiffs from the very beginning and the plaintiffs had deliberately on legal advise choose not to mention the same in the plaint. Does it make any difference We think not. If ineffectiveness or incompetence on the part of the pleader is to be forgiven then so must be obduracy and obstinacy. It must be fairly conceded, that we have before us acase, but on the balance we are of opinion that interests of justice require that the amendment should not be allowed since, in our opinion this is not a case where the defendants cannot be compensated in terms of money. To insist that they must be protected by the law of limitation against the claim as now made on a proper basis would be to make a fetish of upholding procedural technicalities at the cost of substantial justice.In other words we are inclined to allow the appeal through the amendment will have to be permitted on terms.We have considered idea as to the proceedings taken in and after 1982. Even the appeal adjournments had to be taken to enable the appellants to explain the circumstances under which it took more than five years for making the application for amendment (after the order on the Summons for Judgment). We have also to consider the position and allegations made by the defendants Nos. 1, 2, 34 against the first defendant. Baring all these circumstances in mind and since we are now permitting introduction of additional facts to complete a defective cause of action we think fairly stringent terms may be imposed on the appellants.

Roshan Lal Mehra Vs. Ishwar Das

the necessary finding that the rent charged by the landlord was excessive. The final order of the Rent Controller shows without doubt that he was satisfied that the rent charged by the landlord was exho bitant and excessive. We are unable to hold that in these circumstances there has been any contravention of para. 2 of Sch. IV of the Control Act, 1947.13. Another objection taken by the landlord to the proceedings before the Rent Controller arises out of the circumstance that the Rent Controller in fixing the standard rent for the entire building had fixed the rent even for vacant shops i.e. shops which were not in occupation of any tenant at the time. In the final order which the Rent Controller passed, he fixed the standard rent for all the shops at Rs. 335/- per month and in the calculation sheet, which was part of the final order made by the Rent Controller on January 11, 1949, three shops have been shown to be vacant. It has been contended before its that the Rent Controller had no jurisdiction to fix the standard rent for vacant shops and the argument is that the way be proceeded to fix the rent for the entire building vitiated the proceedings before him. It has further been argued that only 9 tenants, six of whom are appellants before us, applied for the fixation of standard rent on July 30, 1948. Therefore the Rent Controller had no jurisdiction to fix the standard rent in respect of persons who had not applied for such fixation. It has been contended before us that in six of the appeals before us (viz. Civil Appeals Nos. 176, 178, 181, 182, 183 and 184 of 1958) the appellants had made no application for fixation of standard rent.14. We take up first the question of vacant shops. It is clear from S. 7A and the provisions of Sch. IV that the Rent Controller has to fix the standard rent of newly constructed "premises" if the condition stated in para. 2 of Sch. IV is satisfied. The word "premises" as defined in S. 2 of the Act means "any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose etc." Each shop let out or intended to be let out separately is therefore "premises within the meaning of the Control Act, 1947. It may, therefore, be correct to say that it was not necessary for the Rent Controller to fix the standard rent for vacant shops. It is obvious, however, that for shops which had been let out to tenants the Rent Controller had to take into consideration the cost of the entire building, value of the land, the fittings etc. In other words he had to take the entire building into consideration for the purpose of fixing the standard rent of the shops in the building let out to various tenants. That being the position, we do not consider that the proceedings before the Rent Controller were rendered abortive merely because the Rent Controller also fixed the standard rent for some of the vacant shops. For the purpose of these appeals, the standard rent fixed for the vacant shops may well be ignored : that will not affect the rent fixed for the shops which had been let out to tenants.15. As to the point that some of the appellants had made no application for fixation of standard rent, we are unable to accept the contention as correct. It is indeed true that 9 tenants had made an application for fixation of standard rent on July 30, 1948, but it appears that there were other applications also from other tenants. This is clear from the office note, to which we have already referred earlier, appended to the application of 9 tenants. Moreover the application which the landlord himself had made on September 1, 1948 showed that 14 tenants had made applications for the fixation of standard rent of their shops in Chemists Market in Bhagirath Colony. Unfortunately, all the applications have not been printed in the paper book. The order of the Rent Controller shows that he treated all the applications as though they gave rise to a single proceeding, because they related to the same building. This point which has now been taken before us does not appear to have been taken before the District Judge who said that there were 19 appeals before him arising out of a single order of the Rent Controller fixing rent for 18 different shops of a building belonging to the landlord. In the calculation sheets which the Rent Controller and the learned District Judge had prepared and which give the names of all the tenants the standard rent for whose shops was fixed, are shown the names of all the appellants. It is, we think, too late in the day for the landlord to contend that some of the appellants had not applied for the fixation of standard rent. In any view of the matter, the landlord has not placed sufficient materials before us in support of that contention. We may point out here that M/s. Narang Medicine Co., appellant in Civil Appeal No. 182 of 1958, did not join in the application made on July 30, 1948. Yet we find from the record that a copy of the letter which the Rent Controller wrote to the landlord on November 9, 1948, was sent to M/s. Narang Medicine Co. As we have earlier pointer out the very petition of the landlord dated September 1,1948, shows that many were than 9 tenants had applied for fixation of standard rent for their shops in Chemists Market, Bhagirath Colony. Therefore, we are unable to uphold the contention of the landlord that the Rent Controller had fixed the standard rent of some of the shops tenants whereof had not applied for the fixation of the standard rent.

1[ds]We agree with these observations of the Full Bench, and we further accept the view expressed by it that the criteria for the fixation of standard rent for both new and old buildings under the Control Act, 1947 are not substantially different. The minor differences that exist in the matter, which have been adverted to in the judgment of the High Court, can be justified on the grounds of (a) difference in the cost of construction of old and new buildings, (b) difference in the rate of return on investments made in building houses before and after 1947, (c) the need to encourage the building of houses to meet the acute shortage of accommodation in Delhi after 1947, and (d) the opportunity presented of charging excessive rent after 1947. Perhaps, it is also necessary to emphasise again that the provisions in Schedule IV of the Control Act, 1947 do not give an arbitrary power to the Rent Controller, paragraph 8 of the Schedule requires the Rent Controller to state in writing his reasons for fixing the standard rent. Paragraph 4 states that in fixing the standard rent, the Rent Controller shall take into consideration all the circumstances of the case including any amount paid or to be paid by the tenant by way of premium or any other like sum in addition to rent. Paragraph 7 gives the Rent Controller power to require the landlord to produce any book of account, document or other information relating to the newly constructed premises, to enter and inspect such premises after due notice, and to authorise any officer subordinate to him to enter and inspect any such premises after due notice. Paragraph it provides, for an appeal to the District Judge any person aggrieved by an order of the Rent Controller. These provisions clearly indicate that the power given to the Rent Controller is not an arbitrary power. The power has to be exercised by the Rent Controller on a judicial consideration of all the circumstances of the case. We think that the High Court was in error in the view it expressed that no reasonable procedure is prescribed by the provisions of Sch. IV and the Rent Controller is at liberty to do whatever heanybody is to blame for the ex parte order of the Rent Controller, it is the landlord himself. It appears from the order of the Rent Controller that the attorney or advocate of the landlord did appear on several dates and even made a statement as to the letting out of the building in question, but too no other part in the proceedings except asking repeatedly for adjournment. The Rent Controller was not far wrong when he said that the landlord was bent upon avoiding a trial of the issue before the Rent Controller on the ground that he had made applications under S. 7 to the Subordinate Judge, Delhi, for fixation of standard rent. In view of the recalcitrant attitude which the landlord adopted the Rent Controller did his best in the circumstances. He took into consideration such relevant circumstances as the cost of the land, cost of construction, cost of fittings, the open area in front of the shops, cost of repairs etc. The learned District Judge also took into consideration the return which the landlord could reasonably expect on his outlay and also the rent of other premises in the area. Taking these additional circumstances into consideration, the District judge doubled the standard rent which the Rent Controller had fixed. It does not appear from the order of the learned District Judge that any objection was pressed before him on the ground that in the actual proceedings before the Rent Controller there was a violation of the principles of natural, justice, though in paragraph 7 of the grounds of appeal it was stated that the procedure adopted by the Rent Controller was contrary to the provisions of law etc. Such a ground appears to have been seriously pressed for the first time in the revision applications to the High Court.11. Some grievance has been made before us of the circumstance that in his letter dated December 3, 1948 the Rent Controller said that he would inspect the building on December 5, 1948. He, however, actually inspected the building on December 12, 1948 as his order shows. Our attention has been drawn to paragraph 7(b) of Sch. IV and it has been contended that the inspection was made without notice to the landlord. This, it is stated, has vitiated the entire proceedings. This argument might have had some force; but for the attitude adopted throughout the proceedings by the landlord. On the very date on which the Rent Controller intimated to the landlord that he would visit the building on December 5, 1948, the landlord sent a telegram purporting to be on his behalf stating that he was out of station. The Rent Controller then noted an order on that very date stating that the advocate for the landlord gave an application for staying the proceedings. This application was rightly refused by the Rent Controller. In these circumstances we do not think that the landlord can make any complaint that the inspection was without notice or that he had no opportunity of being present at the time of the inspection. It is obvious that from the very, beginning the landlord had taken up an attitude of non-cooperation in the proceedings before the Rentthe cases before us the tenants had stated the reasons, which were common to all, why they had to submit to excessive and exhorbitant rate of rent charged by the landlord. It was, we think, open to the Rent Controller to accept those reasons as prima facie good reasons for proceeding to make an enquiry to fix the standard rent and in that enquiry it was open to the Rent Controller to give the necessary finding that the rent charged by the landlord was excessive. The final order of the Rent Controller shows without doubt that he was satisfied that the rent charged by the landlord was exho bitant and excessive. We are unable to hold that in these circumstances there has been any contravention of para. 2 of Sch. IV of the Control Act,is clear from S. 7A and the provisions of Sch. IV that the Rent Controller has to fix the standard rent of newly constructed "premises" if the condition stated in para. 2 of Sch. IV is satisfied. The word "premises" as defined in S. 2 of the Act means "any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose etc." Each shop let out or intended to be let out separately is therefore "premises within the meaning of the Control Act, 1947. It may, therefore, be correct to say that it was not necessary for the Rent Controller to fix the standard rent for vacant shops. It is obvious, however, that for shops which had been let out to tenants the Rent Controller had to take into consideration the cost of the entire building, value of the land, the fittings etc. In other words he had to take the entire building into consideration for the purpose of fixing the standard rent of the shops in the building let out to various tenants. That being the position, we do not consider that the proceedings before the Rent Controller were rendered abortive merely because the Rent Controller also fixed the standard rent for some of the vacant shops. For the purpose of these appeals, the standard rent fixed for the vacant shops may well be ignored : that will not affect the rent fixed for the shops which had been let out tois, we think, too late in the day for the landlord to contend that some of the appellants had not applied for the fixation of standard rent. In any view of the matter, the landlord has not placed sufficient materials before us in support of that contention. We may point out here that M/s. Narang Medicine Co., appellant in Civil Appeal No. 182 of 1958, did not join in the application made on July 30, 1948. Yet we find from the record that a copy of the letter which the Rent Controller wrote to the landlord on November 9, 1948, was sent to M/s. Narang Medicine Co. As we have earlier pointer out the very petition of the landlord dated September 1,1948, shows that many were than 9 tenants had applied for fixation of standard rent for their shops in Chemists Market, Bhagirath Colony. Therefore, we are unable to uphold the contention of the landlord that the Rent Controller had fixed the standard rent of some of the shops tenants whereof had not applied for the fixation of the standardthe Rent Controller had wrongly decided the fact and assumed jurisdiction where he had none, the matter would be open to reconsideration in revision. The High Court did not, however, go into the evidence, nor did it say that the finding was not justified by the evidence on record. The High Court referred merely to certain submissions made on behalf of the landlord and then expressed the opinion that what was done to the second floor was mere improvement and not a new construction. We think that the High Court was in error in interfering with the finding of fact by the Rent Controller and the District Judge, in support of which finding there was clear and abundant evidence which had been carefully considered and accepted by both the Rent Controller and the Districtconsider it unnecessary to determine the effect of the aforesaid saving clause in the present appeal. Neither the Rent Controller, nor the District judge, nor the High Court considered the effect of the saving clause. The application of the appellant was dismissed on the simple ground that S. 7A read with Sch. IV of the Control Act, 1947 was unconstitutional. We consider that that ground is not correct and the application of the tenant-appellant for fixation of standard rent trust now be determined in accordance with law. It would be for the competent authorities to consider now the effect of S. 46 ofthe Delhi and Ajmer Rent Control Act, 1952 or of any other law bearing on the question which may have come into existence since then.

### 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 necessary finding that the rent charged by the landlord was excessive. The final order of the Rent Controller shows without doubt that he was satisfied that the rent charged by the landlord was exho bitant and excessive. We are unable to hold that in these circumstances there has been any contravention of para. 2 of Sch. IV of the Control Act, 1947.13. Another objection taken by the landlord to the proceedings before the Rent Controller arises out of the circumstance that the Rent Controller in fixing the standard rent for the entire building had fixed the rent even for vacant shops i.e. shops which were not in occupation of any tenant at the time. In the final order which the Rent Controller passed, he fixed the standard rent for all the shops at Rs. 335/- per month and in the calculation sheet, which was part of the final order made by the Rent Controller on January 11, 1949, three shops have been shown to be vacant. It has been contended before its that the Rent Controller had no jurisdiction to fix the standard rent for vacant shops and the argument is that the way be proceeded to fix the rent for the entire building vitiated the proceedings before him. It has further been argued that only 9 tenants, six of whom are appellants before us, applied for the fixation of standard rent on July 30, 1948. Therefore the Rent Controller had no jurisdiction to fix the standard rent in respect of persons who had not applied for such fixation. It has been contended before us that in six of the appeals before us (viz. Civil Appeals Nos. 176, 178, 181, 182, 183 and 184 of 1958) the appellants had made no application for fixation of standard rent.14. We take up first the question of vacant shops. It is clear from S. 7A and the provisions of Sch. IV that the Rent Controller has to fix the standard rent of newly constructed "premises" if the condition stated in para. 2 of Sch. IV is satisfied. The word "premises" as defined in S. 2 of the Act means "any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose etc." Each shop let out or intended to be let out separately is therefore "premises within the meaning of the Control Act, 1947. It may, therefore, be correct to say that it was not necessary for the Rent Controller to fix the standard rent for vacant shops. It is obvious, however, that for shops which had been let out to tenants the Rent Controller had to take into consideration the cost of the entire building, value of the land, the fittings etc. In other words he had to take the entire building into consideration for the purpose of fixing the standard rent of the shops in the building let out to various tenants. That being the position, we do not consider that the proceedings before the Rent Controller were rendered abortive merely because the Rent Controller also fixed the standard rent for some of the vacant shops. For the purpose of these appeals, the standard rent fixed for the vacant shops may well be ignored : that will not affect the rent fixed for the shops which had been let out to tenants.15. As to the point that some of the appellants had made no application for fixation of standard rent, we are unable to accept the contention as correct. It is indeed true that 9 tenants had made an application for fixation of standard rent on July 30, 1948, but it appears that there were other applications also from other tenants. This is clear from the office note, to which we have already referred earlier, appended to the application of 9 tenants. Moreover the application which the landlord himself had made on September 1, 1948 showed that 14 tenants had made applications for the fixation of standard rent of their shops in Chemists Market in Bhagirath Colony. Unfortunately, all the applications have not been printed in the paper book. The order of the Rent Controller shows that he treated all the applications as though they gave rise to a single proceeding, because they related to the same building. This point which has now been taken before us does not appear to have been taken before the District Judge who said that there were 19 appeals before him arising out of a single order of the Rent Controller fixing rent for 18 different shops of a building belonging to the landlord. In the calculation sheets which the Rent Controller and the learned District Judge had prepared and which give the names of all the tenants the standard rent for whose shops was fixed, are shown the names of all the appellants. It is, we think, too late in the day for the landlord to contend that some of the appellants had not applied for the fixation of standard rent. In any view of the matter, the landlord has not placed sufficient materials before us in support of that contention. We may point out here that M/s. Narang Medicine Co., appellant in Civil Appeal No. 182 of 1958, did not join in the application made on July 30, 1948. Yet we find from the record that a copy of the letter which the Rent Controller wrote to the landlord on November 9, 1948, was sent to M/s. Narang Medicine Co. As we have earlier pointer out the very petition of the landlord dated September 1,1948, shows that many were than 9 tenants had applied for fixation of standard rent for their shops in Chemists Market, Bhagirath Colony. Therefore, we are unable to uphold the contention of the landlord that the Rent Controller had fixed the standard rent of some of the shops tenants whereof had not applied for the fixation of the standard rent. ### Response: 1 ### Explanation: inspection was made without notice to the landlord. This, it is stated, has vitiated the entire proceedings. This argument might have had some force; but for the attitude adopted throughout the proceedings by the landlord. On the very date on which the Rent Controller intimated to the landlord that he would visit the building on December 5, 1948, the landlord sent a telegram purporting to be on his behalf stating that he was out of station. The Rent Controller then noted an order on that very date stating that the advocate for the landlord gave an application for staying the proceedings. This application was rightly refused by the Rent Controller. In these circumstances we do not think that the landlord can make any complaint that the inspection was without notice or that he had no opportunity of being present at the time of the inspection. It is obvious that from the very, beginning the landlord had taken up an attitude of non-cooperation in the proceedings before the Rentthe cases before us the tenants had stated the reasons, which were common to all, why they had to submit to excessive and exhorbitant rate of rent charged by the landlord. It was, we think, open to the Rent Controller to accept those reasons as prima facie good reasons for proceeding to make an enquiry to fix the standard rent and in that enquiry it was open to the Rent Controller to give the necessary finding that the rent charged by the landlord was excessive. The final order of the Rent Controller shows without doubt that he was satisfied that the rent charged by the landlord was exho bitant and excessive. We are unable to hold that in these circumstances there has been any contravention of para. 2 of Sch. IV of the Control Act,is clear from S. 7A and the provisions of Sch. IV that the Rent Controller has to fix the standard rent of newly constructed "premises" if the condition stated in para. 2 of Sch. IV is satisfied. The word "premises" as defined in S. 2 of the Act means "any building or part of a building which is, or is intended to be, let separately for use as a residence or for commercial use or for any other purpose etc." Each shop let out or intended to be let out separately is therefore "premises within the meaning of the Control Act, 1947. It may, therefore, be correct to say that it was not necessary for the Rent Controller to fix the standard rent for vacant shops. It is obvious, however, that for shops which had been let out to tenants the Rent Controller had to take into consideration the cost of the entire building, value of the land, the fittings etc. In other words he had to take the entire building into consideration for the purpose of fixing the standard rent of the shops in the building let out to various tenants. That being the position, we do not consider that the proceedings before the Rent Controller were rendered abortive merely because the Rent Controller also fixed the standard rent for some of the vacant shops. For the purpose of these appeals, the standard rent fixed for the vacant shops may well be ignored : that will not affect the rent fixed for the shops which had been let out tois, we think, too late in the day for the landlord to contend that some of the appellants had not applied for the fixation of standard rent. In any view of the matter, the landlord has not placed sufficient materials before us in support of that contention. We may point out here that M/s. Narang Medicine Co., appellant in Civil Appeal No. 182 of 1958, did not join in the application made on July 30, 1948. Yet we find from the record that a copy of the letter which the Rent Controller wrote to the landlord on November 9, 1948, was sent to M/s. Narang Medicine Co. As we have earlier pointer out the very petition of the landlord dated September 1,1948, shows that many were than 9 tenants had applied for fixation of standard rent for their shops in Chemists Market, Bhagirath Colony. Therefore, we are unable to uphold the contention of the landlord that the Rent Controller had fixed the standard rent of some of the shops tenants whereof had not applied for the fixation of the standardthe Rent Controller had wrongly decided the fact and assumed jurisdiction where he had none, the matter would be open to reconsideration in revision. The High Court did not, however, go into the evidence, nor did it say that the finding was not justified by the evidence on record. The High Court referred merely to certain submissions made on behalf of the landlord and then expressed the opinion that what was done to the second floor was mere improvement and not a new construction. We think that the High Court was in error in interfering with the finding of fact by the Rent Controller and the District Judge, in support of which finding there was clear and abundant evidence which had been carefully considered and accepted by both the Rent Controller and the Districtconsider it unnecessary to determine the effect of the aforesaid saving clause in the present appeal. Neither the Rent Controller, nor the District judge, nor the High Court considered the effect of the saving clause. The application of the appellant was dismissed on the simple ground that S. 7A read with Sch. IV of the Control Act, 1947 was unconstitutional. We consider that that ground is not correct and the application of the tenant-appellant for fixation of standard rent trust now be determined in accordance with law. It would be for the competent authorities to consider now the effect of S. 46 ofthe Delhi and Ajmer Rent Control Act, 1952 or of any other law bearing on the question which may have come into existence since then.

UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD

decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.

1[ds]19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ( CPC) which, inter alia, postulates that any person considering himself aggrieved would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respectIt is indisputable that the management of Podar Mills-Textile Undertaking was taken over by the Central Government after the commencement of the 1983 Act. The scope of management would obviously include possession and permissible use of the suit property of the Textile Undertaking so taken over. In due course, the 1995 Act came into force. As a consequence of Section 3 of this Act, the right, title and interest of the owners of the subject Textile Undertaking (Podar Mills Ltd.) including the statutory tenancy rights in relation to the suit property stood transferred to and vested absolutely in the Central Government. By the same provision, vide sub-section (2) thereof, the Textile Undertaking which stood vested in the Central Government immediately thereafter stood transferred to and vested in the National Textile Corporation. That included subsisting statutory tenancy rights in respect of the suit property enjoyed by the concerned Textile Undertaking. However, Section 3 stands amended by virtue of the 2014 Act. That amendment by a legal fiction is deemed to have been inserted into the 1995 Act w.e.f. 1 st January, 1994. The purport of the amended sub-sections (3) and (4), inserted in section 3 is that the leasehold rights of the Textile Undertaking would continue to remain vested in the Central Government and no Court could exercise jurisdiction to order divestment from the NTC of the property vested in it by the Central Government. In addition, the Amendment Act of 2014 has introduced Section 39 in the 1995 Act, titled as Validation. We shall dilate on the efficacy of these provisions a little later21. Suffice it to observe that since Union of India is asseverating that the suit property had vested absolutely in the Central Government and continues to so vest in it by virtue of a legal fiction in the Validation Act 2014, would be justified in contending that it is a person aggrieved and has locus to point out that the decree for possession of the suit premises against NTC could not have been passed and in any case, the same could not be enforced in law. It is an inexecutable decree and including the undertaking given by NTC, assuming that the concerned court had jurisdiction to pass such a decree24. The grounds for review are specified in clause (1) noted above. The factual scenario in the present case is certainly not ascribable to discovery of new or important matters or evidence which was available or existing at the time of the decree but could not be produced despite exercise of due diligence. In the present case, the asseveration of the review petitioner is about the mistake or error apparent on the face of the record committed by the Court and more particularly founded on the effect of the subsequent enactment of Validation Act 2014 which completely changes the status of the parties, namely, Union of India and NTC qua the suit property and bars the enforcement of any decree and including the undertaking given to the Court by NTC25. Ordinarily, enactment of a subsequent legislation by itself cannot be the basis to review the judgment already rendered by the Court. But the argument of the review petitioner proceeds on the premise that the subsequent legislation has completely altered the status of the parties retrospectively qua the suit property with effect from 1 st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become non¬ existent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. In other words, even if a valid decree has been passed against NTC, the same had become inexecutable by operation of law27. Applying the underlying principle and as jurisdictional issues have been raised which are essentially founded on the law enacted by the Parliament with retrospective effect containing a legal fiction and for doing complete justice to the parties, besides the power of review under Article 137 of the Constitution, it is open to this Court to exercise its plenary power under Article 142 of the Constitution28. Reverting to the judgment under review, it is noticed that the provisions of the 1983 Act and 1995 Act have been generally adverted to while dealing with the plea taken by the appellant NTC that it was in possession of the suit property merely as an agent of the Central Government. However, the Court declined to entertain that plea of NTC as it was not so specifically pleaded in the written statement. The Court then concluded that the appellant NTC was neither the Government nor Government Department nor Agent of the Central Government in the context of the Maharashtra Rent Control Act, 1999. That view has been taken in reference to the 1983 Act and the un-amended provisions of 1995 Act. Indeed, the review petitioners would argue that on a fair reading of the un-amended provisions contained in 1995 Act and juxtaposed with the provisions of 1983 Act, the inescapable conclusion is that the leasehold rights continued to vest in the Central Government. However, we are not inclined to countenance this argument29. The review petitioners may be justified in pointing out that this Court committed an error apparent on the face of the record in observing that the appellant had never raised the issue before the courts below that the Central Government was the tenant and the appellant was holding the premises merely as an agent; and that a vague plea was taken about the non¬joinder of the parties - which plea was not even pursued before the Trial Court. Those errors, in our opinion, would not affect the final conclusion recorded by this Court in the judgment under review, considering the effect of the provisions as were applicable at the relevant time in the form of un¬ amended Section 3 of the 1995 Act.35. Being a protected or statutory tenant, Podar Mills could be dispossessed from the suit premises by the Trust only on the grounds permissible under that Act by instituting eviction proceedings before the competent Rent Court having exclusive jurisdiction to entertain the dispute between the landlord and tenant, who in turn would then have to record its satisfaction about the entitlement of the landlord to recover possession of the suit property. The right so enjoyed by the Podar Mills Ltd. stood transferred to and vested in the Central Government with effect from 1 st April, 1994. Further, by virtue of amended Section 3 of the 1995 Act, by operation of law, the rights of the Textile Undertaking, in respect of the suit property, of being a statutory or protected tenant, continued to vest in the Central Government even after the coming into force of the 1999 Act and repeal of the 1947 Act.36. As aforementioned, since the Central Government continued to remain as the protected or statutory tenant in respect of the suit property w.e.f. 1 st April, 1994, the fact that the appellant NTC was carrying on its activities therein would not extricate the landlord (Trust) from initiating eviction proceedings against the real tenant, namely, the Central Government or Union of India; and such eviction proceedings could be maintained only before the jurisdictional Rent Court having exclusive jurisdiction to decide any dispute between the landlord and tenant. The present suit, however, came to be filed only against the appellant NTC and that too before the jurisdictional civil court under the Transfer of Property Act. It is obvious that the Trust acted on the legal advice and instituted the present suit, despite having filed two suits (namely, TER Suit 680/1568 of 1995 and RAD Suit 955/1997) in earlier point of time, for possession of the suit property, in both of which Union of India was made party¬defendant. But those suits were eventually dismissed for non¬prosecution and withdrawn, respectively, during the pendency of the subject suit, for reasons best known to the Trust37. To put it differently, the present suit instituted by the Trust under the provisions of the Transfer of Property Act, which culminated with the decree of eviction, affirmed up to this Court vide judgment under review, has been rendered without jurisdiction, by operation of law. This being the position after coming into force of the Validation Act 2014 and in particular, the purport of Section 39 as inserted, the decree so passed or undertaking given by NTC cannot be continued or enforced38. According to the learned counsel for the respondents, the amended provision introduced by the Validation Act 2014 has no application to the present case. This contention is founded on the interpretation of the expression leasehold rights of the Textile Undertaking. It is argued that this expression pre¬ supposes that there must be an existing or subsisting leasehold rights. Only such right would be governed by the amended provision. To buttress this submission, reliance is placed on Section 4 of the 1995 Act which explicitly adverts to different types of rights enjoyed by the Textile Undertaking. Leaseholds is one such right separately noted. Since there was no subsisting leasehold right enuring in favour of Podar Mills, inevitably no such right vested in the Central Government. Whereas, the right transferred to and vested in the Central Government under sub-section (1) is only that of a protected or statutory tenant enjoyed by Podar Mills at the relevant time i.e. 1 st April, 1994. That right vested in the Central Government is not saved in terms of sub¬section (3). Resultantly, the right of a protected or statutory tenant vested in Central Government stood transferred to and vested in NTC in terms of sub-section (2) and continued to remain so vested in the NTC. If so, the relief of eviction or possession could be pursued by the Trust only against NTC. Further, admittedly, NTC did not enjoy the status of a statutory or protected tenant after coming into force of the 1999 Act and repeal of the 1947 Act. In that situation, the subject suit for possession against the appellant NTC came to be justly filed before the civil court under the provisions of the Transfer of Property Act39. This argument, in our opinion, is an attempt to over¬ simplify the purport of Section 3(3), if not indulging in hair¬ splitting of the contextual meaning of the expression leasehold rights therein and in Section 4(1) or elsewhere in the 1995 Act. Section 3(1) refers to right, title and interest of the owner of the Textile Undertaking generally. That encompasses all the rights as are spelt out in Section 4(1) of the Act. One such right can be leasehold rights. Concededly, the expression leasehold rights mentioned in the 1995 Act must be construed as referring to the rights under the Transfer of Property Act, 1882 as well as under the applicable Rent Act recognizing tenancy rights without exception.41. Indeed, if the matter in issue is to be decided dehors the provisions of the applicable Rent Act, then it is possible to say that the expression leasehold rights would be limited to a subsisting lease. However, in the present case, we are required to reckon the status of the Union of India and NTC qua the suit property in the context of the rights accrued in terms of the provision of the Rent Act of 1947 and 1999, respectively. The expression leasehold rights in 1995 Act, obviously, must receive wider meaning so as to encompass tenancy rights flowing from the applicable Rent Act. For, the expression tenancy rights accruing under the Rent Act is analogous to and interchangeable with the expression leasehold rights. There is no reason to exclude the expression statutory right so enjoyed by the owners of the Textile Undertaking from the expression leasehold rights referred to in sub¬section (3), so long as it has not been so expressly excluded42. Considering the legislative intent for enacting the 1995 Act and the Validation Act 2014 also, it is not possible to give a restricted meaning to the expression leasehold rights occurring in sub-section (3) of Section 3, as amended, or elsewhere in the said enactment. Thus, the expression leasehold rights in 1995 Act must include tenancy rights flowing from the provisions of the applicable rent legislation. Any other interpretation would be doing violence to the legislative intent and be a pedantic approach43. According to the respondents, the status of Podar Mills and resultantly, of the Union of India is that of a tenant at sufferance. We have already adverted to the provisions of the concerned Rent Act. From the scheme of the 1947 Act as also in the 1999 Act, it is indisputable that after determination of the lease period, the status of Podar Mills had become that of a protected or statutory tenant under the Rent Act. Thus, it would continue to enjoy tenancy rights stipulated under the concerned Rent Act. Once that status has been acquired by the Central Government by operation of law, the action of eviction, could be only as per the prescribed dispensation under the concerned Rent Act45. In the present case, admittedly, the Trust proceeded on a clear understanding that the rights enjoyed by Podar Mills Ltd. after determination of lease period was that of a protected or statutory tenant within the meaning of the rent legislation (1947 Act). That right had been transferred to and vested in the Central Government by virtue of Section 3(1) of the 1995 Act and continues to so vest in it in terms of Section 3(3) which had come into force w.e.f. 1 st April, 1994 and deemed always to have effect for all purposes as if it had been in force at all material timesWe fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.

### 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: decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. ### Response: 1 ### Explanation: to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.

RAJASTHAN STATE ROAD TRANSPORT COROPORATION Vs. DANISH KHAN

travelling in a vehicle belonging to the Appellant-Corporation cannot give rise to compensation under the Act as well as a claim for compassionate appointment in the Appellant- Corporation. The question that arises for our consideration is whether the High Court was right in holding that Regulation 4(3) is discriminatory and violative of Article 14 of the Constitution. The reason given by the High Court to hold it unconstitutional is that whereas the dependents of the employee who died in an accident while on a vehicle owned by the Appellant-Corporation are not entitled for compassionate appointment after claiming compensation under Act, the dependents of an employee who died in an accident while travelling in a vehicle not owned by the Appellant-Corporation are entitled to get compensation under the Act against the owner of the vehicle or the insurance company as the case may be, as well as a right to claim compassionate appointment. The High Court was of the opinion that the dependents of employees of the Corporation who died due to an accident while travelling in a vehicle of the Corporation cannot be treated differently from dependents of employees who died in an accident while travelling in a vehicle not belonging to the Corporation. 7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation. 8. The dependents of a deceased employee who claim compensation from the Corporation under the Act and compassionate appointment from the Appellant- Corporation from a separate class. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. State of Mysore & Anr vs P. Narasing Rao, 1968 SCR (1) 407 9. Having held that the classification of the two categories of dependents of deceased employees is reasonable, what remains to be examined is whether there is a rationale nexus of the classification with the objective sought to be achieved by the Regulations 4(3). The intention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation. 10. It is useful to refer to a judgment of this Court in National Insurance Company Limited v. Rekhaben and Others. (2017) 13 SCC 547 The question that arose for consideration of this Court related to the deduction of salary that was earned by the claimant therein after being appointed on compassionate grounds while calculating the compensation payable to her under the Act for the death of her husband. It was held that the salary earned by compassionate appointment cannot be deducted from the compensation which the claimant is entitled under the Act. However, it was made clear that the salary which flowed from the compassionate appointment that was provided by the tortfeasor was liable to be deducted if the employer was the owner of the offending vehicle and thus liable to pay compensation under the Act. In other words, the employer who has provided compassionate appointment can claim deduction of the salary of the dependent while calculating if he is liable to pay compensation under the Act, being the owner of the offending vehicle. 11. The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution. 12. As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations. 13. In view of the above, the judgment of the High Court is set aside the Appeal is allowed. Civil Appeal No. 7803 of 2019 (Arising out of SLP (C) No.13139 of 2017) The application preferred by the Respondent for compassionate appointment was rejected by the Corporation as being not maintainable under Regulation 4(3) of the Regulations, due to the fact that the Respondent has filed a claim petition under the Act. The High Court allowed the Writ Petition as being covered by a judgment in Civil Writ Petition No.13862 of 2014.

1[ds]7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation.Having held that the classification of the two categories of dependents of deceased employees isintention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation.The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution.As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations.In view of the above, the judgment of the High Court is set aside the Appeal isAppeal No. 7803 ofout of SLP (C) No.13139 of 2017)

### 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: travelling in a vehicle belonging to the Appellant-Corporation cannot give rise to compensation under the Act as well as a claim for compassionate appointment in the Appellant- Corporation. The question that arises for our consideration is whether the High Court was right in holding that Regulation 4(3) is discriminatory and violative of Article 14 of the Constitution. The reason given by the High Court to hold it unconstitutional is that whereas the dependents of the employee who died in an accident while on a vehicle owned by the Appellant-Corporation are not entitled for compassionate appointment after claiming compensation under Act, the dependents of an employee who died in an accident while travelling in a vehicle not owned by the Appellant-Corporation are entitled to get compensation under the Act against the owner of the vehicle or the insurance company as the case may be, as well as a right to claim compassionate appointment. The High Court was of the opinion that the dependents of employees of the Corporation who died due to an accident while travelling in a vehicle of the Corporation cannot be treated differently from dependents of employees who died in an accident while travelling in a vehicle not belonging to the Corporation. 7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation. 8. The dependents of a deceased employee who claim compensation from the Corporation under the Act and compassionate appointment from the Appellant- Corporation from a separate class. It is well-settled that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. When any impugned rule or statutory provision is assailed on the ground that it contravenes Article 14, its validity can be sustained if two tests are satisfied. The first test is that the classification on which it is founded must be based on an intelligible differentia which distinguishes persons or things grouped together from others left out of the group; and the second test is that the differentia in question must have a reasonable relation to the object sought to be achieved by the rule or statutory provision in question. State of Mysore & Anr vs P. Narasing Rao, 1968 SCR (1) 407 9. Having held that the classification of the two categories of dependents of deceased employees is reasonable, what remains to be examined is whether there is a rationale nexus of the classification with the objective sought to be achieved by the Regulations 4(3). The intention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation. 10. It is useful to refer to a judgment of this Court in National Insurance Company Limited v. Rekhaben and Others. (2017) 13 SCC 547 The question that arose for consideration of this Court related to the deduction of salary that was earned by the claimant therein after being appointed on compassionate grounds while calculating the compensation payable to her under the Act for the death of her husband. It was held that the salary earned by compassionate appointment cannot be deducted from the compensation which the claimant is entitled under the Act. However, it was made clear that the salary which flowed from the compassionate appointment that was provided by the tortfeasor was liable to be deducted if the employer was the owner of the offending vehicle and thus liable to pay compensation under the Act. In other words, the employer who has provided compassionate appointment can claim deduction of the salary of the dependent while calculating if he is liable to pay compensation under the Act, being the owner of the offending vehicle. 11. The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution. 12. As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations. 13. In view of the above, the judgment of the High Court is set aside the Appeal is allowed. Civil Appeal No. 7803 of 2019 (Arising out of SLP (C) No.13139 of 2017) The application preferred by the Respondent for compassionate appointment was rejected by the Corporation as being not maintainable under Regulation 4(3) of the Regulations, due to the fact that the Respondent has filed a claim petition under the Act. The High Court allowed the Writ Petition as being covered by a judgment in Civil Writ Petition No.13862 of 2014. ### Response: 1 ### Explanation: 7. The Corporation has carved out two classes of dependents of the deceased employees in respect of claims for compassionate appointment. The reason for the disqualification of the dependents of an employee who died in an accident involving the vehicle of the Corporation is to avoid extra burden on the Appellant- Corporation. In such cases, the Appellant- Corporation has to pay the compensation under the Act and also to provide compassionate appointment to the dependents of the deceased employee. In a case where the vehicle of the Appellant- Corporation is not involved in the accident, the compensation under the Act is not the liability of the Appellant- Corporation. It cannot be said that the dependents of an employee who claim both compensation under the Act and compassionate appointment from the Appellant- Corporation are on the same footing as the dependents of the deceased employee whose claim under the Act against a private owner or an insurance company, and compassionate appointment from Appellant- Corporation.Having held that the classification of the two categories of dependents of deceased employees isintention with which Regulation 4(3) is made is to obviate the liability of the Corporation in payment of compensation under the Act and to provide compassionate appointment to the same person. We find there is a rational nexus between the basis of classification and the object sought to be achieved by the Regulation.The two categories of dependents i.e. dependents of employees who have died in an accident while travelling in a vehicle belonging to the Corporation and dependents of the employees who died while travelling in a vehicle not belonging to the Corporation are not similarly situated in respect of their claims against the Corporation. They cannot be treated as equals. Therefore, Regulation 4(3) cannot be said to be discriminatory. In the aforementioned view, we are not in agreement with the judgment passed by the High Court that Regulation 4(3) is violative of Article 14 of the Constitution.As the Respondent has received the compensation under the Act, he is not entitled for compassionate appointment under the Regulations.In view of the above, the judgment of the High Court is set aside the Appeal isAppeal No. 7803 ofout of SLP (C) No.13139 of 2017)

Associated Cement Cos. Ltd Vs. State Of Bihar

different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. (See Union of India and others vs. Wood Papers Ltd. and Another (1990 (4) SCC 256 ), Mangalore Chemicals and Fertilizers Ltd. vs. Deputy Commissioner of Commercial Taxes and others (1992 Supp (1) SCC 21) to which reference has been made earlier. 13. Notification no. 37 dated 25th February, 1993 is also relevant, more particularly, clause (2) thereof. There is no dispute that in terms of clause (1) cement is one of the scheduled goods. Clause (2) reads as under: "Where an Importer of India made foreign liquor, Vegetable and Hydro-generated Oil or Cement is liable to pay tax under sub-section (2) of Section 3 of the Ordinance becomes liable to pay tax under the Bihar Finance Act, 1981 by virtue of sale of such scheduled goods, his liability under the Bihar Finance Act, 1981 shall be reduced to the extent of tax paid under the Ordinance." 14. It is to be noted that reference therein is made to the Ordinance i.e. Bihar Ordinance No. 1/93. The same has been enacted. The notification has been issued in exercise of the powers conferred by sub-section (1) of Section 3 of the Entry Tax Act and proviso to sub-section (1) of Section 12 of the Act. 15. A bare reading of clause (2) of the notification makes the position clear that liability of importer of cement under the Act shall be reduced to the extent of tax paid under the Entry Tax Act where such importer become liable to pay tax under the Act by virtue of sale of the scheduled goods. 16. Stand of the respondents appears to be that since there was no liability in respect of portion of sales because of notification of the State Government So No. 479 dated 22.12.1995 as part of the Industrial Policy 1995 granting exemption from payment of sales tax on production of extended industrial unit which undertakes expansion of their capacity, no question of adjustment arises. To put differently stand of the respondent is that when there was no tax liability on such sales, there was no liability to pay any tax and, therefore, the benefit of adjustment available under clause (2) of the notification SO No. 37 dated 25.2.1993 does not arise. The interpretation put forward by the respondents found acceptance by the High Court. 17. Crucial question, therefore, is whether the appellant had any liability under the Act. The answer to this lies in Section 3 of the Act, which is extracted above and is the charging section. In Sub-section (1) subject to the provision of the part (i.e. part I) sales tax or purchase tax, as the case may be, shall be paid by every dealer as provided in the section itself. Section 7 speaks of exemption. Sub-section (3) of Section 7 stipulates that State Government may, by notification and subject to such conditions or restrictions as it may impose, exempt from sales tax or purchase tax certain sales or purchases as the case may be. The question of exemption arises only when there is a liability. Exigibility to tax is not the same as liability to pay tax. The former depends on charge created by the Statute and latter on computation in accordance with the provisions of the Statute and rules framed thereunder if any. It is to be noted that liability to pay tax chargeable under Section 3 of the Act is different from quantification of tax payable on assessment. Liability to pay tax and actual payment of tax are conceptually different. But for the exemption the dealer would be required to pay tax in terms of Section 3. In other words, exemption presupposes a liability. Unless there is liability question of exemption does not arise. Liability arises in term of Section 3 and tax become payable at the rate as provided in Section 12. Section 11 deals with the point of levy and rate and concessional rate. 18. The word liable in the Concise Oxford Dictionary means legally bound, subject to a tax or penalty, under an obligation". In Blacks Law Dictionary (6th Edn.) the word liable means bound or obliged in law or equity; responsible, chargeable, answerable, compellable to make satisfaction, compensation, or restitution.. obligated, accountable for or chargeable with". The above position was noted in Zungarrao Bhikaji Nagarkar vs. Union of India and others (1997(7) SCC 409). 19. Tax at the appropriate rate would have become payable but for the exemption. Decision in Australian Mutual Society vs. IRC (1962) AC 135) (PC.) has stated the position as follows: "The phrase exempt from taxation" (Land and Income Tax Act, 1954 (No. 6701) (New Zealand) Section 86(1) does not cover income that is not at all within the reach of the New Zealand tax laws. It refers to income that would, had it not been for the exemption, otherwise have been so taxable". 20. Therefore, it cannot be said that as tax was not paid on portion of the turnover of the scheduled goods i.e. cement, the assessee-appellant had no liability under the Act. It was definitely liable to pay tax under the Act, but for the exemption. There is no dispute that the assessee - appellant was liable to pay tax under sub-section (3) of Section 3 of the Entry Tax Act. Therefore, it was entitled to reduction to the extent of tax paid under the Entry Tax Act while working out tax payable by it under the Act.21. Above being the position the notices issued by the respondent are without legal sanction and are quashed. The judgment of the High Court is set aside. 22.

1[ds]. Crucial question, therefore, is whether the appellant had any liability under the Act. The answer to this lies in Section 3 of the Act, which is extracted above and is the charging section. In Sub-section (1) subject to the provision of the part (i.e. part I) sales tax or purchase tax, as the case may be, shall be paid by every dealer as provided in the section itself. Section 7 speaks of exemption. Sub-section (3) of Section 7 stipulates that State Government may, by notification and subject to such conditions or restrictions as it may impose, exempt from sales tax or purchase tax certain sales or purchases as the case may be. The question of exemption arises only when there is a liability. Exigibility to tax is not the same as liability to pay tax. The former depends on charge created by the Statute and latter on computation in accordance with the provisions of the Statute and rules framed thereunder if any. It is to be noted that liability to pay tax chargeable under Section 3 of the Act is different from quantification of tax payable on assessment. Liability to pay tax and actual payment of tax are conceptually different. But for the exemption the dealer would be required to pay tax in terms of Section 3. In other words, exemption presupposes a liability. Unless there is liability question of exemption does not arise. Liability arises in term of Section 3 and tax become payable at the rate as provided in Section 12. Section 11 deals with the point of levy and rate and concessionalit cannot be said that as tax was not paid on portion of the turnover of the scheduled goods i.e. cement, the assessee-appellant had no liability under the Act. It was definitely liable to pay tax under the Act, but for the exemption. There is no dispute that the assessee - appellant was liable to pay tax under sub-section (3) of Section 3 of the Entry Tax Act. Therefore, it was entitled to reduction to the extent of tax paid under the Entry Tax Act while working out tax payable by it under the Act.21. Above being the position the notices issued by the respondent are without legal sanction and are quashed. The judgment of the High Court is set aside.

### 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: different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. (See Union of India and others vs. Wood Papers Ltd. and Another (1990 (4) SCC 256 ), Mangalore Chemicals and Fertilizers Ltd. vs. Deputy Commissioner of Commercial Taxes and others (1992 Supp (1) SCC 21) to which reference has been made earlier. 13. Notification no. 37 dated 25th February, 1993 is also relevant, more particularly, clause (2) thereof. There is no dispute that in terms of clause (1) cement is one of the scheduled goods. Clause (2) reads as under: "Where an Importer of India made foreign liquor, Vegetable and Hydro-generated Oil or Cement is liable to pay tax under sub-section (2) of Section 3 of the Ordinance becomes liable to pay tax under the Bihar Finance Act, 1981 by virtue of sale of such scheduled goods, his liability under the Bihar Finance Act, 1981 shall be reduced to the extent of tax paid under the Ordinance." 14. It is to be noted that reference therein is made to the Ordinance i.e. Bihar Ordinance No. 1/93. The same has been enacted. The notification has been issued in exercise of the powers conferred by sub-section (1) of Section 3 of the Entry Tax Act and proviso to sub-section (1) of Section 12 of the Act. 15. A bare reading of clause (2) of the notification makes the position clear that liability of importer of cement under the Act shall be reduced to the extent of tax paid under the Entry Tax Act where such importer become liable to pay tax under the Act by virtue of sale of the scheduled goods. 16. Stand of the respondents appears to be that since there was no liability in respect of portion of sales because of notification of the State Government So No. 479 dated 22.12.1995 as part of the Industrial Policy 1995 granting exemption from payment of sales tax on production of extended industrial unit which undertakes expansion of their capacity, no question of adjustment arises. To put differently stand of the respondent is that when there was no tax liability on such sales, there was no liability to pay any tax and, therefore, the benefit of adjustment available under clause (2) of the notification SO No. 37 dated 25.2.1993 does not arise. The interpretation put forward by the respondents found acceptance by the High Court. 17. Crucial question, therefore, is whether the appellant had any liability under the Act. The answer to this lies in Section 3 of the Act, which is extracted above and is the charging section. In Sub-section (1) subject to the provision of the part (i.e. part I) sales tax or purchase tax, as the case may be, shall be paid by every dealer as provided in the section itself. Section 7 speaks of exemption. Sub-section (3) of Section 7 stipulates that State Government may, by notification and subject to such conditions or restrictions as it may impose, exempt from sales tax or purchase tax certain sales or purchases as the case may be. The question of exemption arises only when there is a liability. Exigibility to tax is not the same as liability to pay tax. The former depends on charge created by the Statute and latter on computation in accordance with the provisions of the Statute and rules framed thereunder if any. It is to be noted that liability to pay tax chargeable under Section 3 of the Act is different from quantification of tax payable on assessment. Liability to pay tax and actual payment of tax are conceptually different. But for the exemption the dealer would be required to pay tax in terms of Section 3. In other words, exemption presupposes a liability. Unless there is liability question of exemption does not arise. Liability arises in term of Section 3 and tax become payable at the rate as provided in Section 12. Section 11 deals with the point of levy and rate and concessional rate. 18. The word liable in the Concise Oxford Dictionary means legally bound, subject to a tax or penalty, under an obligation". In Blacks Law Dictionary (6th Edn.) the word liable means bound or obliged in law or equity; responsible, chargeable, answerable, compellable to make satisfaction, compensation, or restitution.. obligated, accountable for or chargeable with". The above position was noted in Zungarrao Bhikaji Nagarkar vs. Union of India and others (1997(7) SCC 409). 19. Tax at the appropriate rate would have become payable but for the exemption. Decision in Australian Mutual Society vs. IRC (1962) AC 135) (PC.) has stated the position as follows: "The phrase exempt from taxation" (Land and Income Tax Act, 1954 (No. 6701) (New Zealand) Section 86(1) does not cover income that is not at all within the reach of the New Zealand tax laws. It refers to income that would, had it not been for the exemption, otherwise have been so taxable". 20. Therefore, it cannot be said that as tax was not paid on portion of the turnover of the scheduled goods i.e. cement, the assessee-appellant had no liability under the Act. It was definitely liable to pay tax under the Act, but for the exemption. There is no dispute that the assessee - appellant was liable to pay tax under sub-section (3) of Section 3 of the Entry Tax Act. Therefore, it was entitled to reduction to the extent of tax paid under the Entry Tax Act while working out tax payable by it under the Act.21. Above being the position the notices issued by the respondent are without legal sanction and are quashed. The judgment of the High Court is set aside. 22. ### Response: 1 ### Explanation: . Crucial question, therefore, is whether the appellant had any liability under the Act. The answer to this lies in Section 3 of the Act, which is extracted above and is the charging section. In Sub-section (1) subject to the provision of the part (i.e. part I) sales tax or purchase tax, as the case may be, shall be paid by every dealer as provided in the section itself. Section 7 speaks of exemption. Sub-section (3) of Section 7 stipulates that State Government may, by notification and subject to such conditions or restrictions as it may impose, exempt from sales tax or purchase tax certain sales or purchases as the case may be. The question of exemption arises only when there is a liability. Exigibility to tax is not the same as liability to pay tax. The former depends on charge created by the Statute and latter on computation in accordance with the provisions of the Statute and rules framed thereunder if any. It is to be noted that liability to pay tax chargeable under Section 3 of the Act is different from quantification of tax payable on assessment. Liability to pay tax and actual payment of tax are conceptually different. But for the exemption the dealer would be required to pay tax in terms of Section 3. In other words, exemption presupposes a liability. Unless there is liability question of exemption does not arise. Liability arises in term of Section 3 and tax become payable at the rate as provided in Section 12. Section 11 deals with the point of levy and rate and concessionalit cannot be said that as tax was not paid on portion of the turnover of the scheduled goods i.e. cement, the assessee-appellant had no liability under the Act. It was definitely liable to pay tax under the Act, but for the exemption. There is no dispute that the assessee - appellant was liable to pay tax under sub-section (3) of Section 3 of the Entry Tax Act. Therefore, it was entitled to reduction to the extent of tax paid under the Entry Tax Act while working out tax payable by it under the Act.21. Above being the position the notices issued by the respondent are without legal sanction and are quashed. The judgment of the High Court is set aside.

KIRPAL SINGH Vs. KAMLA DEVI

area in excess of the permissible area selected [under Section 5-B or the area which is deemed to be surplus area under sub- section (1) of Section 5-C] [and includes the area in excess of the permissible area selected under Section 19-B]; but is will not include a tenants permissible area: Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under self-cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the land- owner admits a new tenant, within three years of the expiry of the said six months.] 23. The scheme of 1953 Act as delineated by Section 5A, 5B and 5C indicates that determination of surplus area is a process contemplating various steps in determination of surplus area. The submission of declaration by land owner, the selection of permissible area by land owner, failure of owner to furnish the declaration supported by an affidavit, direction of the Collector that whole or part of such land holder or tenant shall be deemed to be surplus area or all part of an integrated process of determination of surplus area. When the meaning of surplus as contained in Section 2(5a) expressly provides that area in excess of permissible area selected deemed to be surplus area , the selection is clearly indicated as part of the surplus area. The very definition of surplus area as contained in Section 2(5a) negates the submission of counsel for the appellant that selection of permissible area is not covered in the expression determination of surplus area. 24. We thus also reject the above submissions of counsel for appellant that since selection of permissible area by land owner was not covered in determination of surplus area, Section 8(3) and 9(3) are applicable. 25. Learned counsel for the appellant has placed reliance on judgment of full Bench of Punjab and Haryana High Court in Chet Ram and another versus Amin Lal and others (Supra) for the proposition that transfer in contravention of provisions of 1953 Act is only void by the State but valid between parties inter se. In the above Full Bench judgment, the High Court had occasion to consider transfer in contravention under Section 19A under 1953 Act. Section 19A provided: - 19-A.(1) Notwithstanding anything to the contrary in any law, custom, usage, contract or agreement, from and after the commencement of the Punjab Security of Land Tenures(Amendment) Ordinance, 1958, no person, whether as land-owner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land, which with or without the land already owned or held by him, shall in the aggregate exceed the permissible area; Bar on future acquisitio n of land in excess of permissibl e area. Provided that nothing in this section shall apply to lands belonging to registered co- operative societies formed for purposes of co-operative farming if the land owned by an individual member of the society does not exceed the permissible area. (2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void. 26. In paragraph 23, full Bench gave following answer: - 23. To conclude it must be held that even though the language of sub-section (2) of S. 19-A is absolute; yet for the reasons of sound interpretation it must be given a slightly constricted meaning in order to harmonise it with S. 19-B of the Punjab Act. The answer to the question posed at the outset is that a transfer in contravention of Section 19-A(1) would be void only qua the State for the purposes of the Punjab Act, but would be valid and binding between the parties inter se. The view in Labh Singhs case 1971 Cri LJ 719(supra) in this context, is hereby overruled, whilst that in Godhus case 1979 PLJ 496(supra) is approved and affirmed. 27. The above full Bench judgment of Punjab and Haryana High Court was on different aspect. Present is not a case for any contravention of Section 19A, hence, the above judgment does not support the submission made by learned counsel for the appellant in the facts of the present case. 28. In so far as the submission of learned counsel for the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by Jaipal Singh on 18.06.1974, the above submission on the ground of any fraud played on the appellant was expressly not pressed by appellant in the High Court which has been noticed by the learned Single Judge in paragraph 7 which is to the following effect: - 7. At the very outset, it may be mentioned here that although the petitioner has challenged the impugned orders in this petition on the various grounds mentioned therein, but learned counsel for the petitioner has confined his argument only to the limited extent of legal proposition that Mohan Singh- Petitioner was entitled to the benefit of Section 8(3) of the Haryana Act. 29. Limited submission pressed before the learned Single Judge by the appellant was as to whether Mohan Singh was entitled to the benefit of Section 8(3) of 1972 Act. No other submissions were neither pressed nor adverted to by the learned Single Judge who decided in favour of the appellant. We are thus of the view that appellant cannot be permitted to raise above submission. 30. The appellant has purchased the land in dispute from Mohan Singh on 16.06.1989, when the claim of Mohan Singh stood rejected by both Commissioner and Financial Commissioner and land was included in the surplus pool. The appellant cannot be permitted to raise any issue of fraud played on Mohan Singh the predecessor-in-interest of appellant by land owner, it was for Mohan Singh in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission.

1[ds]12. Section 33(2)(ii) thus clearly provides that repeal of 1953 Act shall not affect the proceedings for determination of surplus areas pending immediately before the commencement of 1972 Act under the provisions of 1953 Act which shall be continued and disposed of as if this Act had not been passed13. The legislative intent as reflected in Section 33 makes it clear that the proceedings for determination of surplus area which was pending on 23.12.1972 was to be continued and disposed of as if 1972 Act had not been passed. Thus, in continuation of the disposal of pending proceedings, 1972 Act was not to be taken into consideration in any manner14. The above interpretation of Section 33 is no longer res integra and has been finally settled by this Court in Jiwas Das (DEAD) through LRS. versus Financial Commissioner, Revenue, Haryana and others, 1998 (8) SCC 740 . In the above case also, proceedings for determination of surplus area were initiated against the land holder on 27.07.1959 which proceedings came up to the High Court where High Court passed an order on 15.12.1961 remitting the matter for fresh determination. The proceedings were pending and proceedings were taken on 11.06.1975 in consequence of direction of the High Court which proceedings were challenged and the matter came to this CourtThus, proceedings for determination of surplus land which were initiated under 1953 Act were thus have to be continued and disposed of in accordance with 1953 Act. Learned counsel for the appellant to support his submissions that Section 8(3) and 9(3) of 1972 Act has to be applied while considering the selection of land by land holder in the surplus pool contends that expression determination of surplus land does not include the selection of land by land owner to be given in surplus pool19. Section 9(3) provides that in making the selection such persons shall include in the first place the land which has been transferred by him after the appointed date in contravention of provisions of Section 8 and in the second-place land mortgaged by him without possession. Thus, as per strength of Section 9(3), the land owner while selecting land within permissible area has to include any transfer made by him after the appointed date in contravention provisions of Section 8. The permissible Area and selection as occurring in Section 9 has to be read in reference to permissible area as referred to in Section 3(l) read with Section 4 and selection there on. The selection of permissible area occurring in Section 9 and requirement to include in such selection land transferred by land owner after the appointed date i.e.25.03.1972 is in reference to the proceedings under 1972 Act20. The submissions of Appellant that while making selection by Jaipal Singh of the permissible area in pursuance of appellate order dated 14.11.1979. Section 9(3) had to be applied and land of the predecessor-in interest of the appellants which was purchased by Mohan Singh by Sale deed dated 18.06.1974 ought to have been included cannot be accepted. Firstly, the order by the appellate authority on 14.11.1979 remanding the matter to the Collector for permitting the land owner to submit a list of plot numbers to be retained by him was in reference to proceedings of surplus area which was initiated under 1953 Act and as per Section 33(2)(ii), the said proceedings have to be continued and disposed of as if 1972 Act has not been passed. When Section 33(2)(ii) provides for proceedings of determination of surplus area which were pending on 23.12.1972 to be continued as if 1972 Act had not been passed, there is no question of applying provisions of Section 8(3) and 9(3) as contended by the appellant23. The scheme of 1953 Act as delineated by Section 5A, 5B and 5C indicates that determination of surplus area is a process contemplating various steps in determination of surplus area. The submission of declaration by land owner, the selection of permissible area by land owner, failure of owner to furnish the declaration supported by an affidavit, direction of the Collector that whole or part of such land holder or tenant shall be deemed to be surplus area or all part of an integrated process of determination of surplus area. When the meaning of surplus as contained in Section 2(5a) expressly provides that area in excess of permissible area selected deemed to be surplus area , the selection is clearly indicated as part of the surplus area. The very definition of surplus area as contained in Section 2(5a) negates the submission of counsel for the appellant that selection of permissible area is not covered in the expression determination of surplus area24. We thus also reject the above submissions of counsel for appellant that since selection of permissible area by land owner was not covered in determination of surplus area, Section 8(3) and 9(3) are applicable28. In so far as the submission of learned counsel for the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by Jaipal Singh on 18.06.1974, the above submission on the ground of any fraud played on the appellant was expressly not pressed by appellant in the High Court which has been noticed by the learned Single Judge in paragraph 7 which is to the following effect: -7. At the very outset, it may be mentioned here that although the petitioner has challenged the impugned orders in this petition on the various grounds mentioned therein, but learned counsel for the petitioner has confined his argument only to the limited extent of legal proposition that Mohan Singh- Petitioner was entitled to the benefit of Section 8(3) of the Haryana Act29. Limited submission pressed before the learned Single Judge by the appellant was as to whether Mohan Singh was entitled to the benefit of Section 8(3) of 1972 Act. No other submissions were neither pressed nor adverted to by the learned Single Judge who decided in favour of the appellant. We are thus of the view that appellant cannot be permitted to raise above submission30. The appellant has purchased the land in dispute from Mohan Singh on 16.06.1989, when the claim of Mohan Singh stood rejected by both Commissioner and Financial Commissioner and land was included in the surplus pool. The appellant cannot be permitted to raise any issue of fraud played on Mohan Singh the predecessor-in-interest of appellant by land owner, it was for Mohan Singh in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission.

### 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: area in excess of the permissible area selected [under Section 5-B or the area which is deemed to be surplus area under sub- section (1) of Section 5-C] [and includes the area in excess of the permissible area selected under Section 19-B]; but is will not include a tenants permissible area: Provided that it will include the reserved area, or part thereof, where such area or part has not been brought under self-cultivation within six months of reserving the same or getting possession thereof after ejecting a tenant from it, whichever is later, or if the land- owner admits a new tenant, within three years of the expiry of the said six months.] 23. The scheme of 1953 Act as delineated by Section 5A, 5B and 5C indicates that determination of surplus area is a process contemplating various steps in determination of surplus area. The submission of declaration by land owner, the selection of permissible area by land owner, failure of owner to furnish the declaration supported by an affidavit, direction of the Collector that whole or part of such land holder or tenant shall be deemed to be surplus area or all part of an integrated process of determination of surplus area. When the meaning of surplus as contained in Section 2(5a) expressly provides that area in excess of permissible area selected deemed to be surplus area , the selection is clearly indicated as part of the surplus area. The very definition of surplus area as contained in Section 2(5a) negates the submission of counsel for the appellant that selection of permissible area is not covered in the expression determination of surplus area. 24. We thus also reject the above submissions of counsel for appellant that since selection of permissible area by land owner was not covered in determination of surplus area, Section 8(3) and 9(3) are applicable. 25. Learned counsel for the appellant has placed reliance on judgment of full Bench of Punjab and Haryana High Court in Chet Ram and another versus Amin Lal and others (Supra) for the proposition that transfer in contravention of provisions of 1953 Act is only void by the State but valid between parties inter se. In the above Full Bench judgment, the High Court had occasion to consider transfer in contravention under Section 19A under 1953 Act. Section 19A provided: - 19-A.(1) Notwithstanding anything to the contrary in any law, custom, usage, contract or agreement, from and after the commencement of the Punjab Security of Land Tenures(Amendment) Ordinance, 1958, no person, whether as land-owner or tenant, shall acquire or possess by transfer, exchange, lease, agreement or settlement any land, which with or without the land already owned or held by him, shall in the aggregate exceed the permissible area; Bar on future acquisitio n of land in excess of permissibl e area. Provided that nothing in this section shall apply to lands belonging to registered co- operative societies formed for purposes of co-operative farming if the land owned by an individual member of the society does not exceed the permissible area. (2) Any transfer, exchange, lease, agreement or settlement made in contravention of the provisions of sub-section (1) shall be null and void. 26. In paragraph 23, full Bench gave following answer: - 23. To conclude it must be held that even though the language of sub-section (2) of S. 19-A is absolute; yet for the reasons of sound interpretation it must be given a slightly constricted meaning in order to harmonise it with S. 19-B of the Punjab Act. The answer to the question posed at the outset is that a transfer in contravention of Section 19-A(1) would be void only qua the State for the purposes of the Punjab Act, but would be valid and binding between the parties inter se. The view in Labh Singhs case 1971 Cri LJ 719(supra) in this context, is hereby overruled, whilst that in Godhus case 1979 PLJ 496(supra) is approved and affirmed. 27. The above full Bench judgment of Punjab and Haryana High Court was on different aspect. Present is not a case for any contravention of Section 19A, hence, the above judgment does not support the submission made by learned counsel for the appellant in the facts of the present case. 28. In so far as the submission of learned counsel for the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by Jaipal Singh on 18.06.1974, the above submission on the ground of any fraud played on the appellant was expressly not pressed by appellant in the High Court which has been noticed by the learned Single Judge in paragraph 7 which is to the following effect: - 7. At the very outset, it may be mentioned here that although the petitioner has challenged the impugned orders in this petition on the various grounds mentioned therein, but learned counsel for the petitioner has confined his argument only to the limited extent of legal proposition that Mohan Singh- Petitioner was entitled to the benefit of Section 8(3) of the Haryana Act. 29. Limited submission pressed before the learned Single Judge by the appellant was as to whether Mohan Singh was entitled to the benefit of Section 8(3) of 1972 Act. No other submissions were neither pressed nor adverted to by the learned Single Judge who decided in favour of the appellant. We are thus of the view that appellant cannot be permitted to raise above submission. 30. The appellant has purchased the land in dispute from Mohan Singh on 16.06.1989, when the claim of Mohan Singh stood rejected by both Commissioner and Financial Commissioner and land was included in the surplus pool. The appellant cannot be permitted to raise any issue of fraud played on Mohan Singh the predecessor-in-interest of appellant by land owner, it was for Mohan Singh in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission. ### Response: 1 ### Explanation: proceedings, 1972 Act was not to be taken into consideration in any manner14. The above interpretation of Section 33 is no longer res integra and has been finally settled by this Court in Jiwas Das (DEAD) through LRS. versus Financial Commissioner, Revenue, Haryana and others, 1998 (8) SCC 740 . In the above case also, proceedings for determination of surplus area were initiated against the land holder on 27.07.1959 which proceedings came up to the High Court where High Court passed an order on 15.12.1961 remitting the matter for fresh determination. The proceedings were pending and proceedings were taken on 11.06.1975 in consequence of direction of the High Court which proceedings were challenged and the matter came to this CourtThus, proceedings for determination of surplus land which were initiated under 1953 Act were thus have to be continued and disposed of in accordance with 1953 Act. Learned counsel for the appellant to support his submissions that Section 8(3) and 9(3) of 1972 Act has to be applied while considering the selection of land by land holder in the surplus pool contends that expression determination of surplus land does not include the selection of land by land owner to be given in surplus pool19. Section 9(3) provides that in making the selection such persons shall include in the first place the land which has been transferred by him after the appointed date in contravention of provisions of Section 8 and in the second-place land mortgaged by him without possession. Thus, as per strength of Section 9(3), the land owner while selecting land within permissible area has to include any transfer made by him after the appointed date in contravention provisions of Section 8. The permissible Area and selection as occurring in Section 9 has to be read in reference to permissible area as referred to in Section 3(l) read with Section 4 and selection there on. The selection of permissible area occurring in Section 9 and requirement to include in such selection land transferred by land owner after the appointed date i.e.25.03.1972 is in reference to the proceedings under 1972 Act20. The submissions of Appellant that while making selection by Jaipal Singh of the permissible area in pursuance of appellate order dated 14.11.1979. Section 9(3) had to be applied and land of the predecessor-in interest of the appellants which was purchased by Mohan Singh by Sale deed dated 18.06.1974 ought to have been included cannot be accepted. Firstly, the order by the appellate authority on 14.11.1979 remanding the matter to the Collector for permitting the land owner to submit a list of plot numbers to be retained by him was in reference to proceedings of surplus area which was initiated under 1953 Act and as per Section 33(2)(ii), the said proceedings have to be continued and disposed of as if 1972 Act has not been passed. When Section 33(2)(ii) provides for proceedings of determination of surplus area which were pending on 23.12.1972 to be continued as if 1972 Act had not been passed, there is no question of applying provisions of Section 8(3) and 9(3) as contended by the appellant23. The scheme of 1953 Act as delineated by Section 5A, 5B and 5C indicates that determination of surplus area is a process contemplating various steps in determination of surplus area. The submission of declaration by land owner, the selection of permissible area by land owner, failure of owner to furnish the declaration supported by an affidavit, direction of the Collector that whole or part of such land holder or tenant shall be deemed to be surplus area or all part of an integrated process of determination of surplus area. When the meaning of surplus as contained in Section 2(5a) expressly provides that area in excess of permissible area selected deemed to be surplus area , the selection is clearly indicated as part of the surplus area. The very definition of surplus area as contained in Section 2(5a) negates the submission of counsel for the appellant that selection of permissible area is not covered in the expression determination of surplus area24. We thus also reject the above submissions of counsel for appellant that since selection of permissible area by land owner was not covered in determination of surplus area, Section 8(3) and 9(3) are applicable28. In so far as the submission of learned counsel for the appellant that land owner has cheated his predecessor in interest since the land which was already declared surplus was sold by Jaipal Singh on 18.06.1974, the above submission on the ground of any fraud played on the appellant was expressly not pressed by appellant in the High Court which has been noticed by the learned Single Judge in paragraph 7 which is to the following effect: -7. At the very outset, it may be mentioned here that although the petitioner has challenged the impugned orders in this petition on the various grounds mentioned therein, but learned counsel for the petitioner has confined his argument only to the limited extent of legal proposition that Mohan Singh- Petitioner was entitled to the benefit of Section 8(3) of the Haryana Act29. Limited submission pressed before the learned Single Judge by the appellant was as to whether Mohan Singh was entitled to the benefit of Section 8(3) of 1972 Act. No other submissions were neither pressed nor adverted to by the learned Single Judge who decided in favour of the appellant. We are thus of the view that appellant cannot be permitted to raise above submission30. The appellant has purchased the land in dispute from Mohan Singh on 16.06.1989, when the claim of Mohan Singh stood rejected by both Commissioner and Financial Commissioner and land was included in the surplus pool. The appellant cannot be permitted to raise any issue of fraud played on Mohan Singh the predecessor-in-interest of appellant by land owner, it was for Mohan Singh in his life time, to establish the plea of fraud. The appellant could not be allowed to raise any such submission.

The Associated Cement Company Ltd Vs. The Commissioner Of Income Tax

contract may be entered into between the contractor and any of the organisations specified in the sub-section(2) Contract in Formulation-I could not only be for carrying out any work but also for supply of labour for carrying out any work(3) Any person responsible for paying any sum to a contractor in pursuance of the contract in Formulations 1 and 2 could credit that sum to his account or make its payment to him in any other manner(4) But, when the person referred to in Formulation-3 either credits the sum referred to therein to the account of or pays it to the contractor, he shall deduct out of that sum an amount equal to two per cent. as income- tax on income comprised therein 6. Thus, when the percentage amount required to be deducted under the sub-section as income-tax is on the sum credited to the account of or paid to a contractor in pursuance of a contract for carrying out a work or supplying labour for carrying out a work, of any of the organisations specified therein, there is nothing in the sub-section which could make us hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to " works contract " as was argued on behalf of the appellant. We see no reason to curtail or to cut down the meaning of the plain words used in the section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the " work " referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to " works contract Work envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with contractor, for carrying out its work which would have fallen outside the" work ", but for its specific inclusion in the sub-sectionIn Brij Bhushan, this court was concerned with the question whether the cost of materials supplied by the Government for being used in execution of works is liable to be taken into consideration while estimating the income or profits of a contractor. That question was answered by this court thus: (at page 533) &quot; It is true that, ordinarily, when a works contract is put through or completed by a contractor the income or profits derived by the contractor from such contract is determined on the value of the contract as whole and cannot be determined by considering several items that go to form such value of the contract but in our view where certain stores/ material is supplied at fixed rates by the Department to the contractor solely for being used or fixed or incorporated in the works undertaken on terms and conditions mentioned above, the real total value of the entire contract would be the value minus the cost of such stores/material so supplied. Therefore, since no element of profit was involved in the turnover represented by the cost of stores/material supplied by the M.E.S. to the assessee firms, the income or profits derived by the assessee firms from such contracts will have to be determined on the basis of the value of the contracts represented by the cash payments received by the assessee firms from the M.E.S. Department exclusive of the cost of the material/stores received for being used, fixed or incorporated in the works undertaken by them." The above decision cannot be of any help to the appellant for it does not lay down that the percentage amount deductible under section 194C(1) should be out of the income of the contractor from the sum or sums credited to the account of or paid to him. The words in the sub-section on income comprised therein " appearing immediately after the words deduct an amount equal to two per cent. of such sum as income-tax" from their purport, cannot be understood as the percentage amount deductible from the income of the contractor out of the sum credited to his account or paid to him in pursuance of the contract. Moreover, the concluding part of the sub-section requiring deduction of an amount equal to two per cent. of such sum as income-tax, by use of the words "on income comprised therein" makes it obvious that the amount equal to two per cent. of the sum required to be deducted is a deduction at source. Indeed, it is neither possible nor permissible for the payer to determine what part of the amount paid by him to the contractor constitutes the income of the latter. It is not also possible to think that Parliament could have intended to cast such impossible burden upon the payer nor could it be attributed with the intention of enacting such an impractical and unworkable provision. Hence, on the express language employed in the sub-section, it is impossible to hold that the amount of two per cent. required to be deducted by the payer out of the sum credited to the account of or paid to the contractor has to be confined to his income component out of that sum. There is also nothing in the language of the sub-section which permits exclusion of an amount paid on behalf of the Organisation to the contractor according to clause 13 of the terms and conditions of the contract in reimbursement of the amount paid by him to workers, from the sum envisaged therein, as was suggested on behalf of the appellantFor the foregoing reasons, our decision on the question under consideration is held in the affirmative and in favour of the Revenue. 7.

0[ds]194C(1) of the Income-tax Act,on the proper construction of which the decision on the aforesaid question should necessarily rest, runsny person responsible for paying any sum to any resident (hereafter in this section referred to as the contractor ) for carrying out any work (including supply of labour for carrying out any work) in pursuance of a contract between the contractor and(a) the Central Government or any State Government or(b) any local authorityc) any corporation established by or under a Central, State or Provincial Act or(d) any companye) any co-operative societyf) any authority, constituted in India by or under any law, engaged either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, or for both) any society registered under the Societies Registration Act, 1860 (21 of 1860), or under any law corresponding to that Act in force in any part of India ; or(h) any trust ; or(i) any University established or incorporated by or under Central, State or Provincial Act and an institution declared to be a University under section 3 of the University Grants Commission Act, 1956 (3 of 1956)shall, at the time of credit of such sum to the account of the contractor or at the time of payment thereof in cash or by issue of a cheque or draft or by any other mode, whichever is earlier, deduct an amount equal to two per cent. of such sum as income-tax on income comprised therein.ambiguity is found in the language employed in the sub-section. What is contained in the sub-section, as appears from its plain reading and analysis, admits of the followingA contract may be entered into between the contractor and any of the organisations specified in the sub-section(2) Contract in Formulation-I could not only be for carrying out any work but also for supply of labour for carrying out any work(3) Any person responsible for paying any sum to a contractor in pursuance of the contract in Formulations 1 and 2 could credit that sum to his account or make its payment to him in any other manner(4) But, when the person referred to in Formulation-3 either credits the sum referred to therein to the account of or pays it to the contractor, he shall deduct out of that sum an amount equal to two per cent. as income- tax on income comprisedwhen the percentage amount required to be deducted under the sub-section as income-tax is on the sum credited to the account of or paid to a contractor in pursuance of a contract for carrying out a work or supplying labour for carrying out a work, of any of the organisations specified therein, there is nothing in the sub-section which could make us hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to " works contract " as was argued on behalf of the appellant. We see no reason to curtail or to cut down the meaning of the plain words used in the section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the " work " referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to " works contract Work envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with contractor, for carrying out its work which would have fallen outside the" work ", but for its specific inclusion in the sub-sectionIn Brij Bhushan, this court was concerned with the question whether the cost of materials supplied by the Government for being used in execution of works is liable to be taken into consideration while estimating the income or profits of a contractor. That question was answered by this court thust; It is true that, ordinarily, when a works contract is put through or completed by a contractor the income or profits derived by the contractor from such contract is determined on the value of the contract as whole and cannot be determined by considering several items that go to form such value of the contract but in our view where certain stores/ material is supplied at fixed rates by the Department to the contractor solely for being used or fixed or incorporated in the works undertaken on terms and conditions mentioned above, the real total value of the entire contract would be the value minus the cost of such stores/material so supplied. Therefore, since no element of profit was involved in the turnover represented by the cost of stores/material supplied by the M.E.S. to the assessee firms, the income or profits derived by the assessee firms from such contracts will have to be determined on the basis of the value of the contracts represented by the cash payments received by the assessee firms from the M.E.S. Department exclusive of the cost of the material/stores received for being used, fixed or incorporated in the works undertaken by them.e above decision cannot be of any help to the appellant for it does not lay down that the percentage amount deductible under section 194C(1) should be out of the income of the contractor from the sum or sums credited to the account of or paid to him. The words in the sub-section on income comprised therein " appearing immediately after the words deduct an amount equal to two per cent. of such sum as income-tax" from their purport, cannot be understood as the percentage amount deductible from the income of the contractor out of the sum credited to his account or paid to him in pursuance of the contract. Moreover, the concluding part of the sub-section requiring deduction of an amount equal to two per cent. of such sum as income-tax, by use of the words "on income comprised therein" makes it obvious that the amount equal to two per cent. of the sum required to be deducted is a deduction at source. Indeed, it is neither possible nor permissible for the payer to determine what part of the amount paid by him to the contractor constitutes the income of the latter. It is not also possible to think that Parliament could have intended to cast such impossible burden upon the payer nor could it be attributed with the intention of enacting such an impractical and unworkable provision. Hence, on the express language employed in the sub-section, it is impossible to hold that the amount of two per cent. required to be deducted by the payer out of the sum credited to the account of or paid to the contractor has to be confined to his income component out of that sum. There is also nothing in the language of the sub-section which permits exclusion of an amount paid on behalf of the Organisation to the contractor according to clause 13 of the terms and conditions of the contract in reimbursement of the amount paid by him to workers, from the sum envisaged therein, as was suggested on behalf of the appellantFor the foregoing reasons, our decision on the question under consideration is held in the affirmative and in favour of the

### 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: contract may be entered into between the contractor and any of the organisations specified in the sub-section(2) Contract in Formulation-I could not only be for carrying out any work but also for supply of labour for carrying out any work(3) Any person responsible for paying any sum to a contractor in pursuance of the contract in Formulations 1 and 2 could credit that sum to his account or make its payment to him in any other manner(4) But, when the person referred to in Formulation-3 either credits the sum referred to therein to the account of or pays it to the contractor, he shall deduct out of that sum an amount equal to two per cent. as income- tax on income comprised therein 6. Thus, when the percentage amount required to be deducted under the sub-section as income-tax is on the sum credited to the account of or paid to a contractor in pursuance of a contract for carrying out a work or supplying labour for carrying out a work, of any of the organisations specified therein, there is nothing in the sub-section which could make us hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to " works contract " as was argued on behalf of the appellant. We see no reason to curtail or to cut down the meaning of the plain words used in the section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the " work " referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to " works contract Work envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with contractor, for carrying out its work which would have fallen outside the" work ", but for its specific inclusion in the sub-sectionIn Brij Bhushan, this court was concerned with the question whether the cost of materials supplied by the Government for being used in execution of works is liable to be taken into consideration while estimating the income or profits of a contractor. That question was answered by this court thus: (at page 533) &quot; It is true that, ordinarily, when a works contract is put through or completed by a contractor the income or profits derived by the contractor from such contract is determined on the value of the contract as whole and cannot be determined by considering several items that go to form such value of the contract but in our view where certain stores/ material is supplied at fixed rates by the Department to the contractor solely for being used or fixed or incorporated in the works undertaken on terms and conditions mentioned above, the real total value of the entire contract would be the value minus the cost of such stores/material so supplied. Therefore, since no element of profit was involved in the turnover represented by the cost of stores/material supplied by the M.E.S. to the assessee firms, the income or profits derived by the assessee firms from such contracts will have to be determined on the basis of the value of the contracts represented by the cash payments received by the assessee firms from the M.E.S. Department exclusive of the cost of the material/stores received for being used, fixed or incorporated in the works undertaken by them." The above decision cannot be of any help to the appellant for it does not lay down that the percentage amount deductible under section 194C(1) should be out of the income of the contractor from the sum or sums credited to the account of or paid to him. The words in the sub-section on income comprised therein " appearing immediately after the words deduct an amount equal to two per cent. of such sum as income-tax" from their purport, cannot be understood as the percentage amount deductible from the income of the contractor out of the sum credited to his account or paid to him in pursuance of the contract. Moreover, the concluding part of the sub-section requiring deduction of an amount equal to two per cent. of such sum as income-tax, by use of the words "on income comprised therein" makes it obvious that the amount equal to two per cent. of the sum required to be deducted is a deduction at source. Indeed, it is neither possible nor permissible for the payer to determine what part of the amount paid by him to the contractor constitutes the income of the latter. It is not also possible to think that Parliament could have intended to cast such impossible burden upon the payer nor could it be attributed with the intention of enacting such an impractical and unworkable provision. Hence, on the express language employed in the sub-section, it is impossible to hold that the amount of two per cent. required to be deducted by the payer out of the sum credited to the account of or paid to the contractor has to be confined to his income component out of that sum. There is also nothing in the language of the sub-section which permits exclusion of an amount paid on behalf of the Organisation to the contractor according to clause 13 of the terms and conditions of the contract in reimbursement of the amount paid by him to workers, from the sum envisaged therein, as was suggested on behalf of the appellantFor the foregoing reasons, our decision on the question under consideration is held in the affirmative and in favour of the Revenue. 7. ### Response: 0 ### Explanation: appears from its plain reading and analysis, admits of the followingA contract may be entered into between the contractor and any of the organisations specified in the sub-section(2) Contract in Formulation-I could not only be for carrying out any work but also for supply of labour for carrying out any work(3) Any person responsible for paying any sum to a contractor in pursuance of the contract in Formulations 1 and 2 could credit that sum to his account or make its payment to him in any other manner(4) But, when the person referred to in Formulation-3 either credits the sum referred to therein to the account of or pays it to the contractor, he shall deduct out of that sum an amount equal to two per cent. as income- tax on income comprisedwhen the percentage amount required to be deducted under the sub-section as income-tax is on the sum credited to the account of or paid to a contractor in pursuance of a contract for carrying out a work or supplying labour for carrying out a work, of any of the organisations specified therein, there is nothing in the sub-section which could make us hold that the contract to carry out a work or the contract to supply labour to carry out a work should be confined to " works contract " as was argued on behalf of the appellant. We see no reason to curtail or to cut down the meaning of the plain words used in the section. "Any work" means any work and not a "works contract", which has a special connotation in the tax law. Indeed, in the sub-section, the " work " referred to therein expressly includes supply of labour to carry out a work. It is a clear indication of the Legislature that the "work" in the sub-section is not intended to be confined to or restricted to " works contract Work envisaged in the sub-section, therefore, has a wide import and covers "any work" which one or the other of the organisations specified in the sub-section can get carried out through a contractor under a contract and further it includes obtaining by any of such organisations supply of labour under a contract with contractor, for carrying out its work which would have fallen outside the" work ", but for its specific inclusion in the sub-sectionIn Brij Bhushan, this court was concerned with the question whether the cost of materials supplied by the Government for being used in execution of works is liable to be taken into consideration while estimating the income or profits of a contractor. That question was answered by this court thust; It is true that, ordinarily, when a works contract is put through or completed by a contractor the income or profits derived by the contractor from such contract is determined on the value of the contract as whole and cannot be determined by considering several items that go to form such value of the contract but in our view where certain stores/ material is supplied at fixed rates by the Department to the contractor solely for being used or fixed or incorporated in the works undertaken on terms and conditions mentioned above, the real total value of the entire contract would be the value minus the cost of such stores/material so supplied. Therefore, since no element of profit was involved in the turnover represented by the cost of stores/material supplied by the M.E.S. to the assessee firms, the income or profits derived by the assessee firms from such contracts will have to be determined on the basis of the value of the contracts represented by the cash payments received by the assessee firms from the M.E.S. Department exclusive of the cost of the material/stores received for being used, fixed or incorporated in the works undertaken by them.e above decision cannot be of any help to the appellant for it does not lay down that the percentage amount deductible under section 194C(1) should be out of the income of the contractor from the sum or sums credited to the account of or paid to him. The words in the sub-section on income comprised therein " appearing immediately after the words deduct an amount equal to two per cent. of such sum as income-tax" from their purport, cannot be understood as the percentage amount deductible from the income of the contractor out of the sum credited to his account or paid to him in pursuance of the contract. Moreover, the concluding part of the sub-section requiring deduction of an amount equal to two per cent. of such sum as income-tax, by use of the words "on income comprised therein" makes it obvious that the amount equal to two per cent. of the sum required to be deducted is a deduction at source. Indeed, it is neither possible nor permissible for the payer to determine what part of the amount paid by him to the contractor constitutes the income of the latter. It is not also possible to think that Parliament could have intended to cast such impossible burden upon the payer nor could it be attributed with the intention of enacting such an impractical and unworkable provision. Hence, on the express language employed in the sub-section, it is impossible to hold that the amount of two per cent. required to be deducted by the payer out of the sum credited to the account of or paid to the contractor has to be confined to his income component out of that sum. There is also nothing in the language of the sub-section which permits exclusion of an amount paid on behalf of the Organisation to the contractor according to clause 13 of the terms and conditions of the contract in reimbursement of the amount paid by him to workers, from the sum envisaged therein, as was suggested on behalf of the appellantFor the foregoing reasons, our decision on the question under consideration is held in the affirmative and in favour of the

Malwa Cotton &amp; Spinning Mills Ltd Vs. Virsa Singh Sidhu &amp; Others

accused persons were Directors and while others were employees. Learned Chief Judicial Magistrate, Vadodara after recording statement of marketing manager who had filed the complaint for himself and on behalf of the complainant-company, issued summons to all the accused persons for facing trial for alleged commission of offences punishable under Section 138 of the Act read with Sections 420 and 114 of the Indian Penal Code, 1860 (in short the IPC). The order issuing summons was challenged by filing criminal revision applications which were dismissed by order dated 21.3.1996. Said common judgment and order was challenged before the High Court by filing special criminal applications and these applications were permitted to be withdrawn to enable the appellants to move applications before the learned Chief Judicial Magistrate as stated by the petitioners. Application was filed with prayer to drop proceedings. That application was rejected by order dated 21.8.1997. Same was questioned before the High Court. The challenge before the High Court was primarily on the ground that there was no material to show that the accused persons at the time of offence as allegedly committed were in charge and/or responsible to the company for the conduct of the business as required under Section 141(1) of the Act. It was also submitted that the deeming provision under sub-section (2) of Section 141 which covers persons with whose consent or connivance or any attributable negligence for commission of the offence by the company was also not applicable. The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold. xx xx xx 8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial. 9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused. 10. The three categories of persons covered by Section 141 are as follows: (1) The company who committed the offence. (2) Everyone who was in charge of and was responsible for the business of the company. (3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence. 11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him. 10. In N. Rangachari v. Bharat Sanchar Nigam Ltd. (2007 (5) SCC 108 ), it was observed as follows: 19. Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company. If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. It appears to us that an allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In Gower and Davies Principles of Modern Company Law (17th Edn.), the theory behind the idea of identification is traced as follows: It is possible to find in the cases varying formulations of the underlying principle, and the most recent definitions suggest that the courts are prepared today to give the rule of attribution based on identification a somewhat broader scope. In the original formulation in Lennards Carrying Company case (1915 AC 705 (HL) Lord Haldane based identification on a person `who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. Recently, however, such an approach has been castigated by the Privy Council through Lord Hoffmann in Meridian Global case (1995 (2) AC 500 (PC) as a misleading `general metaphysic of companies. The true question in each case was who as a matter of construction of the statute in question, or presumably other rule of law, is to be regarded as the controller of the company for the purpose of the identification rule.

1[ds]9. In S.V. Muzumdar v. Gujarat State Fertilizer Co. Ltd. and Anr. (2005 (4) SCC 173 ), it was inter-alia observed as follows:3. The facts as projected by the respondents in the complaint were to the effect that the respondent no.1 (hereinafter referred to as the complainant) supplied goods on credit to M/s Garware Nylons Ltd. (hereinafter referred to as the Company) (accused no.14). Cheques issued by the company were not honoured by the drawee bank on the ground of insufficient funds. Payments were not made even after legal notices. There were 14 accused persons including the company named in the complaint. Some of the accused persons were Directors and while others were employees. Learned Chief Judicial Magistrate, Vadodara after recording statement of marketing manager who had filed the complaint for himself and on behalf of the complainant-company, issued summons to all the accused persons for facing trial for alleged commission of offences punishable under Section 138 of the Act read with Sections 420 and 114 of the Indian Penal Code, 1860 (in short the IPC). The order issuing summons was challenged by filing criminal revision applications which were dismissed by order dated 21.3.1996. Said common judgment and order was challenged before the High Court by filing special criminal applications and these applications were permitted to be withdrawn to enable the appellants to move applications before the learned Chief Judicial Magistrate as stated by the petitioners. Application was filed with prayer to drop proceedings. That application was rejected by order dated 21.8.1997. Same was questioned before the High Court. The challenge before the High Court was primarily on the ground that there was no material to show that the accused persons at the time of offence as allegedly committed were in charge and/or responsible to the company for the conduct of the business as required under Section 141(1) of the Act. It was also submitted that the deeming provision under sub-section (2) of Section 141 which covers persons with whose consent or connivance or any attributable negligence for commission of the offence by the company was also not applicable. The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused10. The three categories of persons covered by Section 141 are as follows:(1) The company who committed the offence(2) Everyone who was in charge of and was responsible for the business of the company(3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him10. In N. Rangachari v. Bharat Sanchar Nigam Ltd. (2007 (5) SCC 108 ), it was observed as follows:19. Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company. If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. It appears to us that an allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In Gower and Davies Principles of Modern Company Law (17th Edn.), the theory behind the idea of identification is traced as follows:It is possible to find in the cases varying formulations of the underlying principle, and the most recent definitions suggest that the courts are prepared today to give the rule of attribution based on identification a somewhat broader scope. In the original formulation in Lennards Carrying Company case (1915 AC 705 (HL) Lord Haldane based identification on a person `who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. Recently, however, such an approach has been castigated by the Privy Council through Lord Hoffmann in Meridian Global case (1995 (2) AC 500 (PC) as a misleading `general metaphysic of companies. The true question in each case was who as a matter of construction of the statute in question, or presumably other rule of law, is to be regarded as the controller of the company for the purpose of the identification rule

### 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: accused persons were Directors and while others were employees. Learned Chief Judicial Magistrate, Vadodara after recording statement of marketing manager who had filed the complaint for himself and on behalf of the complainant-company, issued summons to all the accused persons for facing trial for alleged commission of offences punishable under Section 138 of the Act read with Sections 420 and 114 of the Indian Penal Code, 1860 (in short the IPC). The order issuing summons was challenged by filing criminal revision applications which were dismissed by order dated 21.3.1996. Said common judgment and order was challenged before the High Court by filing special criminal applications and these applications were permitted to be withdrawn to enable the appellants to move applications before the learned Chief Judicial Magistrate as stated by the petitioners. Application was filed with prayer to drop proceedings. That application was rejected by order dated 21.8.1997. Same was questioned before the High Court. The challenge before the High Court was primarily on the ground that there was no material to show that the accused persons at the time of offence as allegedly committed were in charge and/or responsible to the company for the conduct of the business as required under Section 141(1) of the Act. It was also submitted that the deeming provision under sub-section (2) of Section 141 which covers persons with whose consent or connivance or any attributable negligence for commission of the offence by the company was also not applicable. The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold. xx xx xx 8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial. 9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused. 10. The three categories of persons covered by Section 141 are as follows: (1) The company who committed the offence. (2) Everyone who was in charge of and was responsible for the business of the company. (3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence. 11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him. 10. In N. Rangachari v. Bharat Sanchar Nigam Ltd. (2007 (5) SCC 108 ), it was observed as follows: 19. Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company. If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. It appears to us that an allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In Gower and Davies Principles of Modern Company Law (17th Edn.), the theory behind the idea of identification is traced as follows: It is possible to find in the cases varying formulations of the underlying principle, and the most recent definitions suggest that the courts are prepared today to give the rule of attribution based on identification a somewhat broader scope. In the original formulation in Lennards Carrying Company case (1915 AC 705 (HL) Lord Haldane based identification on a person `who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. Recently, however, such an approach has been castigated by the Privy Council through Lord Hoffmann in Meridian Global case (1995 (2) AC 500 (PC) as a misleading `general metaphysic of companies. The true question in each case was who as a matter of construction of the statute in question, or presumably other rule of law, is to be regarded as the controller of the company for the purpose of the identification rule. ### Response: 1 ### Explanation: 14 accused persons including the company named in the complaint. Some of the accused persons were Directors and while others were employees. Learned Chief Judicial Magistrate, Vadodara after recording statement of marketing manager who had filed the complaint for himself and on behalf of the complainant-company, issued summons to all the accused persons for facing trial for alleged commission of offences punishable under Section 138 of the Act read with Sections 420 and 114 of the Indian Penal Code, 1860 (in short the IPC). The order issuing summons was challenged by filing criminal revision applications which were dismissed by order dated 21.3.1996. Said common judgment and order was challenged before the High Court by filing special criminal applications and these applications were permitted to be withdrawn to enable the appellants to move applications before the learned Chief Judicial Magistrate as stated by the petitioners. Application was filed with prayer to drop proceedings. That application was rejected by order dated 21.8.1997. Same was questioned before the High Court. The challenge before the High Court was primarily on the ground that there was no material to show that the accused persons at the time of offence as allegedly committed were in charge and/or responsible to the company for the conduct of the business as required under Section 141(1) of the Act. It was also submitted that the deeming provision under sub-section (2) of Section 141 which covers persons with whose consent or connivance or any attributable negligence for commission of the offence by the company was also not applicable. The High Court did not accept the pleas and held that the controversy was to be adjudicated at the trial. It considered the petition to be unacceptable attempt to stall the criminal proceedings at the threshold8. We find that the prayers before the courts below essentially were to drop the proceedings on the ground that the allegations would not constitute a foundation for action in terms of Section 141 of the Act. These questions have to be adjudicated at the trial. Whether a person is in charge of or is responsible to the company for conduct of business is to be adjudicated on the basis of materials to be placed by the parties. Sub-section (2) of Section 141 is a deeming provision which as noted supra operates in certain specified circumstances. Whether the requirements for the application of the deeming provision exist or not is again a matter for adjudication during trial. Similarly, whether the allegations contained are sufficient to attract culpability is a matter for adjudication at the trial9. Under Scheme of the Act, if the person committing an offence under Section 138 of the Act is a company, by application of Section 141 it is deemed that every person who is in charge of and responsible to the company for conduct of the business of the company as well as the company are guilty of the offence. A person who proves that the offence was committed without his knowledge or that he had exercised all due diligence is exempted from becoming liable by operation of the proviso to sub-section (1). The burden in this regard has to be discharged by the accused10. The three categories of persons covered by Section 141 are as follows:(1) The company who committed the offence(2) Everyone who was in charge of and was responsible for the business of the company(3) Any other person who is a director or a manager or a secretary or officer of the company with whose connivance or due to whose neglect the company has committed the offence11. Whether or not the evidence to be led would establish the accusations is a matter for trial. It needs no reiteration that proviso to sub-section (1) of Section 141 enables the accused to prove his innocence by discharging the burden which lies on him10. In N. Rangachari v. Bharat Sanchar Nigam Ltd. (2007 (5) SCC 108 ), it was observed as follows:19. Therefore, a person in the commercial world having a transaction with a company is entitled to presume that the Directors of the company are in charge of the affairs of the company. If any restrictions on their powers are placed by the memorandum or articles of the company, it is for the Directors to establish it at the trial. It is in that context that Section 141 of the Negotiable Instruments Act provides that when the offender is a company, every person, who at the time when the offence was committed was in charge of and was responsible to the company for the conduct of the business of the company, shall also be deemed to be guilty of the offence along with the company. It appears to us that an allegation in the complaint that the named accused are Directors of the company itself would usher in the element of their acting for and on behalf of the company and of their being in charge of the company. In Gower and Davies Principles of Modern Company Law (17th Edn.), the theory behind the idea of identification is traced as follows:It is possible to find in the cases varying formulations of the underlying principle, and the most recent definitions suggest that the courts are prepared today to give the rule of attribution based on identification a somewhat broader scope. In the original formulation in Lennards Carrying Company case (1915 AC 705 (HL) Lord Haldane based identification on a person `who is really the directing mind and will of the corporation, the very ego and centre of the personality of the corporation. Recently, however, such an approach has been castigated by the Privy Council through Lord Hoffmann in Meridian Global case (1995 (2) AC 500 (PC) as a misleading `general metaphysic of companies. The true question in each case was who as a matter of construction of the statute in question, or presumably other rule of law, is to be regarded as the controller of the company for the purpose of the identification rule

Sundaram Finance Limited Vs. Abdul Samad &amp; Another

in accordance with the provisions of the said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.16. Section 2(e) of the said Act defines Court as under:"2. Definitions. .........xxxx xxxx xxxx xxxx xxxx[(e) "Court" means -(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]"17. The line of reasoning supporting the award to be filed in a so-called court of competent jurisdiction and then to obtain a transfer of the decree is primarily based on the jurisdiction clause found in Section 42, which reads as under:"42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."18. The aforesaid provision, however, applies with respect to an application being filed in Court under Part I. The jurisdiction is over the arbitral proceedings. The subsequent application arising from that agreement and the arbitral proceedings are to be made in that court alone. However, what has been lost sight of is Section 32 of the said Act, which reads as under:"32. Termination of proceedings.-(1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where-(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,(b) the parties agree on the termination of the proceedings, or(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings."19. The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid.

1[ds]15. The aforesaid provision would show that an award is to be enforced in accordance with the provisions of the said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid.

### 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: in accordance with the provisions of the said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.16. Section 2(e) of the said Act defines Court as under:"2. Definitions. .........xxxx xxxx xxxx xxxx xxxx[(e) "Court" means -(i) in the case of an arbitration other than international commercial arbitration, the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any Civil Court of a grade inferior to such principal Civil Court, or any Court of Small Causes;(ii) in the case of international commercial arbitration, the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject-matter of a suit, and in other cases, a High Court having jurisdiction to hear appeals from decrees of courts subordinate to that High Court;]"17. The line of reasoning supporting the award to be filed in a so-called court of competent jurisdiction and then to obtain a transfer of the decree is primarily based on the jurisdiction clause found in Section 42, which reads as under:"42. Jurisdiction. - Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a Court, that Court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that Court and in no other Court."18. The aforesaid provision, however, applies with respect to an application being filed in Court under Part I. The jurisdiction is over the arbitral proceedings. The subsequent application arising from that agreement and the arbitral proceedings are to be made in that court alone. However, what has been lost sight of is Section 32 of the said Act, which reads as under:"32. Termination of proceedings.-(1) The arbitral proceedings shall be terminated by the final arbitral award or by an order of the arbitral tribunal under sub-section (2).(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where-(a) the claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognises a legitimate interest on his part in obtaining a final settlement of the dispute,(b) the parties agree on the termination of the proceedings, or(c) the arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings."19. The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid. ### Response: 1 ### Explanation: 15. The aforesaid provision would show that an award is to be enforced in accordance with the provisions of the said code in the same manner as if it were a decree. It is, thus, the enforcement mechanism, which is akin to the enforcement of a decree but the award itself is not a decree of the civil court as no decree whatsoever is passed by the civil court. It is the arbitral tribunal, which renders an award and the tribunal does not have the power of execution of a decree. For the purposes of execution of a decree the award is to be enforced in the same manner as if it was a decree under the said Code.The aforesaid provision provides for arbitral proceedings to be terminated by the final arbitral award. Thus, when an award is already made, of which execution is sought, the arbitral proceedings already stand terminated on the making of the final award. Thus, it is not appreciated how Section 42 of the said Act, which deals with the jurisdiction issue in respect of arbitral proceedings, would have any relevance. It does appear that the provisions of the said Code and the said Act have been mixed up.20. It is in the aforesaid context that the view adopted by the Delhi High Court in Daelim Industrial Co. Ltd. v. Numaligarh Refinery Ltd. (supra) records that Section 42 of the Act would not apply to an execution application, which is not an arbitral proceeding and that Section 38 of the Code would apply to a decree passed by the Court, while in the case of an award no court has passed the decree.21. The Madras High Court in Kotak Mahindra Bank Ltd. v. Sivakama Sundari & Ors. (supra) referred to Section 46 of the said Code, which spoke of precepts but stopped at that. In the context of the Code, thus, the view adopted is that the decree of a civil court is liable to be executed primarily by the Court, which passes the decree where an execution application has to be filed at the first instance. An award under Section 36 of the said Act, is equated to a decree of the Court for the purposes of execution and only for that purpose. Thus, it was rightly observed that while an award passed by the arbitral tribunal is deemed to be a decree under Section 36 of the said Act, there was no deeming fiction anywhere to hold that the Court within whose jurisdiction the arbitral award was passed should be taken to be the Court, which passed the decree. The said Act actually transcends all territorial barriers.Conclusion:22. We are, thus, unhesitatingly of the view that the enforcement of an award through its execution can be filed anywhere in the country where such decree can be executed and there is no requirement for obtaining a transfer of the decree from the Court, which would have jurisdiction over the arbitral proceedings.23. The effect of the aforesaid is that the view taken by the Madhya Pradesh High Court and the Himachal Pradesh High Court is held to be not good in law while the views of Delhi High Court, Kerala High Court, Madras High Court, Rajasthan High Court, Allahabad High Court, Punjab & Haryana High Court and Karnataka High Court reflect the correct legal position, for the reasons we have recorded aforesaid.

J S LUTHRA ACADEMY Vs. THE STATE OF JAMMU AND KASHMIR

per kanal. It is clear that there was no arbitrariness in fixing the price at Rs. 8,00,000/- per kanal. However, we are unable to accept the contention that the allotment of 2 Kanals of land for free was justified. This is all the more significant in light of the absence of any material on record to show that the school was being run purely for charitable and educational purposes. In this regard it would be pertinent to refer to the observations of this Hon?ble Court in the matter of Union of India and another v. Jain Sabha, New Delhi and another, (1997) 1 SCC 164 wherein the following observations are made:?11. Before parting with this case, we think it appropriate to observe that it is high time the Government reviews the entire policy relating to allotment of land to schools and other charitable institutions. Where the public property is being given to such institutions practically free, stringent conditions have to be attached with respect to the user of the land and the manner in which schools or other institutions established thereon shall function. The conditions imposed should be consistent with public interest and should always stipulate that in case of violation of any of those conditions, the land shall be resumed by the Government. Not only such conditions should be stipulated but constant monitoring should be done to ensure that those conditions are being observed in practice. While we cannot say anything about the particular school run by the respondent, it is common knowledge that some of the schools are being run on totally commercial lines. Huge amounts are being charged by way of donations and fees. The question is whether there is any justification for allotting land at throw-away prices to such institutions. The allotment of land belonging to the people at practically no price is meant for serving the public interest, i.e., spread of education or other charitable purposes; it is not meant to enable the allottees to make money or profiteer with the aid of public property. We are sure that the Government would take necessary measures in this behalf in the light of the observations contained herein.?The aforementioned observations suggest that while in the case of a non profit-oriented educational institution serving the public interest, public property can be allotted to it at a concessional price or for free by imposing stringent conditions for the use of the land, it is questionable whether the same can be done for profit-oriented institutions. 13. Thus, in our considered opinion, there is a loss to the public exchequer to the extent of Rs.16,00,000/- for two kanals as on the date of allotment. However, having regard to the fact that the Appellant-Academy has been running on the allotted site since many years, after constructing a new building, the transfer may be saved by giving the transferee an opportunity to make good the shortfall in the consideration. In this context, it is relevant to note certain observations made by this Court in the case of ITC Limited vs. State of U.P., (2011) 7 SCC 493 :?107.1 If the transferee had acted bona fide and was blameless, it may be possible to save the transfer but that again would depend upon the answer to the further question as to whether public interest has suffered or will suffer as a consequence of the violation of the regulations:(i) If public interest has neither suffered, nor is likely to suffer, on account of the violation, then the transfer may be allowed to stand as then the violation will be a mere technical procedural irregularity without adverse effects.(ii) On the other hand, if the violation of the regulations leaves or is likely to leave an everlasting adverse effect or impact on public interest (as for example when it results in environmental degradation or results in a loss which is not reimbursable), public interest should prevail and the transfer should be rescinded or cancelled.(iii) But where the consequence of the violation is merely a short-recovery of the consideration, the transfer may be saved by giving the transferee an opportunity to make good the shortfall in consideration.107.2 The aforesaid exercise may seem to be cumbersome, but is absolutely necessary to protect the sanctity of contracts and transfers. If the Government or its instrumentalities are seen to be frequently resiling from duly concluded solemn transfers, the confidence of the public and international community in the functioning of the Government will be shaken. To save the credibility of the Government and its instrumentalities, an effort should always be made to save the concluded transactions/transfers wherever possible provided (i) that it will not prejudice the public interest, or cause loss to public exchequer or lead to public mischief, and (ii) that the transferee is blameless and had no part to play in the violation of the regulation.107.3 If the concluded transfer cannot be saved and has to be cancelled, the innocent and blameless transferee should be reimbursed all the payments made by him and all expenditure incurred by him in regard to the transfer with appropriate interest. If some other relief can be granted on grounds of equity without harming public interest and public exchequer, grant of such equitable relief should also be considered.?(emphasis supplied)14. On an examination of the facts and circumstances of the case in the light of the above observations, it is evident that it is appropriate to give the Appellant the opportunity to make good the shortfall in consideration, as the loss to the public exchequer caused by the free allocation cannot be said to have had an everlasting effect or impact on public interest. Moreover, we do not find any high-handedness on the part of the Appellant in seeking the allotment in its favour, as it acted in a bona fide manner. This would also be in consonance with the principle stated by us in the beginning of the judgment that the public must be adequately compensated for the alienation of natural resources by the State.

1[ds]From the above decisions, the following principles may be culled out:(i) Generally, when any land is intended to be transferred by the state, or any state largesse is to be conferred, resort should be had to public auction or transfer by way of inviting tenders from the people. The state must ensure that it receives adequate compensation for the allotted resource. However, non-floating of tender or non- conductingof public auction would not be deemed in all cases to be an arbitrary exercise of executive power. The ultimate decision of the executive must be the result of a fair decision- making process.allocation must be guided by the consideration of the common good as per Article 39(b), and must not be violative of Article 14. This does not necessarily entail auction of the resource; however, allocation of natural resources to private persons for commercial exploitation solely for private benefit, with no social or welfare purpose, attracts higher judicial scrutiny and may be held to be violative of Article 14 if done by non-competitive and non-revenue maximizing means.Keeping in mind the aforementioned principles formulated bythis Court in the aforementioned judgments, we have considered the entire material on record. It must be determined as to whether the allocation made in favour of the Academy fell foul of the above principles. In the instant case, the allocation has evidently been done to a private educational institution by non-revenue maximizing means.ar asve of theallocation is concerned, in our considered opinion, the Division Bench of the High Court was not justified in rejecting the submission of the Academy that the allocation of land was done keeping in mind theplight of the students of the school. One of the reasons assigned by the Division Bench in rejecting this contention was that there was no discussion about the plight of the students in the correspondencebetween the Appellant-Academy and the Government. However, a mere lack of explicit statements to that effect does not imply that the action was not motivated by welfare considerations, inasmuch as the displacement and uprooting of several hundreds of students from their school was the obvious underlying concern in the representationmade by the Appellant and the order passed by the State Government.a corollary of the above, it is evident that an executive action would not be arbitrary merely because the action is not explicitly stated to have been taken for a particular reason or basedon a particular principle which in itself is reasonable; rather, it would be open to the Court to see whether such a reasonable principle is discernible from the facts and circumstances of the case. Just like the Court has the power to lookinto the underlying purpose of an executive action to determine whether it is motivated by extraneous reasons while examining it for arbitrariness, so also the Court may determine whether there is a germane objective being served through the execution of the action, by examining the surrounding facts and circumstancesin which the executive action was effected. Though the Appellant is a private educational institution, it cannot be said that the action of the government was not backed by a welfare purpose merely because it is not stated in so many words in the correspondence between the Academy and the State Government that the alternative land sought for allotment was to protect the interests of children studying at the school. This is becausethe same is clearly discernible from the facts and circumstances of the case. It has been stated that the Appellant was evicted from the wakf land not because of any wilful default or unauthorized use, but because the wakf required the land for its own use. In such circumstances, having no other alternative, the Appellant approached the government for allotment of suitable land for running the school. It seems that the State Government also preferred to peacefully settle the issue of getting the school vacated from the wakf property, at an early date, without disturbing the education of the students and peace in the. Articles 38 and 39 of the Constitution of India provide that the State must strive to promote the welfare of the people of the State by protecting all their economic, social and political rights. Theserights may cover means of livelihood, health and the general well-being of all sections of the people in the society, of which education is an important. Imparting basic education is a constitutional obligation on the State as well as societies running educational institutions. Children are the future of our nation. Education is a basic tool for individuals to lead an economically productive life and is one of the most vital elements for the preservation of the democratic system of government. The Constitution of India bestows considerable attention to the field of education. It recognizes the need for regulating the various facets of activity of education and also the need for not only establishing and administering educational institutions but also providing financial support for educational institutions run by private societies. (See: Secretary, Mahatama Gandhi Mission v. Bhartiya Kamgar Sena, (2017) 4 SCC 449 , paras 33-36 and 39).Thus, in our considered opinion, the State Government proceeded to allot the land in favour of the Appellant keeping in mind the public interest in the education of hundreds of children as well as considering the urgency of the matter and it cannot be said that the action was not backed by a social or welfare purpose. It is worth emphasizing that the test of Article 14 must be applied from the perspective of substantive rather than formal equality, and must be mindful of the effect of the action or rule that is being tested. While under ordinary circumstances, the usual practice of allocation of sites on the basis of advertisements or auction was being followed, the instant situation warranted a deviation from the standard procedure to prevent prejudicing the future of the children studying at the Academy. In our view, taking a holistic view of the matter, the action taken by the State Government did not suffer from the vice of arbitrarinessas it wasbacked by a welfare. In addition, we do notfind any reason to reject the contention of the State Government that the allotment of 4 Kanals of land to the Appellant was in the nature of an exchange, inasmuch as the State Government wanted to evict the Appellant who was running a school at Wakf land situated in the main city area. Such a decision seems to have been taken by the State Government to avoid any unrest in the locality or city.In such circumstances, we do not find any arbitrariness in the decision taken by the State in allotting 4 Kanals of property. On the other hand, we are of the opinion that the action of the State was fair, reasonable, transparent, unbiased, without favourtism and. In our view, the action of the authorities can be assailed to the extent that the allotment of two kanals free of cost was bad in law.It is evident that the consideration paid by the Appellant was only with respect to two kanals and the remaining two kanals of land were allotted for free to the Appellant. It is not in dispute that Rs. 8,00,000/- per kanal was the average auction saleprice which was fetched around the time of allotment. Keeping this figure in mind, the State Government fixed the allotment price at Rs. 8,00,000/- per kanal. It is clear that there was no arbitrariness in fixing the price at Rs. 8,00,000/- per kanal.However, we are unable to accept the contention that the allotment of 2 Kanals of land for free was justified. This is all the more significant in light of the absence of any material on record to show that the school was being run purely for charitable and educational purposes.aforementioned observations suggest that while in the case of a non profit-oriented educational institution serving the public interest, public property can be allotted to it at a concessional price or for free by imposing stringent conditions for the use of the land, it is questionable whether the same can be done for profit-oriented. Thus, in our considered opinion, there is a loss to the public exchequer to the extent of Rs.16,00,000/- for two kanals as on the date of allotment. However, having regard to the fact that the Appellant-Academy has been running on the allotted site since many years, after constructing a new building, the transfer may be saved by giving the transferee an opportunity to make good the shortfall in the consideration.On an examination of the facts and circumstances of the case in the light of the above observations, it is evident that it is appropriate to give the Appellant the opportunity to make good the shortfall in consideration, as the loss to the public exchequer caused by the free allocation cannot be said to have had an everlasting effect or impact on public interest.Moreover, we do not find any high-handedness on the part of the Appellant in seeking the allotment in its favour, as it acted in a bona fide manner. This would also be in consonance with the principle stated by us in the beginning of the judgment that the public must be adequately compensated for the alienation of natural resources by the State.

### 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: per kanal. It is clear that there was no arbitrariness in fixing the price at Rs. 8,00,000/- per kanal. However, we are unable to accept the contention that the allotment of 2 Kanals of land for free was justified. This is all the more significant in light of the absence of any material on record to show that the school was being run purely for charitable and educational purposes. In this regard it would be pertinent to refer to the observations of this Hon?ble Court in the matter of Union of India and another v. Jain Sabha, New Delhi and another, (1997) 1 SCC 164 wherein the following observations are made:?11. Before parting with this case, we think it appropriate to observe that it is high time the Government reviews the entire policy relating to allotment of land to schools and other charitable institutions. Where the public property is being given to such institutions practically free, stringent conditions have to be attached with respect to the user of the land and the manner in which schools or other institutions established thereon shall function. The conditions imposed should be consistent with public interest and should always stipulate that in case of violation of any of those conditions, the land shall be resumed by the Government. Not only such conditions should be stipulated but constant monitoring should be done to ensure that those conditions are being observed in practice. While we cannot say anything about the particular school run by the respondent, it is common knowledge that some of the schools are being run on totally commercial lines. Huge amounts are being charged by way of donations and fees. The question is whether there is any justification for allotting land at throw-away prices to such institutions. The allotment of land belonging to the people at practically no price is meant for serving the public interest, i.e., spread of education or other charitable purposes; it is not meant to enable the allottees to make money or profiteer with the aid of public property. We are sure that the Government would take necessary measures in this behalf in the light of the observations contained herein.?The aforementioned observations suggest that while in the case of a non profit-oriented educational institution serving the public interest, public property can be allotted to it at a concessional price or for free by imposing stringent conditions for the use of the land, it is questionable whether the same can be done for profit-oriented institutions. 13. Thus, in our considered opinion, there is a loss to the public exchequer to the extent of Rs.16,00,000/- for two kanals as on the date of allotment. However, having regard to the fact that the Appellant-Academy has been running on the allotted site since many years, after constructing a new building, the transfer may be saved by giving the transferee an opportunity to make good the shortfall in the consideration. In this context, it is relevant to note certain observations made by this Court in the case of ITC Limited vs. State of U.P., (2011) 7 SCC 493 :?107.1 If the transferee had acted bona fide and was blameless, it may be possible to save the transfer but that again would depend upon the answer to the further question as to whether public interest has suffered or will suffer as a consequence of the violation of the regulations:(i) If public interest has neither suffered, nor is likely to suffer, on account of the violation, then the transfer may be allowed to stand as then the violation will be a mere technical procedural irregularity without adverse effects.(ii) On the other hand, if the violation of the regulations leaves or is likely to leave an everlasting adverse effect or impact on public interest (as for example when it results in environmental degradation or results in a loss which is not reimbursable), public interest should prevail and the transfer should be rescinded or cancelled.(iii) But where the consequence of the violation is merely a short-recovery of the consideration, the transfer may be saved by giving the transferee an opportunity to make good the shortfall in consideration.107.2 The aforesaid exercise may seem to be cumbersome, but is absolutely necessary to protect the sanctity of contracts and transfers. If the Government or its instrumentalities are seen to be frequently resiling from duly concluded solemn transfers, the confidence of the public and international community in the functioning of the Government will be shaken. To save the credibility of the Government and its instrumentalities, an effort should always be made to save the concluded transactions/transfers wherever possible provided (i) that it will not prejudice the public interest, or cause loss to public exchequer or lead to public mischief, and (ii) that the transferee is blameless and had no part to play in the violation of the regulation.107.3 If the concluded transfer cannot be saved and has to be cancelled, the innocent and blameless transferee should be reimbursed all the payments made by him and all expenditure incurred by him in regard to the transfer with appropriate interest. If some other relief can be granted on grounds of equity without harming public interest and public exchequer, grant of such equitable relief should also be considered.?(emphasis supplied)14. On an examination of the facts and circumstances of the case in the light of the above observations, it is evident that it is appropriate to give the Appellant the opportunity to make good the shortfall in consideration, as the loss to the public exchequer caused by the free allocation cannot be said to have had an everlasting effect or impact on public interest. Moreover, we do not find any high-handedness on the part of the Appellant in seeking the allotment in its favour, as it acted in a bona fide manner. This would also be in consonance with the principle stated by us in the beginning of the judgment that the public must be adequately compensated for the alienation of natural resources by the State. ### Response: 1 ### Explanation: sought for allotment was to protect the interests of children studying at the school. This is becausethe same is clearly discernible from the facts and circumstances of the case. It has been stated that the Appellant was evicted from the wakf land not because of any wilful default or unauthorized use, but because the wakf required the land for its own use. In such circumstances, having no other alternative, the Appellant approached the government for allotment of suitable land for running the school. It seems that the State Government also preferred to peacefully settle the issue of getting the school vacated from the wakf property, at an early date, without disturbing the education of the students and peace in the. Articles 38 and 39 of the Constitution of India provide that the State must strive to promote the welfare of the people of the State by protecting all their economic, social and political rights. Theserights may cover means of livelihood, health and the general well-being of all sections of the people in the society, of which education is an important. Imparting basic education is a constitutional obligation on the State as well as societies running educational institutions. Children are the future of our nation. Education is a basic tool for individuals to lead an economically productive life and is one of the most vital elements for the preservation of the democratic system of government. The Constitution of India bestows considerable attention to the field of education. It recognizes the need for regulating the various facets of activity of education and also the need for not only establishing and administering educational institutions but also providing financial support for educational institutions run by private societies. (See: Secretary, Mahatama Gandhi Mission v. Bhartiya Kamgar Sena, (2017) 4 SCC 449 , paras 33-36 and 39).Thus, in our considered opinion, the State Government proceeded to allot the land in favour of the Appellant keeping in mind the public interest in the education of hundreds of children as well as considering the urgency of the matter and it cannot be said that the action was not backed by a social or welfare purpose. It is worth emphasizing that the test of Article 14 must be applied from the perspective of substantive rather than formal equality, and must be mindful of the effect of the action or rule that is being tested. While under ordinary circumstances, the usual practice of allocation of sites on the basis of advertisements or auction was being followed, the instant situation warranted a deviation from the standard procedure to prevent prejudicing the future of the children studying at the Academy. In our view, taking a holistic view of the matter, the action taken by the State Government did not suffer from the vice of arbitrarinessas it wasbacked by a welfare. In addition, we do notfind any reason to reject the contention of the State Government that the allotment of 4 Kanals of land to the Appellant was in the nature of an exchange, inasmuch as the State Government wanted to evict the Appellant who was running a school at Wakf land situated in the main city area. Such a decision seems to have been taken by the State Government to avoid any unrest in the locality or city.In such circumstances, we do not find any arbitrariness in the decision taken by the State in allotting 4 Kanals of property. On the other hand, we are of the opinion that the action of the State was fair, reasonable, transparent, unbiased, without favourtism and. In our view, the action of the authorities can be assailed to the extent that the allotment of two kanals free of cost was bad in law.It is evident that the consideration paid by the Appellant was only with respect to two kanals and the remaining two kanals of land were allotted for free to the Appellant. It is not in dispute that Rs. 8,00,000/- per kanal was the average auction saleprice which was fetched around the time of allotment. Keeping this figure in mind, the State Government fixed the allotment price at Rs. 8,00,000/- per kanal. It is clear that there was no arbitrariness in fixing the price at Rs. 8,00,000/- per kanal.However, we are unable to accept the contention that the allotment of 2 Kanals of land for free was justified. This is all the more significant in light of the absence of any material on record to show that the school was being run purely for charitable and educational purposes.aforementioned observations suggest that while in the case of a non profit-oriented educational institution serving the public interest, public property can be allotted to it at a concessional price or for free by imposing stringent conditions for the use of the land, it is questionable whether the same can be done for profit-oriented. Thus, in our considered opinion, there is a loss to the public exchequer to the extent of Rs.16,00,000/- for two kanals as on the date of allotment. However, having regard to the fact that the Appellant-Academy has been running on the allotted site since many years, after constructing a new building, the transfer may be saved by giving the transferee an opportunity to make good the shortfall in the consideration.On an examination of the facts and circumstances of the case in the light of the above observations, it is evident that it is appropriate to give the Appellant the opportunity to make good the shortfall in consideration, as the loss to the public exchequer caused by the free allocation cannot be said to have had an everlasting effect or impact on public interest.Moreover, we do not find any high-handedness on the part of the Appellant in seeking the allotment in its favour, as it acted in a bona fide manner. This would also be in consonance with the principle stated by us in the beginning of the judgment that the public must be adequately compensated for the alienation of natural resources by the State.

Commnr.Of Central Excise, Mumbai Vs. M/S.Fisher Rosemount India Ltd

the price declared by the respondent for the purpose of valuation. On the said basis, the Tribunal reversed the findings of the authorities below and allowed the appeal of the respondent. 4.It is contended on behalf of the appellant before us that M/s. Rosemount Inc. USA and M/s. Fisher Rosemount (India) Ltd., (the respondent herein) are related persons and have interest in the business of each other. Therefore, the valuating authority was justified in loading the declared value with extra 20%, more so because there was difference in the value of the goods exported by the American Company to Singapore and Australia on one hand and to the respondent on the other. It was also contended that the judgment of the Tribunal in the case of Maruti Udyog Ltd. (supra) was wrongly relied upon by the Tribunal, hence, the order under appeal is liable to be set aside. 5.The applicability of Section 14(1)(b) of the Act, to the facts of the case by the original and the appellate authority was solely based on the factum of "related persons" without there being any other acceptable evidence. This finding of related person was again based on the fact of the equity participation of the US Company in the Indian Company and the technical data base supplied by the US Company to the Indian Company. 6.In the case of Maruti Udyog Ltd. (supra) the Tribunal had held : "It is, no doubt, correct that Suzuki held 26% shares in Maruti and, for that reason, had a proportional representation on the Board of Directors of Maruti also. But Maruti had no share holding in Suzuki nor any representation on the Board of Directors of Suzuki. To rule out valuation under Section 14(1)(a), the seller and the buyer should have "interest in the business of each other". One-sided interest is therefore, not enough; there has to be a mutuality of interest and Maruti is right in pleading that such mutuality of interest did not exist 1984 SC 162 (S.C.) - Union of India & Ors. v. Atic Industries Ltd.]. Confronted with this situation, the learned representative of the department argued that Maruti had an indirect interest in the business of Suzuki since Maruti was interested in technical knowhow from Suzuki not only for the current models and their components but also for future models and their components. We do not agree with the departments plea. The transfer of technical knowhow from Suzuki to Maruti is a separate commercial transaction governed by the Licence Agreement and Suzuki charges a price for it. That does not create an interest of Maruti in the business of Suzuki, Japan." * 7.Based on the above finding, the Tribunal in that case had held that in the absence of any other material, it is not correct to load the import price. It also held in that case that no evidence had been led before it to show that even the payment of royalty induced any extra commercial reduction in the import price. This judgment of the Tribunal has since been accepted by this Court in the case of Collector of Customs, Bombay v. Maruti Udyog Ltd., Gurgaon 1989 SC 294 (S.C.)]. Though by a brief judgment, this Court held that after examining the provisions of the Act and the facts found by the Tribunal, the Tribunal was right in its conclusion. On the said basis, the appeal of the Collector of Customs came to be dismissed, affirming the judgment of the Tribunal. Therefore, the Tribunal in the present case rightly relied on the said judgment in Maruti Udyog (supra), the facts of which case are almost similar to the facts of this case. 8.As noticed hereinabove, the original authority as well as the appellate authority proceeded on the basis that merely because the US Company owned 40 per cent of equity shares in the Indian Company and that provided the technical data base to the Indian Company as also the Indian Company got the licence to manufacture the electrical pressure transmitters in accordance with the said technical data, the same was sufficient to hold that the two companies were related persons. On this basis they drew an inference that the CIF value was not the sole consideration for sale of the goods imported by the respondent. Once, we find that the very basis relied upon by the original and the appellate authority suffers from the lack of acceptable material, then ipso facto the inference drawn from such conclusion also is liable to be set aside. If that be so, then there is hardly any other material to come to the conclusion that the CIF value declared by the respondent did not truly represent the correct value of the goods imported. 9.Shri Jaideep Gupta, learned counsel appearing for the appellant, pointed out that it is quite evident from the material on record that the CIF value of the goods imported by the respondent did not include the freight as could be seen from the documents available on record like the CIF value of the goods supplied by the said American Company to the other buyers at Australia and Singapore, hence, the authorities were justified in loading the cost declared by the respondent with 20% addition. Per contra, it is pointed out to us by Shri Joseph Vellapally, learned Senior Counsel for the respondent, that assuming it is so even then the value of the goods imported by the respondent was much higher than the value of the goods supplied by the American Company to the purchasers at Australia and Singapore. Therefore, no adverse inference could have been drawn on this count. Be that as it may, it is sufficient for us to hold that once the case of the Revenue that the American and the Indian Company (respondent) are related persons, fails, we think the Tribunal was justified in setting aside the orders of the original as well as the appellate authority and we find no reason to interfere with the same.

0[ds]7.Based on the above finding, the Tribunal in that case had held that in the absence of any other material, it is not correct to load the import price. It also held in that case that no evidence had been led before it to show that even the payment of royalty induced any extra commercial reduction in the import price. This judgment of the Tribunal has since been accepted by this Court in the case of Collector of Customs, Bombay v. Maruti Udyog Ltd., Gurgaon 1989 SC 294 (S.C.)]. Though by a brief judgment, this Court held that after examining the provisions of the Act and the facts found by the Tribunal, the Tribunal was right in its conclusion. On the said basis, the appeal of the Collector of Customs came to be dismissed, affirming the judgment of the Tribunal. Therefore, the Tribunal in the present case rightly relied on the said judgment in Maruti Udyog (supra), the facts of which case are almost similar to the facts of this case8.As noticed hereinabove, the original authority as well as the appellate authority proceeded on the basis that merely because the US Company owned 40 per cent of equity shares in the Indian Company and that provided the technical data base to the Indian Company as also the Indian Company got the licence to manufacture the electrical pressure transmitters in accordance with the said technical data, the same was sufficient to hold that the two companies were related persons. On this basis they drew an inference that the CIF value was not the sole consideration for sale of the goods imported by the respondent. Once, we find that the very basis relied upon by the original and the appellate authority suffers from the lack of acceptable material, then ipso facto the inference drawn from such conclusion also is liable to be set aside. If that be so, then there is hardly any other material to come to the conclusion that the CIF value declared by the respondent did not truly represent the correct value of the goods imported9.Shri Jaideep Gupta, learned counsel appearing for the appellant, pointed out that it is quite evident from the material on record that the CIF value of the goods imported by the respondent did not include the freight as could be seen from the documents available on record like the CIF value of the goods supplied by the said American Company to the other buyers at Australia and Singapore, hence, the authorities were justified in loading the cost declared by the respondent with 20% addition. Per contra, it is pointed out to us by Shri Joseph Vellapally, learned Senior Counsel for the respondent, that assuming it is so even then the value of the goods imported by the respondent was much higher than the value of the goods supplied by the American Company to the purchasers at Australia and Singapore. Therefore, no adverse inference could have been drawn on this count. Be that as it may, it is sufficient for us to hold that once the case of the Revenue that the American and the Indian Company (respondent) are related persons, fails, we think the Tribunal was justified in setting aside the orders of the original as well as the appellate authority and we find no reason to interfere with the same.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: the price declared by the respondent for the purpose of valuation. On the said basis, the Tribunal reversed the findings of the authorities below and allowed the appeal of the respondent. 4.It is contended on behalf of the appellant before us that M/s. Rosemount Inc. USA and M/s. Fisher Rosemount (India) Ltd., (the respondent herein) are related persons and have interest in the business of each other. Therefore, the valuating authority was justified in loading the declared value with extra 20%, more so because there was difference in the value of the goods exported by the American Company to Singapore and Australia on one hand and to the respondent on the other. It was also contended that the judgment of the Tribunal in the case of Maruti Udyog Ltd. (supra) was wrongly relied upon by the Tribunal, hence, the order under appeal is liable to be set aside. 5.The applicability of Section 14(1)(b) of the Act, to the facts of the case by the original and the appellate authority was solely based on the factum of "related persons" without there being any other acceptable evidence. This finding of related person was again based on the fact of the equity participation of the US Company in the Indian Company and the technical data base supplied by the US Company to the Indian Company. 6.In the case of Maruti Udyog Ltd. (supra) the Tribunal had held : "It is, no doubt, correct that Suzuki held 26% shares in Maruti and, for that reason, had a proportional representation on the Board of Directors of Maruti also. But Maruti had no share holding in Suzuki nor any representation on the Board of Directors of Suzuki. To rule out valuation under Section 14(1)(a), the seller and the buyer should have "interest in the business of each other". One-sided interest is therefore, not enough; there has to be a mutuality of interest and Maruti is right in pleading that such mutuality of interest did not exist 1984 SC 162 (S.C.) - Union of India & Ors. v. Atic Industries Ltd.]. Confronted with this situation, the learned representative of the department argued that Maruti had an indirect interest in the business of Suzuki since Maruti was interested in technical knowhow from Suzuki not only for the current models and their components but also for future models and their components. We do not agree with the departments plea. The transfer of technical knowhow from Suzuki to Maruti is a separate commercial transaction governed by the Licence Agreement and Suzuki charges a price for it. That does not create an interest of Maruti in the business of Suzuki, Japan." * 7.Based on the above finding, the Tribunal in that case had held that in the absence of any other material, it is not correct to load the import price. It also held in that case that no evidence had been led before it to show that even the payment of royalty induced any extra commercial reduction in the import price. This judgment of the Tribunal has since been accepted by this Court in the case of Collector of Customs, Bombay v. Maruti Udyog Ltd., Gurgaon 1989 SC 294 (S.C.)]. Though by a brief judgment, this Court held that after examining the provisions of the Act and the facts found by the Tribunal, the Tribunal was right in its conclusion. On the said basis, the appeal of the Collector of Customs came to be dismissed, affirming the judgment of the Tribunal. Therefore, the Tribunal in the present case rightly relied on the said judgment in Maruti Udyog (supra), the facts of which case are almost similar to the facts of this case. 8.As noticed hereinabove, the original authority as well as the appellate authority proceeded on the basis that merely because the US Company owned 40 per cent of equity shares in the Indian Company and that provided the technical data base to the Indian Company as also the Indian Company got the licence to manufacture the electrical pressure transmitters in accordance with the said technical data, the same was sufficient to hold that the two companies were related persons. On this basis they drew an inference that the CIF value was not the sole consideration for sale of the goods imported by the respondent. Once, we find that the very basis relied upon by the original and the appellate authority suffers from the lack of acceptable material, then ipso facto the inference drawn from such conclusion also is liable to be set aside. If that be so, then there is hardly any other material to come to the conclusion that the CIF value declared by the respondent did not truly represent the correct value of the goods imported. 9.Shri Jaideep Gupta, learned counsel appearing for the appellant, pointed out that it is quite evident from the material on record that the CIF value of the goods imported by the respondent did not include the freight as could be seen from the documents available on record like the CIF value of the goods supplied by the said American Company to the other buyers at Australia and Singapore, hence, the authorities were justified in loading the cost declared by the respondent with 20% addition. Per contra, it is pointed out to us by Shri Joseph Vellapally, learned Senior Counsel for the respondent, that assuming it is so even then the value of the goods imported by the respondent was much higher than the value of the goods supplied by the American Company to the purchasers at Australia and Singapore. Therefore, no adverse inference could have been drawn on this count. Be that as it may, it is sufficient for us to hold that once the case of the Revenue that the American and the Indian Company (respondent) are related persons, fails, we think the Tribunal was justified in setting aside the orders of the original as well as the appellate authority and we find no reason to interfere with the same. ### Response: 0 ### Explanation: 7.Based on the above finding, the Tribunal in that case had held that in the absence of any other material, it is not correct to load the import price. It also held in that case that no evidence had been led before it to show that even the payment of royalty induced any extra commercial reduction in the import price. This judgment of the Tribunal has since been accepted by this Court in the case of Collector of Customs, Bombay v. Maruti Udyog Ltd., Gurgaon 1989 SC 294 (S.C.)]. Though by a brief judgment, this Court held that after examining the provisions of the Act and the facts found by the Tribunal, the Tribunal was right in its conclusion. On the said basis, the appeal of the Collector of Customs came to be dismissed, affirming the judgment of the Tribunal. Therefore, the Tribunal in the present case rightly relied on the said judgment in Maruti Udyog (supra), the facts of which case are almost similar to the facts of this case8.As noticed hereinabove, the original authority as well as the appellate authority proceeded on the basis that merely because the US Company owned 40 per cent of equity shares in the Indian Company and that provided the technical data base to the Indian Company as also the Indian Company got the licence to manufacture the electrical pressure transmitters in accordance with the said technical data, the same was sufficient to hold that the two companies were related persons. On this basis they drew an inference that the CIF value was not the sole consideration for sale of the goods imported by the respondent. Once, we find that the very basis relied upon by the original and the appellate authority suffers from the lack of acceptable material, then ipso facto the inference drawn from such conclusion also is liable to be set aside. If that be so, then there is hardly any other material to come to the conclusion that the CIF value declared by the respondent did not truly represent the correct value of the goods imported9.Shri Jaideep Gupta, learned counsel appearing for the appellant, pointed out that it is quite evident from the material on record that the CIF value of the goods imported by the respondent did not include the freight as could be seen from the documents available on record like the CIF value of the goods supplied by the said American Company to the other buyers at Australia and Singapore, hence, the authorities were justified in loading the cost declared by the respondent with 20% addition. Per contra, it is pointed out to us by Shri Joseph Vellapally, learned Senior Counsel for the respondent, that assuming it is so even then the value of the goods imported by the respondent was much higher than the value of the goods supplied by the American Company to the purchasers at Australia and Singapore. Therefore, no adverse inference could have been drawn on this count. Be that as it may, it is sufficient for us to hold that once the case of the Revenue that the American and the Indian Company (respondent) are related persons, fails, we think the Tribunal was justified in setting aside the orders of the original as well as the appellate authority and we find no reason to interfere with the same.

New India Assurance Company Limited Vs. Rukhminibai W/O Ashok Gore &amp; Others

Honourable Supreme Court observed thus:"Section 163-A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Govt. from time to time. S. 140 of the Act dealt with interim compensation but by inserting S.163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long drawn trial or without proof of negligence in causing the accident."While distinguishing Sections 140 and 163-A of the Act, it is observed;"Payment of the amount in terms of S.140 of the Act is ad hoc in nature. A claim made thereunder, is in addition to any other claim which may be made under any other law for the time being in force. Section 163-A of the Act does not contain any such provision. S.163-A does not contain any provision identical to sub-sec. (5) of S. 140 which is also indicative of the fact that whereas in terms of the latter, the liability of the owner of the vehicle to give compensation or relief under any other law for the time being in force continues subject of course to the effect that the amount paid thereunder shall be reduced from the amount of compensation payable under the said Section or Section 163-A. By reason of the S.163-A, the compensation is required to be determined on the basis of a structured formula whereas in terms of S.140 only a fixed amount is to be given."It must be taken into consideration that, by virtue of text of sub-section (2), remedy under Section 163-A appears to be similar like one under Section 140. This is because, even in an application under Section 163-A, the claimant is not obliged to establish that the death or permanent disablement was due to any wrongful act or negligence, or default of the owner of vehicle/s, or of any other person. However, the Petitioners under Section 163-A cannot have liberty to claim compensation at their sweet will, but they will be entitled to compensation as per tabularized structured formula in the Second Schedule to the M.V.Act.In the reported matter, para 67, the Honble Apex Court observed thus:"In our opinion, the proceeding under Section 163-A, being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/= can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act."In the reported matter, there were applications under Section 163-A, as well as 166 and, therefore, the Supreme Court directed to proceed with petition filed under Section 166. Adjustment of the amounts awarded under Section 163-A was done, by allowing the claimants to retain the amount as permissible under Section 140. However, Honble Apex Court, concluded paragraph 71, by observing, "this order shall not be treated as a precedent."7. Once observations in paragraph 67 of the judgment of the Supreme Court are taken into consideration, it is clear that remedy under Section 163-A is available, only when the income of the deceased/ victim - in case of permanent disablement is Rs.40,000/= per annum or less than that. In the impugned judgment, learned Member of the Tribunal, having recorded a finding that the income of the deceased was Rs.84,000/= per annum, could not have proceeded to allow application under Section 163-A, without petitioners expressing desire to amend and treat the same as one under Section 166 of the M.V.Act. Consequently, appeal will have to be allowed and claim petition will have to be dismissed.. We have given serious consideration as to whether we can direct remand of the matter and directions to the Tribunal to proceed with the same petition, as one under Section 166 of the M.V.Act. However, we have desisted ourselves from following such a course for reasons. As many as seven years have passed since the accident and even if interest is to be awarded at minimum rate of 7-1/2%, computing interest from the date of presentation of petition in the year 2000, an amount equivalent to 50 per cent would be accruing on the shoulders of the insurance company, even by the time the Tribunal takes up matter for final hearing, as under Section 166 of the Act. The insurance company cannot be penalised for the fault of the claimant. The claimants chose to approach under Section 163-A, thereby refusing to shoulder responsibility of proving negligence or rashness or responsibility of someone else than the deceased and now they cannot be allowed to say that the application under Section 166 may be treated to have been instituted on the same day on which application under Section 163-A was filed. In fact, the reasons to prefer petition under Section 163-A are obvious. The deceased himself was the driver of the small two-wheeler and accident occurred, because of two wheeler dashing bridge, a stationery object. There is no third person from whom compensation can be claimed, in the fact-situation of the case. When, it is a petition under Section 166 of the M.V. Act, other defences also shall be available to the insurance company, and more particularly, defence of deceased himself being cause for the death and thus neither the owner nor insurer being liable to pay compensation. We have, therefore, desisted from remanding the matter, by treating the same application as one under section 166 of the M.V.Act.In the judgment of the Tribunal, a specific issue is framed at serial No.3 as follows:"Whether, petitioners are entitled claim compensation u/s 163-A of M.V. Act",And although the issue is answered by the learned Member in the affirmative, we have failed to find any reason supporting such affirmative finding. Although there is a reference to the said provision in paragraphs 13, 14 and 15 of his judgment, the learned Member has not at all considered crux of the issue i.e. maintainability of petition under Section 163-A of the M.V. Act.

1[ds]5. It is evident from the portion underlined above for the purpose of emphasis that the provision is given overriding effect over and above provisions contained elsewhere in this Act, or any other law for the time being in force. Terminal part of(1) indicates that compensation is payable as per Second Schedule. Second Schedule classifies the victims in accordance with age group, as well as income group simultaneously. According to age, first class is of the victims upto age 15 years and the last category is of the victims aged above 65 years. In between, there are ten groups of five years span, each. Horizontally, the victims are categorized into 13 income groups, lowest being of Rs.3000/= per annum and highest being of income of Rs.40,000/=. The tabularized details thus provide how much compensation should be paid to a victim, by arriving at a figure from both the columns i.e. age group and income group. It is pertinent to note that, income group above Rs.40,000/= does not find place in the table.Once observations in paragraph 67 of the judgment of the Supreme Court are taken into consideration, it is clear that remedy under Sectionis available, only when the income of the deceased/ victimin case of permanent disablement is Rs.40,000/= per annum or less than that. In the impugned judgment, learned Member of the Tribunal, having recorded a finding that the income of the deceased was Rs.84,000/= per annum, could not have proceeded to allow application under Sectionwithout petitioners expressing desire to amend and treat the same as one under Section 166 of the M.V.Act. Consequently, appeal will have to be allowed and claim petition will have to behave given serious consideration as to whether we can direct remand of the matter and directions to the Tribunal to proceed with the same petition, as one under Section 166 of the M.V.Act. However, we have desisted ourselves from following such a course for reasons. As many as seven years have passed since the accident and even if interest is to be awarded at minimum rate ofcomputing interest from the date of presentation of petition in the year 2000, an amount equivalent to 50 per cent would be accruing on the shoulders of the insurance company, even by the time the Tribunal takes up matter for final hearing, as under Section 166 of the Act. The insurance company cannot be penalised for the fault of the claimant. The claimants chose to approach under Sectionthereby refusing to shoulder responsibility of proving negligence or rashness or responsibility of someone else than the deceased and now they cannot be allowed to say that the application under Section 166 may be treated to have been instituted on the same day on which application under Sectionwas filed. In fact, the reasons to prefer petition under Sectionare obvious. The deceased himself was the driver of the smalland accident occurred, because of two wheeler dashing bridge, a stationery object. There is no third person from whom compensation can be claimed, in theof the case. When, it is a petition under Section 166 of the M.V. Act, other defences also shall be available to the insurance company, and more particularly, defence of deceased himself being cause for the death and thus neither the owner nor insurer being liable to pay compensation. We have, therefore, desisted from remanding the matter, by treating the same application as one under section 166 of thealthough the issue is answered by the learned Member in the affirmative, we have failed to find any reason supporting such affirmative finding. Although there is a reference to the said provision in paragraphs 13, 14 and 15 of his judgment, the learned Member has not at all considered crux of the issue i.e. maintainability of petition under Sectionof the M.V. Act.

### 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: Honourable Supreme Court observed thus:"Section 163-A was inserted in the Act to provide for payment of compensation in motor accident cases in accordance with the Second Schedule providing for the structured formula which may be amended by the Central Govt. from time to time. S. 140 of the Act dealt with interim compensation but by inserting S.163-A, the Parliament intended to provide for making of an award consisting of a pre-determined sum without insisting on a long drawn trial or without proof of negligence in causing the accident."While distinguishing Sections 140 and 163-A of the Act, it is observed;"Payment of the amount in terms of S.140 of the Act is ad hoc in nature. A claim made thereunder, is in addition to any other claim which may be made under any other law for the time being in force. Section 163-A of the Act does not contain any such provision. S.163-A does not contain any provision identical to sub-sec. (5) of S. 140 which is also indicative of the fact that whereas in terms of the latter, the liability of the owner of the vehicle to give compensation or relief under any other law for the time being in force continues subject of course to the effect that the amount paid thereunder shall be reduced from the amount of compensation payable under the said Section or Section 163-A. By reason of the S.163-A, the compensation is required to be determined on the basis of a structured formula whereas in terms of S.140 only a fixed amount is to be given."It must be taken into consideration that, by virtue of text of sub-section (2), remedy under Section 163-A appears to be similar like one under Section 140. This is because, even in an application under Section 163-A, the claimant is not obliged to establish that the death or permanent disablement was due to any wrongful act or negligence, or default of the owner of vehicle/s, or of any other person. However, the Petitioners under Section 163-A cannot have liberty to claim compensation at their sweet will, but they will be entitled to compensation as per tabularized structured formula in the Second Schedule to the M.V.Act.In the reported matter, para 67, the Honble Apex Court observed thus:"In our opinion, the proceeding under Section 163-A, being a social security provision, providing for a distinct scheme, only those whose annual income is up to Rs.40,000/= can take the benefit thereof. All other claims are required to be determined in terms of Chapter XII of the Act."In the reported matter, there were applications under Section 163-A, as well as 166 and, therefore, the Supreme Court directed to proceed with petition filed under Section 166. Adjustment of the amounts awarded under Section 163-A was done, by allowing the claimants to retain the amount as permissible under Section 140. However, Honble Apex Court, concluded paragraph 71, by observing, "this order shall not be treated as a precedent."7. Once observations in paragraph 67 of the judgment of the Supreme Court are taken into consideration, it is clear that remedy under Section 163-A is available, only when the income of the deceased/ victim - in case of permanent disablement is Rs.40,000/= per annum or less than that. In the impugned judgment, learned Member of the Tribunal, having recorded a finding that the income of the deceased was Rs.84,000/= per annum, could not have proceeded to allow application under Section 163-A, without petitioners expressing desire to amend and treat the same as one under Section 166 of the M.V.Act. Consequently, appeal will have to be allowed and claim petition will have to be dismissed.. We have given serious consideration as to whether we can direct remand of the matter and directions to the Tribunal to proceed with the same petition, as one under Section 166 of the M.V.Act. However, we have desisted ourselves from following such a course for reasons. As many as seven years have passed since the accident and even if interest is to be awarded at minimum rate of 7-1/2%, computing interest from the date of presentation of petition in the year 2000, an amount equivalent to 50 per cent would be accruing on the shoulders of the insurance company, even by the time the Tribunal takes up matter for final hearing, as under Section 166 of the Act. The insurance company cannot be penalised for the fault of the claimant. The claimants chose to approach under Section 163-A, thereby refusing to shoulder responsibility of proving negligence or rashness or responsibility of someone else than the deceased and now they cannot be allowed to say that the application under Section 166 may be treated to have been instituted on the same day on which application under Section 163-A was filed. In fact, the reasons to prefer petition under Section 163-A are obvious. The deceased himself was the driver of the small two-wheeler and accident occurred, because of two wheeler dashing bridge, a stationery object. There is no third person from whom compensation can be claimed, in the fact-situation of the case. When, it is a petition under Section 166 of the M.V. Act, other defences also shall be available to the insurance company, and more particularly, defence of deceased himself being cause for the death and thus neither the owner nor insurer being liable to pay compensation. We have, therefore, desisted from remanding the matter, by treating the same application as one under section 166 of the M.V.Act.In the judgment of the Tribunal, a specific issue is framed at serial No.3 as follows:"Whether, petitioners are entitled claim compensation u/s 163-A of M.V. Act",And although the issue is answered by the learned Member in the affirmative, we have failed to find any reason supporting such affirmative finding. Although there is a reference to the said provision in paragraphs 13, 14 and 15 of his judgment, the learned Member has not at all considered crux of the issue i.e. maintainability of petition under Section 163-A of the M.V. Act. ### Response: 1 ### Explanation: 5. It is evident from the portion underlined above for the purpose of emphasis that the provision is given overriding effect over and above provisions contained elsewhere in this Act, or any other law for the time being in force. Terminal part of(1) indicates that compensation is payable as per Second Schedule. Second Schedule classifies the victims in accordance with age group, as well as income group simultaneously. According to age, first class is of the victims upto age 15 years and the last category is of the victims aged above 65 years. In between, there are ten groups of five years span, each. Horizontally, the victims are categorized into 13 income groups, lowest being of Rs.3000/= per annum and highest being of income of Rs.40,000/=. The tabularized details thus provide how much compensation should be paid to a victim, by arriving at a figure from both the columns i.e. age group and income group. It is pertinent to note that, income group above Rs.40,000/= does not find place in the table.Once observations in paragraph 67 of the judgment of the Supreme Court are taken into consideration, it is clear that remedy under Sectionis available, only when the income of the deceased/ victimin case of permanent disablement is Rs.40,000/= per annum or less than that. In the impugned judgment, learned Member of the Tribunal, having recorded a finding that the income of the deceased was Rs.84,000/= per annum, could not have proceeded to allow application under Sectionwithout petitioners expressing desire to amend and treat the same as one under Section 166 of the M.V.Act. Consequently, appeal will have to be allowed and claim petition will have to behave given serious consideration as to whether we can direct remand of the matter and directions to the Tribunal to proceed with the same petition, as one under Section 166 of the M.V.Act. However, we have desisted ourselves from following such a course for reasons. As many as seven years have passed since the accident and even if interest is to be awarded at minimum rate ofcomputing interest from the date of presentation of petition in the year 2000, an amount equivalent to 50 per cent would be accruing on the shoulders of the insurance company, even by the time the Tribunal takes up matter for final hearing, as under Section 166 of the Act. The insurance company cannot be penalised for the fault of the claimant. The claimants chose to approach under Sectionthereby refusing to shoulder responsibility of proving negligence or rashness or responsibility of someone else than the deceased and now they cannot be allowed to say that the application under Section 166 may be treated to have been instituted on the same day on which application under Sectionwas filed. In fact, the reasons to prefer petition under Sectionare obvious. The deceased himself was the driver of the smalland accident occurred, because of two wheeler dashing bridge, a stationery object. There is no third person from whom compensation can be claimed, in theof the case. When, it is a petition under Section 166 of the M.V. Act, other defences also shall be available to the insurance company, and more particularly, defence of deceased himself being cause for the death and thus neither the owner nor insurer being liable to pay compensation. We have, therefore, desisted from remanding the matter, by treating the same application as one under section 166 of thealthough the issue is answered by the learned Member in the affirmative, we have failed to find any reason supporting such affirmative finding. Although there is a reference to the said provision in paragraphs 13, 14 and 15 of his judgment, the learned Member has not at all considered crux of the issue i.e. maintainability of petition under Sectionof the M.V. Act.

GOVINDAMMAL (DEAD) BY LRS. AND ORS Vs. VAIDIYANATHAN AND ORS

not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata. 12. It is true that under Section 11 of the CPC, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate as res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant. In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. This Court in the case of Mahboob Sahab vs. Syed Ismail and others, (1995) 3 SCC 693 , considering the applicability of the doctrine of res judicata between co-defendants held that the following four conditions must be satisfied, namely, (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. To reach the conclusion mentioned above this Court relied upon the judgments in the cases of Syed. Mohd. Saadat Ali Khan vs. Mirza Wiquar Ali Beg, AIR 1943 PC 115 ; Shashibushan Prasad Mishra vs. Babuji Rai, AIR 1970 SC 809 and Iftikhar Ahmed vs. Syed Meharban Ali, (1974) 2 SCC 151. 13. Coming to the question of estoppel as argued by the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased. 14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entire property to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as per Exhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.

0[ds]6. The suit out of which this appeal arises is not a mere suit for partition. On the other hand, primarily it is a suit for declaration of the plaintiffs title to the suit property, i.e., A schedule property andfor permanent injunction restraining the defendants from entering the possession of A schedule property, which is nothing but 50% of the entire B Schedule property which fell to the share of Narayanaswamy Mudaliar. Alternatively, it was prayed by the plaintiffs that if the plaintiffs and defendant are found to be in joint possession theybe granted the relief of partition and separate possession to the plaintiffs half share in B schedule property. It is relevant to note here itself that B schedule property measures 2.72 acres in its entirety, whereas A schedule property is 50% of B schedule property, measuring 1.36 acres which fell to the share of Narayanaswamy Mudaliar in the partition of 1912. Since the partition had taken place in 1912 between Chokalingam and Narayanswamy Mudaliar (being the son of Pazanivelu), and as the plaintiffs inherited the property from Narayanaswamy Mudaliar, they are entitled to 50% of the share in B schedule property. The Division Bench has rightly held that the plaintiffs are entitled to A Schedule property, which is the half share allotted to their branch in the partition of 1912, out of B Schedule property. Thus, the question of maintainability raised by the defendant fails7. The plaintiffs need not question the auction sale which was conducted in 1933 inasmuch as, firstly, they are not parties to those proceedings including the execution proceedings and court auction. Secondly, by virtue of auction sale, the purchaser would get only the share vested with Chokalingam inasmuch as Chokalingam alone was the judgment debtor. The property which is not owned by the judgment debtor could not be sold at all and therefore, even assuming that the sale certificate is wrongly issued inrespect of the entire property, the same does not bind the plaintiffs inasmuch they continued to be the owner of 50% of the whole of the property8. It is no doubt true that in the suit filed by the temple against the father of the defendant, the father of the plaintiffs was also arrayed as Defendant No. 2. It is also not in dispute that the father of the plaintiffs and the father of the defendant by engaging a common advocate filed a common written statement pleading that the temple was not the owner of the property and that Defendant No.1 was the owner of the property. It is also not in dispute that the father of the plaintiffs admitted in the said suit that Defendant No.1 in the said suit, namely, the father of the defendant herein, was the owner of the property. So also, in the suit filed by the school, the father of the plaintiffs was also arrayed as one of the defendants along with the father of the defendant. In the said suit also, a common written statement was filed. Even in the suit filed by the school,the defendants therein, i.e., the father of the plaintiffs herein and father of the defendant herein jointly pleaded that the school was not the owner of the property and that the defendants were the owners. Both the suits filed by the temple and the school came to be dismissed, holding that the temple as well as the school were not the owners of the property. From the aforementioned facts and the pleadings as well as the evidence recorded in the said suits, it is amply clear that there was no dispute inter se between the defendants. In other words, there was no dispute whatsoever regarding title between the father of the plaintiffs and the father of the defendant in those two suits. The main question to be decided in those suits was whether the third parties who had claimed rights were entitled the property. Since the question of inter se title between the defendants father and the plaintiffs father was not in issue and was also not required to be decided in the disputes then raised, obviously, the doctrine of res judicata cannot be applied between such co-defendants9. However, there exist certain situations in which principles of res judicatamay apply as between co-defendants. This has been recognized by the English Courts as well as our Courts for more than a century. The requisite conditions to apply the principle of resjudicata as between co-defendants are that (a) there must be conflict of interest between the defendants concerned, (b) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims and (c) the question between the defendants must have been finally decided. All the three requisite conditions are absent in the matter on hand. Firstly, there was no conflict of interest between the defendants in the suits filed by the temple and theschool. Secondly, since there was no conflict, it was not necessary to decide any conflict between the defendants in those suits in order to give relief to the temple or the school, which were the plaintiffs. On the other hand, the father of the plaintiffs and the father of the defendant were colluding in those suits filed by Temple and School. Both of them unitedly opposed those suits. In view of the same, the principles of res judicata would not apply.In the case of Md. Saadat Ali (supra), though the first and third conditions were fulfilled, the second condition was not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata12. It is true that under Section 11 of the CPC, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate asres judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant.In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not bebound as between each other.13. Coming to the questionof estoppel as arguedby the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entireproperty to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as perExhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.

### 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: not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata. 12. It is true that under Section 11 of the CPC, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate as res judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant. In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other. This Court in the case of Mahboob Sahab vs. Syed Ismail and others, (1995) 3 SCC 693 , considering the applicability of the doctrine of res judicata between co-defendants held that the following four conditions must be satisfied, namely, (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between the defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. To reach the conclusion mentioned above this Court relied upon the judgments in the cases of Syed. Mohd. Saadat Ali Khan vs. Mirza Wiquar Ali Beg, AIR 1943 PC 115 ; Shashibushan Prasad Mishra vs. Babuji Rai, AIR 1970 SC 809 and Iftikhar Ahmed vs. Syed Meharban Ali, (1974) 2 SCC 151. 13. Coming to the question of estoppel as argued by the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased. 14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entire property to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as per Exhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra. ### Response: 0 ### Explanation: to decide this conflict in order to give the plaintiff the relief he claims and (c) the question between the defendants must have been finally decided. All the three requisite conditions are absent in the matter on hand. Firstly, there was no conflict of interest between the defendants in the suits filed by the temple and theschool. Secondly, since there was no conflict, it was not necessary to decide any conflict between the defendants in those suits in order to give relief to the temple or the school, which were the plaintiffs. On the other hand, the father of the plaintiffs and the father of the defendant were colluding in those suits filed by Temple and School. Both of them unitedly opposed those suits. In view of the same, the principles of res judicata would not apply.In the case of Md. Saadat Ali (supra), though the first and third conditions were fulfilled, the second condition was not fulfilled and hence it was held that the principles of res judicata will not apply, meaning thereby that all the three conditions should be fulfilled in order to apply the principles of res judicata12. It is true that under Section 11 of the CPC, when the matter has been directly or substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, the decree in the former suit would operate asres judicata between the plaintiff and the defendant or as between the co-plaintiffs or co-defendants. For instance, if in a suit by P against D1 and D2, the matter is directly and substantially in issue between D1 and D2 and adjudication upon that matter was necessary to determine the suit to grant relief to P, the adjudication would operate as res judicata in subsequent suits between D1 and D2 in which either of them is plaintiff or defendant.In other words, if a plaintiff cannot get his claimed relief without trying and deciding a case between the co-defendants, the court will try and decide the case in its entirety including the conflict of interest between the co-defendants and the co- defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not bebound as between each other.13. Coming to the questionof estoppel as arguedby the defendants counsel based on the admission of the father of the plaintiffs in the pleadings and in his deposition regarding the title of the father of the defendant in the aforementioned earlier litigations, it is no doubt true that an admission is the best piece of evidence. However, an admission can always be explained, unless such an admission gives rise to the principle of estoppel. The principle of estoppel could have arisen if the father of the defendant had acted to his detriment on the basis of the representation made by the plaintiffs father as the basic requirement for attracting the principle of estoppel, is that the person to whom the representation has been made must have acted on the basis of such representation, and particularly to his own detriment. In the matter on hand, the father of the defendant knew about the correct position on facts and he very well knew that he was the owner to the extent of 50% of the property only, and as he did not act to his detriment, the question of estoppel does not arise. As mentioned supra, it is well settled that in an auction purchase, the auction purchaser does not acquire any right over the property higher than that of the judgment debtor. Since the principles of res judicata between co-defendants are not applicable in this case, and since a mere admission does not operate as an estoppel, such admission does not create or pass any title in favour of the defendants father and consequently to the defendant. On the other hand, it is apparent that the defendants father had right over only half of the property in question, which he had purchased14. The Division Bench has rightly negated the contention of the defendant relating to adverse possession. From the evidence on record, the trial Court and the Division Bench of the High Court have come to the conclusion that the defendant has failed to prove that he and his predecessor-in-interest had possession over the entireproperty to the exclusion of the plaintiffs and their predecessor. No material is found on record which emphatically discloses that the physical delivery of possession of the property was given to the auction purchaser by evicting or in exclusion of all the persons including the plaintiffs father and the plaintiffs. In the absence of such material, the Trial Court and the Division Bench have rightly concluded that there was symbolic delivery of possession in favour of the auction purchaser. However, the subsequent documents show joint possession of the plaintiffs and the defendant. Even now the names of both the parties are found in the revenue records. The documents do not show exclusive possession of either of the parties, but would indicate that they are in joint possession. Exhibits A-7, A-8 and A-9 are the pattas which disclose the names of both the parties in the revenue records. Even the house tax receipts are in the name of the plaintiffs predecessor. A schedule property has already been subjected to partition inter se among the plaintiffs after the death of Narayanswamy Mudaliar and the allotment of property in question, i.e. A Schedule has been made in favour of the second plaintiff as perExhibit A-40. The aforementioned records and certain other material on record would negative the contention of the defendant relating to adverse possession. The plaintiffs have proved satisfactorily that they are the owners of A Schedule property, i.e., 50% of the property partitioned in 1912, which had ultimately fallen in the share of Mr. Narayanaswamy (grandfather of plaintiffs) as mentioned supra.

Ranjit Singh Vs. The Commissioner Of Income-Tax, U. P. And Others

44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of those provisions."The scheme of S. 8-A is different from that of S. 8. The latter section contemplates an assessment or re-assessment in accordance with the direction of the Central Government; see sub-sec. (4) of S. 8. That is not the position under S. 8-A, sub-sec. (2) whereof provides for the enforcement of the norms of any settlement arrived at in pursuance of sub-sec. (1). There is no doubt a reference to certain special provisions of the Indian Income-tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made. They merely show that these special provisions will be applicable in appropriate cases. Sub-section (2) ends by saying that "Ss. 44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of these provisions."This clearly shows that the true scope and effect of the sub-section is to enforce the terms of any settlement arrived at in pursuance of sub-sec. (1) and to recover any sum specified in such settlement as if it were income-tax or arrear of income-tax in accordance with the provisions of Ss. 44 and 46 of the Indian Income-tax Act, 1922. We are unable, therefore, to accept the construction which learned counsel for the petitioner seeks to put on the sub-section.11. This brings us to the main contention that the petitioner has been subjected to a discriminatory procedure after the coming into force of the Constitution by reason of S. 8-A (2) of the Act. Learned counsel for the petitioner has put his argument in the following way. He has submitted that what the petitioner agreed to pay to Government was really a debt arising out of a contract, viz., the settlement between him and Government and the petitioner is one amongst the larger class of persons who are debtors of Government; against all other debtors Government have the ordinary remedy by way of suit but against the petitioner a special remedy is provided which is more drastic and envisages the imposition of a penalty under S. 46 of the Indian Income-tax Act, 1922, if the petitioner is in default in making a payment of the amount due. This it is argued, is a discriminatory procedure which has been continued even after the coming into force of the Constitution. We are unable to accept this argument as correct. First of all the petitioner does not really belong to the larger class of persons whom learned counsel has characterised as debtors of Government. The petitioner belongs to a special class who had evaded payment of income-tax and had entered into a set element to pay the amount due as income-tax or arrear of income-tax. For this class of persons the procedure laid down in S. 8-A (2) is one and the same and no discrimination is made in favour of or against any member of the same class. The classification is a reasonable classification having a just relation to the object of the provision. For the recovery of the amount due as income-tax or arrear of income-tax all these persons are treated on the same footing. Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income-tax or arrears of income-tax. Secondly it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection can be taken to such law on the ground of discrimination. The truth of the matter is that what the petitioner agreed to pay to Government is really income-tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income-tax law. That is all that S. 8-A (2) says. In the decisions of this Court to which we had earlier adverted, what was held to be bad was the application of a discriminatory procedure after the coming into force of the Constitution; even in Basheshar Naths case 1959 Supp (1) SCR 528: (AIR 1959 SC149) (supra) the Commission applied the discriminatory procedure after the coming into force of the Constitution and then submitted its report on May 24, 1954 and the Central Government accepted the settlement on July 5, 1954. It was held that the settlement itself was vitiated by the discriminatory procedure adopted by the Commission. That is not the position here. In this case everything was concluded before January 26, 1950, when the Constitution came into force, including the issuance of a notice of demand. All that remained to be done was the recovery of the amount according to the notice of demand. Therefore, the crucial question is - is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before January 26, 1930? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated.12. Learned counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar v. Commr., of Income-tax Madras, 1959-35 ITR 339: (AIR 1959 Mad 158 ). The facts of that case were entirely different and no question arose there of considering the provisions of S. 8 -A (2) of the Act.

0[ds]they all dealt with the operation of a discriminatory procedure under the different provisions of the Act after the commencement of the Constitution. The position in the case under our present consideration is that the settlement, the order under S. 8A(2) of the Act, and even the notice of demand in pursuance of that order-all these took place before the coming into force of the Constitution, and this vital distinction must be borne in mind in considering the contentions urged by learned counsel for thethe materials in the record it is clear that the proceedings against the petitioner culminating in the service of the notice of demand against him were all completed before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under Art. 14 of the Constitution; for it is well settled that the Constitution is prospective and notscheme of S. 8-A is different from that of S. 8. The latter section contemplates an assessment or re-assessment in accordance with the direction of the Central Government; see sub-sec. (4) of S. 8. That is not the position under S. 8-A, sub-sec. (2) whereof provides for the enforcement of the norms of any settlement arrived at in pursuance of sub-sec. (1). There is no doubt a reference to certain special provisions of the Indian Income-tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made. They merely show that these special provisions will be applicable in appropriate cases. Sub-section (2) ends by saying that "Ss. 44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of these provisions."This clearly shows that the true scope and effect of the sub-section is to enforce the terms of any settlement arrived at in pursuance of sub-sec. (1) and to recover any sum specified in such settlement as if it were income-tax or arrear of income-tax in accordance with the provisions of Ss. 44 and 46 of the Indian Income-tax Act, 1922. We are unable, therefore, to accept the construction which learned counsel for the petitioner seeks to put on theof all the petitioner does not really belong to the larger class of persons whom learned counsel has characterised as debtors of Government. The petitioner belongs to a special class who had evaded payment of income-tax and had entered into a set element to pay the amount due as income-tax or arrear of income-tax. For this class of persons the procedure laid down in S. 8-A (2) is one and the same and no discrimination is made in favour of or against any member of the same class. The classification is a reasonable classification having a just relation to the object of the provision. For the recovery of the amount due as income-tax or arrear of income-tax all these persons are treated on the same footing. Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income-tax or arrears of income-tax. Secondly it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection can be taken to such law on the ground of discrimination. The truth of the matter is that what the petitioner agreed to pay to Government is really income-tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income-taxthe crucial question is - is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before January 26, 1930? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated.12. Learned counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar v. Commr., of Income-tax Madras, 1959-35 ITR 339: (AIR 1959 Mad 158 ). The facts of that case were entirely different and no question arose there of considering the provisions of S. 8 -A (2) of the Act.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: 44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of those provisions."The scheme of S. 8-A is different from that of S. 8. The latter section contemplates an assessment or re-assessment in accordance with the direction of the Central Government; see sub-sec. (4) of S. 8. That is not the position under S. 8-A, sub-sec. (2) whereof provides for the enforcement of the norms of any settlement arrived at in pursuance of sub-sec. (1). There is no doubt a reference to certain special provisions of the Indian Income-tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made. They merely show that these special provisions will be applicable in appropriate cases. Sub-section (2) ends by saying that "Ss. 44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of these provisions."This clearly shows that the true scope and effect of the sub-section is to enforce the terms of any settlement arrived at in pursuance of sub-sec. (1) and to recover any sum specified in such settlement as if it were income-tax or arrear of income-tax in accordance with the provisions of Ss. 44 and 46 of the Indian Income-tax Act, 1922. We are unable, therefore, to accept the construction which learned counsel for the petitioner seeks to put on the sub-section.11. This brings us to the main contention that the petitioner has been subjected to a discriminatory procedure after the coming into force of the Constitution by reason of S. 8-A (2) of the Act. Learned counsel for the petitioner has put his argument in the following way. He has submitted that what the petitioner agreed to pay to Government was really a debt arising out of a contract, viz., the settlement between him and Government and the petitioner is one amongst the larger class of persons who are debtors of Government; against all other debtors Government have the ordinary remedy by way of suit but against the petitioner a special remedy is provided which is more drastic and envisages the imposition of a penalty under S. 46 of the Indian Income-tax Act, 1922, if the petitioner is in default in making a payment of the amount due. This it is argued, is a discriminatory procedure which has been continued even after the coming into force of the Constitution. We are unable to accept this argument as correct. First of all the petitioner does not really belong to the larger class of persons whom learned counsel has characterised as debtors of Government. The petitioner belongs to a special class who had evaded payment of income-tax and had entered into a set element to pay the amount due as income-tax or arrear of income-tax. For this class of persons the procedure laid down in S. 8-A (2) is one and the same and no discrimination is made in favour of or against any member of the same class. The classification is a reasonable classification having a just relation to the object of the provision. For the recovery of the amount due as income-tax or arrear of income-tax all these persons are treated on the same footing. Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income-tax or arrears of income-tax. Secondly it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection can be taken to such law on the ground of discrimination. The truth of the matter is that what the petitioner agreed to pay to Government is really income-tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income-tax law. That is all that S. 8-A (2) says. In the decisions of this Court to which we had earlier adverted, what was held to be bad was the application of a discriminatory procedure after the coming into force of the Constitution; even in Basheshar Naths case 1959 Supp (1) SCR 528: (AIR 1959 SC149) (supra) the Commission applied the discriminatory procedure after the coming into force of the Constitution and then submitted its report on May 24, 1954 and the Central Government accepted the settlement on July 5, 1954. It was held that the settlement itself was vitiated by the discriminatory procedure adopted by the Commission. That is not the position here. In this case everything was concluded before January 26, 1950, when the Constitution came into force, including the issuance of a notice of demand. All that remained to be done was the recovery of the amount according to the notice of demand. Therefore, the crucial question is - is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before January 26, 1930? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated.12. Learned counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar v. Commr., of Income-tax Madras, 1959-35 ITR 339: (AIR 1959 Mad 158 ). The facts of that case were entirely different and no question arose there of considering the provisions of S. 8 -A (2) of the Act. ### Response: 0 ### Explanation: they all dealt with the operation of a discriminatory procedure under the different provisions of the Act after the commencement of the Constitution. The position in the case under our present consideration is that the settlement, the order under S. 8A(2) of the Act, and even the notice of demand in pursuance of that order-all these took place before the coming into force of the Constitution, and this vital distinction must be borne in mind in considering the contentions urged by learned counsel for thethe materials in the record it is clear that the proceedings against the petitioner culminating in the service of the notice of demand against him were all completed before the coming into force of the Constitution and the petitioner cannot challenge those proceedings under Art. 14 of the Constitution; for it is well settled that the Constitution is prospective and notscheme of S. 8-A is different from that of S. 8. The latter section contemplates an assessment or re-assessment in accordance with the direction of the Central Government; see sub-sec. (4) of S. 8. That is not the position under S. 8-A, sub-sec. (2) whereof provides for the enforcement of the norms of any settlement arrived at in pursuance of sub-sec. (1). There is no doubt a reference to certain special provisions of the Indian Income-tax Act, 1922, regarding assessment of partners in a registered firm, tax payable by the representative of a deceased person etc.; but the reference to those provisions does not necessarily mean that a fresh assessment must be made. They merely show that these special provisions will be applicable in appropriate cases. Sub-section (2) ends by saying that "Ss. 44 and 46 of the Indian Income-tax Act, 1922, shall be applicable to the recovery of any sum specified in such settlement by the Income-tax Officer having jurisdiction to assess the person by whom such sum is payable as if it were income-tax or an arrear of income-tax within the meaning of these provisions."This clearly shows that the true scope and effect of the sub-section is to enforce the terms of any settlement arrived at in pursuance of sub-sec. (1) and to recover any sum specified in such settlement as if it were income-tax or arrear of income-tax in accordance with the provisions of Ss. 44 and 46 of the Indian Income-tax Act, 1922. We are unable, therefore, to accept the construction which learned counsel for the petitioner seeks to put on theof all the petitioner does not really belong to the larger class of persons whom learned counsel has characterised as debtors of Government. The petitioner belongs to a special class who had evaded payment of income-tax and had entered into a set element to pay the amount due as income-tax or arrear of income-tax. For this class of persons the procedure laid down in S. 8-A (2) is one and the same and no discrimination is made in favour of or against any member of the same class. The classification is a reasonable classification having a just relation to the object of the provision. For the recovery of the amount due as income-tax or arrear of income-tax all these persons are treated on the same footing. Neither is there any discrimination between them and other persons similarly placed in the matter of recovery of income-tax or arrears of income-tax. Secondly it is open to the legislature to make a law as to how particular Government dues should be realised and if the law applies equally to all persons similarly situated, no objection can be taken to such law on the ground of discrimination. The truth of the matter is that what the petitioner agreed to pay to Government is really income-tax which should have been paid in regard to the relevant assessment years but which had escaped assessment and therefore the recovery is to be made according to income-taxthe crucial question is - is the recovery procedure discriminatory in any way, having regard to the undoubted validity of the proceedings which had been taken against the petitioner before January 26, 1930? We are unable to answer this question in favour of the petitioner for the reasons which we have already stated.12. Learned counsel for the petitioner relied on the decision in M. L. M. Muthiah Chettiar v. Commr., of Income-tax Madras, 1959-35 ITR 339: (AIR 1959 Mad 158 ). The facts of that case were entirely different and no question arose there of considering the provisions of S. 8 -A (2) of the Act.

National Highways Authority of India Vs. Sri P. Nagaraju @ Cheluvaiah &amp; Anr

than agriculture. Further while applying the guideline value fixed for Zunadu and City Greens to the acquired lands by discarding guideline value for the same survey number, necessary evidence to derive comparison between the lands so as to apply the value fixed in respect of another item of land in the same notification was necessary to be brought on record and was to be considered by the learned Arbitrator by assigning reasons. 38. In that background a perusal of the award passed by the learned Arbitrator would indicate that the only discussion worth noting, after narration of the facts is contained in para 8 of the award which reads as hereunder: 8. On perusal of the written statement and documents produced by the applicant as well as the written statement and documents produced by the respondents, it is seen that the land in dispute has been acquired for the purpose of expansion of National Highway-275 and while rendering the Award, the price of the land in question has been arrived at, by considering it as dry land. However, since the land in question, even prior to the issue of 3(A) Land Acquisition Notification, has been converted for residential purpose as per Official Memorandum No.BDS/ALN/SR/89/91-92 dated 20.06.1992 of the Sub-Divisional Officer, Ramanagara Sub- Division, proper price has to be fixed by considering the lands in question as residential lands. This procedure has not been adopted. Further, by revising the market price, the Stamps and Registration Department has issued a Notification dated 28.03.2016 in respect of the lands belonging to City Greens situated in the Sy.Nos. coming under the said Mayaganahalli village wherein, the price of converted sites/sites of layouts approved by competent authority, has been fixed at Rs.15,400/- per Sq.Mtr. That their lands are more developed than the lands of Green City and has hence prayed for grant of compensation at a higher rate than the same. On perusal of the said Notification of the Stamps and Registration Department, it is seen that the price of the applicants converted lands situated in the survey numbers of Mayaganahalli village is fixed at Rs.8,000/- per Sq. Mtr. and the price of the converted lands of Green City in the same village has been fixed at Rs.15,400/- per Sq. Mtr. Section 26 of the said Act clearly defines the procedure for fixing the market price. Even then, it could be seen that the applicant has not been given the fair price. Therefore, it is opined that instead of the present price fixed for the lands in question, its price has to be fixed on par with the rates fixed by the Stamps and Registration Department on the basis of land conversion value in respect of the similarly situated lands of the same village and that compensation be awarded accordingly. Further, since the Award has been passed by fixing the value of the assets and structures existing on the lands in question as per the assessment of the concerned officers, the prayer of the applicant to enhance compensation for the same has been rejected and the following order is passed. 39. The above extracted portion of the award would demonstrate, prior to said finding being recorded, the learned Arbitrator has not referred to the manner in which the notification dated 28.03.2016 was brought on record and relied upon in the proceedings. The award, except for recording that the notification indicates the value fixed at Rs.8,000/- per sq.mtr in respect of converted land situate in the survey numbers of Mayaganahalli village and stating that the price of the converted lands of the Green City in the same village has been fixed at Rs.15,400/- per sq.mtr has not referred to any evidence relating to the comparability with that land despite noting the guideline value of Rs.8000/- fixed for claimants land. The very fact that the layout is named as City Greens and Zunadu appears to be that the lands therein are situate in a self-contained and developed lay out with all civic amenities due to which it is separately indicated in the notification for specifically fixing the guideline value. Even if the lands belonging to the claimants is converted for residential purposes, value for the same was fixed in the notification by specifying the survey number. If the value as fixed under the guideline for City Greens and Zunadu was to be adopted as comparable land to the acquired land, necessary reasons ought to have been indicated in the award with reference to the evidence brought on record, with opportunity to NHAI to have their say on that aspect and reasons justifying such comparison should have been recorded. Further the manner in which the notification dated 28.03.2016 has been relied upon and the value fixed under the said notification in respect of two distinct layouts has been automatically made applicable to the lands in question despite noting the guideline value notified for the same survey number would indicate that the said exercise has been undertaken without sufficient opportunity to NHAI. Further, appropriate reasons have not been indicated by the learned Arbitrator to arrive at the conclusion to uniformly adopt the value of Rs.15,400/- per sq.mtr fixed in respect of lands in a layout which was separately indicated in the notification. As stated above, if there is evidence brought on record in the manner known to law with opportunity to the opposite side, it certainly would be open for the learned Arbitrator to adopt the said value. However, from the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996.

1[ds]11. From the narration of the sequence made above it would be clear that the factual aspects involved in the instant case are to be considered in the background of the legal contentions urged. While doing so, what is also to be borne in mind is that these appeals arise out of the proceedings whereunder an award had been passed by the learned Arbitrator in arbitration proceedings. In that light, the limited scope available under Act, 1996 to assail an award as provided under Section 34 of the said Act is also to be kept in view even in these appeals. While doing so, what cannot also be lost sight of is the fact that the arbitration was not initiated based on an agreement entered into between the contracting parties under a contract but is under a statutory provision which provides for such arbitration in lieu of reference under the regime for acquisition of land for public purpose. One of the parties to such arbitration proceedings would also be a land loser and the adjudication in the arbitration proceedings is not based on any definite terms of the contract providing for mutual obligations determinable under the contract but for determination of just compensation in respect of land which is compulsorily acquired for a public purpose. Notwithstanding the same, the broad perspective relating to the limited grounds to challenge an award under Section 34 of Act, 1996 also is to be kept in perspective since the arbitration is governed by Act, 1996.15. On this aspect, it would be appropriate to take note of the decision rendered by this Court in Union of India vs. Tarsem Singh, (2019) 9 SCC 304 relied on by both sides, wherein it has been held as hereunder:51. We were also referred to an order in Sunita Mehra v. Union of India, in which this Court held:5. The only point agitated before us by the learned Solicitor General is that in para 23 of the impugned judgment of the High Court, it has been held that landowners would henceforth be entitled to solatium and interest as envisaged by the provisions of Sections 23 and 28 of the Land Acquisition Act, 1894. In the ultimate paragraph of the impugned judgment it has, however, been mentioned that in respect of all acquisitions made under the National Highways Act, 1956, solatium and interest in terms similar to those contained in Sections 23(2) and 28 of the Land Acquisition Act, 1894 will have to be paid.6. The learned Solicitor General has pointed out that there is an apparent inconsistency in the judgment, which needs to be clarified. It has also been submitted by the learned Solicitor General that the order of the High Court should be clarified to mean that the issue of grant of interest and solatium should not be allowed to be reopened without any restriction or reference to time. The learned Solicitor General has particularly submitted that to understand the order of the High Court in any other manner would not only seriously burden the public exchequer but would also amount to overlooking the delay that may have occurred on the part of the landowner(s) in approaching the Court and may open floodgates for en masse litigation on the issue.7. We have considered the submissions advanced. In Gurpreet Singh v. Union of India , this Court, though in a different context, had restricted the operation of the judgment of this Court in Sunder v. Union of India and had granted the benefit of interest on solatium only in respect of pending proceedings. We are of the view that a similar course should be adopted in the present case also. Accordingly, it is directed that the award of solatium and interest on solatium should be made effective only to proceedings pending on the date of the High Court order in Golden Iron and Steel Forging v. Union of India i.e. 28-3-2008. Concluded cases should not be opened. As for future proceedings, the position would be covered by the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (came into force on 1-1-2014), which Act has been made applicable to acquisitions under the National Highways Act, 1956 by virtue of notification/order issued under the provisions of the 2013 Act.52. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Sections 23(1-A) and (2) and interest payable in terms of Section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3-J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, appeal arising out of SLP (C) No. 9599 of 2019 is dismissed.17. The observations contained also in para 29, 30 and 31 in Tarsem Singh (supra) will make it more than evident that this Court was concerned about discrimination in determination of compensation under different enactments though in that case the issue was limited to solatium and interest. The said paras read as hereunder:-29. Both, P. Vajravelu Mudaliar and Nagpur Improvement Trust clinch the issue in favour of the Respondents, as has been correctly held by the Punjab and Haryana High Court in Golden Iron and Steel Forging. First and foremost, it is important to note that, as has been seen hereinabove, the object of the 1997 Amendment was to speed up the process of acquiring lands for National Highways. This object has been achieved in the manner set out hereinabove. It will be noticed that the awarding of solatium and interest has nothing to do with achieving this object, as it is nobodys case that land acquisition for the purpose of national highways slows down as a result of award of solatium and interest. Thus, a classification made between different sets of landowners whose lands happen to be acquired for the purpose of National Highways and landowners whose lands are acquired for other public purposes has no rational relation to the object sought to be achieved by the Amendment Act, i.e. speedy acquisition of lands for the purpose of National Highways. On this ground alone, the Amendment Act falls foul of Article 14.30. Even otherwise, in P. Vajravelu Mudaliar, despite the fact that the object of the Amendment Act was to acquire lands for housing schemes at a low price, yet the Amendment Act was struck down when it provided for solatium at the rate of 5% instead of 15%, that was provided in the Land Acquisition Act, the Court holding that whether adjacent lands of the same quality and value are acquired for a housing scheme or some other public purpose such as a hospital is a differentiation between two sets of landowners having no reasonable relation to the object sought to be achieved. More pertinently, another example is given – out of two adjacent plots belonging to the same individual one may be acquired under the principal Act for a particular public purpose and one acquired under the Amending Act for a housing scheme, which, when looked at from the point of view of the landowner, would be discriminatory, having no rational relation to the object sought to be achieved, which is compulsory acquisition of property for public purposes.31. Nagpur Improvement Trust has clearly held that ordinarily a classification based on public purpose is not permissible under Article 14 for the purpose of determining compensation. Also, in para 30, the Seven-Judge Bench unequivocally states that it is immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired, as, if the existence of these two Acts would enable the State to give one owner different treatment from another who is similarly situated, Article 14 would be infracted. In the facts of these cases, it is clear that from the point of view of the landowner it is immaterial that his land is acquired under the National Highways Act and not the Land Acquisition Act, as solatium cannot be denied on account of this fact alone.18. In that view of the matter, though Section 3G(7)(a) of the NH Act provides the parameters to be taken into consideration, it only provides the basic parameters to be taken note of, for determining the amount payable as compensation. While applying the said parameters for determination of compensation, since RFCTLARR Act, 2013 is also applicable as NH Act is contained in Fourth Schedule, the factors as provided under Section 26 and 28 RFCTLARR Act, 2013 including the seventh factor will also be applicable in appropriate cases for the determination of the market value as fair compensation for the acquired land. When land is acquired from a citizen, Articles 300A and 31A of the Constitution will have to be borne in mind since the deprivation of property should be with authority of law, after being duly compensated. Such law should provide for adequately compensating the land loser keeping in view the market value. Though each enactment may have a different procedure prescribed for the process of acquisition depending on the urgency, the method of determining the compensation cannot be different as the market value of the land and the hardship faced due to deprivation of the property would be the same irrespective of the Act under which it is acquired or the purpose for which it is acquired. In that light, if Section 28 of RFCTLARR Act, 2013 is held not applicable in view of Section 3J of NH Act, the same will be violative of Article 14 of the Constitution. In that circumstance, the observation in Tarsem Singh (supra) that Section 3J of NH Act is unconstitutional to that extent though declared so while on the aspect of solatium and interest, it is held so on all aspects relating to determination of compensation. In any event, the extracted portion of the notification dated 28.08.2015 is explicit that the benefits available to the land owners under RFCTLARR Act is to be also available to similarly placed land owners whose lands are acquired under the 13 enactments specified in the Fourth Schedule, among which NH Act is one. Hence all aspects contained in Section 26 to 28 of RFCTLARR Act for determination of compensation will be applicable notwithstanding Section 3J and 3G(7)(a) of NH Act.22. The case in Ssangyong Engineering and Construction Company Ltd. (supra) relied on by the learned Additional Solicitor General is also relied by the learned counsel for claimants to contend regarding limited scope. This Court, in that context has referred to the requirement to be complied in the proceedings before the arbitrator, which if not complied will be ground of challenge under Section 34(2)(a)(iii). We deem it appropriate to note the relevant observation which read as hereunder:-51. Sections 18, 24(3) and 26 are important pointers to what is contained in the ground of challenge mentioned in Section 34(2)(a)(iii). Under Section 18, each party is to be given a full opportunity to present its case. Under Section 24(3), all statements, documents, or other information supplied by one party to the Arbitral Tribunal shall be communicated to the other party, and any expert report or document on which the Arbitral Tribunal relies in making its decision shall be communicated to the parties. Section 26 is an important pointer to the fact that when an experts report is relied upon by an Arbitral Tribunal, the said report, and all documents, goods, or other property in the possession of the expert, with which he was provided in order to prepare his report, must first be made available to any party who requests for these things. Secondly, once the report is arrived at, if requested, parties have to be given an opportunity to put questions to him and to present their own expert witnesses in order to testify on the points at issue.52. Under the rubric of a party being otherwise unable to present its case, the standard textbooks on the subject have stated that where materials are taken behind the back of the parties by the Tribunal, on which the parties have had no opportunity to comment, the ground under Section 34(2)(a)(iii) would be made out.Permissibility of interference is on specific grounds of (i) arbitrator not adopting judicial approach (ii) breach of principles of natural justice (iii) contravention of statute not linked to public policy or public interest, as being patent illegality under Section 34(2A) and (iv) most basic notions of justice.The decision in Delhi Airport Metro Express Pvt. Ltd. vs. Delhi Metro Rail Corporation Ltd. (2022) 1 SCC 131 is relied upon to indicate that there should be minimal interference in arbitral awards, save, it suffers from patent illegality. What is patent illegality is delineated in para 29 which is as hereunder: -29. Patent illegality should be illegality which goes to the root of the matter. In other words, every error of law committed by the Arbitral Tribunal would not fall within the expression patent illegality. Likewise, erroneous application of law cannot be categorized as patent illegality. In addition, contravention of law not linked to public policy or public interest is beyond the scope of the expression patent illegality. What is prohibited is for Courts to reappreciate evidence to conclude that the award suffers from patent illegality appearing on the face of the award, as Courts do not sit in appeal against the arbitral award. The permissible grounds for interference with a domestic award under Section34(2-A) on the ground of patent illegality is when the arbitrator takes a view which is not even a possible one, or interprets a clause in the contract in such a manner which no fair-minded or reasonable person would, or if the arbitrator commits an error of jurisdiction by wandering outside the contract and dealing with matters not allotted to them. An arbitral award stating no reasons for its findings would make itself susceptible to challenge on this account. The conclusions of the arbitrator which are based on no evidence or have been arrived at by ignoring vital evidence are perverse and can be set aside on the ground of patent illegality. Also, consideration of documents which are not supplied to the other party is a facet of perversity falling within the expression patent illegality.23. Having taken note of the rival contentions and while examining the scope available under Section 34 of Act 1996 in the backdrop of the precedents, what is also to be kept in perspective is the decision referred to in the case of NHAI vs. Sayedabad Tea Company Ltd. (2020) 15 SCC 16. In the said case, this Court while examining the question as to whether the land loser can seek the appointment of an Arbitrator in terms of Section 11 of Act, 1996, it was noted that such power would not be available in view of the provisions contained in Section 3G(5) of NH Act since Arbitrator is to be appointed by the Central Government to discharge its functions as per the provisions of the Arbitration and Conciliation Act. Having taken note of the said decision, though it is seen that it was held so while considering the maintainability of petition under Section 11 of the Act, 1996 to exclude the right of the land loser to seek the appointment of an Arbitrator keeping in view the statutory provision in the NH Act, the larger perspective of such limited right to the land loser in the process of arbitration is also to be kept in view. Unlike the arbitration in a contractual matter where the parties from the very inception at the stage of entering into a contract would mutually agree to refer any future dispute to an arbitrator, at that very stage are aware that in the event of any dispute arising between the parties the contours of the right, remedy, and scope from the commencement of the arbitration up to the conclusion through the judicial process. The terms of arbitration and the rights and obligations will also be a part of the agreement and a reference to the same in the award will constitute sufficient reasons for sustaining the award in terms of Section 31(3) of Act, 1996. Whereas, in the arbitration proceedings relating to NH Act, the parties are not governed by an agreement to regulate the process of arbitration. However, in the process of determination of just and fair compensation, the provisions in Section 26 to 28 of RFCTLARR Act, 2013 will be the guiding factor. The requirement therein being adverted to, should be demonstrated in the award to satisfy that Section 28(2) and 31(3) of Act, 1996 is complied. Therefore, what is also to be kept in perspective while noticing the validity or otherwise of an award regarding which the non-furnishing of reasons is contended as patent illegality is the reason assigned for determining just compensation in terms thereof. The situation which may arise in cases when a lesser compensation is determined in the arbitration proceedings and the land loser is complaining of the award is also to be kept in perspective since the requirement of reasons to be given by the learned Arbitrator in cases for determination of market value and compensation should indicate reasons since the same will have to be arrived at on a comparative analysis for which the reasons should be recorded and Section 26 to 28 of RFCTLARR Act will be relevant. Neither the land loser nor the exchequer should suffer in the matter of just and fair compensation. Hence the reasons under Section 31(3) is to be expected in that manner, the absence of which will call for interference under Section 34 of Act, 1996.26. Under the scheme of the Act 1996 it would not be permissible to modify the award passed by the learned Arbitrator to enhance or reduce the compensation based on the material available on record in proceeding emanating from Section 34 of Act, 1996. The option would be to set aside the award and remand the matter. In this regard it would be apposite to take note of the observation in M. Hakeem (supra), as hereunder:-42. It can therefore be said that this question has now been settled finally by at least 3 decisions of this Court. Even otherwise, to state that the judicial trend appears to favour an interpretation that would read into Section 34 a power to modify, revise or vary the award would be to ignore the previous law contained in the 1940 Act; as also to ignore the fact that the 1996 Act was enacted based on the UNCITRAL Model Law on International Commercial Arbitration, 1985 which, as has been pointed out in Redfern and Hunter on International Arbitration, makes it clear that, given the limited judicial interference on extremely limited grounds not dealing with the merits of an award, the limited remedy under Section 34 is coterminous with the limited right, namely, either to set aside an award or remand the matter under the circumstances mentioned in Section 34 of the Arbitration Act, 1996.30. Be that as it may, in our opinion the mere provision as contemplated under Section 3G(5) of NH Act providing for either of the parties to assail the determination made by the SLAO by itself does not provide a better status to the award passed by the SLAO. Even the award passed by the SLAO under the provisions of NH Act would still continue to remain as an offer of compensation by the Acquiring Authority to the land loser and the materials relied on by the SLAO even if discussed in detail does not provide the status of a judicially considered order so as to interfere with the same only if error is pointed out. It is not necessary to critically examine the award made by SLAO before considering enhancement. Notwithstanding the documents relied upon by the SLAO it would still be open for the learned Arbitrator to rely upon any additional material that may be brought before the learned Arbitrator not necessarily to point out an error in the consideration made by SLAO but such material could be considered despite the consideration made by the SLAO if such material aids in deciding just and fair compensation. Though, as contended by the learned Additional Solicitor General it is seen that in Tarsem Singh (supra) it is held that there is a regime change and the stage to offer an amount by way of compensation is removed, it only means that the process of award notice etc. from Section 9 to 15A, before possession under Section 16 of L.A. Act is removed, which only alters the procedure and enables immediate vesting of the land with the acquiring authority but does not take away the character of the SLAO award from being an offer of compensation. Hence, in the present case, though the SLAO has taken note of the guideline dated 07.11.2014 it would be open for the learned Arbitrator to take note of any other evidence that would be more relevant than the said guideline to re-determine the compensation in terms of the parameters under Sections 26 and 28 of RFCTLARR Act, 2013.On that aspect it is necessary for us to clarify at this stage itself that such observation as contained in M. Hakeem (supra) is not made with reference to any provision of the Act. In contrast, a reference to Section 26(1)(a) of the RFCTLARR Act, 2013 indicates that the statutory provision itself provides for the market value specified in the Indian Stamp Act, 1899 for the registration of sale deeds or agreement to sell, in the area where the land is situated to be adopted by the Collector for assessing and determining the market value of the acquired land. In view of the said provision, it is open for the SLAO as well as the learned Arbitrator to rely upon the guideline and if the value provided therein is higher than the value of the property indicated from the other documents, it would be open to place reliance on the guideline issued for the purpose of the registration under the Stamp Act to determine the market value to be tendered as compensation for acquisition.As already noted, Section 3G(7)(a) of NH Act provides for determination of the market value on the date of publication of the acquisition notification under Section 3A. In a normal circumstance, for the determination of the market value, the rate prevailing prior to the date of the notification shall be the basis more particularly when the determination is made based on sale exemplars, as otherwise there is a likelihood of manipulation with escalated price being dishonestly indicated in the subsequent transactions. While taking note of the documents relied on for the purpose of determination of the market value, the existence of appropriate documents in the facts of each case would also become relevant. In circumstances where a document which is proximal to the date of acquisition is not available, it would be open to rely on a document which is much prior in point of time and if the time gap is more, determination could be made by providing for reasonable escalation depending on the area wherein the acquired property is situate and nature of property. Similarly, in a circumstance where no document which is prior to the date of the acquisition notification is available and the exemplars are subsequent to the date of acquisition notification, the value therein could be noted and reasonable de-escalation be considered to determine the appropriate value. Needless to mention that no strait-jacket formula can be applicable to all cases with arithmetical precision in the matter of determination of compensation.33. In that backdrop, in the instant case it is no doubt true that the notification issued by the Department of Stamps and Registration on 07.11.2014 is prior to the acquisition notification dated 01.02.2016. It is also to be noted that there was a time gap of more than one year between the two. In a normal circumstance, even if the notification dated 07.11.2014 was taken into consideration it would be open for the learned Arbitrator to consider certain amount of escalation to determine the market value. The said process could have been adopted if there was no other document. At this juncture, it is necessary to note that the SLAO in fact had relied on the said notification dated 07.11.2014 and determined the market value but had ignored the fact that the lands regarding which the market value was to be determined had been converted for purposes other than agriculture. The SLAO had therefore taken into consideration the registration value which had been fixed in respect of the agricultural property. In that light, firstly it would have been open for the learned Arbitrator to take note of the value fixed for the commercial/industrial lands under that notification itself and provide certain amount of escalation.34. Notwithstanding such option of providing escalation to the already existing guideline value being available to the learned Arbitrator, what cannot be lost sight in the instant case is that, as evident from the notification dated 28.03.2016 the process for redetermining the guideline value had commenced through the notification bearing No.CBC-25/2014-15 dated 14.09.2015 and proceedings of the committee were also held during 2015-2016 which ultimately led to the notification dated 28.03.2016. Further, though the preliminary notification for acquisition was issued on 01.02.2016, the final notification under Section 3D of NH Act was issued on 23.09.2016. During the intervening period the guideline value notification dated 28.03.2016, the process for which had commenced through the notification dated 14.09.2015, was already published. Furthermore, when all these proceedings were in close proximity to the date of the preliminary notification for acquisition and the revision of the market value by the Department of Stamps and Registration itself was within a period of one year and 4 months from the earlier guideline value published on 07.11.2014, it would indicate that the escalation which was otherwise open for being worked out and applied by the learned Arbitrator on taking note of the notification dated 07.11.2014 was undertaken by the Department of Stamps and Registration and the benefit of considering such escalation was available to the learned Arbitrator by taking note of the guideline dated 28.03.2016, though technically published on a date subsequent to the preliminary notification dated 01.02.2016. In that view of the matter, in the present facts and circumstances, the reliance placed on the guideline value notification dated 28.03.2016 for reckoning the market value of the property acquired under the preliminary notification dated 01.02.2016, by itself cannot be accepted to be a patent illegality committed by the learned Arbitrator.35. It is also to be noted that though the notification is dated 01.02.2016 the award notice is dated 03.07.2017 by which time the guideline value notification dated 28.03.2016 was already in vogue.37. To consider this aspect of the matter what is necessary to be taken note is that the SLAO had determined the compensation by taking note of the market value assigned to agricultural property under the notification dated 07.11.2014. The claimants were before the learned Arbitrator in terms of Section 3G(5) of the NH Act, a copy of which is available at Annexure-P6 to the appeal papers. The grievance essentially put forth in the claim petition is that the preliminary notification is dated 01.02.2016 and the notice of award for fixing the amount of compensation for the acquired land has been issued on 03.07.2017. In that light, it was contended that the market value of the non-agricultural lands adjoining the Bengaluru Mysuru National Highway such as the one owned by the claimant has increased considerably after the acquisition of the schedule land and accordingly the Registration Department has revised the guideline value. However, there is no reference to any specific notification relating to the guideline value much less the notification dated 28.03.2016. Further, there is no other indication to the manner in which the notification dated 28.03.2016 was brought on record though the said notification is published in the gazette. Comparison with lands in Zunadu and City Greens is also not pleaded. Further, as pointed out by the learned Additional Solicitor General the land situate in Madhapura and Mayaganahalli have been notified at serial Nos. 519, 524 and 525 respectively with reference the same survey number as that of the acquired land. The land value for Zunadu and City Greens are notified separately at Serial Nos.250 and 529. In that circumstance not just to place reliance on the notification dated 28.03.2016 but also to apply the value notified for Zunadu and City Greens to the acquired lands, necessary pleading in claim petition and evidence with opportunity to NHAI to rebut the same should have been placed before the learned Arbitrator. Based on the same a consideration in that regard was required to be made by the learned Arbitrator to arrive at a conclusion with regard to the applicability of the guideline value fixed under notification dated 28.03.2016 for the lands that had been converted to purposes other than agriculture. Further while applying the guideline value fixed for Zunadu and City Greens to the acquired lands by discarding guideline value for the same survey number, necessary evidence to derive comparison between the lands so as to apply the value fixed in respect of another item of land in the same notification was necessary to be brought on record and was to be considered by the learned Arbitrator by assigning reasons.39. The above extracted portion of the award would demonstrate, prior to said finding being recorded, the learned Arbitrator has not referred to the manner in which the notification dated 28.03.2016 was brought on record and relied upon in the proceedings. The award, except for recording that the notification indicates the value fixed at Rs.8,000/- per sq.mtr in respect of converted land situate in the survey numbers of Mayaganahalli village and stating that the price of the converted lands of the Green City in the same village has been fixed at Rs.15,400/- per sq.mtr has not referred to any evidence relating to the comparability with that land despite noting the guideline value of Rs.8000/- fixed for claimants land. The very fact that the layout is named as City Greens and Zunadu appears to be that the lands therein are situate in a self-contained and developed lay out with all civic amenities due to which it is separately indicated in the notification for specifically fixing the guideline value. Even if the lands belonging to the claimants is converted for residential purposes, value for the same was fixed in the notification by specifying the survey number. If the value as fixed under the guideline for City Greens and Zunadu was to be adopted as comparable land to the acquired land, necessary reasons ought to have been indicated in the award with reference to the evidence brought on record, with opportunity to NHAI to have their say on that aspect and reasons justifying such comparison should have been recorded. Further the manner in which the notification dated 28.03.2016 has been relied upon and the value fixed under the said notification in respect of two distinct layouts has been automatically made applicable to the lands in question despite noting the guideline value notified for the same survey number would indicate that the said exercise has been undertaken without sufficient opportunity to NHAI. Further, appropriate reasons have not been indicated by the learned Arbitrator to arrive at the conclusion to uniformly adopt the value of Rs.15,400/- per sq.mtr fixed in respect of lands in a layout which was separately indicated in the notification. As stated above, if there is evidence brought on record in the manner known to law with opportunity to the opposite side, it certainly would be open for the learned Arbitrator to adopt the said value. However, from the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996.46. Insofar as the learned Arbitrator having adopted the guideline issued in 2014, the same is prior to the date of the notification for acquisition and the aspects considered relating to date of notification in the earlier set of cases does not arise. Hence, it is justified. The value indicated at serial no.51 in the notification is for Kumbalagodu Industrial Area, but the value stated therein is for residential sites, the approval for which was obtained from the different authorities. Though reference is to Kumbalagodu Industrial Area, the value of the industrial plot has not been specified. It cannot also be assumed that the value indicated therein itself is for industrial site, since in the same entry in Serial No.51, the value of residential buildings is also indicated. Hence, in the absence of the SLAO undertaking the exercise for determining the market value of the industrial land which was acquired, the learned Arbitrator was required to do so.48. Firstly, when we are of the opinion that the learned Arbitrator has committed patent illegality in applying two different notifications in determining the market value, keeping in view the scope available under Section 34 of Act, 1996 it would not be open for this Court to substitute our view to that of the learned Arbitrator and modify the award. Further, the learned Additional Solicitor General sought to refer to Special Instruction No.6 in the notification of 2014 to arrive at the market value even if it is accepted that the value of industrial land is not indicated in the notification. These are aspects to which the learned Arbitrator is required to advert so as to arrive at the conclusion. In the circumstance where we have opined that the award passed by the learned Arbitrator suffers from patent illegality and appropriate consideration is necessary, the only course open is to set aside the award and allow the learned Arbitrator to reconsider the matter on that aspect.49. From the conclusion reached above, in both the set of cases it is evident that awards passed by the learned Arbitrator is to be set aside and the matters be remanded in terms of Section 34(4) of Act, 1996 so as to enable the learned Arbitrators to assign reasons to arrive at their conclusion. In this regard, it is made clear that we have approved the guideline value notification dated 28.03.2016 being reckoned for determining the market value. Hence, the claimants in any event would be entitled to determination of market value at the guideline value indicated vide notification dated 28.03.2016 for the respective properties in Madhapura, Mayaganahalli etc. as against what is awarded by SLAO if there is no other evidence indicating higher market value. The consideration to be made by the learned Arbitrator however is as to the material and evidence if any available to treat the acquired land as comparable to the lands situate in City Greens and Zunadu layout and award the compensation based on the guidance value indicated for the lands in the said layout if found comparable. The reason for not applying the guideline value indicated for the lands in the very survey number of the acquired lands is to be disclosed on such consideration. Needless to mention that any other sale transaction if higher than the guideline value can also be considered to arrive at just and fair compensation. Since in any event the claimants would be entitled to higher amount than what was awarded by SLAO, the part of the amount awarded by the learned Arbitrator which was deposited before this Court and disbursed to the claimants will be subject to adjustment based on the quantum of compensation that would ultimately be decided by the learned Arbitrator. In the matter arising out of SLP No.2503/2022 the applicability of the appropriate special instruction, if any, is to be considered.

### 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: than agriculture. Further while applying the guideline value fixed for Zunadu and City Greens to the acquired lands by discarding guideline value for the same survey number, necessary evidence to derive comparison between the lands so as to apply the value fixed in respect of another item of land in the same notification was necessary to be brought on record and was to be considered by the learned Arbitrator by assigning reasons. 38. In that background a perusal of the award passed by the learned Arbitrator would indicate that the only discussion worth noting, after narration of the facts is contained in para 8 of the award which reads as hereunder: 8. On perusal of the written statement and documents produced by the applicant as well as the written statement and documents produced by the respondents, it is seen that the land in dispute has been acquired for the purpose of expansion of National Highway-275 and while rendering the Award, the price of the land in question has been arrived at, by considering it as dry land. However, since the land in question, even prior to the issue of 3(A) Land Acquisition Notification, has been converted for residential purpose as per Official Memorandum No.BDS/ALN/SR/89/91-92 dated 20.06.1992 of the Sub-Divisional Officer, Ramanagara Sub- Division, proper price has to be fixed by considering the lands in question as residential lands. This procedure has not been adopted. Further, by revising the market price, the Stamps and Registration Department has issued a Notification dated 28.03.2016 in respect of the lands belonging to City Greens situated in the Sy.Nos. coming under the said Mayaganahalli village wherein, the price of converted sites/sites of layouts approved by competent authority, has been fixed at Rs.15,400/- per Sq.Mtr. That their lands are more developed than the lands of Green City and has hence prayed for grant of compensation at a higher rate than the same. On perusal of the said Notification of the Stamps and Registration Department, it is seen that the price of the applicants converted lands situated in the survey numbers of Mayaganahalli village is fixed at Rs.8,000/- per Sq. Mtr. and the price of the converted lands of Green City in the same village has been fixed at Rs.15,400/- per Sq. Mtr. Section 26 of the said Act clearly defines the procedure for fixing the market price. Even then, it could be seen that the applicant has not been given the fair price. Therefore, it is opined that instead of the present price fixed for the lands in question, its price has to be fixed on par with the rates fixed by the Stamps and Registration Department on the basis of land conversion value in respect of the similarly situated lands of the same village and that compensation be awarded accordingly. Further, since the Award has been passed by fixing the value of the assets and structures existing on the lands in question as per the assessment of the concerned officers, the prayer of the applicant to enhance compensation for the same has been rejected and the following order is passed. 39. The above extracted portion of the award would demonstrate, prior to said finding being recorded, the learned Arbitrator has not referred to the manner in which the notification dated 28.03.2016 was brought on record and relied upon in the proceedings. The award, except for recording that the notification indicates the value fixed at Rs.8,000/- per sq.mtr in respect of converted land situate in the survey numbers of Mayaganahalli village and stating that the price of the converted lands of the Green City in the same village has been fixed at Rs.15,400/- per sq.mtr has not referred to any evidence relating to the comparability with that land despite noting the guideline value of Rs.8000/- fixed for claimants land. The very fact that the layout is named as City Greens and Zunadu appears to be that the lands therein are situate in a self-contained and developed lay out with all civic amenities due to which it is separately indicated in the notification for specifically fixing the guideline value. Even if the lands belonging to the claimants is converted for residential purposes, value for the same was fixed in the notification by specifying the survey number. If the value as fixed under the guideline for City Greens and Zunadu was to be adopted as comparable land to the acquired land, necessary reasons ought to have been indicated in the award with reference to the evidence brought on record, with opportunity to NHAI to have their say on that aspect and reasons justifying such comparison should have been recorded. Further the manner in which the notification dated 28.03.2016 has been relied upon and the value fixed under the said notification in respect of two distinct layouts has been automatically made applicable to the lands in question despite noting the guideline value notified for the same survey number would indicate that the said exercise has been undertaken without sufficient opportunity to NHAI. Further, appropriate reasons have not been indicated by the learned Arbitrator to arrive at the conclusion to uniformly adopt the value of Rs.15,400/- per sq.mtr fixed in respect of lands in a layout which was separately indicated in the notification. As stated above, if there is evidence brought on record in the manner known to law with opportunity to the opposite side, it certainly would be open for the learned Arbitrator to adopt the said value. However, from the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996. ### Response: 1 ### Explanation: layout is named as City Greens and Zunadu appears to be that the lands therein are situate in a self-contained and developed lay out with all civic amenities due to which it is separately indicated in the notification for specifically fixing the guideline value. Even if the lands belonging to the claimants is converted for residential purposes, value for the same was fixed in the notification by specifying the survey number. If the value as fixed under the guideline for City Greens and Zunadu was to be adopted as comparable land to the acquired land, necessary reasons ought to have been indicated in the award with reference to the evidence brought on record, with opportunity to NHAI to have their say on that aspect and reasons justifying such comparison should have been recorded. Further the manner in which the notification dated 28.03.2016 has been relied upon and the value fixed under the said notification in respect of two distinct layouts has been automatically made applicable to the lands in question despite noting the guideline value notified for the same survey number would indicate that the said exercise has been undertaken without sufficient opportunity to NHAI. Further, appropriate reasons have not been indicated by the learned Arbitrator to arrive at the conclusion to uniformly adopt the value of Rs.15,400/- per sq.mtr fixed in respect of lands in a layout which was separately indicated in the notification. As stated above, if there is evidence brought on record in the manner known to law with opportunity to the opposite side, it certainly would be open for the learned Arbitrator to adopt the said value. However, from the pleading in the claim petition and from the portion extracted from the award which is the only basis for the ultimate order made by the learned Arbitrator, it would indicate that the NHAI did not have sufficient opportunity before the learned Arbitrator to controvert the material sought to be relied upon by the learned Arbitrator nor has the learned Arbitrator indicated sufficient reasons which to that extent would indicate patent illegality in the award passed by the learned Arbitrator being contrary to Section28(2) and 31(3) of Act, 1996.46. Insofar as the learned Arbitrator having adopted the guideline issued in 2014, the same is prior to the date of the notification for acquisition and the aspects considered relating to date of notification in the earlier set of cases does not arise. Hence, it is justified. The value indicated at serial no.51 in the notification is for Kumbalagodu Industrial Area, but the value stated therein is for residential sites, the approval for which was obtained from the different authorities. Though reference is to Kumbalagodu Industrial Area, the value of the industrial plot has not been specified. It cannot also be assumed that the value indicated therein itself is for industrial site, since in the same entry in Serial No.51, the value of residential buildings is also indicated. Hence, in the absence of the SLAO undertaking the exercise for determining the market value of the industrial land which was acquired, the learned Arbitrator was required to do so.48. Firstly, when we are of the opinion that the learned Arbitrator has committed patent illegality in applying two different notifications in determining the market value, keeping in view the scope available under Section 34 of Act, 1996 it would not be open for this Court to substitute our view to that of the learned Arbitrator and modify the award. Further, the learned Additional Solicitor General sought to refer to Special Instruction No.6 in the notification of 2014 to arrive at the market value even if it is accepted that the value of industrial land is not indicated in the notification. These are aspects to which the learned Arbitrator is required to advert so as to arrive at the conclusion. In the circumstance where we have opined that the award passed by the learned Arbitrator suffers from patent illegality and appropriate consideration is necessary, the only course open is to set aside the award and allow the learned Arbitrator to reconsider the matter on that aspect.49. From the conclusion reached above, in both the set of cases it is evident that awards passed by the learned Arbitrator is to be set aside and the matters be remanded in terms of Section 34(4) of Act, 1996 so as to enable the learned Arbitrators to assign reasons to arrive at their conclusion. In this regard, it is made clear that we have approved the guideline value notification dated 28.03.2016 being reckoned for determining the market value. Hence, the claimants in any event would be entitled to determination of market value at the guideline value indicated vide notification dated 28.03.2016 for the respective properties in Madhapura, Mayaganahalli etc. as against what is awarded by SLAO if there is no other evidence indicating higher market value. The consideration to be made by the learned Arbitrator however is as to the material and evidence if any available to treat the acquired land as comparable to the lands situate in City Greens and Zunadu layout and award the compensation based on the guidance value indicated for the lands in the said layout if found comparable. The reason for not applying the guideline value indicated for the lands in the very survey number of the acquired lands is to be disclosed on such consideration. Needless to mention that any other sale transaction if higher than the guideline value can also be considered to arrive at just and fair compensation. Since in any event the claimants would be entitled to higher amount than what was awarded by SLAO, the part of the amount awarded by the learned Arbitrator which was deposited before this Court and disbursed to the claimants will be subject to adjustment based on the quantum of compensation that would ultimately be decided by the learned Arbitrator. In the matter arising out of SLP No.2503/2022 the applicability of the appropriate special instruction, if any, is to be considered.

M/S. Hyderabad Engineering Industries Vs. State Of A.P

between the parties for the supply of manufactured goods by the assessee to UIL and the agreement is not binding on the parties, since it does not provide for any claim for damages, if there is any breach of any of the conditions stipulated therein by any one of the parties. It is stressed by the learned senior counsel that the assessee company, since it has branches in various parts of the country, its manufactured products are stocked in those branches and the branches in turn, have effected sales of those goods to consumers which would include UIL also. This argument is also noticed by the final fact finding authority, namely the Sales Tax Appellate Tribunal and has negatived the same by assigning cogent reasons. The Tribunal, after reappreciating the entire documents available on the record and also the modus operandi adopted by the assessee in its well considered order, has concluded that the so called `forecasts are nothing but request made by UIL for supply of goods to meet the requirements of the consumers in various parts of the country. Though, the said communication is termed as `forecasts, according to the Tribunal, they are nothing but firm orders placed by the UIL with the assessee for supply of particular type of goods and particular quantity pursuant to their understanding reflected in the `sales agrement, which is continuing one for the continuous supply of goods during the period of agreement which stretches over a period of 5 years, it is difficult to accept the submission of the learned senior counsel that the `sales agreement is only for the purpose of purchasing of their goods and selling in different parts of the country by UIL which has its offices wherever the assessee has its godowns of branch offices and also difficult to accept that there was no movement of goods pursuant to their `letter of allocations, which the assessee would contend that it is not a firm commitment or firm order for the supply of goods. To be fair to the learned senior counsel, we also perused number of `letters of allocations sent by UIL to the assessee from time to time and the response thereof of the assessee. On a perusal of the same, it is clear that an order was placed by UIL is a composite form to supply of goods through their branch offices and the movement of the goods thereto from the assessees factory to the assessees godown was to fulfill the demand made pursuant to the `letters of allocation which the assessee claims that the same is in the nature of forecast. In our view, the movement of the goods from the assessees factory to its various godowns situated in different parts of the country was pursuant to `sales agreement coupled with `forecasts which are nothing but `indents or firm orders. Therefore, in our opinion, the transaction between the assessee with its branch offices is a clear case of inter-State sales and not branch transfers, as claimed by the assessee. 43. Shri Bagaria, learned senior counsel, submitted that the branch offices of the assessee would also effect sales of products supplied by the assessee to other customers including State and Central Govt. Therefore, it is contended that the branch offices of the assessee had full discretion to sell the goods to any person of their choice. In our view, merely because the branch office could also effect supplies directly to some of the bulk consumers, it cannot be said that all supplies that are made to branch offices are not pursuant to the Sales Agreement and letter of allocation of UIL. Since the assessee could not furnish the exact figure insofar as such sales the assessing authority has granted exemption on a turnover of `87,57,071/-, being 10% of the total value of the claim towards stock transfer. 44. The learned senior counsel Shri Bagaria contended that the case law on which reliance placed by the High Court and other Statutory authorities are distinguishable and none of those decisions support the case of the Revenue. This contention of the learned senior counsel need not detain us for long, since the assessing authority, in the instant case, after carefully considering the relevant clauses in the sales agreement and the voluminous correspondence between the assessee and the UIL, has given its finding that the transaction in question is pure and simple inter-State sales and falls within the purview of Section 3(a) of the Central Act. This finding of fact has received the approval of the First Appellate Authority and the Sales Tax Appellate Tribunal which is the last fact finding authority in the appeals filed by the assessee.45. The learned senior counsel also contended that the assessing officer is expected to look into each transaction in order to find out whether a completed sale had taken place which could be brought to tax under Section 3(a) of the Central Act. Reliance is placed on the Constitution Bench decision of this Court in the case of Tata Engineering and Locomotive Co. Ltd. (supra). We are bound by the view expressed by the Constitution Bench decision of this Court. However, in the present case, the assessing officer has not just picked up a stray transaction to hold that the entire transaction for the entire period of assessment is inter-State sales, which would attract the charging provision. In our considered view, the assessing officer, in his detailed and well considered order, has looked into nearly 378 documents and voluminous correspondence between the assessee and UIL and has discussed and co-related the documents to prove on facts that the disputed transaction is inter-State sales though the assessee claims that it is a mere stock transfer. Therefore, we cannot accept the submission of the learned senior counsel in this regard. Bearing in mind the provisions of Section 3(a) of the Central Sales Tax Act, 1956 and on the facts of the case, the transactions in question were inter-State sales taxable under the Central Act.

0[ds]21. In the instant case, the assessing authority and the Tribunal have recorded a finding of fact that there were prior contracts between Usha Sales Ltd. and the assessee and in pursuance of those contracts, the goods moved from the assessees factory at Hyderabad to its Branch offices to be delivered to Usha Sales Ltd. or their nominees. In order to appreciate the contention canvassed, it is necessary to set out certain clauses from the salesour view, though the ultimate purchaser UIL placed orders for a particular quantity of goods to be supplied, the assessee did not supply the actual quantity indented for. We do not, however, think that this makes any difference to the application of Section 3(a) of the Central Act. In our view, it does not matter how much goods were delivered to the branch office which just acted as a conduit pipe before it ultimately reached the purchasers hands. All that matters is that movement of the goods is in pursuance of the contract of sale or as necessary incident to the sale itself. Further, the sales agreement is for a period of five years. If there is short supply of the goods than what was indented for, then the same could be adjusted in the subsequent dispatch. Therefore, to contend that there was no firm order placed by UIL with the assessee and accordingly, it would not come within the purport of Section 3(a) of the Central Act and they are mere branch transfers, cannot be accepted. We may also note that the assessing officer, while considering this stand of the assessee, has made reference to several correspondence for the period from April, 1981 to March, 1982 and has come to the conclusion though both the assessee and UIL terms those correspondence as mere letter of allocations, they are infact in the nature of indents placed by UIL with the assessee for the supply of a particular model of fans, particular quantity and the destinations of delivery. This finding of fact is confirmed by the final fact finding authority namely, the State Tax Tribunal. To us, this finding of fact does not appear to be perverse, which would call for ourthe said communication is termed as `forecasts, according to the Tribunal, they are nothing but firm orders placed by the UIL with the assessee for supply of particular type of goods and particular quantity pursuant to their understanding reflected in the `sales agrement, which is continuing one for the continuous supply of goods during the period of agreement which stretches over a period of 5 years, it is difficult to accept the submission of the learned senior counsel that the `sales agreement is only for the purpose of purchasing of their goods and selling in different parts of the country by UIL which has its offices wherever the assessee has its godowns of branch offices and also difficult to accept that there was no movement of goods pursuant to their `letter of allocations, which the assessee would contend that it is not a firm commitment or firm order for the supply of goods. To be fair to the learned senior counsel, we also perused number of `letters of allocations sent by UIL to the assessee from time to time and the response thereof of the assessee. On a perusal of the same, it is clear that an order was placed by UIL is a composite form to supply of goods through their branch offices and the movement of the goods thereto from the assessees factory to the assessees godown was to fulfill the demand made pursuant to the `letters of allocation which the assessee claims that the same is in the nature of forecast. In our view, the movement of the goods from the assessees factory to its various godowns situated in different parts of the country was pursuant to `sales agreement coupled with `forecasts which are nothing but `indents or firm orders. Therefore, in our opinion, the transaction between the assessee with its branch offices is a clear case of inter-State sales and not branch transfers, as claimed by theour view, merely because the branch office could also effect supplies directly to some of the bulk consumers, it cannot be said that all supplies that are made to branch offices are not pursuant to the Sales Agreement and letter of allocation of UIL. Since the assessee could not furnish the exact figure insofar as such sales the assessing authority has granted exemption on a turnover of `87,57,071/-, being 10% of the total value of the claim towards stockour considered view, the assessing officer, in his detailed and well considered order, has looked into nearly 378 documents and voluminous correspondence between the assessee and UIL and has discussed and co-related the documents to prove on facts that the disputed transaction is inter-State sales though the assessee claims that it is a mere stock transfer. Therefore, we cannot accept the submission of the learned senior counsel in this regard. Bearing in mind the provisions of Section 3(a) of the Central Sales Tax Act, 1956 and on the facts of the case, the transactions in question were inter-State sales taxable under the Central Act.

### 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: between the parties for the supply of manufactured goods by the assessee to UIL and the agreement is not binding on the parties, since it does not provide for any claim for damages, if there is any breach of any of the conditions stipulated therein by any one of the parties. It is stressed by the learned senior counsel that the assessee company, since it has branches in various parts of the country, its manufactured products are stocked in those branches and the branches in turn, have effected sales of those goods to consumers which would include UIL also. This argument is also noticed by the final fact finding authority, namely the Sales Tax Appellate Tribunal and has negatived the same by assigning cogent reasons. The Tribunal, after reappreciating the entire documents available on the record and also the modus operandi adopted by the assessee in its well considered order, has concluded that the so called `forecasts are nothing but request made by UIL for supply of goods to meet the requirements of the consumers in various parts of the country. Though, the said communication is termed as `forecasts, according to the Tribunal, they are nothing but firm orders placed by the UIL with the assessee for supply of particular type of goods and particular quantity pursuant to their understanding reflected in the `sales agrement, which is continuing one for the continuous supply of goods during the period of agreement which stretches over a period of 5 years, it is difficult to accept the submission of the learned senior counsel that the `sales agreement is only for the purpose of purchasing of their goods and selling in different parts of the country by UIL which has its offices wherever the assessee has its godowns of branch offices and also difficult to accept that there was no movement of goods pursuant to their `letter of allocations, which the assessee would contend that it is not a firm commitment or firm order for the supply of goods. To be fair to the learned senior counsel, we also perused number of `letters of allocations sent by UIL to the assessee from time to time and the response thereof of the assessee. On a perusal of the same, it is clear that an order was placed by UIL is a composite form to supply of goods through their branch offices and the movement of the goods thereto from the assessees factory to the assessees godown was to fulfill the demand made pursuant to the `letters of allocation which the assessee claims that the same is in the nature of forecast. In our view, the movement of the goods from the assessees factory to its various godowns situated in different parts of the country was pursuant to `sales agreement coupled with `forecasts which are nothing but `indents or firm orders. Therefore, in our opinion, the transaction between the assessee with its branch offices is a clear case of inter-State sales and not branch transfers, as claimed by the assessee. 43. Shri Bagaria, learned senior counsel, submitted that the branch offices of the assessee would also effect sales of products supplied by the assessee to other customers including State and Central Govt. Therefore, it is contended that the branch offices of the assessee had full discretion to sell the goods to any person of their choice. In our view, merely because the branch office could also effect supplies directly to some of the bulk consumers, it cannot be said that all supplies that are made to branch offices are not pursuant to the Sales Agreement and letter of allocation of UIL. Since the assessee could not furnish the exact figure insofar as such sales the assessing authority has granted exemption on a turnover of `87,57,071/-, being 10% of the total value of the claim towards stock transfer. 44. The learned senior counsel Shri Bagaria contended that the case law on which reliance placed by the High Court and other Statutory authorities are distinguishable and none of those decisions support the case of the Revenue. This contention of the learned senior counsel need not detain us for long, since the assessing authority, in the instant case, after carefully considering the relevant clauses in the sales agreement and the voluminous correspondence between the assessee and the UIL, has given its finding that the transaction in question is pure and simple inter-State sales and falls within the purview of Section 3(a) of the Central Act. This finding of fact has received the approval of the First Appellate Authority and the Sales Tax Appellate Tribunal which is the last fact finding authority in the appeals filed by the assessee.45. The learned senior counsel also contended that the assessing officer is expected to look into each transaction in order to find out whether a completed sale had taken place which could be brought to tax under Section 3(a) of the Central Act. Reliance is placed on the Constitution Bench decision of this Court in the case of Tata Engineering and Locomotive Co. Ltd. (supra). We are bound by the view expressed by the Constitution Bench decision of this Court. However, in the present case, the assessing officer has not just picked up a stray transaction to hold that the entire transaction for the entire period of assessment is inter-State sales, which would attract the charging provision. In our considered view, the assessing officer, in his detailed and well considered order, has looked into nearly 378 documents and voluminous correspondence between the assessee and UIL and has discussed and co-related the documents to prove on facts that the disputed transaction is inter-State sales though the assessee claims that it is a mere stock transfer. Therefore, we cannot accept the submission of the learned senior counsel in this regard. Bearing in mind the provisions of Section 3(a) of the Central Sales Tax Act, 1956 and on the facts of the case, the transactions in question were inter-State sales taxable under the Central Act. ### Response: 0 ### Explanation: 21. In the instant case, the assessing authority and the Tribunal have recorded a finding of fact that there were prior contracts between Usha Sales Ltd. and the assessee and in pursuance of those contracts, the goods moved from the assessees factory at Hyderabad to its Branch offices to be delivered to Usha Sales Ltd. or their nominees. In order to appreciate the contention canvassed, it is necessary to set out certain clauses from the salesour view, though the ultimate purchaser UIL placed orders for a particular quantity of goods to be supplied, the assessee did not supply the actual quantity indented for. We do not, however, think that this makes any difference to the application of Section 3(a) of the Central Act. In our view, it does not matter how much goods were delivered to the branch office which just acted as a conduit pipe before it ultimately reached the purchasers hands. All that matters is that movement of the goods is in pursuance of the contract of sale or as necessary incident to the sale itself. Further, the sales agreement is for a period of five years. If there is short supply of the goods than what was indented for, then the same could be adjusted in the subsequent dispatch. Therefore, to contend that there was no firm order placed by UIL with the assessee and accordingly, it would not come within the purport of Section 3(a) of the Central Act and they are mere branch transfers, cannot be accepted. We may also note that the assessing officer, while considering this stand of the assessee, has made reference to several correspondence for the period from April, 1981 to March, 1982 and has come to the conclusion though both the assessee and UIL terms those correspondence as mere letter of allocations, they are infact in the nature of indents placed by UIL with the assessee for the supply of a particular model of fans, particular quantity and the destinations of delivery. This finding of fact is confirmed by the final fact finding authority namely, the State Tax Tribunal. To us, this finding of fact does not appear to be perverse, which would call for ourthe said communication is termed as `forecasts, according to the Tribunal, they are nothing but firm orders placed by the UIL with the assessee for supply of particular type of goods and particular quantity pursuant to their understanding reflected in the `sales agrement, which is continuing one for the continuous supply of goods during the period of agreement which stretches over a period of 5 years, it is difficult to accept the submission of the learned senior counsel that the `sales agreement is only for the purpose of purchasing of their goods and selling in different parts of the country by UIL which has its offices wherever the assessee has its godowns of branch offices and also difficult to accept that there was no movement of goods pursuant to their `letter of allocations, which the assessee would contend that it is not a firm commitment or firm order for the supply of goods. To be fair to the learned senior counsel, we also perused number of `letters of allocations sent by UIL to the assessee from time to time and the response thereof of the assessee. On a perusal of the same, it is clear that an order was placed by UIL is a composite form to supply of goods through their branch offices and the movement of the goods thereto from the assessees factory to the assessees godown was to fulfill the demand made pursuant to the `letters of allocation which the assessee claims that the same is in the nature of forecast. In our view, the movement of the goods from the assessees factory to its various godowns situated in different parts of the country was pursuant to `sales agreement coupled with `forecasts which are nothing but `indents or firm orders. Therefore, in our opinion, the transaction between the assessee with its branch offices is a clear case of inter-State sales and not branch transfers, as claimed by theour view, merely because the branch office could also effect supplies directly to some of the bulk consumers, it cannot be said that all supplies that are made to branch offices are not pursuant to the Sales Agreement and letter of allocation of UIL. Since the assessee could not furnish the exact figure insofar as such sales the assessing authority has granted exemption on a turnover of `87,57,071/-, being 10% of the total value of the claim towards stockour considered view, the assessing officer, in his detailed and well considered order, has looked into nearly 378 documents and voluminous correspondence between the assessee and UIL and has discussed and co-related the documents to prove on facts that the disputed transaction is inter-State sales though the assessee claims that it is a mere stock transfer. Therefore, we cannot accept the submission of the learned senior counsel in this regard. Bearing in mind the provisions of Section 3(a) of the Central Sales Tax Act, 1956 and on the facts of the case, the transactions in question were inter-State sales taxable under the Central Act.

Doddi Atchayyamma Vs. Doddi Venkata Ramanna and Another

brothers. Appanna (Sr.) died in 1916, leaving behind him an adopted son Appanna (Jr.). Appanna (Jr.), we may mention, was the natural son of Jogulu, one of the five brothers. Kanakayya died in 1917 leaving a son, Parupilli. Ramulu ands Venkataswamy died in 1918 leaving no issues. Jogulu died in 1951 leaving behind him his widow Seethayamma (2nd defendant) and a son Venkata Ramanna (1st defendant). Jogulus other natural son Appanna (Jr.), who was given in adoption to Appanna (Sr.), died in 1949 leaving behind him his widow, Atchayyamma (plaintiff). Atchayyamma filed a suit, out of which the present appeal arises, for partition of the plaint A & B Schedule properties and for separate possession of a half share of the properties, alleging that her husbands Appanna (Jr.) and Jogulu were members of a joint family. The defendants denied the adoption of Appanna (Jr.) by Appanna (Sr.) and further alleged that the suit for partition was between the parties about 12 years go under which the plaintiff had received the parties about 12 years ago under which the plaintiff had received cash and golds in lieu of her claim to her husbands"s share of the properties. The trial court found that the adoption of Appanna (Jr.) by Appanna (Sr.) was true and that the case of family settlement set up by the defendants was false. The suit was decreed as prayed for. The defendants appealed to the High Court. Before the High Court, it was not longer contended that the adoption was not true or that there was a family settlement. A point was raised that there was a family partition long long ago between the five brothers and that the present suit of the plaintiff was, therefore, not maintainable. The High Court founds that there was a partition amongst the members of the family in 1914 and therefore, the plaintiff could not claim any share in the suit properties. The appeal was allowed and the suit for partition was dismissed. The plaintiff has appealed to this Court, after obtaining a certificate under Article 133 of the Constitution from the High Court.2. We are afraid it is impossible to upholds the judgment of the High Court. If the adoption of Appanna (Jr.) by Appanna (Sr.) was not true and if the so-called family settlement pleaded by the defendants was also not true, then Appanna (Jr.) would be a member of a joint family along with Jogulu and the first defendant and there was no way of denying the claim of the widow of Appanna (jr.) to a share in joint family properties. That was why the defendants very cleverly accepted, before the High Court, the adoption as true and contended that there was a prior partition between the five brothers in 1914. The High Court also found, on the evidence, that there was a partition between the five brothers in 1914. This finding has not been challenged before us. We may, therefore, proceed on the basis that there was a partition between the five brothers in 1914. We may also refer to certain other admitted facts here. In 1931, Parupilli, son of Kanakayya filed O. S. No. 249 of 1931 in the court of the District Munsif (Vishakhapatnam) for repartition of plaint schedule properties alleging that his uncle Jogulu had taken a bigger share of the properties than to which he was entitled. Jogulu and Appanna (Jr.) were the defendants in that suit. The suit ended in a compromise, the terms of which have been set out in the compromise decree Ex. A-6. The compromise was to the effect that all the family lands should be divided into five equal shares by metes and bounds and that the plaintiff was to be given two out of the five shares, while the defendants were to be given three out of the five shares. If in the course of the division, it was found that the plaintiff or the defendants were in possession of more land than to which they were entitled, due adjustment was to be made. If it was not possible to so effect a partition, the court was to appoint a Commissioner to divide the properties by metes and bounds in the manner agreed to. It is important to notice here that the shares and the properties to which Jogulu and Appanna (Jr.) were entitled were not separately defined in the compromise, but Jogulu and Appanna were together to be given three out of the five lots into which the properties were to be divided. Appanna (Jr.) was a minor at the time of the compromise and if we bear in mind the circumstance that Appanna (Jr.) was but the natural son of Jogulu, the entire scheme of the compromise becomes clear. Obviously Jogulu and Appanna (Jr.) were to take the prorates which they were together to get under Ex. A-6 jointly and their further rights inter se were to flow from A-6 notwithstanding the earlier partition between the brothers in 1914. Once this becomes clear, we do not see how the claim of the widow of Appanna (Jr.) can possibly be denied to a share in the properties. The learned counsel argued that some of the present plaint properties were subsequent acquisitions by Jogulu and the widow of Appanna (Jr.) could not lay any claim to a share in those properties. We do not agree. The properties which fall to the shares of Jogulu and Appanna (Jr.) under Ex. A-6 were taken by them jointly and there is nothing to indicate that Jogulu had any separate income of his own from which he could have acquired the other properties. Having regard to the paucity of evidence, we are entitled to presume in the circumstances of the case that the properties acquired by Jogulu in his name were acquired with the income from the joint properties of himself and his natural son Appanna (Jr.) We are clearly of the view that the judgment of the High Court was wrong.

1[ds]2. We are afraid it is impossible to upholds the judgment of the High Court. If the adoption of Appanna (Jr.) by Appanna (Sr.) was not true and if thefamily settlement pleaded by the defendants was also not true, then Appanna (Jr.) would be a member of a joint family along with Jogulu and the first defendant and there was no way of denying the claim of the widow of Appanna (jr.) to a share in joint family properties. That was why the defendants very cleverly accepted, before the High Court, the adoption as true and contended that there was a prior partition between the five brothers in 1914. The High Court also found, on the evidence, that there was a partition between the five brothers in 1914. This finding has not been challenged before us. We may, therefore, proceed on the basis that there was a partition between the five brothers in 1914. We may also refer to certain other admitted facts here. In 1931, Parupilli, son of Kanakayya filed O. S. No. 249 of 1931 in the court of the District Munsif (Vishakhapatnam) for repartition of plaint schedule properties alleging that his uncle Jogulu had taken a bigger share of the properties than to which he was entitled. Jogulu and Appanna (Jr.) were the defendants in that suit. The suit ended in a compromise, the terms of which have been set out in the compromise decree Ex.The compromise was to the effect that all the family lands should be divided into five equal shares by metes and bounds and that the plaintiff was to be given two out of the five shares, while the defendants were to be given three out of the five shares. If in the course of the division, it was found that the plaintiff or the defendants were in possession of more land than to which they were entitled, due adjustment was to beis important to notice here that the shares and the properties to which Jogulu and Appanna (Jr.) were entitled were not separately defined in the compromise, but Jogulu and Appanna were together to be given three out of the five lots into which the properties were to be divided. Appanna (Jr.) was a minor at the time of the compromise and if we bear in mind the circumstance that Appanna (Jr.) was but the natural son of Jogulu, the entire scheme of the compromise becomes clear. Obviously Jogulu and Appanna (Jr.) were to take the prorates which they were together to get under Ex.jointly and their further rights inter se were to flow fromnotwithstanding the earlier partition between the brothers in 1914. Once this becomes clear, we do not see how the claim of the widow of Appanna (Jr.) can possibly be denied to a share in the properties. The learned counsel argued that some of the present plaint properties were subsequent acquisitions by Jogulu and the widow of Appanna (Jr.) could not lay any claim to a share in those properties. We do not agree. The properties which fall to the shares of Jogulu and Appanna (Jr.) under Ex.were taken by them jointly and there is nothing to indicate that Jogulu had any separate income of his own from which he could have acquired the other properties. Having regard to the paucity of evidence, we are entitled to presume in the circumstances of the case that the properties acquired by Jogulu in his name were acquired with the income from the joint properties of himself and his natural son Appanna (Jr.) We are clearly of the view that the judgment of the High Court was wrong.

### 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: brothers. Appanna (Sr.) died in 1916, leaving behind him an adopted son Appanna (Jr.). Appanna (Jr.), we may mention, was the natural son of Jogulu, one of the five brothers. Kanakayya died in 1917 leaving a son, Parupilli. Ramulu ands Venkataswamy died in 1918 leaving no issues. Jogulu died in 1951 leaving behind him his widow Seethayamma (2nd defendant) and a son Venkata Ramanna (1st defendant). Jogulus other natural son Appanna (Jr.), who was given in adoption to Appanna (Sr.), died in 1949 leaving behind him his widow, Atchayyamma (plaintiff). Atchayyamma filed a suit, out of which the present appeal arises, for partition of the plaint A & B Schedule properties and for separate possession of a half share of the properties, alleging that her husbands Appanna (Jr.) and Jogulu were members of a joint family. The defendants denied the adoption of Appanna (Jr.) by Appanna (Sr.) and further alleged that the suit for partition was between the parties about 12 years go under which the plaintiff had received the parties about 12 years ago under which the plaintiff had received cash and golds in lieu of her claim to her husbands"s share of the properties. The trial court found that the adoption of Appanna (Jr.) by Appanna (Sr.) was true and that the case of family settlement set up by the defendants was false. The suit was decreed as prayed for. The defendants appealed to the High Court. Before the High Court, it was not longer contended that the adoption was not true or that there was a family settlement. A point was raised that there was a family partition long long ago between the five brothers and that the present suit of the plaintiff was, therefore, not maintainable. The High Court founds that there was a partition amongst the members of the family in 1914 and therefore, the plaintiff could not claim any share in the suit properties. The appeal was allowed and the suit for partition was dismissed. The plaintiff has appealed to this Court, after obtaining a certificate under Article 133 of the Constitution from the High Court.2. We are afraid it is impossible to upholds the judgment of the High Court. If the adoption of Appanna (Jr.) by Appanna (Sr.) was not true and if the so-called family settlement pleaded by the defendants was also not true, then Appanna (Jr.) would be a member of a joint family along with Jogulu and the first defendant and there was no way of denying the claim of the widow of Appanna (jr.) to a share in joint family properties. That was why the defendants very cleverly accepted, before the High Court, the adoption as true and contended that there was a prior partition between the five brothers in 1914. The High Court also found, on the evidence, that there was a partition between the five brothers in 1914. This finding has not been challenged before us. We may, therefore, proceed on the basis that there was a partition between the five brothers in 1914. We may also refer to certain other admitted facts here. In 1931, Parupilli, son of Kanakayya filed O. S. No. 249 of 1931 in the court of the District Munsif (Vishakhapatnam) for repartition of plaint schedule properties alleging that his uncle Jogulu had taken a bigger share of the properties than to which he was entitled. Jogulu and Appanna (Jr.) were the defendants in that suit. The suit ended in a compromise, the terms of which have been set out in the compromise decree Ex. A-6. The compromise was to the effect that all the family lands should be divided into five equal shares by metes and bounds and that the plaintiff was to be given two out of the five shares, while the defendants were to be given three out of the five shares. If in the course of the division, it was found that the plaintiff or the defendants were in possession of more land than to which they were entitled, due adjustment was to be made. If it was not possible to so effect a partition, the court was to appoint a Commissioner to divide the properties by metes and bounds in the manner agreed to. It is important to notice here that the shares and the properties to which Jogulu and Appanna (Jr.) were entitled were not separately defined in the compromise, but Jogulu and Appanna were together to be given three out of the five lots into which the properties were to be divided. Appanna (Jr.) was a minor at the time of the compromise and if we bear in mind the circumstance that Appanna (Jr.) was but the natural son of Jogulu, the entire scheme of the compromise becomes clear. Obviously Jogulu and Appanna (Jr.) were to take the prorates which they were together to get under Ex. A-6 jointly and their further rights inter se were to flow from A-6 notwithstanding the earlier partition between the brothers in 1914. Once this becomes clear, we do not see how the claim of the widow of Appanna (Jr.) can possibly be denied to a share in the properties. The learned counsel argued that some of the present plaint properties were subsequent acquisitions by Jogulu and the widow of Appanna (Jr.) could not lay any claim to a share in those properties. We do not agree. The properties which fall to the shares of Jogulu and Appanna (Jr.) under Ex. A-6 were taken by them jointly and there is nothing to indicate that Jogulu had any separate income of his own from which he could have acquired the other properties. Having regard to the paucity of evidence, we are entitled to presume in the circumstances of the case that the properties acquired by Jogulu in his name were acquired with the income from the joint properties of himself and his natural son Appanna (Jr.) We are clearly of the view that the judgment of the High Court was wrong. ### Response: 1 ### Explanation: 2. We are afraid it is impossible to upholds the judgment of the High Court. If the adoption of Appanna (Jr.) by Appanna (Sr.) was not true and if thefamily settlement pleaded by the defendants was also not true, then Appanna (Jr.) would be a member of a joint family along with Jogulu and the first defendant and there was no way of denying the claim of the widow of Appanna (jr.) to a share in joint family properties. That was why the defendants very cleverly accepted, before the High Court, the adoption as true and contended that there was a prior partition between the five brothers in 1914. The High Court also found, on the evidence, that there was a partition between the five brothers in 1914. This finding has not been challenged before us. We may, therefore, proceed on the basis that there was a partition between the five brothers in 1914. We may also refer to certain other admitted facts here. In 1931, Parupilli, son of Kanakayya filed O. S. No. 249 of 1931 in the court of the District Munsif (Vishakhapatnam) for repartition of plaint schedule properties alleging that his uncle Jogulu had taken a bigger share of the properties than to which he was entitled. Jogulu and Appanna (Jr.) were the defendants in that suit. The suit ended in a compromise, the terms of which have been set out in the compromise decree Ex.The compromise was to the effect that all the family lands should be divided into five equal shares by metes and bounds and that the plaintiff was to be given two out of the five shares, while the defendants were to be given three out of the five shares. If in the course of the division, it was found that the plaintiff or the defendants were in possession of more land than to which they were entitled, due adjustment was to beis important to notice here that the shares and the properties to which Jogulu and Appanna (Jr.) were entitled were not separately defined in the compromise, but Jogulu and Appanna were together to be given three out of the five lots into which the properties were to be divided. Appanna (Jr.) was a minor at the time of the compromise and if we bear in mind the circumstance that Appanna (Jr.) was but the natural son of Jogulu, the entire scheme of the compromise becomes clear. Obviously Jogulu and Appanna (Jr.) were to take the prorates which they were together to get under Ex.jointly and their further rights inter se were to flow fromnotwithstanding the earlier partition between the brothers in 1914. Once this becomes clear, we do not see how the claim of the widow of Appanna (Jr.) can possibly be denied to a share in the properties. The learned counsel argued that some of the present plaint properties were subsequent acquisitions by Jogulu and the widow of Appanna (Jr.) could not lay any claim to a share in those properties. We do not agree. The properties which fall to the shares of Jogulu and Appanna (Jr.) under Ex.were taken by them jointly and there is nothing to indicate that Jogulu had any separate income of his own from which he could have acquired the other properties. Having regard to the paucity of evidence, we are entitled to presume in the circumstances of the case that the properties acquired by Jogulu in his name were acquired with the income from the joint properties of himself and his natural son Appanna (Jr.) We are clearly of the view that the judgment of the High Court was wrong.

State of West Bengal &amp; Another Vs. Kesoram Industries Ltd. &amp; Others

List II. The power to levy any tax or fee lying within the legislative competence of the State Legislature can be delegated to an institution of local government constituted by law within the meaning of Entry 5 in List II. The Entries 5, 23, 49, 50 and 66 of List II provide adequate constitutional coverage to the impugned levy of cess. True it is that the method of quantifying the cess is by reference to the quantum of mineral produced. This would not alter the character of the levy. There are myriad methods of calculating the value of the land for the purpose of quantifying the tax reference whereto has already been made by us in the other part of this judgment. Validity of cess upon the land quantified by reference to the quantity of its produce was held to be a levy on the land and hence constitutional in Ralla Ram, AIR 1949 FC 81, Moopil Nair, AIR 1961 SC 552 and Aja Kumar Mukherjee, AIR 1965 SC 1561 . It does not become excise duty on manufacture and production of goods merely on account of having relation with the quantity of product yielded of the land. Rather it is a safe, sound and scientific method of determining the value of the land to which the product relates. They levy of cess considered as a tax is constitutionally valid. 153. In Western Coalfields Ltd. Vs. Special Area Development Authority, Korba & Anr. (1982) 1 SCC 125 , the levy of a cess almost similar to the one in issue in the present case, came up for the consideration of this Court. The levy was for the purpose of enabling the municipal administration to exercise its power and discharge its functions under the Act. It was held that the declaration contained in Section 2 of the MMDR act does not have the effect of bringing the powers, duties and functions of the local authority within the purview of accupied field. The power to levy tax on lands and buildings within their jurisdiction by the local authority was upheld by this Court. 154. The following observations of Constitution Bench in Hingir-Rampur Coal Co. squarely apply to SADA Act and SADA Rules for upholding their constitutional validity:- "......in pith and substance the impugned Act is concerned with the development of the mining areas notified under it. The Central Act, on the other hand, deals more directly with the control of all industries including of course the industry of coal." "The functions of the Development Councils constituted under this Act prescribed by Section 6(4) bring out the real purpose and object of the Act. It is to increase the efficiency of productivity in the scheduled industry of group of scheduled industries, to improve or develop the service that such industry or group of industries renders or could render to the community, or to enable such industry or group of industries to render such service more economically." "......the object of the (Central) Act is to regulate the scheduled industries with a view to improvement and development of the service that they may render to the society, and thus assist the solution of the larger problem of national economy. It is difficult to hold that the field covered by the declaration made by Section 2 of this Act, considered in the light of its several provisions, is the same as the field covered by the impugned Act. The being so, it cannot be said that as a result of Entry 52 read with Act LXV of 1951 the vires of the impugned Act can be successfully challenged." "Our conclusion, therefore, is that the impugned Act is relatable to Entries 234 and 66 in List II of the Seventh Schedule, and its validity is not impaired or affected by Entries 52 and 54 in List I read with Act LXV of 1951 and Act LIII of 1948 respectively." 155. As stated earlier also, the impugned cess can be justified as fee as well. The term cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well. It is not necessary that the services rendered from out of the fee collected should be directly not proportion with the amount of fee collected. It is equally not necessary that the services rendered by the fee collected should remain confined to the persons from whom the fee has been collected. Availability of indirect benefit and a general nexus between the person bearing the burden of levy of fee and the services rendered out of the fee collected is enough to uphold the validity of the fee charged. The levy of the impugned cess can equally be upheld by reference to Entry 66 read with Entry 5 of Schedule II. 156. Royalty is not a tax. The impugned cess by no stretch of imagination can be called a tax on tax. The impugned levy also does not have the effect of increasing the royalty. Simply because the royalty is levied by reference to the quantity of the minerals produced and the impugned cess too is quantified by taking into consideration the same quantity of the mineral produced, the latter does not become royalty. The former is the rent of the land on which the mine is situated or the price of the privilege of winning the minerals from the land parted by the government in favour of the mining lessee. The cess is a levy on mineral rights with impact on the land and quantified by reference to the quantum of minerals procuded. The distinction, though fine, yet exists and is perceptible. 157. In our opinion Ram Dhani Singh Vs. Collector, Sonbhadra & Ors. - AIR 2001 All. 5 has been correctly decided. We uphold and affirm the same. End Result

1[ds]32. Article 245 of the Constitution is the fountain source of legislative power. It provides - subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State. The legislative field between the Parliament and the Legislature of any State is divided by Article 246 of the Constitution. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in Seventh Schedule, called the ‘UnionSubject to the said power of the Parliament, the Legislature of any State has power to make laws with respect to any of the matters enumerated in List III, called the ‘ConcurrentSubject to the above said two, the Legislature of any State has exclusive power to make laws with respect to any of the matters enumerated in List II, called the ‘StateUnder Article 248 the exclusive power to Parliament to make laws extends to any matter not enumerated in the Government List or State List. The power to making any law imposing of tax not mentioned in the Concurrent List or State List vests in Parliament. This is what is called the residuary power vesting in Parliament. The principles have been succinctly summarized and restated by a Bench of three learned Judges of this Court on a review of the available decisions in M/s. Hoechst Pharmaceuticals Ltd. and others vs. State of Bihar and others - (1983) 4 SCC 45. They are -(1) the various entries in the three Lists are notof legislation butof legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States.(2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law.(3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt with in one group of entries and power of taxation in a separate group. The power to tax cannot be deduced from a general legislative entry as an ancillary power.(4) The entries in the List being merely topics of fields of legislation, they must receive a liberal construction inspired by a board and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex enumeration of broad categories. A power to legislate as to the principle matter specifically mentioned in the entry shall also include within its expense the legislations touching incidental and ancillary matters.(5) Where the legislative competence of a Legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in Lists I or III. If it does, no further question need be asked thelegislative competence must be upheld. Where there are three Lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no consequence. The Court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the Legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded.(6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned to another Legislature is to be ignored. While reading the three Lists, List I has priority over lists III and II, and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in Listnow proceed to enter a deeper dimension in the field of tax legislation by considering the problem of devising the measure of taxation. This aspect has been dealt with in dealt in Union of India and others vs. Bombay Tyre International Ltd., (1983) 4 SCC 210. Tracing the principles from the leading authority of Re.: a reference under the Government of Ireland Act 1920 and Section 3 of the Finance Act (Northern Ireland) 1934, (1936) A.C. 352, passing through Relia Ram vs. Province of East Punjab, 1948 FCR 207, and treading through the law as it has developed through judicial pronouncements one after the other, this Court has made subtle observations therein. It has been long recognized that the measure employed for assessing a tax must not be confused with the nature of the tax. A tax has two elements; first, the person, thing or activity on which the tax is imposed, and secondly, the amount of tax. The amount may be measured in many ways; but a distinction between the subject matter of a tax and the standard by which the amount of tax is measured must not be lost sight of. These are described respectively as the subject of a tax and the measure of a tax. It is true that the standard adopted as a measure of the levy may be indicative of the nature of the tax, but it does not necessary determine it. The nature of the mechanism by which the tax is to be assessed is not decisive of the essential characteristic of the particular tax charged, thought it may throw light on the general character of the tax.Yet another angle which the Constitutional Courts would advisedly do better to keep in view while dealing with a tax legislation, in the light of the purported conflict between the powers of the Union and the State to legislate, which was stated forcefully and which was logically based on an analytical examination of constitutional scheme by Jeevan Reddy, J. in S.R. Bomai and others vs. Union of India (1994) 3 SCC 1 , may be touched. Our Constitution has a federal structure. Several provisions of the Constitution unmistakably show that the Founding Fathers intended to create a strong centre. The historical background relevant at the time of the framing of the Constitution warranted a strong centre naturally and necessarily. This bias of the framers towards the centre is found reflect in the distribution of legislative heads between the Centre and the States. More important heads of the legislation are placed in List I. In the Concurrent List the parliamentary enactment is given primacy, irrespective of the fact whether such enactment is earlier or later in point of time to a State enactment on the same subject matter. The residuary power to legislate is with the Centre. By the Forty-second Amendment a few of the entries in List II were omitted or transferred to other lists. Articles 249 to 252 further demonstrate the primacy of Parliament, allowing it liberty to encroach on the field meant exclusively for the State legislation though subject to certain conditions being satisfied. In the matter of finances, the States appear to have been placed in a less favourable position. True, the Centre has been given more powers but the same is accompanied by certain additional responsibilities as well. The Constitution is an organic living document. Its outlook and expression as perceived and expressed by the interpreters of the Constitution must be dynamic and keep pace with the changing times. Though the basics and fundamentals of the Constitution remain unalterable, the interpretation of the flexible provisions of the Constitution can be accompanied by dynamism and lean, in case of conflict, in favour of the weaker or the one who is more needy. Several taxes are collected by the Centre and allocation of revenue is made to States from time to time. The Centre consuming theshare of revenue has attracted good amount of criticism at the hands of the States and financial experts. The interpretation of Entries can afford to strike a balance, or at least try to remove imbalance, so far as it can. Any conscious whittling down of the powers of the State can be guarded against by the Courts. "Let it be said that the federalism in the Indian Constitution is not a matter of administrative convenience, but one of principle - the outcome of our own historical process and a recognition of the ground realities." Quoting from M.C. Setalvad, Tagore Law Lectures "Union and State relations under the Indian Constitution" (Eastern Law House, Calcutta, 1974), Jeevan Reddy, J. observed - ‘It is enough to note that our Constitution has certainly a bias towards the Centre vis-a-vis the States... It is equally necessary to emphasise that Courts should be careful not to upset the delicately - crafted constitutional scheme by a process of interpretation."we are fully convinced in that regard and feel ourselves obliged constitutionally, legally and morally to do so, lest the said error should cause any further harm to the trend of jurisprudential thought centering around the meaning ofWe hold that royalty is not tax. Royalty is paid to the owner of land who may be a private person and may not necessarily be State. A private person owning the land is entitled to charge royalty but not tax. The lessor receives royalty as his income and for the lessee the royalty paid is an expenditure incurred. Royalty cannot be tax. We declare that even in India Cement it was not the finding of the Court that royalty is a tax. A statement caused by an apparent typographical or inadvertent error in a judgment of the Court should not be misunderstood as declaration of such law by the Court. We also record our express dissent with that part of the judgment in Mahalaxmi Fabric Mills Ltd. and others which says (vide para 12 of SSC report) that there was no ‘typographicalin India Cement and that the said conclusion that royalty is a tax logically flew from the earlier paragraphs of the judgment.In the event of a dispute arising it should be determined by applying the doctrine of pith and substance to find out whether between two Entries assigned to two different legislatures the particular subject of the legislation fails within the ambit of the one or the other. Where there is a clear and irreconcilable conflict of jurisdiction between the Centre and a provincial legislature it is the law of the Centre that must prevail.The Constitution Bench then proceeded to test the validity of the cess by reference to two Central Acts, namely (A) the Mines and Minerals (Regulation and Development) Act, 1948 (Act No. 53 of 1948) and (B) The Industries (Development and Regulation) Act, 1951 (Act No. 65 of 1951).90. (A) Act No. 53 of 1948 is a pre-constitutional piece of Central Legislation. It was found that the applicability of the Act which was initially attracted to mines as well as oil fields remained confined to oil fields in view of the subsequent parliamentary enactment, i.e. the MMDR Act, 1957 (Act No. 67 of 1957). Therefore, the question which remained to be examined was only for the year 1952 as at that time the Act No. 53 of 1948 applied to mines as well as oil fields. The factual constitutional position was that Act No. 53 of 1948 ceased to apply to Orissa post-constitution and assuming it applied yet there was no such declaration post-constitution made by Parliament as is referred to in Entry 23 in List II read with Entry 54 in List I and therefore in either case the validity of the said State Legislation was not impaired in spite of the finding recorded by the Court that ‘there can be no doubt that the field covered by the impugned (State) Act is covered by the Central Act 53 of 1948.81. (B) What is significant for our purpose is the law laid down by the Constitution Bench as to the validity of the impugned State legislation by reference to Act No. 65 of 1951, Section 2 whereof contained a declaration - ‘It is hereby declared that it is expedient in the public interest that the Union should take under its control the industries specified in the First Schedule" as contemplated by Entry 52 in List I to which Entry 23 in List II is subject. The first schedule included coal as an article as to which the industry engaged in the manufacture or production was brought within the purview of the Act. Section 9 empowered the Central Government to levy cess for the purpose of the Act on all goods manufactured or produced in any scheduled industries including coal. The Constitution Bench held that the Central Act was passed to provide for the development and regulation of certain industries one of which undoubtedly is coal mining industry. The declaration made by Section 2 of the Act covered the same field as is covered by the impugned State Act. Then the Constitution Bench held:-"... but in dealing with this question it is important to bear in mind the doctrine of pith and substance. We have already noticed that in pith and substance the impugned Act is concerned with the development of the mining areas notified under it. The Central Act, on the other hand, deals more directly with the control of all industries including of course the industry of coal. Chapter II of this Act provides for the constitution of the Central Advisorynt Councils, Chapter III deals with the regulation of scheduled industries, Chapter IIIA provides for the direct management or control of industrial undertakings by Central Government in certain cases, and Chapter IIB is concerned with the topic of control of supply, distribution, price, etc. of certain articles. The last chapter deals with miscellaneous incidental matters. The functions of the Development Councils constituted under this Act prescribed by S.6(4) bring out the real purpose and object of the Act. It is to increase the efficiency or productivity in the scheduled industry or group of scheduled industries, to improve or develop the service that such industry or group of industries renders or could render to the community, or to enable such industry or group of industries to render such service more economically. Section 9 authorises the imposition of cess on scheduled industries in certain cases. Section 9(4) provides that the Central Government may hand over the proceeds of the cess to the Development Council there specified and that the Development Council shall utilize the said proceeds to achieve the objects mentioned in cls. (a) to (d). These objects include the promotion of scientific and industrial research, of improvements in design and quality, and the provision for training of technicians and labour in such industry or group of industries. It would thus be seen that the object of the Act is to regulate the scheduled industries with a view to improvement and development of the service that they may render to the society, and thus assist the solution of the larger problem of national economy. It is difficult to hold that the field covered by the declaration made by S.2 of this Act, considered in the light of its several provisions, is the same as the field covered by the impugned Act. That being so, it cannot be said that as a result of Entry 52 read with Act LXL of 1951 the vires of the impugned Act can be successfully challenged.Our conclusion, therefore, is that the impugned Act is relatable to Entries 23 and 66 in List II of the Seventh Schedule, and its validity is not impaired or affected by Entries 52 and 54 in List I read with the Act LXV of 1951 and Act LIII of 1948 respectively. In view of this conclusion it is unnecessary to consider whether the impugned Act can be justified under Entry 50 in List II, or whether it is relatable to Entry 24 in List III and as such suffers from the vice of repugnancy with the Central Act XXXII of 1947.The relevant principles of law laid down in M.A. Tulloch, which we have extracted and reproduced hereinabove, do not run contrary to the view we are taking in the present case. The recovery of fee could have been held to be vitiated in that case because the field of mining activity in manganese ore was fully covered by the MMDR Act, 1957, and the levy under the impugned State Act, as found by the two Constitution Benches in Hingir-Rampur Coal Co. and M.A. Tulloch was being collected for the development of the mining areas in the State. The doctrine of pith and substance noted and applied in Hingir-Rampur Coal Co. has been restated in M.A. Tulloch wherein the Constitution Bench had said, as noted hereinabove, that the Orissa Act was concerned with the development of the mining areas notified under the Act while the Central Act on the other hand dealt more directly with the control of all industries including of course the industry of coal and the object of the Central Act was to regulate the scheduled industry with a view to make improvement and development of the service that they may render to the society and thus assisting the solution of the larger problem of the national economy. In spite of the declaration made by Section 2 of the Central Act of 1951 considered in the light of its several provisions it was found difficult to hold that the field covered by the Central Act was the same as the field covered by the impugned Orissa Act. None of the two Constitution Benches have held that power to regulate and develop with which the Central Act of 1951 was concerned would include the power to levy tax and fee which power shall have to be traced to some other entry in List I. List I contains a general entry i.e. Entry 96 for levy of fee in respect of matters in List I but so far as levy of tax is concerned there are separate and specific entries (see Entries 82 to 92B in List I and Entries 45 to 63 in List II). Further in view of Entry 50 of List II, Parliament can by any law relating to mineral development limit or place limitations on the power of the State Legislatures to impose taxes on mineralto tax not a residuary power107. Article 265 mandates - no tax shall be levied or collected except by authority of law. The scheme of the Seventh Schedule reveals an exhaustive enumeration of legislative subjects, considerably enlarged over the predecessor Government of India Act. Entry 97 in List I confers residuary powers on Parliament. Article 248 of the Constitution which speaks of residuary powers of legislation confers exclusive power on the Parliament to make any law with respect to any matter not enumerated in the Concurrent List or the State List. At the same time, it provides that such residuary power shall include the power of making any law imposing a tax not mentioned in either of those Lists. It is, thus, clear that if any power to tax is clearly mentioned in List - II the same would not be available to be exercised by Parliament based on the assumption of residuary power. The Seven-Judges Bench in Union of India vs. Habhajan Singh Dhillon, (1971) 2 SCC 779 , ruled, by a majority of 4:3, that the power to legislate in respect of a matter does not carry with it a power to impose a tax under our constitutional scheme. According to Seervai (Constitutional Law of India, Fourth/Silver Jubilee Edition, Vol.3, para 22.191): -"Although incase conflicting views were expressed about the nature of the residuary power, the nature of that power was stated authoritatively incase, (1973) 4 SCC 225. Earlier, in Golakcase (AIR 1967 SC 1643 ), Subha Rao C.J. (for himself, Shah, Sikri, Shelat and Vaidyalingam JJ) had held that Art. 368 only provided the procedure for the amendment of the Constitution, but that the power to amend the Constitution was to be found in the residuary power conferred on Parliament by Arts. 245 and 246(1) read with entry 97, List I and by Art, 248 Seven out of the nine judges who overruled Golakcase held, inter alia, that the power to amend the Constitution could not be located in the residuary powers of Parliament.116. The primary purpose of taxation is to collect revenue. Power to tax may be exercised for the purpose of regulating an industry, commerce or any other activity, the purpose of levying such tax, an impost to be more correct, is the exercise of sovereign power for the purpose of effectuating regulation though incidentally the levy may contribute to the revenue. Cooley in his work in Taxation (Vol. 1, Fourth Edition) deals with the subject in paragraphs 26 and 27. "There are some cases in which levies are made and collected ‘under the general designation of taxes, or under some term employed in revenue laws to indicate a particular class of taxes, where the imposition of the burden may fairly be referred to some other authority than to that branch of the sovereign power to the state under which the public revenues are apportioned and collected. The reason is that the imposition has not for its object the raising of revenue but looks rather to the regulation of relative rights, privileges and duties as between individuals, to the conservation of order in the political society, to the encouragement of industry, and the discouragement of pernicious employments. Legislation for these purposes it would seem proper to look upon as being made in the exercise of that authority which is inherent in every sovereignty, to make all such rules and regulations as are needful to secure and preserve the public order, and to protect each individual in the enjoyment of his own rights and privileges by requiring the observance of rules of order, fairness and good neighbourhood, by all around him. This manifestation of the sovereign authority is usually spoken of as the police power. The power to tax must be distinguished from an exercise of the police power. (State vs. Tucker, 56 U.S. 516). The political power ‘is a very different one from the taxing power, in its essential principles, though the taxing power, when a properly exercise, may indirectly tend to reach the end sought by the other in some cases." (p.94) "The distinction between a demand of money under the police power and one made under the power to tax is not so much one of from as to substance." (p.95). The distinction between a levy in exercise of police power to regulate and the one which would be in nature of tax is illustrated by Cooley by reference to a license. He says - ‘So-called license taxes are of two kinds. The one is a tax for the purpose of revenue. The other, which is, strictly speaking, not a tax at all but merely an exercise of the police power, is a fee imposed for the purpose of regulation." (p.In State of Orissa and others vs. Mahanadi Coalfields Ltd. and others 1995 Supp. (2) SCC 685, the impugned levy by the State Legislature was a tax of Rs. 32 per thousand acre on coal bearing lands. It was sought to be defended as falling under Entry 49 or in the alternative under Entry 23 or Entry 50 in List II. The attack was that the legislation being one on mineral lands and mineral rights and the Parliament having enacted the Mines and Minerals (Development and Regulation) Act, 1957, the field was entirely covered and the State Legislature was incompetent to levy the tax. Reliance was placed on India Cement. Orissa Cement and Buxa Dooars Tea Co. Ltd. (supra). Only mineral bearing land and coal bearing land were the subject of the levy of tax. The three-Judges Bench speaking through K.S. Paripoornan, J., concluded that the charging section of the impugned Act imposed a tax on the minerals also, and was not confined to a levy on land or surface characteristic of the land. All non-mineral bearing lands and non-coal bearing lands were left out of the levy. The levy was struck down as levying a tax not on land (related to surface characteristic of the land) but on minerals and mineral rights.case (supra) was cited before their Lordships and it was observed that incase the impugned levy was held to be a tax on land and that makes all the difference.126. We find it difficult to subscribe to the reasoning adopted in Mahanadi CoalfieldsCase134. Now, we come to Goodrickes case. The impugned provisions were incorporated by the West Bengal Taxation Laws (Second Amendment) Act 1989 into the West Bengal Primary Education Act, 1973 and the West Bengal rural Employment and production Act, 1976. Both the amendments were identical and have been set out in the earlier part of this judgment.135. While the State sought to justify the levy of impugned cess by references to Entry 49 of List II, the writ petitioner laid challenge to the validity of levy on very many grounds. It was submitted, firstly, that to bring the levy within the field of Entry 49 of List II it must be directly upon the land whereas the levy in question is really a tax on production of tea, a subject covered by Entry 84 of List I; secondly, that a tax on land must be constant figure whereas the impugned levy varies from year to year based as it is on the quantity of tea produced in a tea estate in a given year and where there is no production of tea leaves at all in a particular year, no cess would be payable by tea estate in that year; thirdly; that the definition of tea estate further establishes the absence of any nexus between cess and the land; land covered by the factory and building and even fallow land, is included within the meaning of tea estate and if no tea leaves are produced and plucked, there would not be levy on the estate at all; and fourthly, that the levy is clearly invalid in view of the seven-Judges Bench decision of this Court in India Cement and the three-Judges Bench decision in Orissa Cement. It was urged that the impugned amendment was brought to remove the defect in the levy pointed out in Buxa Dooars, but the flow was persisting. Jeevan Reddy, J., spoke for the three-Judges Bench, placing on record their unanimous opinion. The Court noticed, vide para 10, the real factual situation as general obtains about the tea estate. The definition of tea estate as incorporated by the amendment is a well-understood entity and hence is legitimately and reasonably capable of being classified as a separate category for the purpose of taxation and the rate of tax. The Court, on a near-exhaustive review of the available decisions on the point, arrived at a few conclusions which, so far as relevant for our purposes, are summed up as under:(i) a financial levy must have a made of assessment but the mode of assessment does not determine the character of a tax. the nature of machinery of assessment is often complicated and is not of much assistance except insofar as it may throw light on the general character of the tax. The annual value is not necessarily an actual income but only a standard by which income may be measured. Merely because the some standard or mechanism of assessment has been adopted in a legislation covered by an entry under the Union List and also by a legislation covered by an entry in the State List, the latter legislation cannot be said to have encroached upon the field meant for the former;(ii) the subject of tax is different from the measure of the levy;(iii) merely because a tax on land or building is imposed by reference to its income or yield, it does not cease to be a tax on land or building. The income or yield of the land/building is taken merely as a measure of the tax; it does not alter the nature or character of the levy. It still remains a tax on land or building. No one can say that a tax under a particular entry must be levied only in a particular manner. the legislature is free to adopt such method of levy as it chooses. So long as the essential character of levy is not departed from within the four corners of the particular entry, the manner of levying the tax would not have any vitiating effect;(iv) ample authority is available to hold that a tax on land within the meaning of Entry 49 of List II can be levied with reference to the yield of income. whether an agricultural land or an orchard or a tea estate, they do require some capital and labour to make them yield or to produce income which yield or income can without difficulty be taken as measure for quantifying the tax which would undoubtedly be a levy on the land;(v) It is not an essence of a tax, nor a condition of its validity, that the tax must be constant and uniform for all the years or for a particular number of years. The tax on land or building can be levied and assessed by reference to previous years income or yield. In short, it is open to the State Legislature to adopt such formula as it thinks appropriate for levying the tax and so long as the character of the tax remains the same as contemplated by the entry, it does not matter how the tax is calculated, measured or assessed;(vi) It is permissible to classify land by reference to its user as a separate unit for the purpose of levy of cess. Tea estate, as a separate category of land, is a valid classification;(vii) the fact that the Tea Act empowers the Central Government to levy a duty or cess upon tea or tea leaves for the purposes of that Act, can in no manner deprive the State Legislature of its power to tax the land comprised in a tea estate. By levying the cess the State Legislature is not seeking to control the cultivation of tea but only to levy the tax on land comprised in a tea estate. The fact that ultimately the tax may have to be borne by the tea industry is no ground for holding that the said levy is upon the tea industry. The State Legislature is not denuded of its power to levy a tax upon the land or upon a building merely because such land or building is held or owned by an industry which is governed by a central legislation.136. On applying the abovesaid principles the Court concluded that taking the quantum of yield of a tea estate for measuring the amount of tax is perfectly valid and cannot be equated to the situation in India Cement. We may observe that the reasoning adopting in Goodricke accords with the reasoning in Hingir-Rampur.137. Having made an independent review of several judicial decisions and the several settled legal principles, as dealt with hereinabove, we are satisfied that the Goodrickes case (supra) was correctly decided and the law laid down therein is correct and supported by authority in abundance. The distinguishing features which exclude the applicability of law laid down in India Cement and Orissa Cement to the fact situations like the ones we are called upon to deal with, were rightly pointed out in Goodricke and those very reasons additionally explained by us do not permit the cases on hand being ruled by India Cement and Orissaa nutshell138. The relevant principles culled out from the preceding discussion are summarized as under:-(1) In the scheme of the Lists in the Seventh Schedule, there exists a clear distinction between the general subjects of legislation and heads of taxation. They are separately enumerated.(2) Power of regulation and control is separate the distinct from the power of taxation and so are the two fields for purposes of legislation. Taxation may be capable of being comprised in the main subject of general legislative head by placing an extended construction, but that is not the rule for deciding the appropriate legislative field for taxation between List I and List II. As the fields of taxation are to be found clearly enumerated in Lists I and II, there can be no overlapping. There may be overlapping in fact but there would be no overlapping in law. The subject matter of two taxes by reference to two Lists being different simply because the methodology or mechanism adopted for assessment and quantification is similar, the two taxes cannot be said to be overlapping. This is the distinction between the subject of a tax and the measure of a tax.(3) The nature of tax levied is different from the measure of tax. While the subject of tax is clear and well defined, the amount of tax is capable of being measured in many ways for the purpose of quantification. Defining the subject of tax is a simple task; devising the measure of taxation is a far more complex exercise and therefore the legislature has to be given much more flexibility in the latter field. The mechanism and method chosen by Legislature for quantification of tax is not decisive of the measure of tax though it may constitute one relevant factor out of many for throwing light on determining the general character of the tax.(4) Entries 52, 53 and 54 in List I are not heads of taxation. They are general entries. Fields of taxation covered by Entries 49 and 50 in List II continue to remain with State Legislatures in spite of Union having enacted laws by reference to Entries 52, 53, 54 in List I. It is for the Union to legislate and impose limitations on States otherwise plenary power to levy taxes on mineral rights or taxes on lands (including mineral bearing lands) by reference to Entry 50 and 49 in List II and lay down the limitations on States power, if it chooses to do so, and also to define the extent and sweep of such limitations.(5) The Entries in List I and List II must be so construed as to avoid any conflict. If there is no conflict, an occasion for deriving assistance from non-obstante clause "subject to" does not arise. If there is conflict, the correct approach is to find an answer to three questions step by step as under:One - Is still possible to effect reconciliation between two Entries so as to avoid conflict and overlapping?Two - In which Entry the impugned legislation falls by finding out the pith and substance of the legislation?andThree - Having determined the field of legislation wherein the impugned legislation falls by applying doctrine of pith and substance, can an incidental trenching upon another field of legislation be ignored?(6) Land, the term as occurring in Entry 49 of List II, has a wide connotation. Land remains land though it may be subjected to different user. The nature of user of the land would not enable a piece of land being taken out of the meaning of land itself. Different uses to which the land is subjected or is capable of being subjected provide basis for classifying land into different identifiable groups for the purpose of taxation. The nature of user of one piece of land would enable that piece of land being classified separately from another piece of land which is being subjected to another kind of user, though the two places of land are identically situated except for the difference in nature of user. The tax would remain a tax on land and would not become a tax on the nature of its user.(7) To be a tax on land, the levy must have some direct and definite relationship with the land. So long as the tax on land by bearing such relationship with the land, it is open for the legislature for the purpose of levying tax to adopt any one of the well known modes of determining the value of the land such as annual or capital value of the land or its productivity. The methodology adopted, having an indirect relationship with the land, would not alter the nature of the tax as being one on land.(8) The primary object and the essential purpose of legislation must be distinguished from its ultimate or incidental results or consequences, for determining the character of the levy. A levy essentially in the nature of a tax and within the power of State Legislature cannot be annulled as unconstitutional merely because it may have an affect on the price of the commodity. A State legislation, which makes provisions for levying a cess, whether by way of tax to augment the revenue resources of the State or by way of fee to render services as quid pro quo but without any intension of regulating the controlling the subject of the levy, cannot be said to have encroached upon the field of regulation and control belonging to the Central Government by reason of the incidence of levy being permissible to be passed on to the buyer or consumer, and thereby affecting the price of the commodity or goods. Entry 23 in List II speaks of regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. Entries 52 and 54 of List I are both qualified by the expression "declared by Parliament by law to be expedient in the public interest". A reading in juxtaposition shows that the declaration by Parliament must be for the control of industries in Entry 52 and for regulation of mines or for mineral development in Entry 54. Such control, regulation or development must be expedient in the public interest. Legislation by the Union in the field covered by Entries 52 and 54 would not like a magic touch or a taboo denude the entire field forming subject matter of declaration to the State Legislatures. Denial to the State would extend only to the extent of the declaration so made by Parliament. In spite of declaration made by reference to Entry 52 or 54, the State would be free to act in the field left out from the declaration. The legislative power to tax by reference to Entries in List II is plenary unless the entry itself makes the field subject to any other entry or abstracts the field by any limitations imposable and permissible. A tax or fee levied by State with the object of augmenting its finances and in reasonable limits does not ipso facto trench upon regulation, development or control of the subject. it is different if the tax or fee sought to be levied by State can itself be called regulatory, the primary purpose whereof is to regulate or control and augmentation of revenue or rendering service is only secondary or incidental.(9) The heads of taxation are clearly enumerated in Entries 83 to 92B in List I and Entries 45 to 63 in List II. List III, the Concurrent List, does not provide for any head of taxation. Entry 96 in List I, Entry 66 in List II and Entry 47 in List III deal with fees. The residuary power of legislation in the field of taxation spelled out by Article 248 (2) and Entry 97 in List I can be applied only to such subjects as are not included in Entries 45 to 63 of List II. it follow that taxes on lands and buildings in Entry 49 of List II cannot be levied by the Union. Taxes on mineral rights, a subject in Entry 50 of List II can also not be levied by the union though as stated in Entry 50 itself the union may impose limitations on the power of the State and such limitations, if any, imposed by the Parliament by law relating to mineral development and to that extent shall circumscribe the States power to legislate. Power to tax mineral rights is with the States; the power to lay down limitations on exercise of such power, in the interest of regulation, development or control, as the case may be, is with the Union. This is the result achieved by homogeneous reading of Entry 50 in List II and Entries 52 and 54 in List I. So long as a tax or fee on mineral rights remains in pith and substance a tax for augmenting the revenue resources of the State or a fee for rendering services by the State and it does not impinge upon regulation of mines and mineral development or upon control of industry by the Central Government, it is notCoal Matters139. Teh amendments incorporated by the West Bengal Taxation Laws (Amendment) Act 1992 w.e.f. 1.4.1992 into the provisions of the West Bengal Primary Education Act 1973 and the West Bengal Rural Employment and Production Act 1976 classify the land into three categories: (i) coal-bearing land, (ii) mineral bearing land (other than coal bearing land) or quarry and (iii) land other than the preceding two categories. These three are well-defined classifications by reference to the user or quality and the nature of product which it is capable of yielding. The cess is levied on the land. The method of quantifying the tax is by reference to the annual value thereof. It is well-known that one of the major factors contributing to the value of the land is what it produces or is capable of producing. Merely because the quantum of coal produced and dispatched or the quantum of mineral produced and dispatched from the land is the factor taken into consideration for determining the value of the land, it does not become a tax on coal or minerals. Being a tax on land it is fully covered by Entry 49 in List II. Assuming it to be a tax on mineral rights it would be covered by Entry 50 in List II. Taxes on mineral rights lie within the legislative competence of the State Legislature "subject to" any limitation imposed by Parliament by law relating to mineral development. The Central legislation has not placed any limitation on the power of the States to legislate in the field of taxation on mineral rights. The challenge to constitutional validity of State legislation is founded on non-availability of legislative field to State; it has not been the case of any of the writ petitioners that there are limitations enacted by Central legislation and the State of West Bengal has breached or crossed those limits. Simply because incidence of tax is capable of being passed on to buyers or consumers by the mine owners with an escalating affect on the price of the coal, it cannot be inferred that the tax has an adverse effect on mineral development. Entry 23 in List II speaks of regulation of mines and mineral developments, subject to the provisions of List I with respect to regulation and development under the control of the Union. The Central Legislation has taken over regulation and development of mines and mineral development in public interest. By reference to Entry 50 of List II and Entry 54 in List I, the Central legislation has not cast any limitations on the State Legislatures power to tax mineral rights, or land for the matter of that. The impugned cess is a tax on coal-bearing and mineral-bearing land. It can at the most be construed to be a tax on mineral rights. In either case, the impugned cess is covered by Entries 49 and 50 of List II. The West Bengal Taxation Laws (Amendment) Act 1992 must be and is held to be intra vires the Constitution.140. We also hold that Mahanadi Coalfields was not correctly decided in as much as India Cement Ltd. and Orissa Cement Ltd. were applied to the levy of a cess to which they did not apply. The learned Judges, deciding Mahanadi Coalfields Ltd. were, with respect, not right in forming the opinion that the cess was levied on minerals and mineral rights and not on land and hence the conclusion reached therein that the State Legislature did not have the legislative competence and that the State legislation trenched upon a field already occupied by Mines and Minerals (Regulation and Development) Act 1957, a Central Legislation is incorrect. State of Orissa & Ors. Vs. Mahanadi Coalfields Ltd. and Ors., 1995 Supp. (2) SCC 686, is overfuled.(B) Tea Matters141. Inasmuch as we have held Goodricke Group Ltd. and Ors. Vs. State of West Bengal and Ors.- (1995) Supp. 1 SCC 707 to have been correctly decided the impugned levy on tea estates as levied by the West Bengal Taxation Laws (Second Amendment) Act 1989, is held to be intra vires the Constitution. However, in brief, we may state that the impugned levy is of cesses on tea estates i.e. the land forming part of tea estates as defined in the impugned Act. The land forming part of the tea estates is a well-defined classification. Simply because the method for quantifying the tax is by reference to the yield of the land determinable by taking into account the quantum of tea produced and dispatched, it does not become a cess on tea or a tax on production of tea or a tax on income of land. The Tea Act of 1953 contains a declaration vide Section 2 thereof that it is expedient in the public interest that the Union should take under its control the tea industry. The declaration is in terms of Entry 52 in List I. Unions assumption of control of tea as industry and as being expedient in the public interest, does not amount to vesting the power to tax or levy fee in the Central Government by reference to tea or on tea estates. Section 25 of Tea Act empowers the Central Government to levy and collect excise duty on tea produces, which on collection shall be credited to the Consolidated Fund of India. There is no other provision in Tea Act empowering levy of any tax or fee on tea or tea bearing land. The impugned cess is a tax on tea-bearing land, a well-defined classification ad is covered by Entry 49 in List II. We uphold the logic and reasoning assigned and conclusions drawn by this Court in Goodricke on all the counts.(C) Bricks Earth Matters142. Brick earth is a minor mineral. What we have stated about the impugned cess by reference to coal applies to brick earth as well. The field as to taxation cannot be said to have been covered by Central Legislation by reference to Entry 54 in Schedule I. Quantification of levy by reference to quantity of brick earth dispatched is a methodology adopted for the purpose of finding out the quantity of brick earth removed from the land. It has a definite and direct co-relation with the land. There is no particular charm about the challenge developed by the writ petitioners laying emphasis on the meaning of the word "dispatched". The gist and substance of what the legislature is taking into account is the brick earth actually removed. "Dispatched" has the effect of taking into account the brick earth "removed" and not simply "moved" and left behind. The average quantity of brick earth utilized in making bricks whether on the brick field itself or on a place nearby, does involve removal - and consequently dispatch - of the brick earth from the place where it was to the place where it is captively consumed in making bricks. The fact that methodology for working out the royalty payable and the cess payable is the same, does not have any detrimental effect on the constitutional validity of the cess whether it be treated as one on the land - classified by reference to its production, i.e. the brick earth or as one on mineral rights in brick earth. In either case it would be covered by Entries 49 of 50 in List II. None of the pleas raised has any52. As a tax the impugned levy of cess is clearly covered by Entry 5 of List II (as the High Court has held, and we add) read with Entries 49, 50 and 66 of List II. There is no challenge to the declaration of the area as a special development area and the constitution of Special Area Development Authority for the administration thereof. In other words, the constitutional validity of the enactment as a whole and the rules framed thereunder is not put in issue. What is under challenge is only the levy of cess. There is nothing wrong in the state legislation levying cess by way of tax so as to generate its funds. Although it is termed as a cess on mineral right, the impact thereof falls on the land delivering the minerals. Thus, the levy of cess also falls within the scope of Entry 49 of List II. Inasmuch as the levy on mineral rights does not contravene any of the limitations imposed by the Parliament by law relating to mineral development, it is also covered by Entry 50 of List II. The power to levy any tax or fee lying within the legislative competence of the State Legislature can be delegated to an institution of local government constituted by law within the meaning of Entry 5 in List II. The Entries 5, 23, 49, 50 and 66 of List II provide adequate constitutional coverage to the impugned levy of cess. True it is that the method of quantifying the cess is by reference to the quantum of mineral produced. This would not alter the character of the levy. There are myriad methods of calculating the value of the land for the purpose of quantifying the tax reference whereto has already been made by us in the other part of this judgment. Validity of cess upon the land quantified by reference to the quantity of its produce was held to be a levy on the land and hence constitutional in Ralla Ram, AIR 1949 FC 81, Moopil Nair, AIR 1961 SC 552 and Aja Kumar Mukherjee, AIR 1965 SC 1561 . It does not become excise duty on manufacture and production of goods merely on account of having relation with the quantity of product yielded of the land. Rather it is a safe, sound and scientific method of determining the value of the land to which the product relates. They levy of cess considered as a tax is constitutionally valid.Royalty is not a tax. The impugned cess by no stretch of imagination can be called a tax on tax. The impugned levy also does not have the effect of increasing the royalty. Simply because the royalty is levied by reference to the quantity of the minerals produced and the impugned cess too is quantified by taking into consideration the same quantity of the mineral produced, the latter does not become royalty. The former is the rent of the land on which the mine is situated or the price of the privilege of winning the minerals from the land parted by the government in favour of the mining lessee. The cess is a levy on mineral rights with impact on the land and quantified by reference to the quantum of minerals procuded. The distinction, though fine, yet exists and is

### 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: List II. The power to levy any tax or fee lying within the legislative competence of the State Legislature can be delegated to an institution of local government constituted by law within the meaning of Entry 5 in List II. The Entries 5, 23, 49, 50 and 66 of List II provide adequate constitutional coverage to the impugned levy of cess. True it is that the method of quantifying the cess is by reference to the quantum of mineral produced. This would not alter the character of the levy. There are myriad methods of calculating the value of the land for the purpose of quantifying the tax reference whereto has already been made by us in the other part of this judgment. Validity of cess upon the land quantified by reference to the quantity of its produce was held to be a levy on the land and hence constitutional in Ralla Ram, AIR 1949 FC 81, Moopil Nair, AIR 1961 SC 552 and Aja Kumar Mukherjee, AIR 1965 SC 1561 . It does not become excise duty on manufacture and production of goods merely on account of having relation with the quantity of product yielded of the land. Rather it is a safe, sound and scientific method of determining the value of the land to which the product relates. They levy of cess considered as a tax is constitutionally valid. 153. In Western Coalfields Ltd. Vs. Special Area Development Authority, Korba & Anr. (1982) 1 SCC 125 , the levy of a cess almost similar to the one in issue in the present case, came up for the consideration of this Court. The levy was for the purpose of enabling the municipal administration to exercise its power and discharge its functions under the Act. It was held that the declaration contained in Section 2 of the MMDR act does not have the effect of bringing the powers, duties and functions of the local authority within the purview of accupied field. The power to levy tax on lands and buildings within their jurisdiction by the local authority was upheld by this Court. 154. The following observations of Constitution Bench in Hingir-Rampur Coal Co. squarely apply to SADA Act and SADA Rules for upholding their constitutional validity:- "......in pith and substance the impugned Act is concerned with the development of the mining areas notified under it. The Central Act, on the other hand, deals more directly with the control of all industries including of course the industry of coal." "The functions of the Development Councils constituted under this Act prescribed by Section 6(4) bring out the real purpose and object of the Act. It is to increase the efficiency of productivity in the scheduled industry of group of scheduled industries, to improve or develop the service that such industry or group of industries renders or could render to the community, or to enable such industry or group of industries to render such service more economically." "......the object of the (Central) Act is to regulate the scheduled industries with a view to improvement and development of the service that they may render to the society, and thus assist the solution of the larger problem of national economy. It is difficult to hold that the field covered by the declaration made by Section 2 of this Act, considered in the light of its several provisions, is the same as the field covered by the impugned Act. The being so, it cannot be said that as a result of Entry 52 read with Act LXV of 1951 the vires of the impugned Act can be successfully challenged." "Our conclusion, therefore, is that the impugned Act is relatable to Entries 234 and 66 in List II of the Seventh Schedule, and its validity is not impaired or affected by Entries 52 and 54 in List I read with Act LXV of 1951 and Act LIII of 1948 respectively." 155. As stated earlier also, the impugned cess can be justified as fee as well. The term cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well. It is not necessary that the services rendered from out of the fee collected should be directly not proportion with the amount of fee collected. It is equally not necessary that the services rendered by the fee collected should remain confined to the persons from whom the fee has been collected. Availability of indirect benefit and a general nexus between the person bearing the burden of levy of fee and the services rendered out of the fee collected is enough to uphold the validity of the fee charged. The levy of the impugned cess can equally be upheld by reference to Entry 66 read with Entry 5 of Schedule II. 156. Royalty is not a tax. The impugned cess by no stretch of imagination can be called a tax on tax. The impugned levy also does not have the effect of increasing the royalty. Simply because the royalty is levied by reference to the quantity of the minerals produced and the impugned cess too is quantified by taking into consideration the same quantity of the mineral produced, the latter does not become royalty. The former is the rent of the land on which the mine is situated or the price of the privilege of winning the minerals from the land parted by the government in favour of the mining lessee. The cess is a levy on mineral rights with impact on the land and quantified by reference to the quantum of minerals procuded. The distinction, though fine, yet exists and is perceptible. 157. In our opinion Ram Dhani Singh Vs. Collector, Sonbhadra & Ors. - AIR 2001 All. 5 has been correctly decided. We uphold and affirm the same. End Result ### Response: 1 ### Explanation: contains a declaration vide Section 2 thereof that it is expedient in the public interest that the Union should take under its control the tea industry. The declaration is in terms of Entry 52 in List I. Unions assumption of control of tea as industry and as being expedient in the public interest, does not amount to vesting the power to tax or levy fee in the Central Government by reference to tea or on tea estates. Section 25 of Tea Act empowers the Central Government to levy and collect excise duty on tea produces, which on collection shall be credited to the Consolidated Fund of India. There is no other provision in Tea Act empowering levy of any tax or fee on tea or tea bearing land. The impugned cess is a tax on tea-bearing land, a well-defined classification ad is covered by Entry 49 in List II. We uphold the logic and reasoning assigned and conclusions drawn by this Court in Goodricke on all the counts.(C) Bricks Earth Matters142. Brick earth is a minor mineral. What we have stated about the impugned cess by reference to coal applies to brick earth as well. The field as to taxation cannot be said to have been covered by Central Legislation by reference to Entry 54 in Schedule I. Quantification of levy by reference to quantity of brick earth dispatched is a methodology adopted for the purpose of finding out the quantity of brick earth removed from the land. It has a definite and direct co-relation with the land. There is no particular charm about the challenge developed by the writ petitioners laying emphasis on the meaning of the word "dispatched". The gist and substance of what the legislature is taking into account is the brick earth actually removed. "Dispatched" has the effect of taking into account the brick earth "removed" and not simply "moved" and left behind. The average quantity of brick earth utilized in making bricks whether on the brick field itself or on a place nearby, does involve removal - and consequently dispatch - of the brick earth from the place where it was to the place where it is captively consumed in making bricks. The fact that methodology for working out the royalty payable and the cess payable is the same, does not have any detrimental effect on the constitutional validity of the cess whether it be treated as one on the land - classified by reference to its production, i.e. the brick earth or as one on mineral rights in brick earth. In either case it would be covered by Entries 49 of 50 in List II. None of the pleas raised has any52. As a tax the impugned levy of cess is clearly covered by Entry 5 of List II (as the High Court has held, and we add) read with Entries 49, 50 and 66 of List II. There is no challenge to the declaration of the area as a special development area and the constitution of Special Area Development Authority for the administration thereof. In other words, the constitutional validity of the enactment as a whole and the rules framed thereunder is not put in issue. What is under challenge is only the levy of cess. There is nothing wrong in the state legislation levying cess by way of tax so as to generate its funds. Although it is termed as a cess on mineral right, the impact thereof falls on the land delivering the minerals. Thus, the levy of cess also falls within the scope of Entry 49 of List II. Inasmuch as the levy on mineral rights does not contravene any of the limitations imposed by the Parliament by law relating to mineral development, it is also covered by Entry 50 of List II. The power to levy any tax or fee lying within the legislative competence of the State Legislature can be delegated to an institution of local government constituted by law within the meaning of Entry 5 in List II. The Entries 5, 23, 49, 50 and 66 of List II provide adequate constitutional coverage to the impugned levy of cess. True it is that the method of quantifying the cess is by reference to the quantum of mineral produced. This would not alter the character of the levy. There are myriad methods of calculating the value of the land for the purpose of quantifying the tax reference whereto has already been made by us in the other part of this judgment. Validity of cess upon the land quantified by reference to the quantity of its produce was held to be a levy on the land and hence constitutional in Ralla Ram, AIR 1949 FC 81, Moopil Nair, AIR 1961 SC 552 and Aja Kumar Mukherjee, AIR 1965 SC 1561 . It does not become excise duty on manufacture and production of goods merely on account of having relation with the quantity of product yielded of the land. Rather it is a safe, sound and scientific method of determining the value of the land to which the product relates. They levy of cess considered as a tax is constitutionally valid.Royalty is not a tax. The impugned cess by no stretch of imagination can be called a tax on tax. The impugned levy also does not have the effect of increasing the royalty. Simply because the royalty is levied by reference to the quantity of the minerals produced and the impugned cess too is quantified by taking into consideration the same quantity of the mineral produced, the latter does not become royalty. The former is the rent of the land on which the mine is situated or the price of the privilege of winning the minerals from the land parted by the government in favour of the mining lessee. The cess is a levy on mineral rights with impact on the land and quantified by reference to the quantum of minerals procuded. The distinction, though fine, yet exists and is

Jagdish Singh Vs. Lt. Governor Delhi

membership of the person concerned is in relation to the Society pertaining to which disqualifications are incurred. A plain reading of Rule 28 makes it crystal clear that the Registrar when becomes aware of the fact that an individual has become a member of two Co-operative Societies of the same class which obviously is a disqualification under Rule 25 then he has the discretion to direct removal of the said individual from the membership of either or both the Co-operative Societies. If Sub-rule (2) of Rule 25 is interpreted to mean that deemed cessation of the person concerned from membership of both the Societies then the question of discretion of the Registrar under Rule 28 will not arise. If the interpretation given by the Registrar to Sub-rule (2) of Rule 25 as well as the contention raised by the learned Counsel for the respondents is sustained then the said sub-rule will be at loggerhead with Rule 28. On the other hand, if Sub-rule (2) is interpreted to mean that the deemed cessation is in relation to the Society in respect of which the person concerned incurs the disqualification then both Sub-rule (2) as well as Rule 28 would have its play. Rule 28 in our considered opinion cannot be held to be otiose and must be allowed to have its full play. In this view of the matter the only way by which Sub-rule (2) of Rule 25 and Rule 28 can be harmoniously construed is to construe Sub-rule (2) to Rule 25 to mean that the deemed cessation of the person concerned from the membership of the Society, is the Society in respect of which the disqualification was incurred. In the case in hand the disqualification which the appellant incurred was in respect of his membership of the Tribal Co-operative Housing Society Ltd. as he could not have become a member of the said Society as he was already a member of Dronacharaya Co-operative Group Housing Society, and therefore, by operation of Sub-rule (2) he would deem to have ceased to be a member from the Tribal Co-operative Housing Society right from the inception in November, 1983 and not from the Dronacharaya Co-operative Group Housing Society. 7. Apart from the aforesaid harmonious construction of Sub-rule (2) of Rule 25 and Rule 28, on a plain construction of Rule 25 also the same conclusion has to be arrived at. Sub-rule (1) disqualifies a person for admission as a member of a Housing Society if he or his spouse or any of his dependent children is a member of any other Housing Society. The disqualification in question obviously attaches to membership of the second Society and has no connection with his membership of the first Society. In view of the aforesaid embargo contained in Sub-rule (1) of Rule 25, Sub-rule (2) by its operation bring in the fiction of deemed cessation from the membership of such Society from the date when the disqualification was incurred and such fiction of deemed cessation has nothing to do with the membership of the first Society. This being the position, Sub-rule (2) of Rule 25 when read with Sub-rule (1) of the said Rule is not susceptible of a construction that the person concerned ceased to be a member of both the Societies. In view of our aforesaid construction of Sub-rule (2) of Rule 25, .the conclusion is irresistible that the Registrar while passing the impugned order dated 23rd February, 1993 and Lt. Governor while dismissing the appellants Revision by his order dated 25th August, 1993 as well as the High Court in the impugned judgment dated 20th March, 1996 committed gross error in holding that the appellant ceases to be a member of both the Societies under Sub-rule (2) of Rule 25. The aforesaid orders, therefore, are wholly unsustainable and cannot be sustained. 8. At this stage, it would be appropriate to deal with the contention of the learned Counsel for the respondents that since the Registrar had the power under Rule 28 to direct removal of membership from either of the Societies or the both the impugned order passed by the Registrar may be construed to be one under Rule 28. Though prima facie the aforesaid contention may be attractive but it does not sustain a deeper scrutiny. In the case in hand a notice to show cause was issued by the Registrar in exercise of power under Sub-rule (4) of Rule 25 indicating that on account of the disqualification of the appellant incurred under Rule 25(1)(c)(iii) he has ceased to be a member of both the Societies under Sub-rule (2) of Rule 25. The Registrar while issuing notice or while passing the impugned order has not chosen to exercise his discretion conferred under Rule 28 of the Rules. When a power has been conferred upon the Registrar under Rule 28 to decide as to whether he would direct cancellation of the membership of the person concerned from anyone of the two Societies or the both when it comes to his knowledge that a person has become a member of two of the Co-operative Societies, then a corresponding duty is cast upon him to examine the circumstances under which the person concerned has become member of two Societies and to take a conscious decision in the matter of exercise of his discretion. The discretion in question obviously has to be judiciously exercised and not arbitrarily, depending upon the facts and circumstances of each case. That being the position, it is difficult to accept the contention of the learned Counsel for the respondent that the impugned direction of the Registrar could be treated as one under Rule 28 when on the face of it we find that the Registrar has not chosen to exercise his power under Rule 28 nor has he taken all relevant materials into consideration in exercising his discretion, one way or the other. On the other hand he has chosen to exercise his power under Sub-rule (4) of Rule 25.

1[ds]7. Apart from the aforesaid harmonious construction of(2) of Rule 25 and Rule 28, on a plain construction of Rule 25 also the same conclusion has to be arrived at.(1) disqualifies a person for admission as a member of a Housing Society if he or his spouse or any of his dependent children is a member of any other Housing Society. The disqualification in question obviously attaches to membership of the second Society and has no connection with his membership of the first Society. In view of the aforesaid embargo contained in(1) of Rule 25,(2) by its operation bring in the fiction of deemed cessation from the membership of such Society from the date when the disqualification was incurred and such fiction of deemed cessation has nothing to do with the membership of the first Society. This being the position,(2) of Rule 25 when read with(1) of the said Rule is not susceptible of a construction that the person concerned ceased to be a member of both the Societies. In view of our aforesaid construction of(2) of Rule 25, .the conclusion is irresistible that the Registrar while passing the impugned order dated 23rd February, 1993 and Lt. Governor while dismissing the appellants Revision by his order dated 25th August, 1993 as well as the High Court in the impugned judgment dated 20th March, 1996 committed gross error in holding that the appellant ceases to be a member of both the Societies under(2) of Rule 25. The aforesaid orders, therefore, are wholly unsustainable and cannot be sustained.

### 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: membership of the person concerned is in relation to the Society pertaining to which disqualifications are incurred. A plain reading of Rule 28 makes it crystal clear that the Registrar when becomes aware of the fact that an individual has become a member of two Co-operative Societies of the same class which obviously is a disqualification under Rule 25 then he has the discretion to direct removal of the said individual from the membership of either or both the Co-operative Societies. If Sub-rule (2) of Rule 25 is interpreted to mean that deemed cessation of the person concerned from membership of both the Societies then the question of discretion of the Registrar under Rule 28 will not arise. If the interpretation given by the Registrar to Sub-rule (2) of Rule 25 as well as the contention raised by the learned Counsel for the respondents is sustained then the said sub-rule will be at loggerhead with Rule 28. On the other hand, if Sub-rule (2) is interpreted to mean that the deemed cessation is in relation to the Society in respect of which the person concerned incurs the disqualification then both Sub-rule (2) as well as Rule 28 would have its play. Rule 28 in our considered opinion cannot be held to be otiose and must be allowed to have its full play. In this view of the matter the only way by which Sub-rule (2) of Rule 25 and Rule 28 can be harmoniously construed is to construe Sub-rule (2) to Rule 25 to mean that the deemed cessation of the person concerned from the membership of the Society, is the Society in respect of which the disqualification was incurred. In the case in hand the disqualification which the appellant incurred was in respect of his membership of the Tribal Co-operative Housing Society Ltd. as he could not have become a member of the said Society as he was already a member of Dronacharaya Co-operative Group Housing Society, and therefore, by operation of Sub-rule (2) he would deem to have ceased to be a member from the Tribal Co-operative Housing Society right from the inception in November, 1983 and not from the Dronacharaya Co-operative Group Housing Society. 7. Apart from the aforesaid harmonious construction of Sub-rule (2) of Rule 25 and Rule 28, on a plain construction of Rule 25 also the same conclusion has to be arrived at. Sub-rule (1) disqualifies a person for admission as a member of a Housing Society if he or his spouse or any of his dependent children is a member of any other Housing Society. The disqualification in question obviously attaches to membership of the second Society and has no connection with his membership of the first Society. In view of the aforesaid embargo contained in Sub-rule (1) of Rule 25, Sub-rule (2) by its operation bring in the fiction of deemed cessation from the membership of such Society from the date when the disqualification was incurred and such fiction of deemed cessation has nothing to do with the membership of the first Society. This being the position, Sub-rule (2) of Rule 25 when read with Sub-rule (1) of the said Rule is not susceptible of a construction that the person concerned ceased to be a member of both the Societies. In view of our aforesaid construction of Sub-rule (2) of Rule 25, .the conclusion is irresistible that the Registrar while passing the impugned order dated 23rd February, 1993 and Lt. Governor while dismissing the appellants Revision by his order dated 25th August, 1993 as well as the High Court in the impugned judgment dated 20th March, 1996 committed gross error in holding that the appellant ceases to be a member of both the Societies under Sub-rule (2) of Rule 25. The aforesaid orders, therefore, are wholly unsustainable and cannot be sustained. 8. At this stage, it would be appropriate to deal with the contention of the learned Counsel for the respondents that since the Registrar had the power under Rule 28 to direct removal of membership from either of the Societies or the both the impugned order passed by the Registrar may be construed to be one under Rule 28. Though prima facie the aforesaid contention may be attractive but it does not sustain a deeper scrutiny. In the case in hand a notice to show cause was issued by the Registrar in exercise of power under Sub-rule (4) of Rule 25 indicating that on account of the disqualification of the appellant incurred under Rule 25(1)(c)(iii) he has ceased to be a member of both the Societies under Sub-rule (2) of Rule 25. The Registrar while issuing notice or while passing the impugned order has not chosen to exercise his discretion conferred under Rule 28 of the Rules. When a power has been conferred upon the Registrar under Rule 28 to decide as to whether he would direct cancellation of the membership of the person concerned from anyone of the two Societies or the both when it comes to his knowledge that a person has become a member of two of the Co-operative Societies, then a corresponding duty is cast upon him to examine the circumstances under which the person concerned has become member of two Societies and to take a conscious decision in the matter of exercise of his discretion. The discretion in question obviously has to be judiciously exercised and not arbitrarily, depending upon the facts and circumstances of each case. That being the position, it is difficult to accept the contention of the learned Counsel for the respondent that the impugned direction of the Registrar could be treated as one under Rule 28 when on the face of it we find that the Registrar has not chosen to exercise his power under Rule 28 nor has he taken all relevant materials into consideration in exercising his discretion, one way or the other. On the other hand he has chosen to exercise his power under Sub-rule (4) of Rule 25. ### Response: 1 ### Explanation: 7. Apart from the aforesaid harmonious construction of(2) of Rule 25 and Rule 28, on a plain construction of Rule 25 also the same conclusion has to be arrived at.(1) disqualifies a person for admission as a member of a Housing Society if he or his spouse or any of his dependent children is a member of any other Housing Society. The disqualification in question obviously attaches to membership of the second Society and has no connection with his membership of the first Society. In view of the aforesaid embargo contained in(1) of Rule 25,(2) by its operation bring in the fiction of deemed cessation from the membership of such Society from the date when the disqualification was incurred and such fiction of deemed cessation has nothing to do with the membership of the first Society. This being the position,(2) of Rule 25 when read with(1) of the said Rule is not susceptible of a construction that the person concerned ceased to be a member of both the Societies. In view of our aforesaid construction of(2) of Rule 25, .the conclusion is irresistible that the Registrar while passing the impugned order dated 23rd February, 1993 and Lt. Governor while dismissing the appellants Revision by his order dated 25th August, 1993 as well as the High Court in the impugned judgment dated 20th March, 1996 committed gross error in holding that the appellant ceases to be a member of both the Societies under(2) of Rule 25. The aforesaid orders, therefore, are wholly unsustainable and cannot be sustained.

University of Cochin Vs. Dr. N. Raman Nair and Others

learned Counsel for the University that the validity of the impugned resolution may be doubtful so far as the withdrawal of the post of Professor form the application of the abovementioned rules is concerned but learned Counsel submitted we need not decide that question as we are not concerned here with an appointment to the post of a Professor. If however the Professors and Lecturers and Readers were all to fall in one class it may become necessary to consider this question also. Moreover we indicated below the two parts of the resolution do not seem to be separable. It is true that Section 6 sub-section (2) lodges in the University power to determine what should constitute a class or category of service under the University. No rigid formula to fit all circumstances can be laid down and the authority concerned must be left to define subject to constitutional limitations what should be a class or category. But this power would not, in our opinion, enable the University to dispense with the application of the rotation principle itself to any particular class or category of service under the University as appears to have been the real object of the resolution of 17-7-1972 with regard to Professors.13. The word service does seem to us to denote, as the High Court held, various classes or categories of posts within it. It is obviously the widest class a classification which puts the whole teaching staff in one class for purposes of applying the rule would seem unassailable. But one which puts all classes and categories of service from the peons to Professors together may be destroying the distinction between classes and categories of service, seems to run counter to the words used in section 6 (2). As that question is not before us, we refrain from deciding it. This provision appears to us to be intended to ensure that whatever may be kind of post to be held by a person in a service "under the University" principles laid down in Rules 14, 15, 16 and 17 must apply in making appointments to it. We are not called upon to decide here what is meant by a service "under the University" as it is admitted by both sides that this description applies to the post of a Reader. Nor have we to determine here the reasonableness of a classification which may put the teaching and non-teaching staff in one class or category.14. It was submitted by learned Counsel for the University, that the resolution of 17-7-1972 was intended to do no more than to categorise "Readers, lecturers and Teaching Assistants" by putting them into a single class or category for applying the rules to them. "collectively". If that is all it was meant to do apart from attempting to place posts of Professors outside rules 14 to 17, the intention is expressed in every unsatisfactory and misleading language. It is of course open to the University to pass a resolution which does not contravene Section 6 (2) of the Act. A resolution which merely classifies or categories posts in a reasonable manner would not offend against statutory provisions. The resolution of 17-7-1972 is however at least partly invalid on the face of it by attempting to place appointments to the post of a Professor outside the reservation and rotation rules altogether and it is partly at least ambiguous so that it is difficult to decipher its exact meaning. The second part seems designed in so far as one may guess its meaning to provide for "Other Backward Classes" a compensatory quote of reserved appointments in a category other than that of Professors in lieu of the removal of posts of Professors from subjection to the rules. If this is the real object as it seems to be the intention was to alter the scope or ambit of the rotation rule. The second part is apparently a consequence of the exclusion of the Professors from the operation of the rules ....... which is itself not permissible ..... and not an adaptation for the purposes of applying the rules to the University. Thus the two parts seem to be inseparable. We therefore consider the resolution to be wholly invalid. The validity of Section 6 (2) has not been questioned either in the High Court or here.15. We have been informed at the Bar that both the 1st and the 3rd Respondents, that is to say Dr. Nair and Dr. Ramchandra Dev are at present holding posts of Readers in the Hindi department as the needs of the University have expanded. It may however be necessary to determine the order of their appointments after the University has laid down its own method of reasonable classification either of the whole teaching staff of the University collectively or by putting various categories of the teaching staff into separate compartments for the application of the rules. We have held that the University has this power provided it is exercised on good and reasonable grounds. We have only indicated that on such facts as have come to our notice the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev were competing seemed to us to be the first to arise for the purposes of applying Section 6 (2) of the Act. As this matter was not fully investigated and the power is vested in the University to make its own classification within the limits indicated by us, we think that it is desirable that the University should be left to make its own reasonable classification in accordance with the principles laid down above by us so as to determine which of the two Readers was entitled to be appointed earlier. In other words the Syndicate of the University will have to pass a fresh resolution which is in accordance with the law as explained by us and then to apply the rules in conformity with such a resolution in exercise of the powers possessed by the University.

0[ds]In doing so it may appear that the principle of equality of opportunity on the basis of individual merit is being modified. Even if that be the result, the wider object is to promote equality between groups of citizens.Sections 6 (2) lays down the mandatory duty upon the University to observe clauses (a), (b) and (c) of Rule 14 as well as Rules 15, 16 and 17 of the Rules set out above. But it does not indicate the manner in which the classification of members of a service under the University has to be made for the purposes of applying these rules. Inasmuch as every statutory power to be exercised reasonably we can say that the classification has to be reasonable. Thus, the University may treat all the teaching of posts as belonging to one class for the application of the rules. On the other hand it may treat only posts of Readers in all subjects or in a particular subject as a category by itself for the application of these rules. It cannot exempt any class or category such as Professors from the operation of the rules altogether. Only if it so classifies all posts in a service under the University as to make its classification prima facie unreasonable, could the validity of the classification made by it be assailed. The power is presumed to be exercised reasonably on the strength of facts and circumstances relevant for purposes intended to be achieved by the classification. These purposes have also to pass the test of legality and constitutionality.6. Clause (c) of Rule 14 lays down a Scheme of rotation for every block of 20 vacancies. But it does not specifically say that the rule of rotation will be applied in the order in which vacancies occur. We however think that by necessary implication the rule is intended to be applied to vacancies in the order in which they occur. It could not be meant to be applied with reference to the date on which a vacancy is announced or advertised because these are fortuitous matters over which those in power in the University may, if so inclined be able to exercise control. The whole object of such rules is to introduce fixity of principle and of the method of its application so as to remove, so far as possible, uncertainty and opportunities for abuse of power. That being the object of such a rule it seems obvious to us that the rule must have been intended to operate with reference to the dates on which the vacancies occur and not with reference to some other events such as the dates of declaration or advertisement of the vacancies.7. The rules were made by the Government in 1967, hence, the note occurs at the bottom of Rule 15 that the rotation provided for will commence fromThis could not obviously be done under the Cochin University Act 30 of 1971which was published in the State Gazette onTherefore for the purposes of applying these rules to the University the rotation could only apply to vacancies existing on the date when the Act came into force and in the order in which they had occurred.8. It appears that the Syndicate of the University appointed a Standing Committee to draw up a list of the vacancies in the class of posts with which we are concerned at the time when the Act came into force under which the appointments were to be made in accordance with the rotation rules.The above mentioned document was signed by the Pro. Vice Chancellor of the University. It indicates that the vacancy of a Reader in the Department of Hindi was the first to occur. But instead of allocating it to the open competition class for the purposes of applying the rotation rule it was allocated to the reserved block of posts. This was also an illegality complained of by the respondent Dr. Nair.The stand of the University was that it had followed the rotation rule according to which appointments were to be made alternately by a general or open competition and by choice, restricted to backward groups. Dr. A. Ramchandra Dev however took up the position that the University could even alter the rules inasmuch as it had the power to apply them "mutatis mutandis" according to situations as they arose. It appears that at the time of arguments in the High Court the University adopted the stand of Dr. A. Ramchandra Dev on this question. It seems to have been contended in the High Court on behalf of the University that it was empowered to make the changes in the rules to meet the particular needs of the University so as to enable it to implement the provisions of Section 6 (2) of the Act in the way it thought fit.11. We think that the High Court was right in holding that the power to apply the rules "mutatis mutandis" does not include the power of amending the substantial provisions in the rules. The High Court held : "Formal and inconsequential changes for dovetailing the rules into theof the Act alone seems to be contemplated". We think that the High Court was right in confining the power of the University to making only what are necessary "adaptations" so as to make the rules applicable to those in the service of the University in place of the Government servants for whom they were promulgated. It could include a power to ignore only such parts as may be inapplicable or in conflict with the Act itself. An instance of this would be as pointed out above commencement of the application of the rules after the Act came into force instead of in 1967 when according to a note in Rule 15 the Rules had to be enforced. The High Court rightly held that the Syndicate could not in any case alter the provisions of Section 6 (2) of the Act itself which made it incumbent on the University to apply the rotation rule as contemplated under the rules to every "service class or category under the University". It held that "If Section 6 (2) were to operate on its own terms made by the post of Reader for the first time made by the University should in the first turn go to the candidate adjudged best on open competition and only on the next turn or turns to candidates on the principle of communal rotation".12. If the post of Reader in the Department of Hindi was the first to arise in service under the University as appears to be the position from Ex.an application of the rotation principle would compel the first appointment to take place on the basis of an open competition. That principle could certainly not be modified by the University by taking shelter behind the words "mutatis mutandis". It has been stated by the learned Counsel for the University that the validity of the impugned resolution may be doubtful so far as the withdrawal of the post of Professor form the application of the abovementioned rules is concerned but learned Counsel submitted we need not decide that question as we are not concerned here with an appointment to the post of a Professor. If however the Professors and Lecturers and Readers were all to fall in one class it may become necessary to consider this question also. Moreover we indicated below the two parts of the resolution do not seem to be separable. It is true that Section 6(2) lodges in the University power to determine what should constitute a class or category of service under the University. No rigid formula to fit all circumstances can be laid down and the authority concerned must be left to define subject to constitutional limitations what should be a class or category. But this power would not, in our opinion, enable the University to dispense with the application of the rotation principle itself to any particular class or category of service under the University as appears to have been the real object of the resolution ofwith regard to Professors.13. The word service does seem to us to denote, as the High Court held, various classes or categories of posts within it. It is obviously the widest class a classification which puts the whole teaching staff in one class for purposes of applying the rule would seem unassailable. But one which puts all classes and categories of service from the peons to Professors together may be destroying the distinction between classes and categories of service, seems to run counter to the words used in section 6 (2). As that question is not before us, we refrain from deciding it. This provision appears to us to be intended to ensure that whatever may be kind of post to be held by a person in a service "under the University" principles laid down in Rules 14, 15, 16 and 17 must apply in making appointments to it. We are not called upon to decide here what is meant by a service "under the University" as it is admitted by both sides that this description applies to the post of a Reader. Nor have we to determine here the reasonableness of a classification which may put the teaching andstaff in one class orthat is all it was meant to do apart from attempting to place posts of Professors outside rules 14 to 17, the intention is expressed in every unsatisfactory and misleading language. It is of course open to the University to pass a resolution which does not contravene Section 6 (2) of the Act. A resolution which merely classifies or categories posts in a reasonable manner would not offend against statutory provisions. The resolution ofis however at least partly invalid on the face of it by attempting to place appointments to the post of a Professor outside the reservation and rotation rules altogether and it is partly at least ambiguous so that it is difficult to decipher its exact meaning. The second part seems designed in so far as one may guess its meaning to provide for "Other Backward Classes" a compensatory quote of reserved appointments in a category other than that of Professors in lieu of the removal of posts of Professors from subjection to the rules. If this is the real object as it seems to be the intention was to alter the scope or ambit of the rotation rule. The second part is apparently a consequence of the exclusion of the Professors from the operation of the rules ....... which is itself not permissible ..... and not an adaptation for the purposes of applying the rules to the University. Thus the two parts seem to be inseparable. We therefore consider the resolution to be wholly invalid. The validity of Section 6 (2) has not been questioned either in the High Court or here.15. We have been informed at the Bar that both the 1st and the 3rd Respondents, that is to say Dr. Nair and Dr. Ramchandra Dev are at present holding posts of Readers in the Hindi department as the needs of the University have expanded. It may however be necessary to determine the order of their appointments after the University has laid down its own method of reasonable classification either of the whole teaching staff of the University collectively or by putting various categories of the teaching staff into separate compartments for the application of the rules. We have held that the University has this power provided it is exercised on good and reasonable grounds. We have only indicated that on such facts as have come to our notice the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev were competing seemed to us to be the first to arise for the purposes of applying Section 6 (2) of the Act. As this matter was not fully investigated and the power is vested in the University to make its own classification within the limits indicated by us, we think that it is desirable that the University should be left to make its own reasonable classification in accordance with the principles laid down above by us so as to determine which of the two Readers was entitled to be appointed earlier. In other words the Syndicate of the University will have to pass a fresh resolution which is in accordance with the law as explained by us and then to apply the rules in conformity with such a resolution in exercise of the powers possessed by the University.

### 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: learned Counsel for the University that the validity of the impugned resolution may be doubtful so far as the withdrawal of the post of Professor form the application of the abovementioned rules is concerned but learned Counsel submitted we need not decide that question as we are not concerned here with an appointment to the post of a Professor. If however the Professors and Lecturers and Readers were all to fall in one class it may become necessary to consider this question also. Moreover we indicated below the two parts of the resolution do not seem to be separable. It is true that Section 6 sub-section (2) lodges in the University power to determine what should constitute a class or category of service under the University. No rigid formula to fit all circumstances can be laid down and the authority concerned must be left to define subject to constitutional limitations what should be a class or category. But this power would not, in our opinion, enable the University to dispense with the application of the rotation principle itself to any particular class or category of service under the University as appears to have been the real object of the resolution of 17-7-1972 with regard to Professors.13. The word service does seem to us to denote, as the High Court held, various classes or categories of posts within it. It is obviously the widest class a classification which puts the whole teaching staff in one class for purposes of applying the rule would seem unassailable. But one which puts all classes and categories of service from the peons to Professors together may be destroying the distinction between classes and categories of service, seems to run counter to the words used in section 6 (2). As that question is not before us, we refrain from deciding it. This provision appears to us to be intended to ensure that whatever may be kind of post to be held by a person in a service "under the University" principles laid down in Rules 14, 15, 16 and 17 must apply in making appointments to it. We are not called upon to decide here what is meant by a service "under the University" as it is admitted by both sides that this description applies to the post of a Reader. Nor have we to determine here the reasonableness of a classification which may put the teaching and non-teaching staff in one class or category.14. It was submitted by learned Counsel for the University, that the resolution of 17-7-1972 was intended to do no more than to categorise "Readers, lecturers and Teaching Assistants" by putting them into a single class or category for applying the rules to them. "collectively". If that is all it was meant to do apart from attempting to place posts of Professors outside rules 14 to 17, the intention is expressed in every unsatisfactory and misleading language. It is of course open to the University to pass a resolution which does not contravene Section 6 (2) of the Act. A resolution which merely classifies or categories posts in a reasonable manner would not offend against statutory provisions. The resolution of 17-7-1972 is however at least partly invalid on the face of it by attempting to place appointments to the post of a Professor outside the reservation and rotation rules altogether and it is partly at least ambiguous so that it is difficult to decipher its exact meaning. The second part seems designed in so far as one may guess its meaning to provide for "Other Backward Classes" a compensatory quote of reserved appointments in a category other than that of Professors in lieu of the removal of posts of Professors from subjection to the rules. If this is the real object as it seems to be the intention was to alter the scope or ambit of the rotation rule. The second part is apparently a consequence of the exclusion of the Professors from the operation of the rules ....... which is itself not permissible ..... and not an adaptation for the purposes of applying the rules to the University. Thus the two parts seem to be inseparable. We therefore consider the resolution to be wholly invalid. The validity of Section 6 (2) has not been questioned either in the High Court or here.15. We have been informed at the Bar that both the 1st and the 3rd Respondents, that is to say Dr. Nair and Dr. Ramchandra Dev are at present holding posts of Readers in the Hindi department as the needs of the University have expanded. It may however be necessary to determine the order of their appointments after the University has laid down its own method of reasonable classification either of the whole teaching staff of the University collectively or by putting various categories of the teaching staff into separate compartments for the application of the rules. We have held that the University has this power provided it is exercised on good and reasonable grounds. We have only indicated that on such facts as have come to our notice the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev were competing seemed to us to be the first to arise for the purposes of applying Section 6 (2) of the Act. As this matter was not fully investigated and the power is vested in the University to make its own classification within the limits indicated by us, we think that it is desirable that the University should be left to make its own reasonable classification in accordance with the principles laid down above by us so as to determine which of the two Readers was entitled to be appointed earlier. In other words the Syndicate of the University will have to pass a fresh resolution which is in accordance with the law as explained by us and then to apply the rules in conformity with such a resolution in exercise of the powers possessed by the University. ### Response: 0 ### Explanation: under the University as appears to be the position from Ex.an application of the rotation principle would compel the first appointment to take place on the basis of an open competition. That principle could certainly not be modified by the University by taking shelter behind the words "mutatis mutandis". It has been stated by the learned Counsel for the University that the validity of the impugned resolution may be doubtful so far as the withdrawal of the post of Professor form the application of the abovementioned rules is concerned but learned Counsel submitted we need not decide that question as we are not concerned here with an appointment to the post of a Professor. If however the Professors and Lecturers and Readers were all to fall in one class it may become necessary to consider this question also. Moreover we indicated below the two parts of the resolution do not seem to be separable. It is true that Section 6(2) lodges in the University power to determine what should constitute a class or category of service under the University. No rigid formula to fit all circumstances can be laid down and the authority concerned must be left to define subject to constitutional limitations what should be a class or category. But this power would not, in our opinion, enable the University to dispense with the application of the rotation principle itself to any particular class or category of service under the University as appears to have been the real object of the resolution ofwith regard to Professors.13. The word service does seem to us to denote, as the High Court held, various classes or categories of posts within it. It is obviously the widest class a classification which puts the whole teaching staff in one class for purposes of applying the rule would seem unassailable. But one which puts all classes and categories of service from the peons to Professors together may be destroying the distinction between classes and categories of service, seems to run counter to the words used in section 6 (2). As that question is not before us, we refrain from deciding it. This provision appears to us to be intended to ensure that whatever may be kind of post to be held by a person in a service "under the University" principles laid down in Rules 14, 15, 16 and 17 must apply in making appointments to it. We are not called upon to decide here what is meant by a service "under the University" as it is admitted by both sides that this description applies to the post of a Reader. Nor have we to determine here the reasonableness of a classification which may put the teaching andstaff in one class orthat is all it was meant to do apart from attempting to place posts of Professors outside rules 14 to 17, the intention is expressed in every unsatisfactory and misleading language. It is of course open to the University to pass a resolution which does not contravene Section 6 (2) of the Act. A resolution which merely classifies or categories posts in a reasonable manner would not offend against statutory provisions. The resolution ofis however at least partly invalid on the face of it by attempting to place appointments to the post of a Professor outside the reservation and rotation rules altogether and it is partly at least ambiguous so that it is difficult to decipher its exact meaning. The second part seems designed in so far as one may guess its meaning to provide for "Other Backward Classes" a compensatory quote of reserved appointments in a category other than that of Professors in lieu of the removal of posts of Professors from subjection to the rules. If this is the real object as it seems to be the intention was to alter the scope or ambit of the rotation rule. The second part is apparently a consequence of the exclusion of the Professors from the operation of the rules ....... which is itself not permissible ..... and not an adaptation for the purposes of applying the rules to the University. Thus the two parts seem to be inseparable. We therefore consider the resolution to be wholly invalid. The validity of Section 6 (2) has not been questioned either in the High Court or here.15. We have been informed at the Bar that both the 1st and the 3rd Respondents, that is to say Dr. Nair and Dr. Ramchandra Dev are at present holding posts of Readers in the Hindi department as the needs of the University have expanded. It may however be necessary to determine the order of their appointments after the University has laid down its own method of reasonable classification either of the whole teaching staff of the University collectively or by putting various categories of the teaching staff into separate compartments for the application of the rules. We have held that the University has this power provided it is exercised on good and reasonable grounds. We have only indicated that on such facts as have come to our notice the particular vacancy for which both Dr. Raman Nair and Dr. Ramchandra Dev were competing seemed to us to be the first to arise for the purposes of applying Section 6 (2) of the Act. As this matter was not fully investigated and the power is vested in the University to make its own classification within the limits indicated by us, we think that it is desirable that the University should be left to make its own reasonable classification in accordance with the principles laid down above by us so as to determine which of the two Readers was entitled to be appointed earlier. In other words the Syndicate of the University will have to pass a fresh resolution which is in accordance with the law as explained by us and then to apply the rules in conformity with such a resolution in exercise of the powers possessed by the University.

Colaba Land and Mills Company Limited, V.M. Deshpande Vs. S V.S. Kondaskar

to accept the argument made by Mr. Chagla that the provisions in section 148 and 142 of the Income-tax Act are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in sub-sections (1) and (2) of section 446 as being special provisions. The scheme in sections 148 and 142 of the Income-tax Act and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special tribunals and accordingly such as would "override the provisions of the general Act, viz. , the Companies Act. "( 36 ) NOW it is true that in the case of Union of India v. India Fisheries Pvt. Ltd. , in connection with the recovery proceedings envisaged by section 49e of the Income-tax Act, in the context of the provisions in section 228 and 229 of the Companies Act, 1913 in consonance with the previous decision of the Federal Court in the case of Governor-General in Council v. Shiromani sugar Mills Ltd. , the Supreme Court observed : "section 49e is a general provision applicable to all assessees and in all circumstances; sections 228 and 229 deal with the proof of debts and their payment in liquidation. "( 37 ) THE Supreme Court decision was on the footing that the provisions of section 49e were overridden by the provisions in section 228 and 229 of the Indian Companies Act, 1913. Similar provisions in the Income- tax Act, 1961, and the Companies Act, 1956, will bear the same effect. It, however, requires to be noticed that the scheme of the Companies Act in the chapter relating to winding up of insolvent companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of those debts pari passu, i. e. , for distribution of the available assets between the creditors in the proportion of their claims. Sections 228 and 229 enact the above scheme. Provisions like these in respect of companies in winding-up as contained in the chapter relating to companies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like section 49e enacted in the Income-tax Act. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special tribunals and/or special officers like Income-tax Officers in the present case under special jurisdiction, the provisions in sub-sections (1) and (2) of section 446 must be considered as general provisions only. The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be stayed by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court in governor-General in Council v. Shiromani Sugar Mills Ltd. and Union of India v. India fisheries Pvt. Ltd. ( 38 ) THE alternative contention in this connection was that in so far as the observations of the supreme Court in Damjis case alter and/or restrict the meaning of the phrase "legal proceedings" the same are casual and/or made in passing. The submission was that the observations were not relevant to arrive at the findings which the Supreme Court made. The further submission in the alternative was that the findings of the Supreme Court in connection with sub-sections (1) and (2) of section 446 were patently in ignorance of the relevant provisions in sub-sections (3) and (4) of section 446, as also in sections 442, 530 and 537 and certain other sections of the companies Act. These findings were made in ignorance of the above decision of the Federal court, as also of the Supreme Court, in the two cases just mentioned. These findings were therefore per incuriam and we are not bound to follow them. In that connection reference was made to Salmond on Jurisprudence, 12th edition, page 151, where it is, inter alia, stated that the precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. "the rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. " The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam. ( 39 ) NOW in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of sub-sections (1) and (2) of section 446 as the main important point in the case of Damji. It is impossible to imagine that the contents of sub-sections (1) and (2) of section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. Paragraph 18 which we have already quoted above, contains direct reasoning of the court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above two sub-sections. We are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these two sub-sections, unaware of the provisions of sub-sections (3) and (4) of section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr. Chagla. ( 40 ) THE result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants fail.

1[ds]( 23 ) MR. Joshi is right in his submission that the distinction sought to be made by Mr. Chagla in the scheme of theAct and the Life Insurance Corporation Act which was before the supreme Court in the case of Damji Valji Shah v. Life Insurance Corporation of India, that theAct does not contain any provision like that contained in section 41 of the Life insurance Corporation Act ousting the jurisdiction of civil courts is a distinction of no consequence atall. It is quite clear that in connection with the assessment to ascertain the quantum ofa separate independent machinery and/or a complete code is provided in theAct. It is not possible to make A study of each and every relevant provision of that Act in this judgment. That the Act provides for assessment of the quantum ofdues by theOfficer and further provides for an appeal to the Appellate Assistant commissioner and provides for a reference only on questions of law to High Courts isThere are detailed provisions in the Act in respect of commencing proceedings for reassessment of escaped income with the sanction of theCommissioner. The right of appeal is also circumscribed and there is a provision for deposit of tax before any appeal could be filed. Now it is true that in(2) of section 446 it is provided that, "notwithstanding anything contained in any other law for the time being in force", thecourt would have jurisdiction to entertain any proceeding by or against the company. It is also true that, having regard to the language in thisan argument that thecourt has acquired jurisdiction to assessliability of the company in winding up could be advanced and has been advanced on behalf of the original applicant. Reliance has been placed in that connection on the phrase "notwithstanding anything contained in any law for the time being in force". Now it appears to us that the constitution of the civil court acting as acourt is such that it would be impossible for such court to act asOfficer and commence assessment proceedings. In this connection we are not called upon to find out the limitations on the powers of thecourt in respect of proceedings referred to in(2 ). It is quite clear that, having regard to the scheme for assessment for quantum ofcontained in theAct, a civil court and/or acourt could not "entertain or dispose of" assessment proceedings. The procedure prescribed is altogether so foreign to the procedure prescribed for it that in civil court would not be able to put into effect the machinery prescribed by theAct. This discussion has the effect of holding that the absence of a provision like section 41 of the Life Insurance Corporation Act on theAct does not alter or affect the established position that theAct, in so far as the proceedings for assessment are concerned provides for a scheme of a complete code. This part of the scheme of the Act is such as can never be enforced through the machinery of a civil court. It is for this reason that we have not been able to appreciate Mr. Chaglas contention that the absence of a provision like section 41 of the Life Insurance Corporation Act in theAct is an important distinction and that for that reason the observations in paragraph 18 of the judgment of the Supreme Court in the case of Damji Valji Shah v. Life Insurance Corporation of India are not applicable to the facts of the present case.(26 ) MR. CHAGLA contended that in this connection we should first notice the scheme of the companies Act, 1913, and particularly the provisions of section 171 thereof. He rightly submitted that the phrase "legal proceedings" in section 171 related to the same matter as is contained in(1) of section 446. He rightly submitted that section 171 and this phrase in the section was thef decision of the Federal Court in the case ofin Council v. Shiromani Sugar Mills and the construction of that phrase as made by the Federal Court has been cited with approval by the Supreme Court in the case of ranganathan v. Government of3 ) NOW Mr. Chagla insisted that having regard to the history of the legislation in section 171 and section 446 (1) and the above observations in connection with the phrase "legal proceedings" the finding of Mr. Justice Vimadalal that the assessment proceedings commenced by the impugned notices were "legal proceedings" must be accepted as correct. According to him, this being the correct position in law, we should proceed to hold in his favour that there is nothing in the decision in the case of Damji Valji Shah v. Life Insurance Corporation of India, which has affected the above position. In support of that submission he has placed strong reliance on the contents of(3) and (1) of section 446. Now it is quite clear that under(4) of the section 446, in spite of ar having been made in connection with proceedings pending in appeal before the Supreme Court or High Court, leave under section 446 (1) is unnecessary. It is also clear that under subsections (3) thecourt, in its discretion, may notwithstanding anything contained in any other law for the time being in force, transfer to itself any suit or proceeding and dispose of the same. Relying on this part of the section, Mr. Chagla sought to argue that under(2) exclusive jurisdiction is created in acourt in connection with th matters mentioned in that subsection. He, therefore, argued that the true effect of the observations of the Supreme Court in the case of Damji Valji shah v. Life Insurance Corporation of India was that in each and all proceedings in which a claim is made fro or against a company in liquidation the same was within the jurisdiction of the company court and for that reason the assessment proceedings commenced by the impugned notices was within the jurisdiction of the companycourt. We should, therefore, hold that the order of injunction granted by the learned judge was justified and35 ) WE are unable to accept the argument made by Mr. Chagla that the provisions in section 148 and 142 of theAct are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in(1) and (2) of section 446 as being special provisions. The scheme in sections 148 and 142 of theAct and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special tribunals and accordingly such as would "override the provisions of the general Act, viz. , the Companies Act. "(37 ) THE Supreme Court decision was on the footing that the provisions of section 49e were overridden by the provisions in section 228 and 229 of the Indian Companies Act, 1913. Similar provisions in the Incometax Act, 1961, and the Companies Act, 1956, will bear the same effect. It, however, requires to be noticed that the scheme of the Companies Act in the chapter relating to winding up of insolvent companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of those debts pari passu, i. e. , for distribution of the available assets between the creditors in the proportion of their claims. Sections 228 and 229 enact the above scheme. Provisions like these in respect of companies inas contained inthe chapter relating tocompanies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like section 49e enacted in theAct. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special tribunals and/or special officers likeOfficers in the present case under special jurisdiction, the provisions in(1) and (2) of section 446 must be considered as general provisions only. The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be stayed by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court inin Council v. Shiromani Sugar Mills Ltd. and Union of India v. India fisheries Pvt.8 ) THE alternative contention in this connection was that in so far as the observations of the supreme Court in Damjis case alter and/or restrict the meaning of the phrase "legal proceedings" the same are casual and/or made in passing. The submission was that the observations were not relevant to arrive at the findings which the Supreme Court made. The further submission in the alternative was that the findings of the Supreme Court in connection with(1) and (2) of section 446 were patently in ignorance of the relevant provisions in(3) and (4) of section 446, as also in sections 442, 530 and 537 and certain other sections of the companiesAct. These findings were made in ignorance of the above decision of the Federal court, as also of the Supreme Court, in the two cases just mentioned. These findings were therefore per incuriam and we are not bound to follow them. In that connection reference was made to Salmond on Jurisprudence, 12th edition, page 151, where it is, inter alia, stated that the precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. "the rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. " The lower court may refuse to follow the later decision on the ground that it was arrived at per39 ) NOW in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of(1) and (2) of section 446 as the main important point in the case of Damji. It is impossible to imagine that the contents of(1) and (2) of section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. Paragraph 18 which we have already quoted above, contains direct reasoning of the court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above twoWe are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these twounaware of the provisions of(3) and (4) of section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr.40 ) THE result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants42 ) HAVING arrived at the above conclusion on the above second contention made on behalf of the appellants, we do not find it necessary to deal with the first contention made on behalf of the appellants. It is only necessary to refer in a very summary way to the arguments advanced in support of that contention.(43 ) MR. Joshi contended that the proceedings initiated by the above impugned notices being assessment proceedings, were not covered by the phrase "legal proceedings"as contained in(1) of section 446. The contention was that up to the stage that the liability to tax was quantified, assessment proceedings would not be such legal proceedings because up to that stage the department does not become creditor of the company. Up to that stage the debt itself is not ascertained and/or quantified. Legal proceedings would be those which directly affect the assets and properties of a company ins was so because the object of the provision in(1) of section 446 was to facilitate protection and realisation of assets and to prevent wasteful litigation in regard thereto. The scheme inwas to have the secured assets distributed pari passu among general creditors to prevent a scramble by creditors of a company in winding up by taking custody and possession of assets of such company. The argument was that in respect of proceedings which could not be withdrawn by acourt for trial by itself leave under subsection (1) of section 446 was unnecessary.The assessment proceedings were proceedings which anOfficer undertakes in discharge of a statutory duty imposed on him as such offer by theAct and therefore these are not legal proceedings. Thecontentions in reply were that the object of winding up was to collect assets of a company in winding up and to satisfy the claims of all the ordinary creditors pari passu.(1) of section 446 provided for stay of proceedings of every kind which were in the nature of claims against a company ine object of) was to enable the company court to get complete control over all claims which might arise against the company inr these reasons the phrase "legal proceedings" should be given the widest possible meaning. This phrase means action to recover any claim which may result into an order that can be recovered by legal process. The submission was that the charging section in thet created a debt and the proceedings for quantification thereof must be held to be a claim for decision of a claim against a company inThe submission was that the notices under section 148 of the Incometax Act activates the machinery of taxation law from quantification till recovery of the tax dues. There was accordingly no warrant to distinguish the stage of recovery of tax dues from the anterior stage for quantification of the tax44 ) AS already stated in the above discussion in connection with these contentions, there are extremely relevant observations in the decision of the Federal Court in the case ofin Council v. Shiromani Sugar Mills Ltd. There are also relevant observations in the case of Abdul Aziz v. State of Bombay. We, however, find it unnecessary to discuss these decisions and to arrive at any finding as regards these rival contentions in view of the fact we have accepted the above second contention made on behalf of the appellants.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: to accept the argument made by Mr. Chagla that the provisions in section 148 and 142 of the Income-tax Act are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in sub-sections (1) and (2) of section 446 as being special provisions. The scheme in sections 148 and 142 of the Income-tax Act and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special tribunals and accordingly such as would "override the provisions of the general Act, viz. , the Companies Act. "( 36 ) NOW it is true that in the case of Union of India v. India Fisheries Pvt. Ltd. , in connection with the recovery proceedings envisaged by section 49e of the Income-tax Act, in the context of the provisions in section 228 and 229 of the Companies Act, 1913 in consonance with the previous decision of the Federal Court in the case of Governor-General in Council v. Shiromani sugar Mills Ltd. , the Supreme Court observed : "section 49e is a general provision applicable to all assessees and in all circumstances; sections 228 and 229 deal with the proof of debts and their payment in liquidation. "( 37 ) THE Supreme Court decision was on the footing that the provisions of section 49e were overridden by the provisions in section 228 and 229 of the Indian Companies Act, 1913. Similar provisions in the Income- tax Act, 1961, and the Companies Act, 1956, will bear the same effect. It, however, requires to be noticed that the scheme of the Companies Act in the chapter relating to winding up of insolvent companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of those debts pari passu, i. e. , for distribution of the available assets between the creditors in the proportion of their claims. Sections 228 and 229 enact the above scheme. Provisions like these in respect of companies in winding-up as contained in the chapter relating to companies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like section 49e enacted in the Income-tax Act. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special tribunals and/or special officers like Income-tax Officers in the present case under special jurisdiction, the provisions in sub-sections (1) and (2) of section 446 must be considered as general provisions only. The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be stayed by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court in governor-General in Council v. Shiromani Sugar Mills Ltd. and Union of India v. India fisheries Pvt. Ltd. ( 38 ) THE alternative contention in this connection was that in so far as the observations of the supreme Court in Damjis case alter and/or restrict the meaning of the phrase "legal proceedings" the same are casual and/or made in passing. The submission was that the observations were not relevant to arrive at the findings which the Supreme Court made. The further submission in the alternative was that the findings of the Supreme Court in connection with sub-sections (1) and (2) of section 446 were patently in ignorance of the relevant provisions in sub-sections (3) and (4) of section 446, as also in sections 442, 530 and 537 and certain other sections of the companies Act. These findings were made in ignorance of the above decision of the Federal court, as also of the Supreme Court, in the two cases just mentioned. These findings were therefore per incuriam and we are not bound to follow them. In that connection reference was made to Salmond on Jurisprudence, 12th edition, page 151, where it is, inter alia, stated that the precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. "the rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. " The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam. ( 39 ) NOW in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of sub-sections (1) and (2) of section 446 as the main important point in the case of Damji. It is impossible to imagine that the contents of sub-sections (1) and (2) of section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. Paragraph 18 which we have already quoted above, contains direct reasoning of the court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above two sub-sections. We are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these two sub-sections, unaware of the provisions of sub-sections (3) and (4) of section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr. Chagla. ( 40 ) THE result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants fail. ### Response: 1 ### Explanation: ) THE alternative contention in this connection was that in so far as the observations of the supreme Court in Damjis case alter and/or restrict the meaning of the phrase "legal proceedings" the same are casual and/or made in passing. The submission was that the observations were not relevant to arrive at the findings which the Supreme Court made. The further submission in the alternative was that the findings of the Supreme Court in connection with(1) and (2) of section 446 were patently in ignorance of the relevant provisions in(3) and (4) of section 446, as also in sections 442, 530 and 537 and certain other sections of the companiesAct. These findings were made in ignorance of the above decision of the Federal court, as also of the Supreme Court, in the two cases just mentioned. These findings were therefore per incuriam and we are not bound to follow them. In that connection reference was made to Salmond on Jurisprudence, 12th edition, page 151, where it is, inter alia, stated that the precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. "the rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute. " The lower court may refuse to follow the later decision on the ground that it was arrived at per39 ) NOW in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of(1) and (2) of section 446 as the main important point in the case of Damji. It is impossible to imagine that the contents of(1) and (2) of section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. Paragraph 18 which we have already quoted above, contains direct reasoning of the court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above twoWe are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these twounaware of the provisions of(3) and (4) of section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr.40 ) THE result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants42 ) HAVING arrived at the above conclusion on the above second contention made on behalf of the appellants, we do not find it necessary to deal with the first contention made on behalf of the appellants. It is only necessary to refer in a very summary way to the arguments advanced in support of that contention.(43 ) MR. Joshi contended that the proceedings initiated by the above impugned notices being assessment proceedings, were not covered by the phrase "legal proceedings"as contained in(1) of section 446. The contention was that up to the stage that the liability to tax was quantified, assessment proceedings would not be such legal proceedings because up to that stage the department does not become creditor of the company. Up to that stage the debt itself is not ascertained and/or quantified. Legal proceedings would be those which directly affect the assets and properties of a company ins was so because the object of the provision in(1) of section 446 was to facilitate protection and realisation of assets and to prevent wasteful litigation in regard thereto. The scheme inwas to have the secured assets distributed pari passu among general creditors to prevent a scramble by creditors of a company in winding up by taking custody and possession of assets of such company. The argument was that in respect of proceedings which could not be withdrawn by acourt for trial by itself leave under subsection (1) of section 446 was unnecessary.The assessment proceedings were proceedings which anOfficer undertakes in discharge of a statutory duty imposed on him as such offer by theAct and therefore these are not legal proceedings. Thecontentions in reply were that the object of winding up was to collect assets of a company in winding up and to satisfy the claims of all the ordinary creditors pari passu.(1) of section 446 provided for stay of proceedings of every kind which were in the nature of claims against a company ine object of) was to enable the company court to get complete control over all claims which might arise against the company inr these reasons the phrase "legal proceedings" should be given the widest possible meaning. This phrase means action to recover any claim which may result into an order that can be recovered by legal process. The submission was that the charging section in thet created a debt and the proceedings for quantification thereof must be held to be a claim for decision of a claim against a company inThe submission was that the notices under section 148 of the Incometax Act activates the machinery of taxation law from quantification till recovery of the tax dues. There was accordingly no warrant to distinguish the stage of recovery of tax dues from the anterior stage for quantification of the tax44 ) AS already stated in the above discussion in connection with these contentions, there are extremely relevant observations in the decision of the Federal Court in the case ofin Council v. Shiromani Sugar Mills Ltd. There are also relevant observations in the case of Abdul Aziz v. State of Bombay. We, however, find it unnecessary to discuss these decisions and to arrive at any finding as regards these rival contentions in view of the fact we have accepted the above second contention made on behalf of the appellants.

Nar Singh &amp; Another Vs. State of Uttar Pradesh

the High Court, understandably, though that the stigma of that might affect him adversely in the future. As regards the other two, there was nothing in their cases of warrant the issue of a certificate but the learned High Court Judges thought (wrongly in our opinion) that they were bound to do so because Article 134(1) (c) speaks of a "case" and they considered that the only "case" before them was the appeal as a whole. That, in our opinion, is wrong, "Case" as used there means the case of each individual person. That would be so even if the trial had been by the High Court itself but it is even more so on appeal because, though several persons may join in presenting a common memorandum of appeal (if the Rules of the Court in question so permit), the appeal of each forms a separate "case" for those purposes. That is obvious from the fact that every person who is convicted need not appeal nor need several convicts appeal at the same time under a joint memorandum; and if it were necessary to sent up the "case" as a whole in the sense which the learned High Court Judges contemplate, it would be necessary to join even those who were acquitted so that the "case" (in that sense) could be reviewed in its entirety. We are clear that is not the meaning of the word in the context of Article 134(1) and that the High Court was wrong in thinking that it was.(4) Having obtained the certificate Nanhu did not appeal and the only ones who have come up here are the two convicts. Had they come up independently and presented a petition for special leave under Article 136 their petition would at once have been dismissed because there is nothing special in their cases to justify an appeal under that Article. The evidence against them is clear and it has been believed, accordingly, following our usual rule, we wold have rejected the petition in limine. But, it was contended on their behalf that having obtained a certificate we have now become an ordinary Court of appeal and are bound to hear their case as an appellate Court both on facts and on law. Reliance was placed on a decision of the Federal Court reported in - Subhanand Chowdhary v. Apurba Krishna Mitra. AIR 1940 FC 7 .(5) We do not think that judgment of the Federal Court can be applied to this case. It deals with section 305 of the Government of India Act, 1935 covering a different subject and does not use the same or similar words.(6) This Court has general powers of judicial superintendence over all Courts in India and is the ultimate interpreter and guardian of the Constitution. It has a duty to see that its provisions are faithfully observed and, where necessary, to expound them. Article 134(1) (c) uses the same languages as Art. 133(1) (c). A certificate is required under Art. 133(1) in each of the four cases set out there but the mere grant of the certificate would not preclude this Court from determining whether it was rightly granted and whether the conditions prerequisite to the grant are satisfied. In the case of clause (c) both of Art. 133(1) and Art. 134(1), the only condition is the discretion of the High Court but the discretion is a judicial one and must be judicially exercised along the well-established lines which govern these matters ; also the certificate must show on the face of it that the discretion conferred was invoked and exercised; - Radhakrishna Ayyar v. Swaminatha Ayyar, and - Radha Krishna Das v. Rai Krishna, Chand, 28 Ind App 182 If it is properly exercised on well-established and proper lines, then, as in all questions where an exercise of discretion is involved, there would be no interference except on very strong grounds : - Swaminarayan Jethalal v. Acharaya Devendraprasadji, and - Bhagbati Dei v. Muralidhar Sahu, But if, on the face of the order, it is apparent that the Court has misdirected itself and considered that its discretion was fettered when it was not, or that it had none, then the superior Court must either remit the case or exercise the discretion itself : - Brij Indar Singh v. Kanshi Ram. These are the well-known lines on which questions of discretion are dealt with in the superior courts and they apply with as much force to certificates under Art. 134(1) (c) as elsewhere.(7) In the present case, the learned High Court Judges though they had no option. They misdirected themselves about the law and as a consequence did not exercise the discretion which is vested in them. They are quite clear as to what they would have done if, in their judgment, the law had left them scope for the exercise of any discretion, for they say - "Ordinarily no certificate can be granted to them as there is nothing of an exceptional nature in their cases." We hold therefore that the certificate was wrongly granted to the appellants and will treat their case as one under Art. 135(1) for special leave.(8) Regarded from the angle, this is not a proper case for special leave. The High Court gives a clear finding that there were more than five persons and believes the eye-witnesses who identify the two appellants. The mere fact that only two out of the band of attackers were satisfactorily identified does not weaken the force of the finding that more than five were involved. The use of section 149, I.P.C. was therefore justified and the convictions are proper.(9) We see no reason to interfere with the sentences. A number of persons joined in an attack at two in the morning on helpless persons who were asleep in bed. At least one of the assailants was armed either with a gun or a pistol. He shot one man dead and attempted to murder another, and the band looted their property.

0[ds](3) This occasioned an application under Article 134(1) (c) of the Constitution by Nanhu Singh and the two appellants Nar Singh and Roshan Singh for a certificate. The High Court rightly considered that the certificate should issue in the case of Nanhu Singh because, despite the remission of his sentence by the State Government and his release, his conviction on, among, other things, a charge of murder, still stood, and the High Court, understandably, though that the stigma of that might affect him adversely in the future. As regards the other two, there was nothing in their cases of warrant the issue of a certificate but the learned High Court Judges thought (wrongly in our opinion) that they were bound to do so because Article 134(1) (c) speaks of a "case" and they considered that the only "case" before them was the appeal as a whole. That, in our opinion, is wrong, "Case" as used there means the case of each individual person. That would be so even if the trial had been by the High Court itself but it is even more so on appeal because, though several persons may join in presenting a common memorandum of appeal (if the Rules of the Court in question so permit), the appeal of each forms a separate "case" for those purposes. That is obvious from the fact that every person who is convicted need not appeal nor need several convicts appeal at the same time under a joint memorandum; and if it were necessary to sent up the "case" as a whole in the sense which the learned High Court Judges contemplate, it would be necessary to join even those who were acquitted so that the "case" (in that sense) could be reviewed in its entirety. We are clear that is not the meaning of the word in the context of Article 134(1) and that the High Court was wrong in thinking that it was.(4) Having obtained the certificate Nanhu did not appeal and the only ones who have come up here are the two convicts. Had they come up independently and presented a petition for special leave under Article 136 their petition would at once have been dismissed because there is nothing special in their cases to justify an appeal under that Article. The evidence against them is clear and it has been believed, accordingly, following our usual rule, we wold have rejected the petition inWe do not think that judgment of the Federal Court can be applied to this case. It deals with section 305 of the Government of India Act, 1935 covering a different subject and does not use the same or similarIn the present case, the learned High Court Judges though they had no option. They misdirected themselves about the law and as a consequence did not exercise the discretion which is vested in them. They are quite clear as to what they would have done if, in their judgment, the law had left them scope for the exercise of any discretion, for they say - "Ordinarily no certificate can be granted to them as there is nothing of an exceptional nature in their cases." We hold therefore that the certificate was wrongly granted to the appellants and will treat their case as one under Art. 135(1) for special leave.(8) Regarded from the angle, this is not a proper case for special leave. The High Court gives a clear finding that there were more than five persons and believes the eye-witnesses who identify the two appellants. The mere fact that only two out of the band of attackers were satisfactorily identified does not weaken the force of the finding that more than five were involved. The use of section 149, I.P.C. was therefore justified and the convictions are proper.(9) We see no reason to interfere with the sentences. A number of persons joined in an attack at two in the morning on helpless persons who were asleep in bed. At least one of the assailants was armed either with a gun or a pistol. He shot one man dead and attempted to murder another, and the band looted their property.

### 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 High Court, understandably, though that the stigma of that might affect him adversely in the future. As regards the other two, there was nothing in their cases of warrant the issue of a certificate but the learned High Court Judges thought (wrongly in our opinion) that they were bound to do so because Article 134(1) (c) speaks of a "case" and they considered that the only "case" before them was the appeal as a whole. That, in our opinion, is wrong, "Case" as used there means the case of each individual person. That would be so even if the trial had been by the High Court itself but it is even more so on appeal because, though several persons may join in presenting a common memorandum of appeal (if the Rules of the Court in question so permit), the appeal of each forms a separate "case" for those purposes. That is obvious from the fact that every person who is convicted need not appeal nor need several convicts appeal at the same time under a joint memorandum; and if it were necessary to sent up the "case" as a whole in the sense which the learned High Court Judges contemplate, it would be necessary to join even those who were acquitted so that the "case" (in that sense) could be reviewed in its entirety. We are clear that is not the meaning of the word in the context of Article 134(1) and that the High Court was wrong in thinking that it was.(4) Having obtained the certificate Nanhu did not appeal and the only ones who have come up here are the two convicts. Had they come up independently and presented a petition for special leave under Article 136 their petition would at once have been dismissed because there is nothing special in their cases to justify an appeal under that Article. The evidence against them is clear and it has been believed, accordingly, following our usual rule, we wold have rejected the petition in limine. But, it was contended on their behalf that having obtained a certificate we have now become an ordinary Court of appeal and are bound to hear their case as an appellate Court both on facts and on law. Reliance was placed on a decision of the Federal Court reported in - Subhanand Chowdhary v. Apurba Krishna Mitra. AIR 1940 FC 7 .(5) We do not think that judgment of the Federal Court can be applied to this case. It deals with section 305 of the Government of India Act, 1935 covering a different subject and does not use the same or similar words.(6) This Court has general powers of judicial superintendence over all Courts in India and is the ultimate interpreter and guardian of the Constitution. It has a duty to see that its provisions are faithfully observed and, where necessary, to expound them. Article 134(1) (c) uses the same languages as Art. 133(1) (c). A certificate is required under Art. 133(1) in each of the four cases set out there but the mere grant of the certificate would not preclude this Court from determining whether it was rightly granted and whether the conditions prerequisite to the grant are satisfied. In the case of clause (c) both of Art. 133(1) and Art. 134(1), the only condition is the discretion of the High Court but the discretion is a judicial one and must be judicially exercised along the well-established lines which govern these matters ; also the certificate must show on the face of it that the discretion conferred was invoked and exercised; - Radhakrishna Ayyar v. Swaminatha Ayyar, and - Radha Krishna Das v. Rai Krishna, Chand, 28 Ind App 182 If it is properly exercised on well-established and proper lines, then, as in all questions where an exercise of discretion is involved, there would be no interference except on very strong grounds : - Swaminarayan Jethalal v. Acharaya Devendraprasadji, and - Bhagbati Dei v. Muralidhar Sahu, But if, on the face of the order, it is apparent that the Court has misdirected itself and considered that its discretion was fettered when it was not, or that it had none, then the superior Court must either remit the case or exercise the discretion itself : - Brij Indar Singh v. Kanshi Ram. These are the well-known lines on which questions of discretion are dealt with in the superior courts and they apply with as much force to certificates under Art. 134(1) (c) as elsewhere.(7) In the present case, the learned High Court Judges though they had no option. They misdirected themselves about the law and as a consequence did not exercise the discretion which is vested in them. They are quite clear as to what they would have done if, in their judgment, the law had left them scope for the exercise of any discretion, for they say - "Ordinarily no certificate can be granted to them as there is nothing of an exceptional nature in their cases." We hold therefore that the certificate was wrongly granted to the appellants and will treat their case as one under Art. 135(1) for special leave.(8) Regarded from the angle, this is not a proper case for special leave. The High Court gives a clear finding that there were more than five persons and believes the eye-witnesses who identify the two appellants. The mere fact that only two out of the band of attackers were satisfactorily identified does not weaken the force of the finding that more than five were involved. The use of section 149, I.P.C. was therefore justified and the convictions are proper.(9) We see no reason to interfere with the sentences. A number of persons joined in an attack at two in the morning on helpless persons who were asleep in bed. At least one of the assailants was armed either with a gun or a pistol. He shot one man dead and attempted to murder another, and the band looted their property. ### Response: 0 ### Explanation: (3) This occasioned an application under Article 134(1) (c) of the Constitution by Nanhu Singh and the two appellants Nar Singh and Roshan Singh for a certificate. The High Court rightly considered that the certificate should issue in the case of Nanhu Singh because, despite the remission of his sentence by the State Government and his release, his conviction on, among, other things, a charge of murder, still stood, and the High Court, understandably, though that the stigma of that might affect him adversely in the future. As regards the other two, there was nothing in their cases of warrant the issue of a certificate but the learned High Court Judges thought (wrongly in our opinion) that they were bound to do so because Article 134(1) (c) speaks of a "case" and they considered that the only "case" before them was the appeal as a whole. That, in our opinion, is wrong, "Case" as used there means the case of each individual person. That would be so even if the trial had been by the High Court itself but it is even more so on appeal because, though several persons may join in presenting a common memorandum of appeal (if the Rules of the Court in question so permit), the appeal of each forms a separate "case" for those purposes. That is obvious from the fact that every person who is convicted need not appeal nor need several convicts appeal at the same time under a joint memorandum; and if it were necessary to sent up the "case" as a whole in the sense which the learned High Court Judges contemplate, it would be necessary to join even those who were acquitted so that the "case" (in that sense) could be reviewed in its entirety. We are clear that is not the meaning of the word in the context of Article 134(1) and that the High Court was wrong in thinking that it was.(4) Having obtained the certificate Nanhu did not appeal and the only ones who have come up here are the two convicts. Had they come up independently and presented a petition for special leave under Article 136 their petition would at once have been dismissed because there is nothing special in their cases to justify an appeal under that Article. The evidence against them is clear and it has been believed, accordingly, following our usual rule, we wold have rejected the petition inWe do not think that judgment of the Federal Court can be applied to this case. It deals with section 305 of the Government of India Act, 1935 covering a different subject and does not use the same or similarIn the present case, the learned High Court Judges though they had no option. They misdirected themselves about the law and as a consequence did not exercise the discretion which is vested in them. They are quite clear as to what they would have done if, in their judgment, the law had left them scope for the exercise of any discretion, for they say - "Ordinarily no certificate can be granted to them as there is nothing of an exceptional nature in their cases." We hold therefore that the certificate was wrongly granted to the appellants and will treat their case as one under Art. 135(1) for special leave.(8) Regarded from the angle, this is not a proper case for special leave. The High Court gives a clear finding that there were more than five persons and believes the eye-witnesses who identify the two appellants. The mere fact that only two out of the band of attackers were satisfactorily identified does not weaken the force of the finding that more than five were involved. The use of section 149, I.P.C. was therefore justified and the convictions are proper.(9) We see no reason to interfere with the sentences. A number of persons joined in an attack at two in the morning on helpless persons who were asleep in bed. At least one of the assailants was armed either with a gun or a pistol. He shot one man dead and attempted to murder another, and the band looted their property.

Indresh Kumar Mishra and Ors Vs. The State of Jharkhand &amp; Ors

the same view is applicable with respect to the Bachelor degree in History. Therefore, the same analogy is applicable to both – Postgraduate degree in History and Bachelor degree in History. 4.3 It is further submitted by the learned counsel for the respective respondents including those, who have already been appointed that only those candidates, who were having the degrees in History have been selected and appointed. Shri Sinha, learned Senior Advocate appearing on behalf of the impleaders submitted that the already appointed candidates are only those, who were having the Bachelor / Postgraduate degree in History and not in a particular branch of History. 4.4 Making the above submissions, it is contended that the learned Single Judge as well as the High Court have rightly refused to grant any relief in favour of the original writ petitioners on the ground that they cannot be said to be having the requisite qualifications as per the advertisement. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. At the outset, it is required to be noted that in the present appeals, the dispute is with respect to the posts namely, Postgraduate Trained Teacher in History and Graduate Trained Teachers in History/Civics. As per the State, so far as the G.T.T. is concerned, the requirement was a combination of History/Civics. As per the advertisement, a candidate must have the Postgraduate/Bachelor degree in the subject History. So far as the G.T.T. is concerned, the educational qualifications required was Bachelor degree in History as well as Political Science as the requirement was for History/Civics. Therefore, for both the posts namely the Postgraduate Trained Teachers (History) and Graduate Trained Teachers (History/Civics), a candidate must have the Postgraduate/Bachelor degree in History as a whole. 6.1 We have gone through the degrees/ certificates in the case of the respective writ petitioners. It appears that the respective writ petitioners have obtained the Postgraduate degrees/ Bachelor degrees, as the case may be, in one of the branches of History, namely, Indian Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology. In our view, obtaining the degree in one of the branches of History cannot be said to be obtaining the degree in History as a whole. As a History teacher, he/she has to teach in all the subjects of History, namely, Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology etc. Therefore, having studied and obtaining the degree in only one branch of History cannot be said to be having a degree in History subject as a whole, which was the requirement. All the relevant aspects have been considered and gone into in detail by the learned Single Judge meticulously. 6.2 Now, so far as the reliance placed upon the decision of the learned Single Judge of the Jharkhand High Court in Writ Petition No.1130 of 2017 – Hari Sharma and Ors. Vs. State of Jharkhand is concerned, it is to be noted that the said decision of the learned Single Judge has been stayed by the Division Bench in appeal and the decision is pending. Even the controversy in the said writ petition before the learned Single Judge was with respect to combination post namely, History/Civics and there was no specific controversy like in the present case. 6.3 It is also required to be noted that all the posts advertised have been filled in and the respective teachers are working. 6.4 At this stage, it is required to be noted that even at the request of J.S.S.C. the question, whether, the degrees obtained by the respective petitioners in one branch of History can be said to be sufficient compliance as per the advertisement and can be said to be obtaining a degree in History came to be considered by the Expert Committee and the Expert Committee has opined that the degrees obtained by the respective candidates/petitioners in one branch of History cannot be said to be obtaining the degree in History as a whole and therefore they cannot be said to be having the requisite qualification as per the advertisement. 6.5 As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter. 6.6 In the present case, the educational qualifications required has been specifically mentioned in the advertisement. There is no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). There cannot be any deviation from the educational qualifications mentioned in the advertisement. Once having found that the respective writ petitioners – appellants herein were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was canceled, both the learned Single Judge as well as the Division Bench of the High Court have rightly refused to interfere with the same. We are in complete agreement with the view taken by the learned Single Judge and the Division Bench of the High Court. 6.7 As observed hereinabove in the online applications, it was stated by the respective petitioners that they are having the Postgraduate/Bachelor degree in History and only at the time of verification of the documents, when the respective certificates were produced, at that time only, the authorities came to know that the respective writ petitioners have the degrees in one branch of History and not in History as a whole and therefore the show-cause notices were issued so that the respective petitioners can clarify and satisfy that they are having the requisite qualification of Postgraduate/Bachelor degree in History and after giving them the opportunity, the decision has been taken and that too after obtaining the Expert Committees opinion.

0[ds]6. At the outset, it is required to be noted that in the present appeals, the dispute is with respect to the posts namely, Postgraduate Trained Teacher in History and Graduate Trained Teachers in History/Civics. As per the State, so far as the G.T.T. is concerned, the requirement was a combination of History/Civics. As per the advertisement, a candidate must have the Postgraduate/Bachelor degree in the subject History. So far as the G.T.T. is concerned, the educational qualifications required was Bachelor degree in History as well as Political Science as the requirement was for History/Civics. Therefore, for both the posts namely the Postgraduate Trained Teachers (History) and Graduate Trained Teachers (History/Civics), a candidate must have the Postgraduate/Bachelor degree in History as a whole.6.1 We have gone through the degrees/ certificates in the case of the respective writ petitioners. It appears that the respective writ petitioners have obtained the Postgraduate degrees/ Bachelor degrees, as the case may be, in one of the branches of History, namely, Indian Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology. In our view, obtaining the degree in one of the branches of History cannot be said to be obtaining the degree in History as a whole. As a History teacher, he/she has to teach in all the subjects of History, namely, Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology etc. Therefore, having studied and obtaining the degree in only one branch of History cannot be said to be having a degree in History subject as a whole, which was the requirement. All the relevant aspects have been considered and gone into in detail by the learned Single Judge meticulously.6.2 Now, so far as the reliance placed upon the decision of the learned Single Judge of the Jharkhand High Court in Writ Petition No.1130 of 2017 – Hari Sharma and Ors. Vs. State of Jharkhand is concerned, it is to be noted that the said decision of the learned Single Judge has been stayed by the Division Bench in appeal and the decision is pending. Even the controversy in the said writ petition before the learned Single Judge was with respect to combination post namely, History/Civics and there was no specific controversy like in the present case.6.3 It is also required to be noted that all the posts advertised have been filled in and the respective teachers are working.6.4 At this stage, it is required to be noted that even at the request of J.S.S.C. the question, whether, the degrees obtained by the respective petitioners in one branch of History can be said to be sufficient compliance as per the advertisement and can be said to be obtaining a degree in History came to be considered by the Expert Committee and the Expert Committee has opined that the degrees obtained by the respective candidates/petitioners in one branch of History cannot be said to be obtaining the degree in History as a whole and therefore they cannot be said to be having the requisite qualification as per the advertisement.6.5 As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.6.6 In the present case, the educational qualifications required has been specifically mentioned in the advertisement. There is no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). There cannot be any deviation from the educational qualifications mentioned in the advertisement. Once having found that the respective writ petitioners – appellants herein were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was canceled, both the learned Single Judge as well as the Division Bench of the High Court have rightly refused to interfere with the same. We are in complete agreement with the view taken by the learned Single Judge and the Division Bench of the High Court.6.7 As observed hereinabove in the online applications, it was stated by the respective petitioners that they are having the Postgraduate/Bachelor degree in History and only at the time of verification of the documents, when the respective certificates were produced, at that time only, the authorities came to know that the respective writ petitioners have the degrees in one branch of History and not in History as a whole and therefore the show-cause notices were issued so that the respective petitioners can clarify and satisfy that they are having the requisite qualification of Postgraduate/Bachelor degree in History and after giving them the opportunity, the decision has been taken and that too after obtaining the Expert Committees opinion.

### 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: the same view is applicable with respect to the Bachelor degree in History. Therefore, the same analogy is applicable to both – Postgraduate degree in History and Bachelor degree in History. 4.3 It is further submitted by the learned counsel for the respective respondents including those, who have already been appointed that only those candidates, who were having the degrees in History have been selected and appointed. Shri Sinha, learned Senior Advocate appearing on behalf of the impleaders submitted that the already appointed candidates are only those, who were having the Bachelor / Postgraduate degree in History and not in a particular branch of History. 4.4 Making the above submissions, it is contended that the learned Single Judge as well as the High Court have rightly refused to grant any relief in favour of the original writ petitioners on the ground that they cannot be said to be having the requisite qualifications as per the advertisement. 5. We have heard the learned counsel appearing on behalf of the respective parties at length. 6. At the outset, it is required to be noted that in the present appeals, the dispute is with respect to the posts namely, Postgraduate Trained Teacher in History and Graduate Trained Teachers in History/Civics. As per the State, so far as the G.T.T. is concerned, the requirement was a combination of History/Civics. As per the advertisement, a candidate must have the Postgraduate/Bachelor degree in the subject History. So far as the G.T.T. is concerned, the educational qualifications required was Bachelor degree in History as well as Political Science as the requirement was for History/Civics. Therefore, for both the posts namely the Postgraduate Trained Teachers (History) and Graduate Trained Teachers (History/Civics), a candidate must have the Postgraduate/Bachelor degree in History as a whole. 6.1 We have gone through the degrees/ certificates in the case of the respective writ petitioners. It appears that the respective writ petitioners have obtained the Postgraduate degrees/ Bachelor degrees, as the case may be, in one of the branches of History, namely, Indian Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology. In our view, obtaining the degree in one of the branches of History cannot be said to be obtaining the degree in History as a whole. As a History teacher, he/she has to teach in all the subjects of History, namely, Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology etc. Therefore, having studied and obtaining the degree in only one branch of History cannot be said to be having a degree in History subject as a whole, which was the requirement. All the relevant aspects have been considered and gone into in detail by the learned Single Judge meticulously. 6.2 Now, so far as the reliance placed upon the decision of the learned Single Judge of the Jharkhand High Court in Writ Petition No.1130 of 2017 – Hari Sharma and Ors. Vs. State of Jharkhand is concerned, it is to be noted that the said decision of the learned Single Judge has been stayed by the Division Bench in appeal and the decision is pending. Even the controversy in the said writ petition before the learned Single Judge was with respect to combination post namely, History/Civics and there was no specific controversy like in the present case. 6.3 It is also required to be noted that all the posts advertised have been filled in and the respective teachers are working. 6.4 At this stage, it is required to be noted that even at the request of J.S.S.C. the question, whether, the degrees obtained by the respective petitioners in one branch of History can be said to be sufficient compliance as per the advertisement and can be said to be obtaining a degree in History came to be considered by the Expert Committee and the Expert Committee has opined that the degrees obtained by the respective candidates/petitioners in one branch of History cannot be said to be obtaining the degree in History as a whole and therefore they cannot be said to be having the requisite qualification as per the advertisement. 6.5 As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter. 6.6 In the present case, the educational qualifications required has been specifically mentioned in the advertisement. There is no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). There cannot be any deviation from the educational qualifications mentioned in the advertisement. Once having found that the respective writ petitioners – appellants herein were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was canceled, both the learned Single Judge as well as the Division Bench of the High Court have rightly refused to interfere with the same. We are in complete agreement with the view taken by the learned Single Judge and the Division Bench of the High Court. 6.7 As observed hereinabove in the online applications, it was stated by the respective petitioners that they are having the Postgraduate/Bachelor degree in History and only at the time of verification of the documents, when the respective certificates were produced, at that time only, the authorities came to know that the respective writ petitioners have the degrees in one branch of History and not in History as a whole and therefore the show-cause notices were issued so that the respective petitioners can clarify and satisfy that they are having the requisite qualification of Postgraduate/Bachelor degree in History and after giving them the opportunity, the decision has been taken and that too after obtaining the Expert Committees opinion. ### Response: 0 ### Explanation: 6. At the outset, it is required to be noted that in the present appeals, the dispute is with respect to the posts namely, Postgraduate Trained Teacher in History and Graduate Trained Teachers in History/Civics. As per the State, so far as the G.T.T. is concerned, the requirement was a combination of History/Civics. As per the advertisement, a candidate must have the Postgraduate/Bachelor degree in the subject History. So far as the G.T.T. is concerned, the educational qualifications required was Bachelor degree in History as well as Political Science as the requirement was for History/Civics. Therefore, for both the posts namely the Postgraduate Trained Teachers (History) and Graduate Trained Teachers (History/Civics), a candidate must have the Postgraduate/Bachelor degree in History as a whole.6.1 We have gone through the degrees/ certificates in the case of the respective writ petitioners. It appears that the respective writ petitioners have obtained the Postgraduate degrees/ Bachelor degrees, as the case may be, in one of the branches of History, namely, Indian Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology. In our view, obtaining the degree in one of the branches of History cannot be said to be obtaining the degree in History as a whole. As a History teacher, he/she has to teach in all the subjects of History, namely, Ancient History, Indian Ancient History and Culture, Medieval / Modern History, Indian Ancient History, Culture and Archaeology etc. Therefore, having studied and obtaining the degree in only one branch of History cannot be said to be having a degree in History subject as a whole, which was the requirement. All the relevant aspects have been considered and gone into in detail by the learned Single Judge meticulously.6.2 Now, so far as the reliance placed upon the decision of the learned Single Judge of the Jharkhand High Court in Writ Petition No.1130 of 2017 – Hari Sharma and Ors. Vs. State of Jharkhand is concerned, it is to be noted that the said decision of the learned Single Judge has been stayed by the Division Bench in appeal and the decision is pending. Even the controversy in the said writ petition before the learned Single Judge was with respect to combination post namely, History/Civics and there was no specific controversy like in the present case.6.3 It is also required to be noted that all the posts advertised have been filled in and the respective teachers are working.6.4 At this stage, it is required to be noted that even at the request of J.S.S.C. the question, whether, the degrees obtained by the respective petitioners in one branch of History can be said to be sufficient compliance as per the advertisement and can be said to be obtaining a degree in History came to be considered by the Expert Committee and the Expert Committee has opined that the degrees obtained by the respective candidates/petitioners in one branch of History cannot be said to be obtaining the degree in History as a whole and therefore they cannot be said to be having the requisite qualification as per the advertisement.6.5 As per the settled proposition of law, in the field of education, the Court of Law cannot act as an expert normally, therefore, whether or not a student/candidate is possessing the requisite qualification should better be left to the educational institutions, more particularly, when the Expert Committee considers the matter.6.6 In the present case, the educational qualifications required has been specifically mentioned in the advertisement. There is no ambiguity and/or confusion in the advertisement providing educational qualification and the post for which the applications were invited (History/Civics). There cannot be any deviation from the educational qualifications mentioned in the advertisement. Once having found that the respective writ petitioners – appellants herein were not having the requisite qualification as per the advertisement, namely, the Postgraduate/Bachelor degree in History, which was the requirement as per the advertisement and thereafter their candidature was canceled, both the learned Single Judge as well as the Division Bench of the High Court have rightly refused to interfere with the same. We are in complete agreement with the view taken by the learned Single Judge and the Division Bench of the High Court.6.7 As observed hereinabove in the online applications, it was stated by the respective petitioners that they are having the Postgraduate/Bachelor degree in History and only at the time of verification of the documents, when the respective certificates were produced, at that time only, the authorities came to know that the respective writ petitioners have the degrees in one branch of History and not in History as a whole and therefore the show-cause notices were issued so that the respective petitioners can clarify and satisfy that they are having the requisite qualification of Postgraduate/Bachelor degree in History and after giving them the opportunity, the decision has been taken and that too after obtaining the Expert Committees opinion.

Bombay Steam Navigation Co. (1953) Private Ltd Vs. Commissioner Of Income-Tax, Bombay

liability is always to be regarded as falling within S. 10(2)(xv).16. Whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must be viewed in the larger context of business necessity or expendiency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profiteering process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. In a recent case State of Madras v. G. J. Coelho, (1964) 53 ITR (SC) 186 : (AIR 1965 SC 321 ), this Court had to consider the permissibility of a deduction under S. 5(e) of the Madras Plantations Agricultural Income-tax Act, 1955. Section 5(e), it may be observed, is in terms similar to S. 10(2)(xv) of the Income-tax Act. S. 5 permits deductions of various items of expenditure in the computation of agricultural income. Clause (e) provides for the deduction of any expenditure incurred in the previous year (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of plantation. The assessee in that case had purchased an estate consisting of tea, coffee and rubber plantations in the Nilgiris mountains for Rs. 3,10,000. He borrowed Rs. 2,90,000 on interest and claimed to deduct the interest paid out of the income of the plantations in the assessment year 1955-56. The claim was made under cls. (e) and (k) of S. 5. The claim under cl. (k) was not admissible because interest was not payable on the amounts borrowed and actually spent on the plantations in the previous year, and the sole question which fell to be determined was whether it was a permissible allowance under S. 5(e), it was held that the payment of interest was not in the nature of capital expenditure in the year of account. The Court held that payment of interest even in respect of capital borrowed for acquiring asset. to carry on business must be regarded as revenue expenditure in commercial practice and should not be termed as capital expenditure. Dealing with the application of S. 5(c) it was observed. :"The assessee had bought the plantation for working it as a plantation, i.e. for growing tea, coffee and rubber. The payment of interest on the amount borrowed for the purchase of the plantation when the whole transaction of purchase and the working of the plantation is viewed as an integrated whole, is so closely related to the plantation that the expenditure can be said to be laid out or expended wholly and exclusively for the purpose of the plantation. In this connection, it is pertinent to note that what the Act purports to tax is agricultural income and not agricultural receipts. From the agricultural receipts must be deducted all expenses which in ordinary commercial accounting must be debited against the receipts. In principle, we do not see any distinction between interest paid on capital borrowed for the acquisition of a plantation and interest paid on capital borrowed for the purpose of existing plantations; both are for the purposes of the plantation."The test laid down by this Court, therefore, was that expenditure made under a transaction which is so closely related to the business that it could be viewed as an integral part of the conduct of the business, may be regarded as revenue expenditure laid out wholly and exclusively for the purposes of the business.17. The assessee Company had undoubtedly acquired the assets by pledging its credit. The assessee Company was formed for the purpose of taking over the business which the Scindias had acquired and for carrying on that business the assets with which the business was to be carried on were required. For obtaining those assets the assessee Company rendered itself liable for a Sum of Rs. 1,56,000 and agreed to pay that sum with interest at the rate stipulated. The transaction of acquisition of the assets was closely related to the commencement and carrying on of the business. Interest paid on the amount remaining due must in the normal course be regarded as expended for the purpose of the business, which was carried on in the year of account. There is no dispute that if interest was paid for the purpose of the business, it was laid out or expended wholly and exclusively for that purpose.18. Mr. Rajagopala Sastri on behalf of the Revenue contended that as profits which arise after the business is closed are not taxable under S.10(1), expenditure the source of which is a liability incurred before the actual commencement of business cannot also be regarded as a permissible outgoing under S.10(2)(xv). It is unnecessary to examine the correctness of this argument, for it has no basis in fact. The assessee Company was formed on August 10, 1953, it had entered into an agreement on August 12, 1953, and interest was paid in the years of account ending June 30, 1954 and June 30, 1955. The source of liability cannot be said to have arisen prior to the date on which the business of the assessee Company was commenced. S. 10(2) requires that in computing the taxable profits or gains of a business which is carried on in the year of account allowances of the nature described in cls. (i) to (xv) should be made. If no business was carried on in that year, the allowances are not permissible. But interest in respect of which allowance is claimed was paid at a time when the business was carried on, and the source of liability to pay interest was also incurred within the period in which the business was carried on.

1[ds]9. In our judgment this is not a permissible approach in ascertaining the true nature of the transaction. The parties had agreed that assets of the value of Rs. 81,55,000 be taken over by the assessee Company from the Scindias. Out of that consideration Rs.29,99,000 were paid by the assessee Company and the balance remained unpaid. For agreeing to deferred payment of a part of the consideration, the Scindias were to be paid interest. An agreement to pay the balance of consideration due by the purchaser does not in truth give rise to a loan. A loan of money undoubtedly results in a debt, but every debt does not involve a loan. Liability to pay a debt may arise from diverse sources, and a loan is only one of such sources.Every creditor who is entitled to receive a debt cannot he regarded as a lender. If the requisite amount of consideration had been borrowed from a stranger and interest paid thereon for the purpose of carrying on the business would have been regarded as a permissible allowance; but that is wholly irrelevant in considering the applicability of cl. (iii) of sub-s. (2) to the problem arising in this case. The Legislature has under cl. (iii) permitted as an allowance interest paid on capital borrowed for the purposes of the business; if interest paid, but not on capital borrowed, cl. (iii) will have no application.We, therefore, agree with the High Court that the claim for deduction of the amount of interest under S.10(2)(iii) is not admissible.The assessee Company had undoubtedly acquired the assets by pledging its credit. The assessee Company was formed for the purpose of taking over the business which the Scindias had acquired and for carrying on that business the assets with which the business was to be carried on were required. For obtaining those assets the assessee Company rendered itself liable for a Sum of Rs. 1,56,000 and agreed to pay that sum with interest at the rate stipulated. The transaction of acquisition of the assets was closely related to the commencement and carrying on of the business. Interest paid on the amount remaining due must in the normal course be regarded as expended for the purpose of the business, which was carried on in the year of account. There is no dispute that if interest was paid for the purpose of the business, it was laid out or expended wholly and exclusively for thatis unnecessary to examine the correctness of this argument, for it has no basis in fact. The assessee Company was formed on August 10, 1953, it had entered into an agreement on August 12, 1953, and interest was paid in the years of account ending June 30, 1954 and June 30, 1955. The source of liability cannot be said to have arisen prior to the date on which the business of the assessee Company was commenced. S. 10(2) requires that in computing the taxable profits or gains of a business which is carried on in the year of account allowances of the nature described in cls. (i) to (xv) should be made. If no business was carried on in that year, the allowances are not permissible. But interest in respect of which allowance is claimed was paid at a time when the business was carried on, and the source of liability to pay interest was also incurred within the period in which the business was carried on.I agree with the conclusion, but I would prefer not to express my view on the construction of cl. (iii) of sub-s. (2) of S. 10 of the Indian Income-tax Act, 1922.The principle of Commr. of I.T. Madras v. S. Ramsay Unger, (1947) 15 ITR 87 : (AIR 1947 Mad 279 ), on which strong reliance was placed by Mr. Vishwanatha Sastri does not come to his aid, for in that case the Court held on the facts and circumstances that in substance the transaction which gave rise to the liability to pay interest was one of borrowing capital and, therefore, the whole of interest debited in the books of the assessee must be allowed as interest paid on such capital.But in our judgment interest paid by the assessee Company is a permissible deduction under S.10(2)(xv) which permits "any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation" as a permissible allowance in the computation of profits or gains of the business carried on in the year of account. Payment of interest is expenditure; but it is not an allowance of the nature described in cl. (iii) and there is no other clause in cls.(i) to (xiv) to which the payment of interest on unpaid balance of consideration for sale of assets may be attracted. The expenditure was incurred after the commencement of the business. The expenditure is not for any private or domestic purposes of the assessee Company. It is in the capacity, of a person carrying on business that this interest istest laid down by this Court, therefore, was that expenditure made under a transaction which is so closely related to the business that it could be viewed as an integral part of the conduct of the business, may be regarded as revenue expenditure laid out wholly and exclusively for the purposes of the business.

### 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: liability is always to be regarded as falling within S. 10(2)(xv).16. Whether a particular expenditure is revenue expenditure incurred for the purpose of business must be determined on a consideration of all the facts and circumstances, and by the application of principles of commercial trading. The question must be viewed in the larger context of business necessity or expendiency. If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profiteering process and not for acquisition of an asset or a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure. In a recent case State of Madras v. G. J. Coelho, (1964) 53 ITR (SC) 186 : (AIR 1965 SC 321 ), this Court had to consider the permissibility of a deduction under S. 5(e) of the Madras Plantations Agricultural Income-tax Act, 1955. Section 5(e), it may be observed, is in terms similar to S. 10(2)(xv) of the Income-tax Act. S. 5 permits deductions of various items of expenditure in the computation of agricultural income. Clause (e) provides for the deduction of any expenditure incurred in the previous year (not being in the nature of capital expenditure or personal expenses of the assessee) laid out or expended wholly and exclusively for the purpose of plantation. The assessee in that case had purchased an estate consisting of tea, coffee and rubber plantations in the Nilgiris mountains for Rs. 3,10,000. He borrowed Rs. 2,90,000 on interest and claimed to deduct the interest paid out of the income of the plantations in the assessment year 1955-56. The claim was made under cls. (e) and (k) of S. 5. The claim under cl. (k) was not admissible because interest was not payable on the amounts borrowed and actually spent on the plantations in the previous year, and the sole question which fell to be determined was whether it was a permissible allowance under S. 5(e), it was held that the payment of interest was not in the nature of capital expenditure in the year of account. The Court held that payment of interest even in respect of capital borrowed for acquiring asset. to carry on business must be regarded as revenue expenditure in commercial practice and should not be termed as capital expenditure. Dealing with the application of S. 5(c) it was observed. :"The assessee had bought the plantation for working it as a plantation, i.e. for growing tea, coffee and rubber. The payment of interest on the amount borrowed for the purchase of the plantation when the whole transaction of purchase and the working of the plantation is viewed as an integrated whole, is so closely related to the plantation that the expenditure can be said to be laid out or expended wholly and exclusively for the purpose of the plantation. In this connection, it is pertinent to note that what the Act purports to tax is agricultural income and not agricultural receipts. From the agricultural receipts must be deducted all expenses which in ordinary commercial accounting must be debited against the receipts. In principle, we do not see any distinction between interest paid on capital borrowed for the acquisition of a plantation and interest paid on capital borrowed for the purpose of existing plantations; both are for the purposes of the plantation."The test laid down by this Court, therefore, was that expenditure made under a transaction which is so closely related to the business that it could be viewed as an integral part of the conduct of the business, may be regarded as revenue expenditure laid out wholly and exclusively for the purposes of the business.17. The assessee Company had undoubtedly acquired the assets by pledging its credit. The assessee Company was formed for the purpose of taking over the business which the Scindias had acquired and for carrying on that business the assets with which the business was to be carried on were required. For obtaining those assets the assessee Company rendered itself liable for a Sum of Rs. 1,56,000 and agreed to pay that sum with interest at the rate stipulated. The transaction of acquisition of the assets was closely related to the commencement and carrying on of the business. Interest paid on the amount remaining due must in the normal course be regarded as expended for the purpose of the business, which was carried on in the year of account. There is no dispute that if interest was paid for the purpose of the business, it was laid out or expended wholly and exclusively for that purpose.18. Mr. Rajagopala Sastri on behalf of the Revenue contended that as profits which arise after the business is closed are not taxable under S.10(1), expenditure the source of which is a liability incurred before the actual commencement of business cannot also be regarded as a permissible outgoing under S.10(2)(xv). It is unnecessary to examine the correctness of this argument, for it has no basis in fact. The assessee Company was formed on August 10, 1953, it had entered into an agreement on August 12, 1953, and interest was paid in the years of account ending June 30, 1954 and June 30, 1955. The source of liability cannot be said to have arisen prior to the date on which the business of the assessee Company was commenced. S. 10(2) requires that in computing the taxable profits or gains of a business which is carried on in the year of account allowances of the nature described in cls. (i) to (xv) should be made. If no business was carried on in that year, the allowances are not permissible. But interest in respect of which allowance is claimed was paid at a time when the business was carried on, and the source of liability to pay interest was also incurred within the period in which the business was carried on. ### Response: 1 ### Explanation: 9. In our judgment this is not a permissible approach in ascertaining the true nature of the transaction. The parties had agreed that assets of the value of Rs. 81,55,000 be taken over by the assessee Company from the Scindias. Out of that consideration Rs.29,99,000 were paid by the assessee Company and the balance remained unpaid. For agreeing to deferred payment of a part of the consideration, the Scindias were to be paid interest. An agreement to pay the balance of consideration due by the purchaser does not in truth give rise to a loan. A loan of money undoubtedly results in a debt, but every debt does not involve a loan. Liability to pay a debt may arise from diverse sources, and a loan is only one of such sources.Every creditor who is entitled to receive a debt cannot he regarded as a lender. If the requisite amount of consideration had been borrowed from a stranger and interest paid thereon for the purpose of carrying on the business would have been regarded as a permissible allowance; but that is wholly irrelevant in considering the applicability of cl. (iii) of sub-s. (2) to the problem arising in this case. The Legislature has under cl. (iii) permitted as an allowance interest paid on capital borrowed for the purposes of the business; if interest paid, but not on capital borrowed, cl. (iii) will have no application.We, therefore, agree with the High Court that the claim for deduction of the amount of interest under S.10(2)(iii) is not admissible.The assessee Company had undoubtedly acquired the assets by pledging its credit. The assessee Company was formed for the purpose of taking over the business which the Scindias had acquired and for carrying on that business the assets with which the business was to be carried on were required. For obtaining those assets the assessee Company rendered itself liable for a Sum of Rs. 1,56,000 and agreed to pay that sum with interest at the rate stipulated. The transaction of acquisition of the assets was closely related to the commencement and carrying on of the business. Interest paid on the amount remaining due must in the normal course be regarded as expended for the purpose of the business, which was carried on in the year of account. There is no dispute that if interest was paid for the purpose of the business, it was laid out or expended wholly and exclusively for thatis unnecessary to examine the correctness of this argument, for it has no basis in fact. The assessee Company was formed on August 10, 1953, it had entered into an agreement on August 12, 1953, and interest was paid in the years of account ending June 30, 1954 and June 30, 1955. The source of liability cannot be said to have arisen prior to the date on which the business of the assessee Company was commenced. S. 10(2) requires that in computing the taxable profits or gains of a business which is carried on in the year of account allowances of the nature described in cls. (i) to (xv) should be made. If no business was carried on in that year, the allowances are not permissible. But interest in respect of which allowance is claimed was paid at a time when the business was carried on, and the source of liability to pay interest was also incurred within the period in which the business was carried on.I agree with the conclusion, but I would prefer not to express my view on the construction of cl. (iii) of sub-s. (2) of S. 10 of the Indian Income-tax Act, 1922.The principle of Commr. of I.T. Madras v. S. Ramsay Unger, (1947) 15 ITR 87 : (AIR 1947 Mad 279 ), on which strong reliance was placed by Mr. Vishwanatha Sastri does not come to his aid, for in that case the Court held on the facts and circumstances that in substance the transaction which gave rise to the liability to pay interest was one of borrowing capital and, therefore, the whole of interest debited in the books of the assessee must be allowed as interest paid on such capital.But in our judgment interest paid by the assessee Company is a permissible deduction under S.10(2)(xv) which permits "any expenditure not being an allowance of the nature described in any of the clauses (i) to (xiv) inclusive and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation" as a permissible allowance in the computation of profits or gains of the business carried on in the year of account. Payment of interest is expenditure; but it is not an allowance of the nature described in cl. (iii) and there is no other clause in cls.(i) to (xiv) to which the payment of interest on unpaid balance of consideration for sale of assets may be attracted. The expenditure was incurred after the commencement of the business. The expenditure is not for any private or domestic purposes of the assessee Company. It is in the capacity, of a person carrying on business that this interest istest laid down by this Court, therefore, was that expenditure made under a transaction which is so closely related to the business that it could be viewed as an integral part of the conduct of the business, may be regarded as revenue expenditure laid out wholly and exclusively for the purposes of the business.

G.Sagar Suri Vs. State Of U.P. And Ors

University rule that no outsider shall stay in a University hostel. It said that such a view is plainly calculated to subvert discipline in a sphere where it is most needed. This Court said that High Court ought not to have made these observations without, at least, giving a hearing to the University. This Court set aside the judgment of the High Court and allowed investigation to proceed. 11. In Chandrapal Singh and others v. Maharaj Singh and another, AIR 1982 SC 1238 the judgment started as under :- "A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous." This Court said :- "We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost is both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482 Cr.P.C." 12. This Court said that the Chief Judicial Magistrate, Secunderabad ought not to have taken cognizance of the proceedings. It said it considered it to be a fit case to invoke jurisdiction under Section 482 of the Code. 13. In the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of criminal court for allegedly having committed offences under Sections 406/420 IPC by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that he is the authorised signatory of that company and that in fact he had signed the cheques which were returned dishonoured. Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got loan of Rs. 50,00,000/- from the complainant company for Ganga Automobiles Ltd. there is nothing said as to what were those misrepresentations and how the complainant company was duped. The only part attributed to the second appellant is that the first appellant along with Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June, 1996 and had represented that they and Shalini Suri, Shama Suri (appellant No. 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing stated in the counter affidavit about the role, if any, played by the second appellant. A complaint under Section 138 of the Negotiable Instruments Act has already been filed by the complainant. There is no allegation of any corrupt practice by any of the accused as if they duped the Finance Company is parting with the amount of Rs. 50,00,000/-. As normally understood business of a finance company is to invite deposits, pay interest on that and also to give loans and earn interest. A finance company also advances short term loans. In that case it is essentially a commercial transaction. After first two cheques were dishonoured two cheques were again issued, which again were dishonoured resulting in filing of complaint under Section 138 of the Negotiable Instruments Act. None of the respondents has been able to explain as to why offences under Sections 406/420 IPC were not added in the complaint filed under Section 138 of the Negotiable Instruments Act and why resort was had to filing of a separate First Information Report. Certain motive has been attributed to the Investigating Officer but we think we need not go into that. There is also no answer as to why investigation against three other directors was still stated to be pending when same role is assigned to all the accused. In the FIR it is Sukhvender Singh, who first approached the complainant, but later it is Mukender Singh. There is no answer as to why there are two different names. As to who are the directors of Ganga Automobiles Ltd. could have been easily found by the complainant after going through the records of Registrar of Companies and also about its status. As noted above, in the subsequent statement by the complainant he does not assign any role to the first appellant. The allegation that in the first instance three persons contacted the complainant company, who told the complainant of other Directors with whom the complainant conversed on telephone appears to be rather improbable.14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with a sole of purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do.

1[ds]13. In the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of criminal court for allegedly having committed offences under Sections 406/420 IPC by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that he is the authorised signatory of that company and that in fact he had signed the cheques which were returned dishonoured. Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got loan of Rs. 50,00,000/from the complainant company for Ganga Automobiles Ltd. there is nothing said as to what were those misrepresentations and how the complainant company was duped. The only part attributed to the second appellant is that the first appellant along with Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June, 1996 and had represented that they and Shalini Suri, Shama Suri (appellant No. 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing stated in the counter affidavit about the role, if any, played by the second appellant. A complaint under Section 138 of the Negotiable Instruments Act has already been filed by the complainant. There is no allegation of any corrupt practice by any of the accused as if they duped the Finance Company is parting with the amount of Rs.As normally understood business of a finance company is to invite deposits, pay interest on that and also to give loans and earn interest. A finance company also advances short term loans. In that case it is essentially a commercial transaction. After first two cheques were dishonoured two cheques were again issued, which again were dishonoured resulting in filing of complaint under Section 138 of the Negotiable Instruments Act. None of the respondents has been able to explain as to why offences under Sections 406/420 IPC were not added in the complaint filed under Section 138 of the Negotiable Instruments Act and why resort was had to filing of a separate First Information Report. Certain motive has been attributed to the Investigating Officer but we think we need not go into that. There is also no answer as to why investigation against three other directors was still stated to be pending when same role is assigned to all the accused. In the FIR it is Sukhvender Singh, who first approached the complainant, but later it is Mukender Singh. There is no answer as to why there are two different names. As to who are the directors of Ganga Automobiles Ltd. could have been easily found by the complainant after going through the records of Registrar of Companies and also about its status. As noted above, in the subsequent statement by the complainant he does not assign any role to the first appellant. The allegation that in the first instance three persons contacted the complainant company, who told the complainant of other Directors with whom the complainant conversed on telephone appears to be rather improbable.14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with a sole of purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do.

### 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: University rule that no outsider shall stay in a University hostel. It said that such a view is plainly calculated to subvert discipline in a sphere where it is most needed. This Court said that High Court ought not to have made these observations without, at least, giving a hearing to the University. This Court set aside the judgment of the High Court and allowed investigation to proceed. 11. In Chandrapal Singh and others v. Maharaj Singh and another, AIR 1982 SC 1238 the judgment started as under :- "A frustrated landlord after having met his waterloo in the hierarchy of civil courts, has further enmeshed the tenant in a frivolous criminal prosecution which prima facie appears to be an abuse of the process of law. The facts when stated are so telling that the further discussion may appear to be superfluous." This Court said :- "We see some force in the submission but it is equally true that chagrined and frustrated litigants should not be permitted to give vent to their frustration by cheaply invoking jurisdiction of the criminal court. Complainant herein is an Advocate. He lost is both courts in the rent control proceedings and has now rushed to the criminal court. This itself speaks volumes. Add to this the fact that another suit between the parties was pending from 1975. The conclusion is inescapable that invoking the jurisdiction of the criminal court in this background is an abuse of the process of law and the High Court rather glossed over this important fact while declining to exercise its power under Section 482 Cr.P.C." 12. This Court said that the Chief Judicial Magistrate, Secunderabad ought not to have taken cognizance of the proceedings. It said it considered it to be a fit case to invoke jurisdiction under Section 482 of the Code. 13. In the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of criminal court for allegedly having committed offences under Sections 406/420 IPC by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that he is the authorised signatory of that company and that in fact he had signed the cheques which were returned dishonoured. Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got loan of Rs. 50,00,000/- from the complainant company for Ganga Automobiles Ltd. there is nothing said as to what were those misrepresentations and how the complainant company was duped. The only part attributed to the second appellant is that the first appellant along with Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June, 1996 and had represented that they and Shalini Suri, Shama Suri (appellant No. 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing stated in the counter affidavit about the role, if any, played by the second appellant. A complaint under Section 138 of the Negotiable Instruments Act has already been filed by the complainant. There is no allegation of any corrupt practice by any of the accused as if they duped the Finance Company is parting with the amount of Rs. 50,00,000/-. As normally understood business of a finance company is to invite deposits, pay interest on that and also to give loans and earn interest. A finance company also advances short term loans. In that case it is essentially a commercial transaction. After first two cheques were dishonoured two cheques were again issued, which again were dishonoured resulting in filing of complaint under Section 138 of the Negotiable Instruments Act. None of the respondents has been able to explain as to why offences under Sections 406/420 IPC were not added in the complaint filed under Section 138 of the Negotiable Instruments Act and why resort was had to filing of a separate First Information Report. Certain motive has been attributed to the Investigating Officer but we think we need not go into that. There is also no answer as to why investigation against three other directors was still stated to be pending when same role is assigned to all the accused. In the FIR it is Sukhvender Singh, who first approached the complainant, but later it is Mukender Singh. There is no answer as to why there are two different names. As to who are the directors of Ganga Automobiles Ltd. could have been easily found by the complainant after going through the records of Registrar of Companies and also about its status. As noted above, in the subsequent statement by the complainant he does not assign any role to the first appellant. The allegation that in the first instance three persons contacted the complainant company, who told the complainant of other Directors with whom the complainant conversed on telephone appears to be rather improbable.14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with a sole of purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do. ### Response: 1 ### Explanation: 13. In the circumstances of the case in hand conclusion is inescapable that invoking the jurisdiction of criminal court for allegedly having committed offences under Sections 406/420 IPC by the appellants is certainly an abuse of the process of law. In the counter affidavit filed on behalf of the complainant it is now admitted that none of the two appellants is a director of Ganga Automobiles Ltd. Only in respect of the first appellant it is stated that he is the authorised signatory of that company and that in fact he had signed the cheques which were returned dishonoured. Apart from making the omnibus statement that the first appellant with dishonest intentions and misrepresentations got loan of Rs. 50,00,000/from the complainant company for Ganga Automobiles Ltd. there is nothing said as to what were those misrepresentations and how the complainant company was duped. The only part attributed to the second appellant is that the first appellant along with Ashwani Suri, Managing Director and Mukender Singh, Director approached the complainant in June, 1996 and had represented that they and Shalini Suri, Shama Suri (appellant No. 2), Charanjit Singh and M.L. Kampani were the Directors of Ganga Automobiles Ltd. There is nothing stated in the counter affidavit about the role, if any, played by the second appellant. A complaint under Section 138 of the Negotiable Instruments Act has already been filed by the complainant. There is no allegation of any corrupt practice by any of the accused as if they duped the Finance Company is parting with the amount of Rs.As normally understood business of a finance company is to invite deposits, pay interest on that and also to give loans and earn interest. A finance company also advances short term loans. In that case it is essentially a commercial transaction. After first two cheques were dishonoured two cheques were again issued, which again were dishonoured resulting in filing of complaint under Section 138 of the Negotiable Instruments Act. None of the respondents has been able to explain as to why offences under Sections 406/420 IPC were not added in the complaint filed under Section 138 of the Negotiable Instruments Act and why resort was had to filing of a separate First Information Report. Certain motive has been attributed to the Investigating Officer but we think we need not go into that. There is also no answer as to why investigation against three other directors was still stated to be pending when same role is assigned to all the accused. In the FIR it is Sukhvender Singh, who first approached the complainant, but later it is Mukender Singh. There is no answer as to why there are two different names. As to who are the directors of Ganga Automobiles Ltd. could have been easily found by the complainant after going through the records of Registrar of Companies and also about its status. As noted above, in the subsequent statement by the complainant he does not assign any role to the first appellant. The allegation that in the first instance three persons contacted the complainant company, who told the complainant of other Directors with whom the complainant conversed on telephone appears to be rather improbable.14. We agree with the submission of the appellants that the whole attempt of the complainant is evidently to rope in all the members of the family particularly who are the parents of the Managing Director of Ganga Automobiles Ltd. in the instant criminal case without regard to their role or participation in the alleged offences with a sole of purpose of getting the loan due to the Finance Company by browbeating and tyrannizing the appellants of criminal prosecution. A criminal complaint under Section 138 of the Negotiable Instruments Act is already pending against the appellants and other accused. They would suffer the consequences if offence under Section 138 is proved against them. In any case there is no occasion for the complainant to prosecute the appellants under Sections 406/420 IPC and in his doing so it is clearly an abuse of the process of law and prosecution against the appellants for those offences is liable to be quashed, which we do.

MANJU PURI Vs. RAJIV SINGH HANSPAL

from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama. 35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings. Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicates that neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings. In the said proceedings, when a Will is sought to be probated after 20 years of its execution the High Court ought to have more cautiously proceeded with the probate proceedings. The Calcutta High Court in Harimati Debi and another vs. Anath Nath Roy Choudhury, AIR 1939 Cal 535 , in concurring judgment of Latifur Rahman, J. held that where an unregistered Will is sought to be propounded after the lapse of more than 20 years it is required that all manner of doubt and suspicion is removed. 36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant. 37. Learned senior counsel appearing for respondent No.4 who is the purchaser of the property from respondent Nos.1,2 and 3 by conveyance deed dated 28.06.2010 has contended that the rights of respondent No.4 be protected since he is a bona fide purchaser with value. Although, the respondent No.4 was impleaded as one of the parties, we are of the view that at this stage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings. 38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyance dated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalid. 39. Shri Jayant Bhushan submits that in view of probate proceedings as well as adverse consequences on the appellant with regard to the dismissal of suit for partition filed by the mother for non-prosecution, this Court may not interfere with the proceedings/order passed by the Calcutta High Court. The Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982.

1[ds]17. There is no dispute regarding relationship of the parties. The appellant is a daughter of Smt. Beena Kumari Mehra who was the youngest daughter of SurjanSingh Randhawa, the deceased whose Will was probated by the High Court. Respondent Nos.1,2 and 3 are legal heirs of eldest daughter of deceased Surjan Singh Randhawa, Smt. Gian Hanspal20. But there was no mention in the entire written statement about the probate dated 04.06.1982. The pleadings in the above proceedings clearly indicate that neither there was knowledge of any probate proceedings nor even claim of probate proceedings was taken by Smt. Gian Hanspal in the written statement which was filed in the year 1984. The suit filed by Smt. Beena Kumari Mehra got dismissed in default on26.03.1986 and an application for restoration of the suit was also dismissed for default on 19.08.2006. Smt. Beena Kumari Mehra died on 05.05.2008. When the case was set by the appellant in the application for revocation that she came to know about the probate proceedings only through conveyance deed executed by respondent Nos.1,2 and 3 in favour of respondent No.4dated 28.06.2010 and she got inspection of the records of PLA No.90 of 1982 on 19.05.2011 and came to know about the probate proceedings and alleged no objections by her mother, Smt. Beena Kumari Mehra. Without adverting to these facts, the High Court could not have jumped on the conclusion that there is inordinate delay in filing the revocation application. Neither there is anything brought on record by respondent Nos.1, 2 and 3 to indicate that the appellant or her mother had knowledge of probate proceedings on any prior date nor the High Court has returned any finding that the appellant had knowledge of probate proceedings and she is guilty of filing an application with delay. There being no finding of the Calcutta High Court that on any earlier point of time the appellant had knowledge of the probate proceedings, the observation that the application having been filed with inordinate delay and deserved to be rejected cannot be approved21. We, thus, are of the view that in the facts and circumstances of the present case no delay can be imputed on the appellant in filing application for revocation of probate when after getting inspection of the PLA records on 19.05.2011 she immediately filed the application for revocation of the probate in July, 2011 itself. The observation of the High Court that there was inordinate delay is unsustainableThe acceptance of the above argument shall be permittingaddition of a word probate in Rule 9 whereas Rule 9 only uses expression letters of administration33. In the present case although there cannot be any dispute to the legal proposition that discretion is vested under Section 283 to issue citation or not but such discretion has to be judicially exercised with proper care adverting to the facts of each case34. In the case before us the Will was dated 15.06.1961, probate application was filed on 27.05.1982, that is almost after 20 years. The application for probating a Will which is claimed to have been executed 20 years before, learned Single Judge ought to have been cautious in proceeding further with the matter. We notice that along with the application for probating the Will which has been brought on the record as Annexure P-2, the propounder of probate has verified the application along with a consent certificate which was annexed by Smt. Harnam Kaur Randhawa wife of Surjan Singh Randhawa, Smt. Gian Hanspal wife of Dr. Harbhajan Hanspal daughter of Surjan Singh Randhawa and no objection of Smt. Beena Mehra wife of V.K. Mehra another daughter of Surjan Singh Randhawa. Both Smt. Harnam Kaur and Smt. Gian Hanspal were beneficiary of the Will their no objection to the Will had no adverse effect. The no objection given by Smt. Beena Mehra was material since Beena Mehra being second daughter of deceased was being dis- inherited from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings. Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicatesthat neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellantAlthough, the respondent No.4 was impleaded as one of the parties, we are of the view that at thisstage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyancedated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalidThe Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982.

### 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: from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama. 35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings. Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicates that neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings. In the said proceedings, when a Will is sought to be probated after 20 years of its execution the High Court ought to have more cautiously proceeded with the probate proceedings. The Calcutta High Court in Harimati Debi and another vs. Anath Nath Roy Choudhury, AIR 1939 Cal 535 , in concurring judgment of Latifur Rahman, J. held that where an unregistered Will is sought to be propounded after the lapse of more than 20 years it is required that all manner of doubt and suspicion is removed. 36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellant. 37. Learned senior counsel appearing for respondent No.4 who is the purchaser of the property from respondent Nos.1,2 and 3 by conveyance deed dated 28.06.2010 has contended that the rights of respondent No.4 be protected since he is a bona fide purchaser with value. Although, the respondent No.4 was impleaded as one of the parties, we are of the view that at this stage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings. 38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyance dated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalid. 39. Shri Jayant Bhushan submits that in view of probate proceedings as well as adverse consequences on the appellant with regard to the dismissal of suit for partition filed by the mother for non-prosecution, this Court may not interfere with the proceedings/order passed by the Calcutta High Court. The Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982. ### Response: 1 ### Explanation: to be judicially exercised with proper care adverting to the facts of each case34. In the case before us the Will was dated 15.06.1961, probate application was filed on 27.05.1982, that is almost after 20 years. The application for probating a Will which is claimed to have been executed 20 years before, learned Single Judge ought to have been cautious in proceeding further with the matter. We notice that along with the application for probating the Will which has been brought on the record as Annexure P-2, the propounder of probate has verified the application along with a consent certificate which was annexed by Smt. Harnam Kaur Randhawa wife of Surjan Singh Randhawa, Smt. Gian Hanspal wife of Dr. Harbhajan Hanspal daughter of Surjan Singh Randhawa and no objection of Smt. Beena Mehra wife of V.K. Mehra another daughter of Surjan Singh Randhawa. Both Smt. Harnam Kaur and Smt. Gian Hanspal were beneficiary of the Will their no objection to the Will had no adverse effect. The no objection given by Smt. Beena Mehra was material since Beena Mehra being second daughter of deceased was being dis- inherited from the suit property. Photocopy of the no objection filed by Smt. Beena Mehra has been brought on record along with the rejoinder-affidavit, a perusal of which appears that all the three no objections were notarised by the same Notary, an Advocate, Shri Dilip Kumar Basu. It is not even claimed that Shri D.K. Basu who identified Beena Mehra was engaged as counsel by Beena Mehra by executing any Vakalatnama35. The factum of filing of suit for partition by Smt. Beena Kumari Mehra in the year 1984 where there is neither any reference of the Will of Surjan Singh Randhawa nor reference of probate proceedings and further in the written statement filed in the said suit by Smt. Gian Hanspal, elder sister of Smt.Beena Kumari Mehra there is no mention of Will of Surjan Singh Randhawa or probate proceedings to base her right and to the contrary rights were claimed only on the basis of registered deed of gift dated 25.03.1964 executed by Smt. Harnam Kaur Randhawa in favour of Smt. Gian Hanspal, which cast a doubt on the alleged consent given by Smt. Beena Kumari Mehra in the probate proceedings. Had Smt.Beena Kumari Mehra given consent in probate proceedings in the year 1982, it ought to have been reflected in the suit or in the written statement filed by Smt. Gian Hanspal. The conduct of Smt.Beena Kumari Mehra in filing suit in 1984 claiming partition and no reference of probate in the said proceedings clearly indicates that Smt.Beena Kumari Mehra was not even aware of the probate proceedings when the suit was filed. In the written statement filed by Smt. Gian Hanspal, who was the beneficiary of the Will as well as the probate proceedings which there was no mention of probate proceedings which makes us wonder as to why the probate proceedings were not mentioned in the written statement. and if Smt. Beena Kumari Mehra has signed as alleged why she was not confronted with the probate proceedings in the written statement. No mention of probate proceedings clearly indicatesthat neither Smt. Beena Kumari Mehra was aware of probate proceedings nor she was confronted with such proceedings36. We are of the view that in the facts and circumstances of the present case, learned Single Judge erred in not issuing any citation to Smt. Beena Mehra in the probate proceedings and without any verification of genuineness of no objection certificates mechanically granted probate which was unsustainable. If it is accepted that in probate proceedings persons who have been dis-inherited in the Will on mere no objection certificates by them without either being called by probate court to appear and certify their no objections or to file any pleading will lead to unsatisfactory result and may cause prejudice to persons who were not aware of the proceedings and are yet claimed to have submitted no objections. We, thus, conclude that even though learned Single Judge had discretion to issue citation or not but in the facts of the present case a citation ought to have been issued in exercise of discretion conferred under Section 283 of the Succession Act and the probate granted without issuance of such citation in the facts of the present case deserves to be revoked and learned Single Judge and the Division Bench committed error in rejecting the application for revocation filed by the appellantAlthough, the respondent No.4 was impleaded as one of the parties, we are of the view that at thisstage it is not necessary to advert to the submission of the learned counsel for respondent No.4. In view of our conclusion as noted above that revocation application filed by the appellant deserves to be allowed, the order dated 04.06.1982 granting probate in PLA No.90 of 1982 deserves to be set aside and the probate proceedings shall stand revived before the learned Single Judge and it is yet to be considered by the learned Single Judge as to what orders are to be passed in the proceedings in PLA No.90 of 1982 and all the contentions which are sought to be raised by respondent No.4 are to be adverted in the above proceedings38. The submission raised by respondent No.4 needs no consideration in these proceedings which were initiated by the appellant only for revocation of probate. Learned counsel for respondent Nos.1, 2 and 3 has further submitted that the appellant had already filed a suit being Title Suit No.59/2013 in the Court of First Civil Judge(Senior Division) at Alipore where a declaration is claimed that the indenture of conveyancedated 28.06.2010 executed and registered in favour of respondent No.4 is void, illegal and invalidThe Calcutta High Court in the impugned judgments has only dealt with the proceedings initiated by the appellant for revocation of probate, we need to consider the said proceedings only insofar as related to application filed by the appellant for revocation of probate dated 04.06.1982.

Punjab National Bank Ltd Vs. Their Workmen

agreed to give up their claims under the award. In this process prejudice must have been caused to a large number of employees who stood by the award and did not accept the tempting offer of promotion for a price, the price being in their opinion too heavy to be paid. To illustrate the nature of prejudice which must have been caused to a large number of employees some oral evidence was led on behalf of the respondents. Kashyap, Goyal, Gupta and others have given evidence on oath that they were not promoted and their juniors were promoted, solely for the reason that they stood by the award whereas their juniors submitted to the condition imposed by the appellant. This oral evidence shows that officers in charge of branches expressly told the employees that the appellant had decided to promote only those who would take the bank scales and give up the benefits under the award. He evidence has not been challenged by any statement on oath on behalf of the appellant, and it has been believed by the tribunal. Therefore the conclusion of the tribunal that prejudice was caused to a large number of employees by the impugned circulars of 18 April, 1957 and 13 December, 1957 cannot be successfully challenged.There is one more point which must be considered in this connexion. Mr. Veda Vyas argues that whatever may be said against circular No. 292 there is no reason why the earlier circular No. 249 should be brought into the controversy. He has urged a similar argument in regard to the earliest circular No. 201 issued on 8 August, 1956.11. In regard to circular No. 249 it is impossible to accept the argument that it is either innocent or is not connected with the scheme evolved by the appellant for the purpose of depriving the respondents of their legitimate rights under the award. We have already observed that by itself the circular reads like an innocent circular, but the two confidential letters issued along with it clearly bring out the object underlying the said circular. In fact what was contained in the confidential accompaniments of the said circular ultimately became a part of the subsequent circular. Therefore it is not possible to dissociate the said circular from the main impugned circular No. 249.12. Three circulars, Nos. 249, 292 and 336, form part of the same scheme and transaction, and they are held together by the invisible thread of the two confidential letters. Therefore, in our opinion, the tribunal was right in holding that the last circular did not mitigate the impropriety or remove the illegality of the two earlier circulars and that the said two circulars contravened the respondents right under the award.The position in regard to circular No. 201 issued on 5 August 1956 is, however, different. It is no doubt possible to contend that this circular was the beginning of the scheme; but, on the other hand, prior to the issue of this circular promotion rested entirely in the discretion of the management, and if by this circular the management revised its earlier rules and made elaborate provisions for the allotment of marks, it would be difficult to hold that this circular by itself contravened any of the rights vesting in the respondents by virtue of the award, or that it was really a part of the same transaction evidenced by subsequent circulars. At the hearing before us a statement has been filed on behalf of the appellant which shows the promotions that have taken place during the relevant period. Sixty-eight promotions were made to the cadre of supervisors between 8 August, 1956 and 18 April, 1957. It is admitted that though the circular of 18 April, 1957 had affirmed that all confirmed supervisors would be placed in officer grade II, in actual fact only 451 out of 542 affirmed supervisors were originally placed in the said cadre, obviously because the remaining supervisors did not accept the appellants scale and conditions. Therefore up to 13 December, 1957 promotions to grade II numbered 128, and promotions to supervisors cadre numbered 7. Similarly, from 13 December, 1957 to 4 October, 1958 the two respective promotions are 210 and 5. It has been fairly conceded before us by the learned Attorney-General on behalf of the respondents that he cannot seriously question the propriety of the 68 promotions to the grade of supervisors that took place between 8 August, 1956 and 18 April, 1957. In regard to the remaining categories of promotions they are clearly open to challenge, because, while these promotions were made, obviously cases of other persons who were eligible at that time were not considered because they did not agree to take the bank rates and scales. We would, therefore, confirm the finding of the tribunal that circular No. 249 read with the two confidential letters and circular No. 292 have contravened the rights of the respondents under the award, and as such are invalid. We would also confirm the finding of the tribunal and its conclusion that the promotions made from 18 April, 1957, by virtue of the said circulars, and bad and must be set aside. There are, however, two directions issued by the award of the tribunal which must be reversed; and they are in regard to circular No. 201 issued on 8 August, 1956 and the direction issued by the tribunal to the appellant to promote such of the respondents as are eligible to the cadre of officer grade II. It is conceded that the said cadre is not a matter of right conferred on the respondents by the award, and all that the respondents can claim is to have their wages structure, allowances and promotions in the ordinary way as prescribed by the award. If, however, the appellant wants to continue the said cadre, it must take care to see the promotion to the said cadre does not depend on any conditions prejudicial to or inconsistent with the employees rights under the award.13.

0[ds]The first question which has been urged before us by Mr. Veda Vyas on behalf of the appellant is that the reference itself is invalid. His argument is that, as the words used in the reference stand, they indicate that it is only persons who have been promoted subject to the impugned condition whose cases are referred to adjudication; and he points out that none of such persons has raised any dispute, and therefore no industrial dispute could have been referred for adjudication at all.This argument proceeds on the assumption that the first part of the reference refers to persons appointed subject to the impugned condition; but, in our opinion, this assumption is clearly not justified. The question referred has no reference to the persons appointed subject to the impugned conditions, but it refers to the question as to whether the impugned condition itself is valid or not; in other words, thereference can be paraphrased thus : Is the condition that the person appointed to officer grade II by promotion would be governed by the rules of the bank valid and justified? This is the only way in which the reference can be read; that being so, we do not think that there is any substance in the challenge to the validity of thefacie this point appears to be attractive; but when we scrutinize the two confidential letters carefully, it becomes plain that the whole object of the enquiry instituted by the said letters was to obtain an admission from the employees about their status before the promised promotion came their way; in other words, if the employees answered the query as the appellant expected them to do and said they were officers having regard to the nature of their duties, then the said admission would itself put the said employees outside the protection of the award, and in that sense they would not be entitled to make any claim for the arrears of any special allowance. That at any rate must have been the object with which the confidential letter was issued. In this connexion it would be material to recall that the Dayal award was pronounced on 4 April, 1957, and circular No. 249, innocent in appearance, was issued on 18 April, 1957 coupled with the two confidential letters. We are satisfied that the tribunal was right in taking the view that the object of issuing the circulars and two letters was to persuade or tempt the employees to make an admission that they were not workmen under the Act, and thus disqualify them from making any claim for special allowance guaranteed to them under the award. If that be the true position, then the argument that the circular was intended to benefit the employees and put them on a par with new recruits cannot claim even prima facie the merit of plausibility. The next contention raised is that whatever may be the infirmity in the circulars, Nos. 249 and 292, that has now become a matter of history because of a fresh circular No. 336 issued on 26 May, 1958. This circular called upon the employees who were unwilling to forgo the award to apply for promotion, and it solemnly promised them that in case they were selected they would be given an option either to remain under the award or to choose the banks scale. Indeed Mr. Veda Vyas suggested that in view of the last circular no industrial dispute could be said to subsist between the parties at the date of the reference. In our opinion, this contention is notIt is obvious that this last circular was issued because it was apprehended by the appellant that the protests made by the employees were likely to succeed and that an industrial dispute was likely to be raised. It is with a view to prepare its defense for meeting the employees case before the tribunal that this circular was issued by the appellant; and so, if any prejudice has been caused to the respondents by the earlier circulars, it cannot be said that they have been rectified or cured merely by the issue of this latter circular.Besides, there can be no doubt that after the original circular was issued on 18 April, 1957 many promotions have been made and they have been made in most cases only in regard to persons who agreed to give up their claims under the award. In this process prejudice must have been caused to a large number of employees who stood by the award and did not accept the tempting offer of promotion for a price, the price being in their opinion too heavy to be paid. To illustrate the nature of prejudice which must have been caused to a large number of employees some oral evidence was led on behalf of the respondents. Kashyap, Goyal, Gupta and others have given evidence on oath that they were not promoted and their juniors were promoted, solely for the reason that they stood by the award whereas their juniors submitted to the condition imposed by the appellant. This oral evidence shows that officers in charge of branches expressly told the employees that the appellant had decided to promote only those who would take the bank scales and give up the benefits under the award. He evidence has not been challenged by any statement on oath on behalf of the appellant, and it has been believed by the tribunal. Therefore the conclusion of the tribunal that prejudice was caused to a large number of employees by the impugned circulars of 18 April, 1957 and 13 December, 1957 cannot be successfully challenged.Veda Vyas argues that whatever may be said against circular No. 292 there is no reason why the earlier circular No. 249 should be brought into the controversy. He has urged a similar argument in regard to the earliest circular No. 201 issued on 8 August,In regard to circular No. 249 it is impossible to accept the argument that it is either innocent or is not connected with the scheme evolved by the appellant for the purpose of depriving the respondents of their legitimate rights under the award. We have already observed that by itself the circular reads like an innocent circular, but the two confidential letters issued along with it clearly bring out the object underlying the said circular. In fact what was contained in the confidential accompaniments of the said circular ultimately became a part of the subsequent circular. Therefore it is not possible to dissociate the said circular from the main impugned circular No.Three circulars, Nos. 249, 292 and 336, form part of the same scheme and transaction, and they are held together by the invisible thread of the two confidential letters. Therefore, in our opinion, the tribunal was right in holding that the last circular did not mitigate the impropriety or remove the illegality of the two earlier circulars and that the said two circulars contravened the respondents right under the award.The position in regard to circular No. 201 issued on 5 August 1956 is, however, different. It is no doubt possible to contend that this circular was the beginning of the scheme; but, on the other hand, prior to the issue of this circular promotion rested entirely in the discretion of the management, and if by this circular the management revised its earlier rules and made elaborate provisions for the allotment of marks, it would be difficult to hold that this circular by itself contravened any of the rights vesting in the respondents by virtue of the award, or that it was really a part of the same transaction evidenced by subsequent circulars. At the hearing before us a statement has been filed on behalf of the appellant which shows the promotions that have taken place during the relevant period.promotions were made to the cadre of supervisors between 8 August, 1956 and 18 April, 1957. It is admitted that though the circular of 18 April, 1957 had affirmed that all confirmed supervisors would be placed in officer grade II, in actual fact only 451 out of 542 affirmed supervisors were originally placed in the said cadre, obviously because the remaining supervisors did not accept the appellants scale and conditions. Therefore up to 13 December, 1957 promotions to grade II numbered 128, and promotions to supervisors cadre numbered 7. Similarly, from 13 December, 1957 to 4 October, 1958 the two respective promotions are 210 and 5. It has been fairly conceded before us by the learnedon behalf of the respondents that he cannot seriously question the propriety of the 68 promotions to the grade of supervisors that took place between 8 August, 1956 and 18 April, 1957. In regard to the remaining categories of promotions they are clearly open to challenge, because, while these promotions were made, obviously cases of other persons who were eligible at that time were not considered because they did not agree to take the bank rates and scales. We would, therefore, confirm the finding of the tribunal that circular No. 249 read with the two confidential letters and circular No. 292 have contravened the rights of the respondents under the award, and as such are invalid. We would also confirm the finding of the tribunal and its conclusion that the promotions made from 18 April, 1957, by virtue of the said circulars, and bad and must be set aside. There are, however, two directions issued by the award of the tribunal which must be reversed; and they are in regard to circular No. 201 issued on 8 August, 1956 and the direction issued by the tribunal to the appellant to promote such of the respondents as are eligible to the cadre of officer grade II. It is conceded that the said cadre is not a matter of right conferred on the respondents by the award, and all that the respondents can claim is to have their wages structure, allowances and promotions in the ordinary way as prescribed by the award. If, however, the appellant wants to continue the said cadre, it must take care to see the promotion to the said cadre does not depend on any conditions prejudicial to or inconsistent with the employees rights under the award.

### 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: agreed to give up their claims under the award. In this process prejudice must have been caused to a large number of employees who stood by the award and did not accept the tempting offer of promotion for a price, the price being in their opinion too heavy to be paid. To illustrate the nature of prejudice which must have been caused to a large number of employees some oral evidence was led on behalf of the respondents. Kashyap, Goyal, Gupta and others have given evidence on oath that they were not promoted and their juniors were promoted, solely for the reason that they stood by the award whereas their juniors submitted to the condition imposed by the appellant. This oral evidence shows that officers in charge of branches expressly told the employees that the appellant had decided to promote only those who would take the bank scales and give up the benefits under the award. He evidence has not been challenged by any statement on oath on behalf of the appellant, and it has been believed by the tribunal. Therefore the conclusion of the tribunal that prejudice was caused to a large number of employees by the impugned circulars of 18 April, 1957 and 13 December, 1957 cannot be successfully challenged.There is one more point which must be considered in this connexion. Mr. Veda Vyas argues that whatever may be said against circular No. 292 there is no reason why the earlier circular No. 249 should be brought into the controversy. He has urged a similar argument in regard to the earliest circular No. 201 issued on 8 August, 1956.11. In regard to circular No. 249 it is impossible to accept the argument that it is either innocent or is not connected with the scheme evolved by the appellant for the purpose of depriving the respondents of their legitimate rights under the award. We have already observed that by itself the circular reads like an innocent circular, but the two confidential letters issued along with it clearly bring out the object underlying the said circular. In fact what was contained in the confidential accompaniments of the said circular ultimately became a part of the subsequent circular. Therefore it is not possible to dissociate the said circular from the main impugned circular No. 249.12. Three circulars, Nos. 249, 292 and 336, form part of the same scheme and transaction, and they are held together by the invisible thread of the two confidential letters. Therefore, in our opinion, the tribunal was right in holding that the last circular did not mitigate the impropriety or remove the illegality of the two earlier circulars and that the said two circulars contravened the respondents right under the award.The position in regard to circular No. 201 issued on 5 August 1956 is, however, different. It is no doubt possible to contend that this circular was the beginning of the scheme; but, on the other hand, prior to the issue of this circular promotion rested entirely in the discretion of the management, and if by this circular the management revised its earlier rules and made elaborate provisions for the allotment of marks, it would be difficult to hold that this circular by itself contravened any of the rights vesting in the respondents by virtue of the award, or that it was really a part of the same transaction evidenced by subsequent circulars. At the hearing before us a statement has been filed on behalf of the appellant which shows the promotions that have taken place during the relevant period. Sixty-eight promotions were made to the cadre of supervisors between 8 August, 1956 and 18 April, 1957. It is admitted that though the circular of 18 April, 1957 had affirmed that all confirmed supervisors would be placed in officer grade II, in actual fact only 451 out of 542 affirmed supervisors were originally placed in the said cadre, obviously because the remaining supervisors did not accept the appellants scale and conditions. Therefore up to 13 December, 1957 promotions to grade II numbered 128, and promotions to supervisors cadre numbered 7. Similarly, from 13 December, 1957 to 4 October, 1958 the two respective promotions are 210 and 5. It has been fairly conceded before us by the learned Attorney-General on behalf of the respondents that he cannot seriously question the propriety of the 68 promotions to the grade of supervisors that took place between 8 August, 1956 and 18 April, 1957. In regard to the remaining categories of promotions they are clearly open to challenge, because, while these promotions were made, obviously cases of other persons who were eligible at that time were not considered because they did not agree to take the bank rates and scales. We would, therefore, confirm the finding of the tribunal that circular No. 249 read with the two confidential letters and circular No. 292 have contravened the rights of the respondents under the award, and as such are invalid. We would also confirm the finding of the tribunal and its conclusion that the promotions made from 18 April, 1957, by virtue of the said circulars, and bad and must be set aside. There are, however, two directions issued by the award of the tribunal which must be reversed; and they are in regard to circular No. 201 issued on 8 August, 1956 and the direction issued by the tribunal to the appellant to promote such of the respondents as are eligible to the cadre of officer grade II. It is conceded that the said cadre is not a matter of right conferred on the respondents by the award, and all that the respondents can claim is to have their wages structure, allowances and promotions in the ordinary way as prescribed by the award. If, however, the appellant wants to continue the said cadre, it must take care to see the promotion to the said cadre does not depend on any conditions prejudicial to or inconsistent with the employees rights under the award.13. ### Response: 0 ### Explanation: April, 1957 many promotions have been made and they have been made in most cases only in regard to persons who agreed to give up their claims under the award. In this process prejudice must have been caused to a large number of employees who stood by the award and did not accept the tempting offer of promotion for a price, the price being in their opinion too heavy to be paid. To illustrate the nature of prejudice which must have been caused to a large number of employees some oral evidence was led on behalf of the respondents. Kashyap, Goyal, Gupta and others have given evidence on oath that they were not promoted and their juniors were promoted, solely for the reason that they stood by the award whereas their juniors submitted to the condition imposed by the appellant. This oral evidence shows that officers in charge of branches expressly told the employees that the appellant had decided to promote only those who would take the bank scales and give up the benefits under the award. He evidence has not been challenged by any statement on oath on behalf of the appellant, and it has been believed by the tribunal. Therefore the conclusion of the tribunal that prejudice was caused to a large number of employees by the impugned circulars of 18 April, 1957 and 13 December, 1957 cannot be successfully challenged.Veda Vyas argues that whatever may be said against circular No. 292 there is no reason why the earlier circular No. 249 should be brought into the controversy. He has urged a similar argument in regard to the earliest circular No. 201 issued on 8 August,In regard to circular No. 249 it is impossible to accept the argument that it is either innocent or is not connected with the scheme evolved by the appellant for the purpose of depriving the respondents of their legitimate rights under the award. We have already observed that by itself the circular reads like an innocent circular, but the two confidential letters issued along with it clearly bring out the object underlying the said circular. In fact what was contained in the confidential accompaniments of the said circular ultimately became a part of the subsequent circular. Therefore it is not possible to dissociate the said circular from the main impugned circular No.Three circulars, Nos. 249, 292 and 336, form part of the same scheme and transaction, and they are held together by the invisible thread of the two confidential letters. Therefore, in our opinion, the tribunal was right in holding that the last circular did not mitigate the impropriety or remove the illegality of the two earlier circulars and that the said two circulars contravened the respondents right under the award.The position in regard to circular No. 201 issued on 5 August 1956 is, however, different. It is no doubt possible to contend that this circular was the beginning of the scheme; but, on the other hand, prior to the issue of this circular promotion rested entirely in the discretion of the management, and if by this circular the management revised its earlier rules and made elaborate provisions for the allotment of marks, it would be difficult to hold that this circular by itself contravened any of the rights vesting in the respondents by virtue of the award, or that it was really a part of the same transaction evidenced by subsequent circulars. At the hearing before us a statement has been filed on behalf of the appellant which shows the promotions that have taken place during the relevant period.promotions were made to the cadre of supervisors between 8 August, 1956 and 18 April, 1957. It is admitted that though the circular of 18 April, 1957 had affirmed that all confirmed supervisors would be placed in officer grade II, in actual fact only 451 out of 542 affirmed supervisors were originally placed in the said cadre, obviously because the remaining supervisors did not accept the appellants scale and conditions. Therefore up to 13 December, 1957 promotions to grade II numbered 128, and promotions to supervisors cadre numbered 7. Similarly, from 13 December, 1957 to 4 October, 1958 the two respective promotions are 210 and 5. It has been fairly conceded before us by the learnedon behalf of the respondents that he cannot seriously question the propriety of the 68 promotions to the grade of supervisors that took place between 8 August, 1956 and 18 April, 1957. In regard to the remaining categories of promotions they are clearly open to challenge, because, while these promotions were made, obviously cases of other persons who were eligible at that time were not considered because they did not agree to take the bank rates and scales. We would, therefore, confirm the finding of the tribunal that circular No. 249 read with the two confidential letters and circular No. 292 have contravened the rights of the respondents under the award, and as such are invalid. We would also confirm the finding of the tribunal and its conclusion that the promotions made from 18 April, 1957, by virtue of the said circulars, and bad and must be set aside. There are, however, two directions issued by the award of the tribunal which must be reversed; and they are in regard to circular No. 201 issued on 8 August, 1956 and the direction issued by the tribunal to the appellant to promote such of the respondents as are eligible to the cadre of officer grade II. It is conceded that the said cadre is not a matter of right conferred on the respondents by the award, and all that the respondents can claim is to have their wages structure, allowances and promotions in the ordinary way as prescribed by the award. If, however, the appellant wants to continue the said cadre, it must take care to see the promotion to the said cadre does not depend on any conditions prejudicial to or inconsistent with the employees rights under the award.

Saxby And Farmer (India) Pvt. Ltd Vs. Their Workmen

the system of granting unpaid holidays was no longer being followed in the engineering industry. Moreover, other holidays enjoyed by the workmen along with the workmen of other similar units were far in excess of what prevails in other countries.5. The union filed a written statement on behalf of the workmen. In reply, the position taken up was that the assertion of the company that the nine unpaid holidays should be discontinued was in clear disregard of the principle and practice followed so far in the matter of giving benefits in the industrial concerns. It was said that the trend of the decisions of the Industrial Tribunals in respect of major engineering concerns has always been against the curtailment of the existing facilities, and that the management of the appellant-company had made an unfair attempt to curtail those benefits, relating to unpaid festival holidays. The main ground given was that in the interest of industrial peace, production and better relations between the workmen and the management, the workmen should be kept contented. Any attempt to curtail the existing benefits according to time-honoured practice would provoke discontent anal labour unrest.6. Each side examined one witness. P. W. 1, Gobind Dey, who appeared on behalf of the appellant, supported the assertions made in the written statement filed on behalf of the appellant. In other words, he stated that 19 holidays were being given to the workers at present, out of which ten were paid holidays and the rest, without pay. Ten festival holidays were allowed on the basis of the award made by the tribunals. He admitted in his cross-examination that in Bengal holidays for certain days like Netajis birthday or for religious festivals, were considered very essential. C. P. W. 1, who appeared on behalf of the workers and who was the working president of the Union at the time he gave evidence, merely contented himself by saying that nine unpaid festival holidays had been enjoyed by the workers since he joined the factory and prior to that time. According to him, even on festival holidays, workers attended the factory and worked there and drew wages. Over-time wages were paid at the rate of 150% of the basic wages.7. The industrial tribunal does not appear to have given any substantial reasons for coming to the conclusion that the unpaid holidays should not be curtailed. According to it, there was no evidence to show to what extent the Railways which were the sole customers of the company, depended on the company to meet their requirements. The tribunal proceeded to say that the company might be solely engaged in the production of signalling equipment, but that was not sufficient to show the nature and extent of the dependence of the Railways on the supplies of the company. The representative of the company had argued that because the number of the holidays was large, the production was suffering and the company was unable to meet the demands of the Railways in time. The Tribunal, however, thought that in the absence of any evidence to that effect, it could not be held that the production was not adequate or was suffering because of the member of holidays for the workers. This is how the Tribunal reasoned in the matter:"............in my humble opinion without reducing the number of important festival holidays of any community in India - which is the home of different communities and religions the number of working holidays can be increased as a Compensatory measure by converting a good many Sundays to working days. I think this is quite a feasible proposition and can be offered as a suggestion to those who take the view that as festival and religious holidays are quite large in number they should be reduced without reference to the feelings of the affected religious group or community. But then this is too wide and too large a question for my embarkation and perhaps such views will not find favour with the west oriented intellect and so-called cosmopolitan outlook. Anyway, what I say is that there is no good ground to cut down the number of festival holidays simply because the number of overall holidays is large."The tribunal appears to have been impressed by the contention raised on behalf of the workmen that they had enjoyed the facilities for a long time.8. It appears that the tribunal was wholly oblivious of the present day conditions and the necessity for increased production particularly, in the matter of utility companies and the companies that are producing goods for essential services like those carried on by the Indian railways. This court has observed on more than one occasion that it is generally accepted that there are too many public holidays in our country, and that when the need for industrial production, is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. Indeed, it cannot be disputed that a necessary step in the direction of increasing the countrys productivity is the reduction of number of holidays. See Pfizer (P) Ltd. Bombay v. The Workmen, (1963) Supp (2) SCR 627 at p. 651 = (AIR 1963 SC 1103 at p. 1112) and Associated Cement Staff Union v. Associated Cement Co., (1984) 1 Lab LJ 12 at p. 15 = (AIR 1964 SC 914 at p. 917). In Pfizers case, the holidays which were being granted were reduced to ten from the number which the workers were enjoying previously in accordance with those sanctioned under the Negotiable Instruments Act i.e., 16 holidays.9. On giving the matter careful consideration, we find no reason or justification for unpaid holidays not being curtailed in the present case. All the conditions which are necessary have been satisfied and the appellant is carrying on the kind of work which requires efficiency and increased production. There should be more concentration on increase of production and efficiency than on enjoying the holidays if this country is to march ahead on the road to prosperity.

1[ds]8. It appears that the tribunal was wholly oblivious of the present day conditions and the necessity for increased production particularly, in the matter of utility companies and the companies that are producing goods for essential services like those carried on by the Indian railways. This court has observed on more than one occasion that it is generally accepted that there are too many public holidays in our country, and that when the need for industrial production, is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. Indeed, it cannot be disputed that a necessary step in the direction of increasing the countrys productivity is the reduction of number of holidays.holidays.9. On giving the matter careful consideration, we find no reason or justification for unpaid holidays not being curtailed in the present case. All the conditions which are necessary have been satisfied and the appellant is carrying on the kind of work which requires efficiency and increased production. There should be more concentration on increase of production and efficiency than on enjoying the holidays if this country is to march ahead on the road to prosperity.

### 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: the system of granting unpaid holidays was no longer being followed in the engineering industry. Moreover, other holidays enjoyed by the workmen along with the workmen of other similar units were far in excess of what prevails in other countries.5. The union filed a written statement on behalf of the workmen. In reply, the position taken up was that the assertion of the company that the nine unpaid holidays should be discontinued was in clear disregard of the principle and practice followed so far in the matter of giving benefits in the industrial concerns. It was said that the trend of the decisions of the Industrial Tribunals in respect of major engineering concerns has always been against the curtailment of the existing facilities, and that the management of the appellant-company had made an unfair attempt to curtail those benefits, relating to unpaid festival holidays. The main ground given was that in the interest of industrial peace, production and better relations between the workmen and the management, the workmen should be kept contented. Any attempt to curtail the existing benefits according to time-honoured practice would provoke discontent anal labour unrest.6. Each side examined one witness. P. W. 1, Gobind Dey, who appeared on behalf of the appellant, supported the assertions made in the written statement filed on behalf of the appellant. In other words, he stated that 19 holidays were being given to the workers at present, out of which ten were paid holidays and the rest, without pay. Ten festival holidays were allowed on the basis of the award made by the tribunals. He admitted in his cross-examination that in Bengal holidays for certain days like Netajis birthday or for religious festivals, were considered very essential. C. P. W. 1, who appeared on behalf of the workers and who was the working president of the Union at the time he gave evidence, merely contented himself by saying that nine unpaid festival holidays had been enjoyed by the workers since he joined the factory and prior to that time. According to him, even on festival holidays, workers attended the factory and worked there and drew wages. Over-time wages were paid at the rate of 150% of the basic wages.7. The industrial tribunal does not appear to have given any substantial reasons for coming to the conclusion that the unpaid holidays should not be curtailed. According to it, there was no evidence to show to what extent the Railways which were the sole customers of the company, depended on the company to meet their requirements. The tribunal proceeded to say that the company might be solely engaged in the production of signalling equipment, but that was not sufficient to show the nature and extent of the dependence of the Railways on the supplies of the company. The representative of the company had argued that because the number of the holidays was large, the production was suffering and the company was unable to meet the demands of the Railways in time. The Tribunal, however, thought that in the absence of any evidence to that effect, it could not be held that the production was not adequate or was suffering because of the member of holidays for the workers. This is how the Tribunal reasoned in the matter:"............in my humble opinion without reducing the number of important festival holidays of any community in India - which is the home of different communities and religions the number of working holidays can be increased as a Compensatory measure by converting a good many Sundays to working days. I think this is quite a feasible proposition and can be offered as a suggestion to those who take the view that as festival and religious holidays are quite large in number they should be reduced without reference to the feelings of the affected religious group or community. But then this is too wide and too large a question for my embarkation and perhaps such views will not find favour with the west oriented intellect and so-called cosmopolitan outlook. Anyway, what I say is that there is no good ground to cut down the number of festival holidays simply because the number of overall holidays is large."The tribunal appears to have been impressed by the contention raised on behalf of the workmen that they had enjoyed the facilities for a long time.8. It appears that the tribunal was wholly oblivious of the present day conditions and the necessity for increased production particularly, in the matter of utility companies and the companies that are producing goods for essential services like those carried on by the Indian railways. This court has observed on more than one occasion that it is generally accepted that there are too many public holidays in our country, and that when the need for industrial production, is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. Indeed, it cannot be disputed that a necessary step in the direction of increasing the countrys productivity is the reduction of number of holidays. See Pfizer (P) Ltd. Bombay v. The Workmen, (1963) Supp (2) SCR 627 at p. 651 = (AIR 1963 SC 1103 at p. 1112) and Associated Cement Staff Union v. Associated Cement Co., (1984) 1 Lab LJ 12 at p. 15 = (AIR 1964 SC 914 at p. 917). In Pfizers case, the holidays which were being granted were reduced to ten from the number which the workers were enjoying previously in accordance with those sanctioned under the Negotiable Instruments Act i.e., 16 holidays.9. On giving the matter careful consideration, we find no reason or justification for unpaid holidays not being curtailed in the present case. All the conditions which are necessary have been satisfied and the appellant is carrying on the kind of work which requires efficiency and increased production. There should be more concentration on increase of production and efficiency than on enjoying the holidays if this country is to march ahead on the road to prosperity. ### Response: 1 ### Explanation: 8. It appears that the tribunal was wholly oblivious of the present day conditions and the necessity for increased production particularly, in the matter of utility companies and the companies that are producing goods for essential services like those carried on by the Indian railways. This court has observed on more than one occasion that it is generally accepted that there are too many public holidays in our country, and that when the need for industrial production, is urgent and paramount, it may be advisable to reduce the number of such holidays in industrial concerns. Indeed, it cannot be disputed that a necessary step in the direction of increasing the countrys productivity is the reduction of number of holidays.holidays.9. On giving the matter careful consideration, we find no reason or justification for unpaid holidays not being curtailed in the present case. All the conditions which are necessary have been satisfied and the appellant is carrying on the kind of work which requires efficiency and increased production. There should be more concentration on increase of production and efficiency than on enjoying the holidays if this country is to march ahead on the road to prosperity.

BRITISH PHYSICAL LAB INDIA LTD Vs. STATE OF KARNATAKA AND ANOTHER

rate of tax payable by dealers in television sets and components was enhanced from 4 to 6 per cent. 3. The notifications by which the rate of tax payable by dealers in television sets and components manufactured in Karnataka had been reduced were challenged by Solidaire India Limited, a company manufacturing television sets outside the State of Karnataka. On October 8, 1990 Reported as Solidaire India Ltd. Vs. State of Karnataka and another, the writ petition was allowed and these notifications were quashed. 4. In January, 1991, the appellants received notices from the sales tax authorities in the respondent-State calling upon them to show cause why they should not pay sales tax at the normal rate instead of the reduced rate, pursuant to the quashing of the said two notifications. A provisional assessment order in this regard was then passed and a demand notice was issued. On February 8, 1991, the appellants filed the writ petitions out of which these appeals arise. They challenged the aforesaid demand notices. They also prayed that the judgment of the learned single Judge in the case of Solidaire India Ltd. Vs. State of Karnataka and another, should not be held to be enforceable as against them. These writ petitions were heard by a division Bench along with the appeal filed by the State Government against the single Judges judgment in Solidaire India Ltd. Vs. State of Karnataka and another, as also the appeal filed by Solidaire itself. The appeals of the State Government and Solidaire were dismissed. In so far as the appellants writ petitions were concerned, it was held that the doctrine of prospective invalidation could not be employed in exercise of powers under Article 226. Accordingly these writ petitions were also dismissed. 5. It has been fairly pointed out by learned Counsel for the appellants that the learned Government Pleader had, in relation to the Solidaire appeal, stated to the division Bench, on instructions, that the sales tax authorities proposed to recover the difference in duty from manufacturers within the State having regard to the fact that the notifications giving them the benefit of a lower rate of tax had been struck down. 6. Learned Counsel for the appellants drew our attention to the judgment of this Court in West Bengal Hosiery Association and Others Vs. State of Bihar and Another, . In that case a notification granting a concessional rate of tax to local manufacturers was struck down and this Court said : We find that the said Notification No. S.O. 934 dated August 1, 1984 is void for the reasons set out earlier and we quash the same. We realise that quashing of this notification on the ground that it was void ab initio might lead to undue hardship for the dealers in the State of Bihar who might have sold locally manufactured hosiery goods without taking into consideration any amount on account of the liability to sales tax in view of the exemption granted by the said notification dated August 1, 1984. In order to obviate this hardship, we direct that the arrears of sales tax which would become payable by the dealers in the State of Bihar in respect of sales of local hosiery goods made during the period when the said notification was in operation should not be collected. 7. Attention was also drawn to the order of this Court in review petitions arising out of Writ Petition (C) No. 770 of 1989 Reported as Texmaco Ltd. v. State of Andhra Pradesh [2000] 118 STC 290 . and connected matters, passed on 18th August, 1998. In the case of Indian Cement and Others Vs. State of Andhra Pradesh and Others, notifications providing for a concessional rate of tax to cement manufacturers within the States of Andhra Pradesh and Karnataka were quashed. Writ petitions were filed in this Court by local manufacturers challenging proceedings commenced in the State of Andhra Pradesh to recover the amounts of the sales tax which would have been paid but for these notifications. Counsel for the local manufacturers pointed out that, having regard to these notifications, the local manufacturers were disentitled by reason of the provisions of the Andhra Pradesh General Sales Tax Act to recover the difference in the amounts from their customers and would have been liable to penalties if they had done so. This Court, treating the writ petitions as review petitions, noted that the attention of the learned Judges who delivered the judgment in Indian Cement and Others Vs. State of Andhra Pradesh and Others, had, apparently, not been drawn to the fact that the local manufacturers would have to pay by way of sales tax amounts which they had not and could not under the provisions of the Andhra Pradesh General Sales Tax Act have collected from their customers. The notifications had been intended to protect the local cement industry. The quashing of the notifications should have the effect of putting the local cement industry and the same industry outside the State on par ; it could not place the former in a disadvantageous position qua the latter. It was, therefore, just and equitable not to permit the State to collect the differential amounts. Accordingly, it was ordered that the State shall not collect the amounts of sales tax that has become payable only by reason of this order quashing its two impugned notifications. 8. Learned Counsel for the respondent-State has, fairly, not contested this position but has expressed apprehension in regard to the possible outcome of any order that we might pass on television manufacturers in the same situation as Solidaire, particularly having regard to the statement made by the learned Government Pleader before the division Bench of the High Court. Such television manufacturers are not before us and they appear to have taken no proceedings subsequent to the order on the appeal before the division Bench. We see no reason why, in the circumstances, we should be deterred from passing the appropriate order on their account.

1[ds]In the case of Indian Cement and Others Vs. State of Andhra Pradesh and Others, notifications providing for a concessional rate of tax to cement manufacturers within the States of Andhra Pradesh and Karnataka were quashed. Writ petitions were filed in this Court by local manufacturers challenging proceedings commenced in the State of Andhra Pradesh to recover the amounts of the sales tax which would have been paid but for these notifications. Counsel for the local manufacturers pointed out that, having regard to these notifications, the local manufacturers were disentitled by reason of the provisions of the Andhra Pradesh General Sales Tax Act to recover the difference in the amounts from their customers and would have been liable to penalties if they had done so. This Court, treating the writ petitions as review petitions, noted that the attention of the learned Judges who delivered the judgment in Indian Cement and Others Vs. State of Andhra Pradesh and Others, had, apparently, not been drawn to the fact that the local manufacturers would have to pay by way of sales tax amounts which they had not and could not under the provisions of the Andhra Pradesh General Sales Tax Act have collected from their customers. The notifications had been intended to protect the local cement industry. The quashing of the notifications should have the effect of putting the local cement industry and the same industry outside the State on par ; it could not place the former in a disadvantageous position qua the latter. It was, therefore, just and equitable not to permit the State to collect the differential amounts. Accordingly, it was ordered that the State shall not collect the amounts of sales tax that has become payable only by reason of this order quashing its two impugned notifications.8. Learned Counsel for the respondent-State has, fairly, not contested this position but has expressed apprehension in regard to the possible outcome of any order that we might pass on television manufacturers in the same situation as Solidaire, particularly having regard to the statement made by the learned Government Pleader before the division Bench of the High Court. Such television manufacturers are not before us and they appear to have taken no proceedings subsequent to the order on the appeal before the division Bench. We see no reason why, in the circumstances, we should be deterred from passing the appropriate order on their account.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: rate of tax payable by dealers in television sets and components was enhanced from 4 to 6 per cent. 3. The notifications by which the rate of tax payable by dealers in television sets and components manufactured in Karnataka had been reduced were challenged by Solidaire India Limited, a company manufacturing television sets outside the State of Karnataka. On October 8, 1990 Reported as Solidaire India Ltd. Vs. State of Karnataka and another, the writ petition was allowed and these notifications were quashed. 4. In January, 1991, the appellants received notices from the sales tax authorities in the respondent-State calling upon them to show cause why they should not pay sales tax at the normal rate instead of the reduced rate, pursuant to the quashing of the said two notifications. A provisional assessment order in this regard was then passed and a demand notice was issued. On February 8, 1991, the appellants filed the writ petitions out of which these appeals arise. They challenged the aforesaid demand notices. They also prayed that the judgment of the learned single Judge in the case of Solidaire India Ltd. Vs. State of Karnataka and another, should not be held to be enforceable as against them. These writ petitions were heard by a division Bench along with the appeal filed by the State Government against the single Judges judgment in Solidaire India Ltd. Vs. State of Karnataka and another, as also the appeal filed by Solidaire itself. The appeals of the State Government and Solidaire were dismissed. In so far as the appellants writ petitions were concerned, it was held that the doctrine of prospective invalidation could not be employed in exercise of powers under Article 226. Accordingly these writ petitions were also dismissed. 5. It has been fairly pointed out by learned Counsel for the appellants that the learned Government Pleader had, in relation to the Solidaire appeal, stated to the division Bench, on instructions, that the sales tax authorities proposed to recover the difference in duty from manufacturers within the State having regard to the fact that the notifications giving them the benefit of a lower rate of tax had been struck down. 6. Learned Counsel for the appellants drew our attention to the judgment of this Court in West Bengal Hosiery Association and Others Vs. State of Bihar and Another, . In that case a notification granting a concessional rate of tax to local manufacturers was struck down and this Court said : We find that the said Notification No. S.O. 934 dated August 1, 1984 is void for the reasons set out earlier and we quash the same. We realise that quashing of this notification on the ground that it was void ab initio might lead to undue hardship for the dealers in the State of Bihar who might have sold locally manufactured hosiery goods without taking into consideration any amount on account of the liability to sales tax in view of the exemption granted by the said notification dated August 1, 1984. In order to obviate this hardship, we direct that the arrears of sales tax which would become payable by the dealers in the State of Bihar in respect of sales of local hosiery goods made during the period when the said notification was in operation should not be collected. 7. Attention was also drawn to the order of this Court in review petitions arising out of Writ Petition (C) No. 770 of 1989 Reported as Texmaco Ltd. v. State of Andhra Pradesh [2000] 118 STC 290 . and connected matters, passed on 18th August, 1998. In the case of Indian Cement and Others Vs. State of Andhra Pradesh and Others, notifications providing for a concessional rate of tax to cement manufacturers within the States of Andhra Pradesh and Karnataka were quashed. Writ petitions were filed in this Court by local manufacturers challenging proceedings commenced in the State of Andhra Pradesh to recover the amounts of the sales tax which would have been paid but for these notifications. Counsel for the local manufacturers pointed out that, having regard to these notifications, the local manufacturers were disentitled by reason of the provisions of the Andhra Pradesh General Sales Tax Act to recover the difference in the amounts from their customers and would have been liable to penalties if they had done so. This Court, treating the writ petitions as review petitions, noted that the attention of the learned Judges who delivered the judgment in Indian Cement and Others Vs. State of Andhra Pradesh and Others, had, apparently, not been drawn to the fact that the local manufacturers would have to pay by way of sales tax amounts which they had not and could not under the provisions of the Andhra Pradesh General Sales Tax Act have collected from their customers. The notifications had been intended to protect the local cement industry. The quashing of the notifications should have the effect of putting the local cement industry and the same industry outside the State on par ; it could not place the former in a disadvantageous position qua the latter. It was, therefore, just and equitable not to permit the State to collect the differential amounts. Accordingly, it was ordered that the State shall not collect the amounts of sales tax that has become payable only by reason of this order quashing its two impugned notifications. 8. Learned Counsel for the respondent-State has, fairly, not contested this position but has expressed apprehension in regard to the possible outcome of any order that we might pass on television manufacturers in the same situation as Solidaire, particularly having regard to the statement made by the learned Government Pleader before the division Bench of the High Court. Such television manufacturers are not before us and they appear to have taken no proceedings subsequent to the order on the appeal before the division Bench. We see no reason why, in the circumstances, we should be deterred from passing the appropriate order on their account. ### Response: 1 ### Explanation: In the case of Indian Cement and Others Vs. State of Andhra Pradesh and Others, notifications providing for a concessional rate of tax to cement manufacturers within the States of Andhra Pradesh and Karnataka were quashed. Writ petitions were filed in this Court by local manufacturers challenging proceedings commenced in the State of Andhra Pradesh to recover the amounts of the sales tax which would have been paid but for these notifications. Counsel for the local manufacturers pointed out that, having regard to these notifications, the local manufacturers were disentitled by reason of the provisions of the Andhra Pradesh General Sales Tax Act to recover the difference in the amounts from their customers and would have been liable to penalties if they had done so. This Court, treating the writ petitions as review petitions, noted that the attention of the learned Judges who delivered the judgment in Indian Cement and Others Vs. State of Andhra Pradesh and Others, had, apparently, not been drawn to the fact that the local manufacturers would have to pay by way of sales tax amounts which they had not and could not under the provisions of the Andhra Pradesh General Sales Tax Act have collected from their customers. The notifications had been intended to protect the local cement industry. The quashing of the notifications should have the effect of putting the local cement industry and the same industry outside the State on par ; it could not place the former in a disadvantageous position qua the latter. It was, therefore, just and equitable not to permit the State to collect the differential amounts. Accordingly, it was ordered that the State shall not collect the amounts of sales tax that has become payable only by reason of this order quashing its two impugned notifications.8. Learned Counsel for the respondent-State has, fairly, not contested this position but has expressed apprehension in regard to the possible outcome of any order that we might pass on television manufacturers in the same situation as Solidaire, particularly having regard to the statement made by the learned Government Pleader before the division Bench of the High Court. Such television manufacturers are not before us and they appear to have taken no proceedings subsequent to the order on the appeal before the division Bench. We see no reason why, in the circumstances, we should be deterred from passing the appropriate order on their account.

Govt. of Andhra Pradesh and Ors Vs. Obulapuram Mining Co. Pvt. Ltd. and Ors. etc

by the other five lessees.The team shall meet on 26.3.2010 and start measurement work soon thereafter on day-to-day basis. There shall be no mining operations in these leases till 9.4.2010.Copy of this order be remitted to Survey of India Headquarters, Dehradun immediately and it be faxed also.List on 9.4.2010." 7. An interim Report came to be submitted by the Committee constituted by this Court on 9.4.2010. In the said interim Report, following recommendations for further work were asked for: "1) The lease sketches based on which the leases have been allotted to different mine holders, have quite appreciable linear and angular misclosures. They need to be revised by Government of Andhra Pradesh.2) All lease area sketches in each cluster should be made with reference to at least two common reference points which are permanent in nature like village tri-junction, village boundary/inter-State boundary pillars with their co-ordinates. Offset from interstate boundary should be clearly mentioned on sketches.3) Inter-state boundary between Andhra Pradesh and Karnataka States has been demarcated as shown by local officials of both the Govts. as appearing on latest Survey of India topographical map. But it has to be verified by the govt. concerned. Lease areas are adjoining inter-state boundary falling in Bellary reserved forest. There is a long standing boundary dispute between adjoining states in this area. This issue has to be resolved before demarcation can be started.4) There should be no mining operation during survey work.Once the above requirements for initiation of surveying and demarcation work is fulfilled, Survey of India team can demarcate the boundaries of all six leases with boundary pillars co- ordinated in grid as well as spherical terms." 8. In view of this, we directed that matter be listed for further hearing on 23.4.2010 but Final Report was not filed by the said date, instead, was filed subsequently on 30.4.2010, alongwith Annexures. While submitting the Final Report, Committee made the following recommendations: "(3)Recommendations:(3.1)Considering major discrepancies in mining lease sketches, entire lease sketches issued in Bellary Reserve Forest area need to be reviewed. All lease sketches have to be re-drawn correctly with reference to at least two reference (permanent) points on ground. Two departments of same Government should not issue two different approved sketches.(3.2) Ministry of Home Affairs, Government of India, Chief Secretary, Government of Andhra Pradesh and Chief Secretary of Karnataka may be directed to decide the Inter-State boundary between Karnataka & Andhra Pradesh in Bellary Reserve Forest area to facilitate demarcation work.(3.3) There should be no mining operations during demarcation work.(3.4) To avoid any dispute in future, all pillars on boundaries of mine leases should be provided latitude and longitude which will be done during demarcation work." 9. In the light of the aforesaid recommendations having been made by the Committee constituted by this Court, we have heard learned counsel for parties at length, perused the interim as well as final Report, as also the records. 10. Mr. Goolam E. Vahanvati, learned Attorney General appearing for the State of Andhra Pradesh as well as Mr. Gopal Subramaniam, learned Solicitor General appearing for Survey of India, strenuously contended before us that unless recommendations of the final Report of the Committee are not implemented in letter and spirit, respondent No.1- Company should not be allowed to carry on mining of Iron Ore as the mining operations are likely to seriously affect demarcation and determination of boundaries between two States, i.e. State of Andhra Pradesh and State of Karnataka. It was further contended by them that the said exercise is likely to be completed within a period of three months. In the meanwhile the interim order of status quo passed by this Court, in earlier round of litigation, which is in operation for the last about four months should be allowed to continue till the said exercise is completed. 11. On the other hand, learned senior counsel appearing for Respondent No.1, Mr. K. Parasaran, Mr. P.P. Rao, Mr. Mukul Rohatgi, ably assisted by their juniors vehemently contended before us that the final Report filed by Survey of India would reveal that respondent No.1-Company cannot be blamed at all as it has neither encroached nor has done any mining operations out of the leased area. Therefore, they have contended that no prima facie case has been made out by the petitioners to stop the mining operations even now. It was also contended by them that the time has now come when equities are to be worked out and looking to the international contracts entered into by respondent No.1 with various international Companies, this Court should allow the mining operation, at least from those areas which can be said to be undisputed.12. It was also suggested during the course of the hearing by the learned counsel appearing for respondent No.1 that in any case, they would not carry out mining operations within 100 to 150 metres from the Karnataka border as has been shown in the base map filed by Survey of India on 4.5.2010 (Annexure A) which shall form part of this order. It was also submitted by them that to safeguard the interest of the petitioner-State, they would erect a barbed wire fencing throughout Karnataka border with regard to those leases which are abutting Karnataka border 150 metres away from the same and in any case, would not carry out any mining operations in those areas or other disputed areas till final demarcation of boundaries is completed. 13. On the submissions as having been advanced by learned counsel for parties, we have given our serious thought and deliberations to the same. In our considered opinion, respondent No.1-Company can be allowed to start the mining operation only with regard to undisputed area which neither falls in the State of Karnataka nor would be abutting Karnataka boundary. It will also not be permitted to do any mining operation in those areas which according to the base Map dated 4.5.2010 Annexure A fall within its leased area but may be falling in the leased area of other lessees.

1[ds]13. On the submissions as having been advanced by learned counsel for parties, we have given our serious thought and deliberations to the same. In our considered opinion, respondent No.1-Company can be allowed to start the mining operation only with regard to undisputed area which neither falls in the State of Karnataka nor would be abutting Karnataka boundary. It will also not be permitted to do any mining operation in those areas which according to the base Map dated 4.5.2010 Annexure A fall within its leased area but may be falling in the leased area of other lessees.

### 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: by the other five lessees.The team shall meet on 26.3.2010 and start measurement work soon thereafter on day-to-day basis. There shall be no mining operations in these leases till 9.4.2010.Copy of this order be remitted to Survey of India Headquarters, Dehradun immediately and it be faxed also.List on 9.4.2010." 7. An interim Report came to be submitted by the Committee constituted by this Court on 9.4.2010. In the said interim Report, following recommendations for further work were asked for: "1) The lease sketches based on which the leases have been allotted to different mine holders, have quite appreciable linear and angular misclosures. They need to be revised by Government of Andhra Pradesh.2) All lease area sketches in each cluster should be made with reference to at least two common reference points which are permanent in nature like village tri-junction, village boundary/inter-State boundary pillars with their co-ordinates. Offset from interstate boundary should be clearly mentioned on sketches.3) Inter-state boundary between Andhra Pradesh and Karnataka States has been demarcated as shown by local officials of both the Govts. as appearing on latest Survey of India topographical map. But it has to be verified by the govt. concerned. Lease areas are adjoining inter-state boundary falling in Bellary reserved forest. There is a long standing boundary dispute between adjoining states in this area. This issue has to be resolved before demarcation can be started.4) There should be no mining operation during survey work.Once the above requirements for initiation of surveying and demarcation work is fulfilled, Survey of India team can demarcate the boundaries of all six leases with boundary pillars co- ordinated in grid as well as spherical terms." 8. In view of this, we directed that matter be listed for further hearing on 23.4.2010 but Final Report was not filed by the said date, instead, was filed subsequently on 30.4.2010, alongwith Annexures. While submitting the Final Report, Committee made the following recommendations: "(3)Recommendations:(3.1)Considering major discrepancies in mining lease sketches, entire lease sketches issued in Bellary Reserve Forest area need to be reviewed. All lease sketches have to be re-drawn correctly with reference to at least two reference (permanent) points on ground. Two departments of same Government should not issue two different approved sketches.(3.2) Ministry of Home Affairs, Government of India, Chief Secretary, Government of Andhra Pradesh and Chief Secretary of Karnataka may be directed to decide the Inter-State boundary between Karnataka & Andhra Pradesh in Bellary Reserve Forest area to facilitate demarcation work.(3.3) There should be no mining operations during demarcation work.(3.4) To avoid any dispute in future, all pillars on boundaries of mine leases should be provided latitude and longitude which will be done during demarcation work." 9. In the light of the aforesaid recommendations having been made by the Committee constituted by this Court, we have heard learned counsel for parties at length, perused the interim as well as final Report, as also the records. 10. Mr. Goolam E. Vahanvati, learned Attorney General appearing for the State of Andhra Pradesh as well as Mr. Gopal Subramaniam, learned Solicitor General appearing for Survey of India, strenuously contended before us that unless recommendations of the final Report of the Committee are not implemented in letter and spirit, respondent No.1- Company should not be allowed to carry on mining of Iron Ore as the mining operations are likely to seriously affect demarcation and determination of boundaries between two States, i.e. State of Andhra Pradesh and State of Karnataka. It was further contended by them that the said exercise is likely to be completed within a period of three months. In the meanwhile the interim order of status quo passed by this Court, in earlier round of litigation, which is in operation for the last about four months should be allowed to continue till the said exercise is completed. 11. On the other hand, learned senior counsel appearing for Respondent No.1, Mr. K. Parasaran, Mr. P.P. Rao, Mr. Mukul Rohatgi, ably assisted by their juniors vehemently contended before us that the final Report filed by Survey of India would reveal that respondent No.1-Company cannot be blamed at all as it has neither encroached nor has done any mining operations out of the leased area. Therefore, they have contended that no prima facie case has been made out by the petitioners to stop the mining operations even now. It was also contended by them that the time has now come when equities are to be worked out and looking to the international contracts entered into by respondent No.1 with various international Companies, this Court should allow the mining operation, at least from those areas which can be said to be undisputed.12. It was also suggested during the course of the hearing by the learned counsel appearing for respondent No.1 that in any case, they would not carry out mining operations within 100 to 150 metres from the Karnataka border as has been shown in the base map filed by Survey of India on 4.5.2010 (Annexure A) which shall form part of this order. It was also submitted by them that to safeguard the interest of the petitioner-State, they would erect a barbed wire fencing throughout Karnataka border with regard to those leases which are abutting Karnataka border 150 metres away from the same and in any case, would not carry out any mining operations in those areas or other disputed areas till final demarcation of boundaries is completed. 13. On the submissions as having been advanced by learned counsel for parties, we have given our serious thought and deliberations to the same. In our considered opinion, respondent No.1-Company can be allowed to start the mining operation only with regard to undisputed area which neither falls in the State of Karnataka nor would be abutting Karnataka boundary. It will also not be permitted to do any mining operation in those areas which according to the base Map dated 4.5.2010 Annexure A fall within its leased area but may be falling in the leased area of other lessees. ### Response: 1 ### Explanation: 13. On the submissions as having been advanced by learned counsel for parties, we have given our serious thought and deliberations to the same. In our considered opinion, respondent No.1-Company can be allowed to start the mining operation only with regard to undisputed area which neither falls in the State of Karnataka nor would be abutting Karnataka boundary. It will also not be permitted to do any mining operation in those areas which according to the base Map dated 4.5.2010 Annexure A fall within its leased area but may be falling in the leased area of other lessees.

Hiralal Rattanlal etc. etc Vs. State of U.P. and Anr. etc. etc

correct. The notification in question was issued under Section 3-D. Section 3-D refers to foodgrains but because of Explanation II to that section, we have now to read the expression "foodgrains" as containing two different items, processed or split foodgrains and unprocessed or unsplit foodgrains. Consequently while reading the expression "foodgrains" in the notification also, we must adopt the same approach. This conclusion is also obvious from Section 7.If the legislature had not retrospectively validated the assessments made on the first purchases of split or processed foodgrains, what did Section 7 seek to achieve ? That section says in plain words that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, every notification issued or purporting to have been issued under Section 3-D of the principal Act, before the commencement of the Amending Act shall be deemed to have been issued under that section as amended by the Amending Act and shall be so interpreted and be deemed to be and always to have been as valid as if the provisions of the Amending Act were in force at all material times and accordingly, anything done or any action taken (including any order made, proceedings taken, jurisdiction exercised, assessment made, or tax levied, collected or paid, purporting to have been done or taken in pursuance of any such notification) shall be deemed to be, and always to have been validly and lawfully done or taken. 27. We asked the learned counsel appearing for the appellants to let us know the field in which Section 7 can be said to operate. Their answer was that though the legislature intended to validate the assessments made on the first purchases of the split or processed dal, it failed to achieve that object because of the defective phraseology employed in Explanation II to Section 3-D and Section 7 of the Amending Act. In other words their submission was that Section 7 has become otiose. It was urged on behalf of the appellants that a taxing provision will have to be strictly interpreted and in finding out the intention of the legislature in the matter of imposing tax, we cannot travel beyond the words of the section. 28. There is no doubt that a taxing provision has to be strictly interpreted. If a legislature intends to impose any tax, that intention must be made clear by the language employed in the statute; but that does not mean that the provision in a taxing statute should not be read reasonably. The contention that we should ignore Section 7 of the Amending Act is a contention difficult of acceptance. Dealing with a similar contention Venkatarama Ayyar, J. speaking for the Court in J. K. Jute Mills case, 12 STC 429 = (AIR 1961 SC 1534 ) (supra) observed at p. 435 :"The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided." 29. We have earlier come to the conclusion that because Explanation II to Section 3-D the expression "foodgrains including pulses" in Section 3-D should be read as including two different items i.e. (1) unsplit or unprocessed foodgrains including pulses and (2) split or processed foodgrains including pulses. Consequently the expression "foodgrains" in the notification will also have to be read in the same manner. This, in our opinion, is the reasonable way of reading the notification in the light of Section 3-D, Explanation II to that section and Section 7 of the Act. 30. The only remaining contention is that the delegation made to the executive under Section 3-D is an excessive delegation. It is true that the legislature cannot delegate its legislative functions to any other body. But subject to that qualification, it is permissible for the legislature to delegate the power to select the person on whom the tax is to be levied or the goods or the transactions on which the tax is to be levied. In the Act, under Section 3 the legislature has sought to impose multi-point tax on all sales and purchases. After having done that it has given power to the executive, a high authority and which is presumed to command the majority support in the legislature, to select for special treatment dealings in certain class of goods. In the very nature of things, it is impossible for the legislature to enumerate goods, dealings in which sales tax or purchase tax should be imposed. It is also impossible for the legislature to select the goods which should be subjected to a single point sales or purchase tax. Before making such selections several aspects such as the impact of the levy on the society, economic consequences and the administrative convenience will have to be considered. These factors may change from time to time. Hence in the very nature of things, these details have got to be left to the executive. 31. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1959 SCR 427 = (AIR 1958 SC 909 ) the question arose whether it was permissible for the legislature to empower the executive to amend the Schedule relating to exemptions. This Court by majority answered that question in the affirmative. If further held that it is not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of the taxation laws, such as the selection of the person on whom the tax is to be levied, the rates at which it is to be charged in respect of different classes of goods and the like.

0[ds]21. It was next urged that on a true construction of Explanation II to Section 3-D, no charge can be said to have been created on the purchases of split or processed pulses. It was firstly contended that an Explanation cannot extend the scope of the main section; it can only explain that section. In construing a statutory provision, the first and the foremost rule of construction is the literary construction. All that we have to see at the very outset is what does that provision say ? If the provision is unambiguous and if from the provision, the legislative intent is clear, we need not call into aid the other rules of construction of statutes. The other rules of construction of statutes are called into aid only when the legislative intent is not clear. Ordinarily a proviso to a section is intended to take out a part of the main section for special treatment. It is not expected to enlarge the scope of the main section. But cases have arisen in which this Court has held that despite the fact that a provision is called proviso, it is really a separate provision and the so-called proviso has substantially altered the main section. In Commr. of Income-tax, Bombay City, Bombay v. Bipinchandra Maganlal and Co. Ltd., Bombay, (1961) 2 SCR 493 = (AIR 1961 SC 1040 ), this Court held that by the fiction in Section 10 (2) (vii) second proviso read with Section 2 (6C) of the Indian Income-tax Act, 1922 what is really not income is, for the purpose of computation of assessable income into taxable income22. In State of Rajasthan v. Leela Jain, (1965) 1 SCR 276 = (AIR 1965 SC 1296 ), this Court observed:"The primary purpose of the proviso now under consideration is, it is apparent, to provide a substitute or an alternative remedy to that which is prohibited by the main part of Section 4 (1). There is, therefore, no question of the proviso carving out any portion out of the area covered by the main part and leaving the other part unaffected. What we have stated earlier should suffice to establish that the proviso now before us is really not a proviso in the accepted sense but an independent legislative provision by which to a remedy which is prohibited by the main part of the section, an alternative is provided. It is further obvious to us that the proviso is not co-extensive with but covers a field wider than the main part of Section 4 (1)."23. In Bihta Co-operative Development and Cane Marketing Union Ltd. v. Bank of Bihar, (1967) 1 SCR 848 = (AIR 1967 SC 389 ), this Court was called upon to consider the Explanation to Section 48 (1) of the Bihar and Orissa Co-operative Societies Act, 1935. Therein this Court observed :"The question then arises whether the first Explanation to the section widens the scope of sub-section (1) of Section 48 so as to include claims by registered societies against non-members even if the same are not covered by clause (c)."24. On the basis of the language of the Explanation this Court held that it did not widen the scope of clause (c).But from what has been said in the case, it is clear that if on a true reading of an Explanation it appears that it has widened the scope of the main section, effect must be given to legislative intent notwithstanding the fact that the legislature named that provision as an Explanation. In all these matters the Courts have to find out the true intention of the legislature25. We are unable to accept the contention that Explanation II to Section 3-D did not widen the scope of Section 3-D. Section 3-D as it originally stood dealt with foodgrains and pulses. It did not treat the unprocessed or unsplit foodgrains and pulses as a separate item but because of Explanation II, we have now to read the expression "foodgrains" in Section 3-D as containing two separate items viz. (1) foodgrains unprocessed or unsplit and (2) foodgrains processed or split. It is true that Explanation II is not very happily worded but the intention of the legislature is clear and unambiguous. The newly added Explanation brings to tax with retrospective effect the split or processed foodgrains as well26. We next come to the contention that no levy of purchase tax can be made on split or unprocessed (processed ?) pulses without a fresh notification under Section 3-D read with Explanation II shwoing therein separately foodgrains unsplit or unprocessed as well as foodgrains split or processed. As seen earlier the notification issued merely refers to foodgrains. That notification does not classify foodgrains into two separate categories - processed or split and unprocessed or unsplit. Therefore we were told that no tax can be levied on processed or split foodgrains on the basis of that notification. This contention cannot be accepted as correct. The notification in question was issued under Section 3-D. Section 3-D refers to foodgrains but because of Explanation II to that section, we have now to read the expression "foodgrains" as containing two different items, processed or split foodgrains and unprocessed or unsplit foodgrains. Consequently while reading the expression "foodgrains" in the notification also, we must adopt the same approach. This conclusion is also obvious from Section 7.If the legislature had not retrospectively validated the assessments made on the first purchases of split or processed foodgrains, what did Section 7 seek to achieve ? That section says in plain words that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, every notification issued or purporting to have been issued under Section 3-D of the principal Act, before the commencement of the Amending Act shall be deemed to have been issued under that section as amended by the Amending Act and shall be so interpreted and be deemed to be and always to have been as valid as if the provisions of the Amending Act were in force at all material times and accordingly, anything done or any action taken (including any order made, proceedings taken, jurisdiction exercised, assessment made, or tax levied, collected or paid, purporting to have been done or taken in pursuance of any such notification) shall be deemed to be, and always to have been validly and lawfully done or taken27. We asked the learned counsel appearing for the appellants to let us know the field in which Section 7 can be said to operate. Their answer was that though the legislature intended to validate the assessments made on the first purchases of the split or processed dal, it failed to achieve that object because of the defective phraseology employed in Explanation II to Section 3-D and Section 7 of the Amending Act. In other words their submission was that Section 7 has become otiose. It was urged on behalf of the appellants that a taxing provision will have to be strictly interpreted and in finding out the intention of the legislature in the matter of imposing tax, we cannot travel beyond the words of the section28. There is no doubt that a taxing provision has to be strictly interpreted. If a legislature intends to impose any tax, that intention must be made clear by the language employed in the statute; but that does not mean that the provision in a taxing statute should not be read reasonably. The contention that we should ignore Section 7 of the Amending Act is a contention difficult of acceptance. Dealing with a similar contention Venkatarama Ayyar, J. speaking for the Court in J. K. Jute Mills case, 12 STC 429 = (AIR 1961 SC 1534 ) (supra) observed at p. 435 :"The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided."29. We have earlier come to the conclusion that because Explanation II to Section 3-D the expression "foodgrains including pulses" in Section 3-D should be read as including two different items i.e. (1) unsplit or unprocessed foodgrains including pulses and (2) split or processed foodgrains including pulses. Consequently the expression "foodgrains" in the notification will also have to be read in the same manner. This, in our opinion, is the reasonable way of reading the notification in the light of Section 3-D, Explanation II to that section and Section 7 of the Act30. The only remaining contention is that the delegation made to the executive under Section 3-D is an excessive delegation. It is true that the legislature cannot delegate its legislative functions to any other body. But subject to that qualification, it is permissible for the legislature to delegate the power to select the person on whom the tax is to be levied or the goods or the transactions on which the tax is to be levied. In the Act, under Section 3 the legislature has sought to impose multi-point tax on all sales and purchases. After having done that it has given power to the executive, a high authority and which is presumed to command the majority support in the legislature, to select for special treatment dealings in certain class of goods. In the very nature of things, it is impossible for the legislature to enumerate goods, dealings in which sales tax or purchase tax should be imposed. It is also impossible for the legislature to select the goods which should be subjected to a single point sales or purchase tax. Before making such selections several aspects such as the impact of the levy on the society, economic consequences and the administrative convenience will have to be considered. These factors may change from time to time. Hence in the very nature of things, these details have got to be left to the executive31. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1959 SCR 427 = (AIR 1958 SC 909 ) the question arose whether it was permissible for the legislature to empower the executive to amend the Schedule relating to exemptions. This Court by majority answered that question in the affirmative. If further held that it is not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of the taxation laws, such as the selection of the person on whom the tax is to be levied, the rates at which it is to be charged in respect of different classes of goods and the like.

### 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: correct. The notification in question was issued under Section 3-D. Section 3-D refers to foodgrains but because of Explanation II to that section, we have now to read the expression "foodgrains" as containing two different items, processed or split foodgrains and unprocessed or unsplit foodgrains. Consequently while reading the expression "foodgrains" in the notification also, we must adopt the same approach. This conclusion is also obvious from Section 7.If the legislature had not retrospectively validated the assessments made on the first purchases of split or processed foodgrains, what did Section 7 seek to achieve ? That section says in plain words that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, every notification issued or purporting to have been issued under Section 3-D of the principal Act, before the commencement of the Amending Act shall be deemed to have been issued under that section as amended by the Amending Act and shall be so interpreted and be deemed to be and always to have been as valid as if the provisions of the Amending Act were in force at all material times and accordingly, anything done or any action taken (including any order made, proceedings taken, jurisdiction exercised, assessment made, or tax levied, collected or paid, purporting to have been done or taken in pursuance of any such notification) shall be deemed to be, and always to have been validly and lawfully done or taken. 27. We asked the learned counsel appearing for the appellants to let us know the field in which Section 7 can be said to operate. Their answer was that though the legislature intended to validate the assessments made on the first purchases of the split or processed dal, it failed to achieve that object because of the defective phraseology employed in Explanation II to Section 3-D and Section 7 of the Amending Act. In other words their submission was that Section 7 has become otiose. It was urged on behalf of the appellants that a taxing provision will have to be strictly interpreted and in finding out the intention of the legislature in the matter of imposing tax, we cannot travel beyond the words of the section. 28. There is no doubt that a taxing provision has to be strictly interpreted. If a legislature intends to impose any tax, that intention must be made clear by the language employed in the statute; but that does not mean that the provision in a taxing statute should not be read reasonably. The contention that we should ignore Section 7 of the Amending Act is a contention difficult of acceptance. Dealing with a similar contention Venkatarama Ayyar, J. speaking for the Court in J. K. Jute Mills case, 12 STC 429 = (AIR 1961 SC 1534 ) (supra) observed at p. 435 :"The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided." 29. We have earlier come to the conclusion that because Explanation II to Section 3-D the expression "foodgrains including pulses" in Section 3-D should be read as including two different items i.e. (1) unsplit or unprocessed foodgrains including pulses and (2) split or processed foodgrains including pulses. Consequently the expression "foodgrains" in the notification will also have to be read in the same manner. This, in our opinion, is the reasonable way of reading the notification in the light of Section 3-D, Explanation II to that section and Section 7 of the Act. 30. The only remaining contention is that the delegation made to the executive under Section 3-D is an excessive delegation. It is true that the legislature cannot delegate its legislative functions to any other body. But subject to that qualification, it is permissible for the legislature to delegate the power to select the person on whom the tax is to be levied or the goods or the transactions on which the tax is to be levied. In the Act, under Section 3 the legislature has sought to impose multi-point tax on all sales and purchases. After having done that it has given power to the executive, a high authority and which is presumed to command the majority support in the legislature, to select for special treatment dealings in certain class of goods. In the very nature of things, it is impossible for the legislature to enumerate goods, dealings in which sales tax or purchase tax should be imposed. It is also impossible for the legislature to select the goods which should be subjected to a single point sales or purchase tax. Before making such selections several aspects such as the impact of the levy on the society, economic consequences and the administrative convenience will have to be considered. These factors may change from time to time. Hence in the very nature of things, these details have got to be left to the executive. 31. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1959 SCR 427 = (AIR 1958 SC 909 ) the question arose whether it was permissible for the legislature to empower the executive to amend the Schedule relating to exemptions. This Court by majority answered that question in the affirmative. If further held that it is not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of the taxation laws, such as the selection of the person on whom the tax is to be levied, the rates at which it is to be charged in respect of different classes of goods and the like. ### Response: 0 ### Explanation: The notification in question was issued under Section 3-D. Section 3-D refers to foodgrains but because of Explanation II to that section, we have now to read the expression "foodgrains" as containing two different items, processed or split foodgrains and unprocessed or unsplit foodgrains. Consequently while reading the expression "foodgrains" in the notification also, we must adopt the same approach. This conclusion is also obvious from Section 7.If the legislature had not retrospectively validated the assessments made on the first purchases of split or processed foodgrains, what did Section 7 seek to achieve ? That section says in plain words that notwithstanding any judgment, decree or order of any court or tribunal to the contrary, every notification issued or purporting to have been issued under Section 3-D of the principal Act, before the commencement of the Amending Act shall be deemed to have been issued under that section as amended by the Amending Act and shall be so interpreted and be deemed to be and always to have been as valid as if the provisions of the Amending Act were in force at all material times and accordingly, anything done or any action taken (including any order made, proceedings taken, jurisdiction exercised, assessment made, or tax levied, collected or paid, purporting to have been done or taken in pursuance of any such notification) shall be deemed to be, and always to have been validly and lawfully done or taken27. We asked the learned counsel appearing for the appellants to let us know the field in which Section 7 can be said to operate. Their answer was that though the legislature intended to validate the assessments made on the first purchases of the split or processed dal, it failed to achieve that object because of the defective phraseology employed in Explanation II to Section 3-D and Section 7 of the Amending Act. In other words their submission was that Section 7 has become otiose. It was urged on behalf of the appellants that a taxing provision will have to be strictly interpreted and in finding out the intention of the legislature in the matter of imposing tax, we cannot travel beyond the words of the section28. There is no doubt that a taxing provision has to be strictly interpreted. If a legislature intends to impose any tax, that intention must be made clear by the language employed in the statute; but that does not mean that the provision in a taxing statute should not be read reasonably. The contention that we should ignore Section 7 of the Amending Act is a contention difficult of acceptance. Dealing with a similar contention Venkatarama Ayyar, J. speaking for the Court in J. K. Jute Mills case, 12 STC 429 = (AIR 1961 SC 1534 ) (supra) observed at p. 435 :"The object of the legislation as stated in the long title and in the preamble to the Act was to validate the impugned notification in relation to the amended section. Schedule B to the Act expressly mentions that notification. And if we are now to accede to the contention of the petitioner, we must hold that though the legislature set about avowedly to validate the notification dated March 31, 1956, it failed to achieve that object. A construction which will lead to such a result must, if that is possible, be avoided."29. We have earlier come to the conclusion that because Explanation II to Section 3-D the expression "foodgrains including pulses" in Section 3-D should be read as including two different items i.e. (1) unsplit or unprocessed foodgrains including pulses and (2) split or processed foodgrains including pulses. Consequently the expression "foodgrains" in the notification will also have to be read in the same manner. This, in our opinion, is the reasonable way of reading the notification in the light of Section 3-D, Explanation II to that section and Section 7 of the Act30. The only remaining contention is that the delegation made to the executive under Section 3-D is an excessive delegation. It is true that the legislature cannot delegate its legislative functions to any other body. But subject to that qualification, it is permissible for the legislature to delegate the power to select the person on whom the tax is to be levied or the goods or the transactions on which the tax is to be levied. In the Act, under Section 3 the legislature has sought to impose multi-point tax on all sales and purchases. After having done that it has given power to the executive, a high authority and which is presumed to command the majority support in the legislature, to select for special treatment dealings in certain class of goods. In the very nature of things, it is impossible for the legislature to enumerate goods, dealings in which sales tax or purchase tax should be imposed. It is also impossible for the legislature to select the goods which should be subjected to a single point sales or purchase tax. Before making such selections several aspects such as the impact of the levy on the society, economic consequences and the administrative convenience will have to be considered. These factors may change from time to time. Hence in the very nature of things, these details have got to be left to the executive31. In Banarsi Das Bhanot v. State of Madhya Pradesh, 1959 SCR 427 = (AIR 1958 SC 909 ) the question arose whether it was permissible for the legislature to empower the executive to amend the Schedule relating to exemptions. This Court by majority answered that question in the affirmative. If further held that it is not unconstitutional for the legislature to leave it to the executive to determine the details relating to the working of the taxation laws, such as the selection of the person on whom the tax is to be levied, the rates at which it is to be charged in respect of different classes of goods and the like.

Abdul Mateen Vs. Ram Kailash Pandey &amp; Others

to some conclusion as to the number of stage carriages which were to be permitted to operate on that route and the advertisement would only be issued on behalf of the Regional Transport Authority calling for applications for the number so fixed. Therefore when it is a case of a new route which is being opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, we think it is reasonable to infer that when the number of vacancies was specified that shows the limit which must have been decided upon by the Regional Transport Authority under S. 47 (3); otherwise, it is impossible to understand in the case of a new route why the advertisement was only for two vacancies and not (say) for four or six. The very fact that in the case of a new route opened for the first time, the advertisement mentions two vacancies shows that the Regional Transport Authority must have decided before issuing the advertisement that on that route the number of stage carriages will be limited to two under S. 47 (3). This is also the inference which the High Court has drawn in this connection though it has not specifically mentioned the fact that this was a case of a new route opened for the first time. As we have said above, such an inference from the advertisement would be justified in the case of a new route which is opened for the first time. Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not necessarily mean that that was the number fixed under S. 47 (3), for the number fixed may be much more and there may be only a few vacancies because a few permits had expired. Therefore, in the circumstances of this case we are of opinion that it will be legitimate to infer as it was a new route opened for the first time that when the advertisement was made for only two vacancies, that was because the Regional Transport Authority had already decided to limit the number of stage carriages on this route only to two under S. 47 (3). Once this is held, it follows that under S. 48, the Regional Transport Authority could not grant more than two permits and therefore the Appellate Authority also could not grant more permits under S. 64; nor could the revisional authority on an application made to it by an aggrieved person grant more permits. We have already said that it is not necessary to decide in this case whether it would be open otherwise to the revisional authority under S. 64 A as inserted by Central Act 100 of 1956 to revise a general order of the Regional Transport Authority passed under S. 47 (3). We are in the present case concerned only with a case where an order passed under S. 48 by the Regional Transport Authority has been taken in appeal by an aggrieved person to the Appe1late Authority under S. 64 and thereafter the order of the Appellate Authority has been taken in revision by an aggrieved person under S. 64 A. as inserted by the Bihar Amendment Act and in such a case the limit fixed under S. 47 (3) would bind the Regional Transport Authority, the Appellate Authority as well as the revisional authority and they cannot issue permits beyond the limits fixed under S. 47. We are therefore of opinion that the High Court was right on the facts of this case in holding that the State Government had no power to increase the number of permits which had been fixed at two by the Regional Transport Authority under S. 47 (3) to three on the application of an aggrieved person under S. 64A arising from a proceeding before the Regional Transport Authority under S. 48 and the Appellate Authority under S. 64.11. We may point out that there has been a difference of opinion between various High Courts on this question. The Rajasthan High Court in The Automobile Transport (Rajputana) v. Nathu Ram Mirdha ILR (1959) 9 Raj 120: (AIR 1960 S C 1191) has taken one view and the Allahabad High Court in Mohammed Luqman Sharif v. State Transport Authority, AIR 1961 All 342 has taken the contrary view. The Rajasthan High Court held, dealing with S. 48 (a) of the Act (as it was before the amendment of 1956) which is similar to S. 47 (3) after the amendment, that under S. 48 (a) as it stood before the amendment, limiting of the number of stage carriages on any specific route did not make the order of the Regional Transport Authority a final decision binding on the appellate authority. The Allahabad High Court on the other hand held that when an order limiting the number of stage carriages had been passed under S. 48 (A) as it was before the amendment of 1956, there could be no appeal against that order under S. 64 and therefore the Appellate Authority on an appeal under S. 64 could not refix the number of stage carriages in respect of that route. We are of opinion, in view of what we have said above and in the light of the limitations which we have indicated above, that the view of the Allahabad High Court is correct.12. Lastly, it is urged on behalf of the appellant that respondent No. 1 who filed the writ petition in the High Court had no locus standi. We are of opinion that there is no force in this contention. Respondent No. 1 was contending in the High Court that he should have been granted a permit and not the appellant. Therefore he had locus standi to file the writ petition and it was during the consideration of that writ petition that the point on which the appellant has lost, arose.

0[ds]4. It will be clear from this scheme of the Act that the main section for the grant of a stage carriage permit is S. 48 and in passing an order granting or refusing to grant a stage carriage permit, the Regional Transport Authority has to act subject to the provisions of S. 47. Section 57 is a procedural section and provides for the procedure in applying for and granting permits. The power of the Regional Transport Authority to grant stage carriage permits is to be found in S. 48 and that power is subject to the provisions of S. 47. Section 47 (1) lays down matters for which the Regional Transport Authority shall have regard when considering an application for a stage carriage permit and S. 47 (3) gives power to the said authority having regard to the matters mentioned in sub-s. (1) to limit the number of stage carriages generally etc. It would be clear therefore that when the Regional Transport Authority proceeds in the manner provided in S.57 to consider an application for a stage carriage permit and eventually decides either to grant it or not to grant it under S. 48 its order has to be subject to the provisions of S. 47, including S. 47 (3) by which the Regional Transport Authority is given the power to limit the number of stage carriages generally etc. Therefore, if the Regional Transport Authority has limited the number of stage carriages by exercising its power under S. 47 (3), the grant of permits by it under S. 48 (3). We cannot accept the contention on behalf of the appellant that when the Regional Transport Authority following the procedure provided in S. 57, comes to grant or refuse a permit it can ignore the limit fixed under S. 47 (3), because it is also the authority making the order under S. 48. Section 47 (3) is concerned with a general order limiting stage carriages generally etc., on a consideration of matter specified in S. 47 (1) That general order can be modified by the Regional Transport Authority, if it so decides, one way or the other. But the modification of that order is not matter for consideration when the Regional Transport Authority is dealing with the actual grant of permits under S. 48 read with S. 57, for at that stage what the Regional Transport Authority has to do is to choose between various applicants who may have made applications to it under S. 46 read with S. 57. That in our opinion is not the stage where the general order passed under S. 47 (3) can be re-considered, for the order under S. 48 is subject to the provisions of S. 47, which includes S. 47 (3) under which a general order limiting the number of stage carriages etc., may have been passed. Section 57 (2) shows that an application for permit maybe made at any time not less than six weeks before the date on which it is desired that the permit shall take effect or if the Regional Transport Authority appoints dates for the receipt of such applications, on such dates. All Applications, whether received one way or the other, have to be dealt with in the manner provided by S. 57 and the final order for grant of stage carriage permit has to be passed under S. 48. But, at that stage, as we have already pointed out, the Regional Transport Authority is only considering whether the applications made before it are to be granted or not and has to choose between various applicants where there are more applicants than the number of vacancies which might have been advertised or there are more applicants than the number limited under S. 47 (3). The scheme of the Act therefore is that a limit is fixed under S. 47 (3) and the applications received are dealt with in the manner provided by S. 57 and permits can be granted under S. 48 subject to the limit fixed under S. 47 (3)5. Further, it will be clear from S. 64 that the appeal there contemplated is by a person who is aggrieved by various orders specified therein. Section 64 clearly does not contemplate any appeal from an order under S. 47 (3) limiting the number of stage carriages generally etc., for that order being a general order cannot be a ground for grievance to any individual who may have the right of appeal under S. 64. Therefore, when the Appellate Authority deals with an appeal under S.64 it is not sitting in appeal on the general order passed under S. 47 (3) and has to deal with the same matters with which the Regional Transport Authority dealt under S. 48, namely to choose between various applicants in the matter of grant of permits. Further, when under S. 64 A of the Bihar Amendment Act an application is made to it, the State Government can call for the record of any proceeding taken under Chap. IV by any authority or officer subordinate to it and pass such order in relation to the case as it deems fit.6. It may be mentioned that S. 64 A as it now stands in the Act is very different from S. 64-A as inserted by the Bihar Amendment Act and there is no power in the State Government now to act under the present S. 64-A.A question may very well arise whether S. 64-A as inserted by Central Act No. 100 of 1956 has by necessary implication repealed S. 64 A as inserted by, the Bihar Amendment Act. As the proceedings in the present case began in 1957 Central Act 100 of 1956 would apply to these proceedings and therefore if S. 64-A as inserted by the Bihar Amendment Act is repealed by necessary implication by S. 64-A as inserted by Central Act 100 of 1956, there would be no power in the State Government to revise the order of the Appellate Authority after 1956. However, we need not consider this matter further, as it was never raised in the High Court and shall proceed on the assumption that S. 64-A of the Bihar Amendment Act applied.7. Further, it is not necessary in the present case to decide whether under S. 64-A as inserted by Central Act 100 of 1956 it was open to the State Transport Authority to vary a general order passed under S. 47 (3); we are here dealing with a revision based on an application made under S. 64-A, as inserted by the Bihar Amendment Act, by a person who was aggrieved by the order of the Appellate Authority under S. 64. In such a case we are of opinion that the power of the revisional authority is confined only to considering matters which the Regional Transport Authority and the Appellate Authority could have considered under Ss. 48 and 64. We have already pointed out that under S. 48 the Regional Transport Authority is to choose between various applicants in the matter of granting permits or refusing to grant permits and under S. 64 the power of the Appellate Authority is also limited to the same function on an appeal by a person aggrieved as provider therein. Therefore, when a revisional authority is dealing with an application under S. 64- A by a person who is aggrieved by an order under S. 64, it is also confined within the same limits within which the Appellate Authority acting under S. 64 and the Regional Transport Authority acting under S. 48 are confined. This was the view taken by this Court in Ram Gopals case, 1959 Supp (2) SCR 692: (AIR 1959 SC 851 ) and the same view has been reiterated in Arunachalam Pillai v. Messrs Southern Roadways (Private) Ltd., (1960) 3 SCR 764 : (AIR 1960 SC 1191 ), where it was pointed out that though the words "as it deems fit" in S. 64 A are wide in expression, they do not mean that the State Government can pass any order when exercising revisional authority which the authority whose orders the Government is revising has no authority to pass. The argument on behalf of the appellant is that the Regional Transport Authority undoubtedly has the power to revise a general order passed under S. 47 (3) and therefore the revisional authority when acting under S. 64 A would have power to go beyond the limits fixed under S. 47 (3). There is a. fallacy in our opinion in this argument. It is true that the Regional Transport Authority has the power to revise the limit fixed by it under S. 47 (3) but that power to revise the limit in our opinion is not under S. 48, when it is dealing with the question of grant or refusal of permits to individuals. Section 48 is always subject to the provisions of S.47 and therefore must be subject to the limits which may be fixed under S. 47 (3). The power to revise the limits under S. 47 (3) in the Regional Transport Authority must not be confused with the powers which it has when it is dealing with the grant or refusal of permits under S. 48. Therefore, though it is true that the Regional Transport Authority can revise the general order passed by it under S. 47 (3), that revision is a separate power in the authority and not a power arising when it is dealing with individual permits. Therefore, when an appeal is taken from an order under S. 48 and a revision is taken by an aggrieved person under S. 64-A the power of the appellate Authority as well as of the revisional authority is as much subject of S. 47 (3) as the power of the Regional Transport Authority under S. 48. This means that the Appellate Authority as well as the revisional authority under S. 64-A when dealing with an appeal or a revision of an aggrieved person with respect to grant or refusal of permits must act in the same manner as the Regional Transport Authority and its order will be subject to the same restriction (namely, that it must act subject to the provisions of S. 47) and if there is a limit fixed by the Regional Transport Authority under S. 47 (3) that limit will apply equally to the Appellate Authority under S. 64 and to the revisional authority under S. 64-A, when the. revisional authority is dealing with the matter on an application by an aggrieved person. In the present case, the Regional Transport Authority was dealing with certain applications made to it on its advertisement for two vacancies on the route concerned and had to choose between a large number of applicants who had applied for the two permits. It made a certain choice and passed an order under S. 48. There were then appeals to the Appellate Authority which made a modification in the orders passed by the Regional Transport Authority, but both these authorities proceeded on the basis that there were only two permits to be issued, that being the number fixed under S. 47 (3). Then there was a revision under the Bihar Amendment Act by one of the aggrieved persons, the grant of permit to whom had been set aside by the Appellate Authority. In such a case the revisional authority acting under S. 64-A could only consider the question as to which persons should be chosen and could not go beyond the limits fixed under S. 47 (3) by the Regional Transport Authority and increase the number of permits to be issued from two to three.8. We may in this connection refer to the proviso to S. 57 (3) introduced in 1956 which lays down that where limits have been fixed under S. 47 (3) the Regional Transport Authority may summarily refuse applications for permit if the result of granting permits on such application would be to increase the number of vehicles beyond the limit fixed under S. 47 (3). This shows that the power under S. 48 read with the procedure under S. 57 is to be exercised within the limits fixed under S. 47 (3) and it is not necessary for the Regional Transport Authority even to go through the procedure provided under S. 57, if the vehicles operating on a particular route are already equal to the number limited under S. 47 (3): This also shows how an order under S. 48 read with S. 57 is subject to the provisions of S. 47 (3) and how when dealing with an application for permit under S. 48 read with S. 57, the Regional Transport Authority is to act within the limits prescribed under S. 47 (3) and the order under S. 47. (3) is not open to modification when the Regional Transport Authority is acting under S. 48 read with S. 57, though as we have said, it may be revised at any time by the Regional Transport Authority if it properly comes to the conclusion that revision is necessary in view of the factors specified in S. 47 (1).9. We therefore agree with the High Court that where a limit has been fixed under S. 47 (3) by the Regional Transport Authority and thereafter the said authority proceeds to consider applications for permits under S. 48 read with S. 57, the Regional Transport Authority must confine the number of permits issued by it within those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the revisional authority must equally be confined to the issue of permits within the limits fixed under S. 47is true that there is nothing on the record to prove that there was any resolution as such by the Regional Transport Authority in this case limiting the number of stage carriages on this route to two. But the High Court has held that the number can be deemed to have been fixed in view of the advertisement issued by the Regional Transport Authority calling for applications for two vacancies. This view of the High Court is however strenuously challenged on behalf of the appellant. It may be conceded that it may not be generally possible to conclude from the number of vacancies shown in an advertisement of this kind that that is the number fixed under S. 47 (3) by the Regional Transport Authority. There is, however, in our opinion, one exception to this general rule, and that is when a new route is being advertised for the first time. It is not disputed that in this case a new route was being advertised for the first time and the advertisement said that there were two vacancies for which applications were invited. In the case of a new route it is clear that the Regional Transport Authority must have come to some conclusion as to the number of stage carriages which were to be permitted to operate on that route and the advertisement would only be issued on behalf of the Regional Transport Authority calling for applications for the number so fixed. Therefore when it is a case of a new route which is being opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, we think it is reasonable to infer that when the number of vacancies was specified that shows the limit which must have been decided upon by the Regional Transport Authority under S. 47 (3); otherwise, it is impossible to understand in the case of a new route why the advertisement was only for two vacancies and not (say) for four or six. The very fact that in the case of a new route opened for the first time, the advertisement mentions two vacancies shows that the Regional Transport Authority must have decided before issuing the advertisement that on that route the number of stage carriages will be limited to two under S. 47 (3). This is also the inference which the High Court has drawn in this connection though it has not specifically mentioned the fact that this was a case of a new route opened for the first time. As we have said above, such an inference from the advertisement would be justified in the case of a new route which is opened for the first time. Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not necessarily mean that that was the number fixed under S. 47 (3), for the number fixed may be much more and there may be only a few vacancies because a few permits had expired. Therefore, in the circumstances of this case we are of opinion that it will be legitimate to infer as it was a new route opened for the first time that when the advertisement was made for only two vacancies, that was because the Regional Transport Authority had already decided to limit the number of stage carriages on this route only to two under S. 47 (3). Once this is held, it follows that under S. 48, the Regional Transport Authority could not grant more than two permits and therefore the Appellate Authority also could not grant more permits under S. 64; nor could the revisional authority on an application made to it by an aggrieved person grant more permits. We have already said that it is not necessary to decide in this case whether it would be open otherwise to the revisional authority under S. 64 A as inserted by Central Act 100 of 1956 to revise a general order of the Regional Transport Authority passed under S. 47 (3). We are in the present case concerned only with a case where an order passed under S. 48 by the Regional Transport Authority has been taken in appeal by an aggrieved person to the Appe1late Authority under S. 64 and thereafter the order of the Appellate Authority has been taken in revision by an aggrieved person under S. 64 A. as inserted by the Bihar Amendment Act and in such a case the limit fixed under S. 47 (3) would bind the Regional Transport Authority, the Appellate Authority as well as the revisional authority and they cannot issue permits beyond the limits fixed under S. 47. We are therefore of opinion that the High Court was right on the facts of this case in holding that the State Government had no power to increase the number of permits which had been fixed at two by the Regional Transport Authority under S. 47 (3) to three on the application of an aggrieved person under S. 64A arising from a proceeding before the Regional Transport Authority under S. 48 and the Appellate Authority under S. 64.11. We may point out that there has been a difference of opinion between various High Courts on this question. The Rajasthan High Court in The Automobile Transport (Rajputana) v. Nathu Ram Mirdha ILR (1959) 9 Raj 120: (AIR 1960 S C 1191) has taken one view and the Allahabad High Court in Mohammed Luqman Sharif v. State Transport Authority, AIR 1961 All 342 has taken the contrary view. The Rajasthan High Court held, dealing with S. 48 (a) of the Act (as it was before the amendment of 1956) which is similar to S. 47 (3) after the amendment, that under S. 48 (a) as it stood before the amendment, limiting of the number of stage carriages on any specific route did not make the order of the Regional Transport Authority a final decision binding on the appellate authority. The Allahabad High Court on the other hand held that when an order limiting the number of stage carriages had been passed under S. 48 (A) as it was before the amendment of 1956, there could be no appeal against that order under S. 64 and therefore the Appellate Authority on an appeal under S. 64 could not refix the number of stage carriages in respect of that route. We are of opinion, in view of what we have said above and in the light of the limitations which we have indicated above, that the view of the Allahabad High Court is correct.

### 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: to some conclusion as to the number of stage carriages which were to be permitted to operate on that route and the advertisement would only be issued on behalf of the Regional Transport Authority calling for applications for the number so fixed. Therefore when it is a case of a new route which is being opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, we think it is reasonable to infer that when the number of vacancies was specified that shows the limit which must have been decided upon by the Regional Transport Authority under S. 47 (3); otherwise, it is impossible to understand in the case of a new route why the advertisement was only for two vacancies and not (say) for four or six. The very fact that in the case of a new route opened for the first time, the advertisement mentions two vacancies shows that the Regional Transport Authority must have decided before issuing the advertisement that on that route the number of stage carriages will be limited to two under S. 47 (3). This is also the inference which the High Court has drawn in this connection though it has not specifically mentioned the fact that this was a case of a new route opened for the first time. As we have said above, such an inference from the advertisement would be justified in the case of a new route which is opened for the first time. Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not necessarily mean that that was the number fixed under S. 47 (3), for the number fixed may be much more and there may be only a few vacancies because a few permits had expired. Therefore, in the circumstances of this case we are of opinion that it will be legitimate to infer as it was a new route opened for the first time that when the advertisement was made for only two vacancies, that was because the Regional Transport Authority had already decided to limit the number of stage carriages on this route only to two under S. 47 (3). Once this is held, it follows that under S. 48, the Regional Transport Authority could not grant more than two permits and therefore the Appellate Authority also could not grant more permits under S. 64; nor could the revisional authority on an application made to it by an aggrieved person grant more permits. We have already said that it is not necessary to decide in this case whether it would be open otherwise to the revisional authority under S. 64 A as inserted by Central Act 100 of 1956 to revise a general order of the Regional Transport Authority passed under S. 47 (3). We are in the present case concerned only with a case where an order passed under S. 48 by the Regional Transport Authority has been taken in appeal by an aggrieved person to the Appe1late Authority under S. 64 and thereafter the order of the Appellate Authority has been taken in revision by an aggrieved person under S. 64 A. as inserted by the Bihar Amendment Act and in such a case the limit fixed under S. 47 (3) would bind the Regional Transport Authority, the Appellate Authority as well as the revisional authority and they cannot issue permits beyond the limits fixed under S. 47. We are therefore of opinion that the High Court was right on the facts of this case in holding that the State Government had no power to increase the number of permits which had been fixed at two by the Regional Transport Authority under S. 47 (3) to three on the application of an aggrieved person under S. 64A arising from a proceeding before the Regional Transport Authority under S. 48 and the Appellate Authority under S. 64.11. We may point out that there has been a difference of opinion between various High Courts on this question. The Rajasthan High Court in The Automobile Transport (Rajputana) v. Nathu Ram Mirdha ILR (1959) 9 Raj 120: (AIR 1960 S C 1191) has taken one view and the Allahabad High Court in Mohammed Luqman Sharif v. State Transport Authority, AIR 1961 All 342 has taken the contrary view. The Rajasthan High Court held, dealing with S. 48 (a) of the Act (as it was before the amendment of 1956) which is similar to S. 47 (3) after the amendment, that under S. 48 (a) as it stood before the amendment, limiting of the number of stage carriages on any specific route did not make the order of the Regional Transport Authority a final decision binding on the appellate authority. The Allahabad High Court on the other hand held that when an order limiting the number of stage carriages had been passed under S. 48 (A) as it was before the amendment of 1956, there could be no appeal against that order under S. 64 and therefore the Appellate Authority on an appeal under S. 64 could not refix the number of stage carriages in respect of that route. We are of opinion, in view of what we have said above and in the light of the limitations which we have indicated above, that the view of the Allahabad High Court is correct.12. Lastly, it is urged on behalf of the appellant that respondent No. 1 who filed the writ petition in the High Court had no locus standi. We are of opinion that there is no force in this contention. Respondent No. 1 was contending in the High Court that he should have been granted a permit and not the appellant. Therefore he had locus standi to file the writ petition and it was during the consideration of that writ petition that the point on which the appellant has lost, arose. ### Response: 0 ### Explanation: number fixed under S. 47 (3) by the Regional Transport Authority. There is, however, in our opinion, one exception to this general rule, and that is when a new route is being advertised for the first time. It is not disputed that in this case a new route was being advertised for the first time and the advertisement said that there were two vacancies for which applications were invited. In the case of a new route it is clear that the Regional Transport Authority must have come to some conclusion as to the number of stage carriages which were to be permitted to operate on that route and the advertisement would only be issued on behalf of the Regional Transport Authority calling for applications for the number so fixed. Therefore when it is a case of a new route which is being opened for the first time and an advertisement is issued calling for applications for such a new route specifying the number of vacancies for it, we think it is reasonable to infer that when the number of vacancies was specified that shows the limit which must have been decided upon by the Regional Transport Authority under S. 47 (3); otherwise, it is impossible to understand in the case of a new route why the advertisement was only for two vacancies and not (say) for four or six. The very fact that in the case of a new route opened for the first time, the advertisement mentions two vacancies shows that the Regional Transport Authority must have decided before issuing the advertisement that on that route the number of stage carriages will be limited to two under S. 47 (3). This is also the inference which the High Court has drawn in this connection though it has not specifically mentioned the fact that this was a case of a new route opened for the first time. As we have said above, such an inference from the advertisement would be justified in the case of a new route which is opened for the first time. Where the advertisement is with respect to an old route the fact that the advertisement mentions a particular number of vacancies would not necessarily mean that that was the number fixed under S. 47 (3), for the number fixed may be much more and there may be only a few vacancies because a few permits had expired. Therefore, in the circumstances of this case we are of opinion that it will be legitimate to infer as it was a new route opened for the first time that when the advertisement was made for only two vacancies, that was because the Regional Transport Authority had already decided to limit the number of stage carriages on this route only to two under S. 47 (3). Once this is held, it follows that under S. 48, the Regional Transport Authority could not grant more than two permits and therefore the Appellate Authority also could not grant more permits under S. 64; nor could the revisional authority on an application made to it by an aggrieved person grant more permits. We have already said that it is not necessary to decide in this case whether it would be open otherwise to the revisional authority under S. 64 A as inserted by Central Act 100 of 1956 to revise a general order of the Regional Transport Authority passed under S. 47 (3). We are in the present case concerned only with a case where an order passed under S. 48 by the Regional Transport Authority has been taken in appeal by an aggrieved person to the Appe1late Authority under S. 64 and thereafter the order of the Appellate Authority has been taken in revision by an aggrieved person under S. 64 A. as inserted by the Bihar Amendment Act and in such a case the limit fixed under S. 47 (3) would bind the Regional Transport Authority, the Appellate Authority as well as the revisional authority and they cannot issue permits beyond the limits fixed under S. 47. We are therefore of opinion that the High Court was right on the facts of this case in holding that the State Government had no power to increase the number of permits which had been fixed at two by the Regional Transport Authority under S. 47 (3) to three on the application of an aggrieved person under S. 64A arising from a proceeding before the Regional Transport Authority under S. 48 and the Appellate Authority under S. 64.11. We may point out that there has been a difference of opinion between various High Courts on this question. The Rajasthan High Court in The Automobile Transport (Rajputana) v. Nathu Ram Mirdha ILR (1959) 9 Raj 120: (AIR 1960 S C 1191) has taken one view and the Allahabad High Court in Mohammed Luqman Sharif v. State Transport Authority, AIR 1961 All 342 has taken the contrary view. The Rajasthan High Court held, dealing with S. 48 (a) of the Act (as it was before the amendment of 1956) which is similar to S. 47 (3) after the amendment, that under S. 48 (a) as it stood before the amendment, limiting of the number of stage carriages on any specific route did not make the order of the Regional Transport Authority a final decision binding on the appellate authority. The Allahabad High Court on the other hand held that when an order limiting the number of stage carriages had been passed under S. 48 (A) as it was before the amendment of 1956, there could be no appeal against that order under S. 64 and therefore the Appellate Authority on an appeal under S. 64 could not refix the number of stage carriages in respect of that route. We are of opinion, in view of what we have said above and in the light of the limitations which we have indicated above, that the view of the Allahabad High Court is correct.

Shree Meenakshi Mills Ltd Vs. Union Of India

Kendu Leaves but restricted the invitation to those individuals who had carried out contracts in the previous year without default and to the satisfaction of the Government. The scheme was held by this Court to be discriminatory and unreasonable restriction upon the rights of persons other than the existing contractors and the scheme of selected purchasers was not protected by Article 19 (6) (ii). In the present case, the traders cannot make any profit they like because of specified prices.In Bhatnagars and Co. v. Union of India 1957 SCR 701 = (AIR 1957 SC 478 ) the importers resorted to malpractices leading to speculation and fluctuation in prices. The Government, therefore, canalised distribution of the goods by inviting tenders for the grant of import licences. This Court held that it was open to the Government in national interest to intervene and regulate the distribution in a suitable manner.86. The power to regulate sale through licensed vendors to whom quotas are allotted and who are permitted to sell yarn at fixed prices has been upheld in M/s. Dwarka Prasad Laxmi Narain case, 1954 SCR 803 = (AIR 1954 SC 224 ) (supra). But a note of possible mischief was indicated in instances where no rule or principle to guide them was stated or where no check or control by higher authority was intended.The Textile Commissioner in the present case is guided by the provisions of clause 30 of the Order as well as by Section 3 of the Essential Commodities Act. The rules or principles for guidance are first equitable distribution, and, second availability at fair price. Prices are fixed with limited profit to traders. Furthr, an aggrieved person can appeal to the Central Government.87. In Mannalal Jain v. State of Assam (1962) 3 SCR 936 = (AIR 1962 SC 386 ) the Assam Foodgrains (Licensing and Control) Order, 1961 conferred power on the authority to have regard to Co-operative Societies in the grant of licences. This Court held that such preference did not create a monopoly. The Cooperative Societies in villages were held to be in a better position for maintaining or increasing supplies and for securing equitable distribution and availability at fair prices in accordance with village economy. The question is whether prohibition of others doing the business is reasonable under Article 19(6).88. Canalisation orders have been upheld by this Court as reasonable within Article 19 (6) of the Constitution. The recent unreported decision in M/s. Daruka and Co. v. Union of India, Writ Petn. No. 94 of 1972, D/- 31-8-1973 = (reported in AIR 1972 SC 2711) referred to the earlier decisions of Glass Chaton case, (1962) 1 SCR 862 = (AIR 1961 SC 1514 ), Daya son of Bhimji Gohil case, (1963) 2 SCR 73 = (AIR 1962 SC 1796 ) and upheld the distributing channels of imports and exports of different commodities and goods.89. The petitioners contend that though the order obliges producers of yarn to sell to persons named there is no obligation on those persons to buy, and therefore, it is an unreasonable restriction. The petitioners supported this contention by instances where those persons or bodies failed to lift the stock of yarn. It is said that producers, therefore, suffered losses. There were cases where the allottees did not lift the goods when the voluntary scheme was in operation. The allotment order on record shows that the allotment of yarn is made subject to the conditions that the allotted yarn would be lifted within 15 days of receipt of intimation from the mill after making necessary payments. If any portion of the yarn is not paid for and lifted within the stipulated time, the State Government may intimate the same to the Cotton Corporation of India and the mills concerned. The Cotton Corporation will effect payment and take charge of the yarn. The Textile Commissioner on receipt of such intimation will issue the reallotment orders and in respect of such re-allotted yarn the allottee State Government will make necessary payments to the Cotton Corporation of India. The conditions of allotment ensure lifting of yarn by the nominees of the State Government within a reasonable time. In the past at the initial stages of the voluntary control scheme the State Government nominees were not adequately financially equipped and that is why there were cases of non-lifting of yarn. It cannot happen now. The Distribution Control Scheme does not impose an unreasonable restriction on the producers right to carry on his business.90. It was said on behalf of the State that the petitions were not maintainable because of the proclamation of emergency.During the proclamation of emergency Article 358 does not apply to executive action taken during the emergency if the same is a continuance of a prior executive action or an emanation of the previous law which is otherswise violative of Art. 19 or is otherwise unconstitutional. The petitioners challenged the action or previous law to the violative of fundamental rights.This Court in Bennett Coleman and Co. case (1972) 2 SCC 788 = (AIR 1973 SC 196) said:"During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted."Therefore, if it can be shown that the executive action taken during the emergency has no authority as a valid law its constitutionality can be challenged. The Cotton Textiles Order 1948 was continued by Essential Commodities Act, 1955.The impugned orders are made under pre-emergency Cotton Textiles Control Order. The validity of the impugned orders is challenged under Article 19 (1) (f) and (g) of the Constitution on the ground that it is a pre-emergency executive order which could have been challenged under Article 19 (1) (f) and (g) before the proclamation of emergency. From the point of view the petitions are competent though the challenge is insupportable on all grounds.91.

0[ds]18. The dictionary meanings of cotton textile are any material that is woven, a material, as a fibre or yarn, used in or suitable for weaving, woven or capable of being woven. The meaning of textile as a noun is a fabric which is or may be woven fabric, made by weaving, a woven fabric, or a material suitable for weaving, textile material. The dictionary meanings show that cotton yarn is concluded in cotton textile.19. The setting in which the words "cotton textile" are used has a legislative and executive understanding of the words consistently over a period of time. There are also decisions of Courts which accepted yarn to be within textile. The Cotton Cloth and Yarn Control Order, 1943, was made in exercise of powers conferred by Rule Cloth and yarn in that Order mean and include respectively cloth and yarn manufactured either wholly or partly from cotton. The Cotton cloth and Yarn Control Order, 1945 repealed the Cotton Cloth and Yarn Control Order, 1943. The meaning of cloth and yarn was the same as in the Control Order of 1943.The legislative practice shows that cotton textiles is a generic term which includes cotton fabric and yarn. One of the methods of construction of statutes is to ascertain the setting and circumstances in which the words are used. The entire product is cotton textile Yarn is the material or component with which cotton textile is manufactured or woven.These legislative measures show that in regard to the scope of these controls in some cases it is possible with reference to the circumstances relating to nature and use of the commodity in question to institute control right from the point of origin to the point of ultimate consumption. In regard to other commodities control has to stop at some intermediate point. The methods of control also vary from commodity to commodity. In regard to the very important matter of the method of pricing, one method is adopted regarding cloth and another method is adopted in regard to steel and a third in regard to other commodities. Empiric process has been resorted to in this organisation of system ofPanipat Sugar Mills case, AIR 1973 SC 537 (supra) it is said that fair price of sugar is to be determined ensuring to the industry a reasonable return on the capital employed in the business of manufacturing sugar but the Government cannot fix any arbitrary price or fix it on extraneous considerations or fix such price that it does not secure a reasonable return on the capital employed in the industry. Panipat Sugar Mills case, AIR 1973 SC 537 (supra) is governed by sub-section (3C) of Section 3 of the 1955 Act, and has, therefore, no relevance to the present case.If fair price is to be fixed leaving a reasonable margin of profit, there is never any question of infringement of fundamental right to carry on business by imposing reasonable restrictions. The question of fair price to the consumer with reference to the dominant object and purpose of the legislation claiming equitable distribution and availability at fair price is completely lost sight of it profit and the producers return are kept in the fore-front. The maintenance or increase of supplies of the commodity or the equitable distribution and availability at fair prices are the fundamental purposes of the Act. If the prices of yarn or cloth are fixed in such a way as to enable the manufacturer or producer to recover his cost of production and secure a reasonable margin of profit, no aspect of infringement of fundamental right can be said to arise.In determining the reasonableness of a restriction imposed by law in the field of industry, trade or commerce, it has to be remembered that the mere fact that some of those who are engaged in these are alleging loss after the imposition of law will not render the law unreasonable. By its very nature, industry or trade or commerce goes through periods of prosperity and adversity on account of economic and some times social and political factors. In a largely free economy when control have to be introduced to ensure foodstuff, cloth and the like at a fair price it is an impracticable proposition to require the Government to go through the exercise like that of a Commission to fix the prices. The Tariff Board and the Tariff Commission did not deal with the question of fixing prices with a view only to holding price line and in the circumstances that justify giving pre-eminent preference to the interest of the consumer or general public over that of the producers of the commodity and the dealers. Even these Commissions cannot always make a correct estimate of a price which is fair to all because there are intricacies of the trade of all profit making enterprises which a Commission may not be able to probe. As an illustration, the Tariff Commission Report points out that many textile mills use cotton mixes with a view to reducing cost and the result of such mixes is difficult tothe present case the legislative measures have left the question of resolving the economic problems of increasing supplies, equitable distribution and availability of essential commodities at fair prices to the judgement of the statutory authorities.The differences between sub-sections (3) and (3A) on the one hand and sub-sections (3B) and (3C) on the other are these Sub-sections (3) and (3A) speak of fixing price by agreement consistent with or with reference to controlled price or failing both market rate prevailing in the locality during these months preceding the date of the notification Sub-section (3B) speaks either of controlled price or where no such price is fixed the price prevailing or likely to prevail during the post harvest period in the area to which the order applies. In sub-section (3C) which relates to sugar price is to be calculated with reference to minimum price of sugarcane, manufacturing cost of sugar, duty or tax, and a reasonable return and different prices may be provided for different areas or factories or different kinds of sugar.e controlled price fixed under Section 3 (1) read with Section 3 (2) (c) is different from price under sub-section (3A), (3B) and (3C).The control of prices may have effect either on maintaining or increasing supply of commodity or securing equitable distribution and availability at fair prices. The controlled price has to retain this equilibrium in the supply and demand of the commodity. The cost of production, a reasonable return to the producer of the commodity are to be taken into account. The producer must have an incentive to produce. The fair price must be fair not only from the point of view of the consumer but also from the point of view of the producer. In fixing the prices, a price line has to be held in order to give preference or predominant consideration to the interest of the consumer or the general public over that of the producers in respect of essential commodities. The aspect of ensuring availability of the essential commodities to the consumer equitably and at fair price is the most important consideration.The producer should not be driven out of his producing business. He may have to bear loss in the same way as he does when he suffers losses on account of economic forces operating in the business. If an essential commodity is in short supply or there is hoarding, cornering or there is unusual demand, there is abnormal increase in price. If price increases, it becomes injurious to the consumer. There is no justification that the producer should be given the benefit of price increase attributable to hoarding or concerning or artificial short supply. In such a case if an escalation in price is contemplated at intervals, the object of controlled price will enable both the consumer and the producer to tide over difficulties. Therefore, any restriction in excess of what would be necessary in the interest of general public or to remedy the evil has to be very carefully considered so that the producer does not perish, and the consumer is not crippled.The mere suggestion that no provision is made for adjustment on account of changes in the cost of production does not amount to infringement of fundamental right to carry on business and to hold and dispose of property. There is no material to show that increase in yarn prices was on account of cost of production The fixing of controlled price is much more than a fair price to the producer on the date it is fixed. The prices of new cotton crop, i.e., for September, 1973 to August, 1974 are not known at the time of the fixation of the price. Even when they are known the petitioners will have to show with reference to the different types of mixed used in producing yarn, the impact of cotton prices on the cost of production of that category of yarn. Further, even if there is increase in the cotton prices, the petitioners can absorb it because the controlled price fixed is more fair to the producer. If he sustains alleged losses for some time, it will be a reasonable restriction because the object of the price control is to hold the price line or revert the prices to normal levels and make available cotton yarn to the handloom and powerloom weavers at a fair price which will enable them to withstand competition from mill made cloth. It is not shown here that the controlled price is, so grossly inadequate that it not only results in huge losses but also is threat to the supply position of yarn. The controlled price is in the interest of the country as a whole for just distribution of basic necessities The distribution price is neither arbitrary nor an unreasonable restriction.The prices for such sale are on consideration of (a) invoiced price of yarn (b) incidental charges including transport and local taxes, (c) such reasonable margin of profit not exceeding two per cent of the invoiced price as the Deputy Commissioner or the District Collector may determine in each case and any other relevant factor. There is thus price control as well as distribution control to meet the problems of availability of goods at reasonable prices.The distribution channels are contended to be monopolies in favour of specified persons. The traders say that they are substituted by the distribution channels as middlemen. The nominees of the State Government under the distribution channel could be any dealer chosen and favoured by the Deputy Commissioner or the District Collector. It is said that freedom of trade is violated. These contentions are unsound for these reasons.The channels of distribution are agencies of the State for distribution purposes. Further the Handloom Export Promotion Council, Madras, the Cotton Textiles Export Promotion Council, Bombay and the Federation of Hosiery Manufacturers Association are associations of users of cotton yarn. They can demand service charges. If middlemen be totally excluded the control scheme does not become unreasonable just because a part of the ban in regard to counts of 40s and below is relaxed.87 per cent of the total yarn marketed is in counts 40s and below. Traders are permitted to carry on trade in them though prices are specified for such counts. The balance 13 per cent of yarn is in counts of 40s and above. The requirement not to sell yarn at a price above the maximum price operates on all distributing channels. Even if an ordinary dealer is chosen by the Government within the fifth category of distribution channel, viz., "any other person as may be nominated by the Textile Commissioner" such person could also be actual consumer of yarn.The notification No. CER/20/73 dated 31 March, 1973 states that the nominees can be any dealer carrying on business of selling yarn. The distribution control is intended to ensure availability of yarn at reasonable or fair price. Profiteering, hoarding, cornering are the evils to be eliminated. It is not that all dealers in yarn have been denied the right to carry on trade. It is only those whose carrying on trade in yarn would not in the opinion of the Textile Commissioner ensure availability of yarn to actual consumers at the fair price. Black marketing as the expression goes is to be weeded out in this manner. The selection of traders is made on the basis of ensuring availability of yarn at a fair price. Elimination of persons who have hoarded or cornered or are unscrupulous in distribution is intended in public interest. This is a reasonable restriction in the interest of the general public and is contemplated in Article 19 (6) of the Constitution.The power to regulate sale through licensed vendors to whom quotas are allotted and who are permitted to sell yarn at fixed prices has been upheld in M/s. Dwarka Prasad Laxmi Narain case, 1954 SCR 803 = (AIR 1954 SC 224 ) (supra). But a note of possible mischief was indicated in instances where no rule or principle to guide them was stated or where no check or control by higher authority was intended.The Textile Commissioner in the present case is guided by the provisions of clause 30 of the Order as well as by Section 3 of the Essential Commodities Act. The rules or principles for guidance are first equitable distribution, and, second availability at fair price. Prices are fixed with limited profit to traders. Furthr, an aggrieved person can appeal to the Centralallotment order on record shows that the allotment of yarn is made subject to the conditions that the allotted yarn would be lifted within 15 days of receipt of intimation from the mill after making necessary payments. If any portion of the yarn is not paid for and lifted within the stipulated time, the State Government may intimate the same to the Cotton Corporation of India and the mills concerned. The Cotton Corporation will effect payment and take charge of the yarn. The Textile Commissioner on receipt of such intimation will issue the reallotment orders and in respect of such re-allotted yarn the allottee State Government will make necessary payments to the Cotton Corporation of India. The conditions of allotment ensure lifting of yarn by the nominees of the State Government within a reasonable time. In the past at the initial stages of the voluntary control scheme the State Government nominees were not adequately financially equipped and that is why there were cases of non-lifting of yarn. It cannot happen now. The Distribution Control Scheme does not impose an unreasonable restriction on the producers right to carry on hisif it can be shown that the executive action taken during the emergency has no authority as a valid law its constitutionality can be challenged. The Cotton Textiles Order 1948 was continued by Essential Commodities Act, 1955.The impugned orders are made under pre-emergency Cotton Textiles Control Order. The validity of the impugned orders is challenged under Article 19 (1) (f) and (g) of the Constitution on the ground that it is a pre-emergency executive order which could have been challenged under Article 19 (1) (f) and (g) before the proclamation of emergency. From the point of view the petitions are competent though the challenge is insupportable on all grounds.

### 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: Kendu Leaves but restricted the invitation to those individuals who had carried out contracts in the previous year without default and to the satisfaction of the Government. The scheme was held by this Court to be discriminatory and unreasonable restriction upon the rights of persons other than the existing contractors and the scheme of selected purchasers was not protected by Article 19 (6) (ii). In the present case, the traders cannot make any profit they like because of specified prices.In Bhatnagars and Co. v. Union of India 1957 SCR 701 = (AIR 1957 SC 478 ) the importers resorted to malpractices leading to speculation and fluctuation in prices. The Government, therefore, canalised distribution of the goods by inviting tenders for the grant of import licences. This Court held that it was open to the Government in national interest to intervene and regulate the distribution in a suitable manner.86. The power to regulate sale through licensed vendors to whom quotas are allotted and who are permitted to sell yarn at fixed prices has been upheld in M/s. Dwarka Prasad Laxmi Narain case, 1954 SCR 803 = (AIR 1954 SC 224 ) (supra). But a note of possible mischief was indicated in instances where no rule or principle to guide them was stated or where no check or control by higher authority was intended.The Textile Commissioner in the present case is guided by the provisions of clause 30 of the Order as well as by Section 3 of the Essential Commodities Act. The rules or principles for guidance are first equitable distribution, and, second availability at fair price. Prices are fixed with limited profit to traders. Furthr, an aggrieved person can appeal to the Central Government.87. In Mannalal Jain v. State of Assam (1962) 3 SCR 936 = (AIR 1962 SC 386 ) the Assam Foodgrains (Licensing and Control) Order, 1961 conferred power on the authority to have regard to Co-operative Societies in the grant of licences. This Court held that such preference did not create a monopoly. The Cooperative Societies in villages were held to be in a better position for maintaining or increasing supplies and for securing equitable distribution and availability at fair prices in accordance with village economy. The question is whether prohibition of others doing the business is reasonable under Article 19(6).88. Canalisation orders have been upheld by this Court as reasonable within Article 19 (6) of the Constitution. The recent unreported decision in M/s. Daruka and Co. v. Union of India, Writ Petn. No. 94 of 1972, D/- 31-8-1973 = (reported in AIR 1972 SC 2711) referred to the earlier decisions of Glass Chaton case, (1962) 1 SCR 862 = (AIR 1961 SC 1514 ), Daya son of Bhimji Gohil case, (1963) 2 SCR 73 = (AIR 1962 SC 1796 ) and upheld the distributing channels of imports and exports of different commodities and goods.89. The petitioners contend that though the order obliges producers of yarn to sell to persons named there is no obligation on those persons to buy, and therefore, it is an unreasonable restriction. The petitioners supported this contention by instances where those persons or bodies failed to lift the stock of yarn. It is said that producers, therefore, suffered losses. There were cases where the allottees did not lift the goods when the voluntary scheme was in operation. The allotment order on record shows that the allotment of yarn is made subject to the conditions that the allotted yarn would be lifted within 15 days of receipt of intimation from the mill after making necessary payments. If any portion of the yarn is not paid for and lifted within the stipulated time, the State Government may intimate the same to the Cotton Corporation of India and the mills concerned. The Cotton Corporation will effect payment and take charge of the yarn. The Textile Commissioner on receipt of such intimation will issue the reallotment orders and in respect of such re-allotted yarn the allottee State Government will make necessary payments to the Cotton Corporation of India. The conditions of allotment ensure lifting of yarn by the nominees of the State Government within a reasonable time. In the past at the initial stages of the voluntary control scheme the State Government nominees were not adequately financially equipped and that is why there were cases of non-lifting of yarn. It cannot happen now. The Distribution Control Scheme does not impose an unreasonable restriction on the producers right to carry on his business.90. It was said on behalf of the State that the petitions were not maintainable because of the proclamation of emergency.During the proclamation of emergency Article 358 does not apply to executive action taken during the emergency if the same is a continuance of a prior executive action or an emanation of the previous law which is otherswise violative of Art. 19 or is otherwise unconstitutional. The petitioners challenged the action or previous law to the violative of fundamental rights.This Court in Bennett Coleman and Co. case (1972) 2 SCC 788 = (AIR 1973 SC 196) said:"During the proclamation of emergency Article 19 is suspended. But it would not authorise the taking of detrimental executive action during the emergency affecting the fundamental rights in Article 19 without any legislative authority or in purported exercise of power conferred by any pre-emergency law which was invalid when enacted."Therefore, if it can be shown that the executive action taken during the emergency has no authority as a valid law its constitutionality can be challenged. The Cotton Textiles Order 1948 was continued by Essential Commodities Act, 1955.The impugned orders are made under pre-emergency Cotton Textiles Control Order. The validity of the impugned orders is challenged under Article 19 (1) (f) and (g) of the Constitution on the ground that it is a pre-emergency executive order which could have been challenged under Article 19 (1) (f) and (g) before the proclamation of emergency. From the point of view the petitions are competent though the challenge is insupportable on all grounds.91. ### Response: 0 ### Explanation: revert the prices to normal levels and make available cotton yarn to the handloom and powerloom weavers at a fair price which will enable them to withstand competition from mill made cloth. It is not shown here that the controlled price is, so grossly inadequate that it not only results in huge losses but also is threat to the supply position of yarn. The controlled price is in the interest of the country as a whole for just distribution of basic necessities The distribution price is neither arbitrary nor an unreasonable restriction.The prices for such sale are on consideration of (a) invoiced price of yarn (b) incidental charges including transport and local taxes, (c) such reasonable margin of profit not exceeding two per cent of the invoiced price as the Deputy Commissioner or the District Collector may determine in each case and any other relevant factor. There is thus price control as well as distribution control to meet the problems of availability of goods at reasonable prices.The distribution channels are contended to be monopolies in favour of specified persons. The traders say that they are substituted by the distribution channels as middlemen. The nominees of the State Government under the distribution channel could be any dealer chosen and favoured by the Deputy Commissioner or the District Collector. It is said that freedom of trade is violated. These contentions are unsound for these reasons.The channels of distribution are agencies of the State for distribution purposes. Further the Handloom Export Promotion Council, Madras, the Cotton Textiles Export Promotion Council, Bombay and the Federation of Hosiery Manufacturers Association are associations of users of cotton yarn. They can demand service charges. If middlemen be totally excluded the control scheme does not become unreasonable just because a part of the ban in regard to counts of 40s and below is relaxed.87 per cent of the total yarn marketed is in counts 40s and below. Traders are permitted to carry on trade in them though prices are specified for such counts. The balance 13 per cent of yarn is in counts of 40s and above. The requirement not to sell yarn at a price above the maximum price operates on all distributing channels. Even if an ordinary dealer is chosen by the Government within the fifth category of distribution channel, viz., "any other person as may be nominated by the Textile Commissioner" such person could also be actual consumer of yarn.The notification No. CER/20/73 dated 31 March, 1973 states that the nominees can be any dealer carrying on business of selling yarn. The distribution control is intended to ensure availability of yarn at reasonable or fair price. Profiteering, hoarding, cornering are the evils to be eliminated. It is not that all dealers in yarn have been denied the right to carry on trade. It is only those whose carrying on trade in yarn would not in the opinion of the Textile Commissioner ensure availability of yarn to actual consumers at the fair price. Black marketing as the expression goes is to be weeded out in this manner. The selection of traders is made on the basis of ensuring availability of yarn at a fair price. Elimination of persons who have hoarded or cornered or are unscrupulous in distribution is intended in public interest. This is a reasonable restriction in the interest of the general public and is contemplated in Article 19 (6) of the Constitution.The power to regulate sale through licensed vendors to whom quotas are allotted and who are permitted to sell yarn at fixed prices has been upheld in M/s. Dwarka Prasad Laxmi Narain case, 1954 SCR 803 = (AIR 1954 SC 224 ) (supra). But a note of possible mischief was indicated in instances where no rule or principle to guide them was stated or where no check or control by higher authority was intended.The Textile Commissioner in the present case is guided by the provisions of clause 30 of the Order as well as by Section 3 of the Essential Commodities Act. The rules or principles for guidance are first equitable distribution, and, second availability at fair price. Prices are fixed with limited profit to traders. Furthr, an aggrieved person can appeal to the Centralallotment order on record shows that the allotment of yarn is made subject to the conditions that the allotted yarn would be lifted within 15 days of receipt of intimation from the mill after making necessary payments. If any portion of the yarn is not paid for and lifted within the stipulated time, the State Government may intimate the same to the Cotton Corporation of India and the mills concerned. The Cotton Corporation will effect payment and take charge of the yarn. The Textile Commissioner on receipt of such intimation will issue the reallotment orders and in respect of such re-allotted yarn the allottee State Government will make necessary payments to the Cotton Corporation of India. The conditions of allotment ensure lifting of yarn by the nominees of the State Government within a reasonable time. In the past at the initial stages of the voluntary control scheme the State Government nominees were not adequately financially equipped and that is why there were cases of non-lifting of yarn. It cannot happen now. The Distribution Control Scheme does not impose an unreasonable restriction on the producers right to carry on hisif it can be shown that the executive action taken during the emergency has no authority as a valid law its constitutionality can be challenged. The Cotton Textiles Order 1948 was continued by Essential Commodities Act, 1955.The impugned orders are made under pre-emergency Cotton Textiles Control Order. The validity of the impugned orders is challenged under Article 19 (1) (f) and (g) of the Constitution on the ground that it is a pre-emergency executive order which could have been challenged under Article 19 (1) (f) and (g) before the proclamation of emergency. From the point of view the petitions are competent though the challenge is insupportable on all grounds.

Bhopal Gas Peedith Mahila Udyog Sanghathan &amp; Another Vs. Union of India

times the initial fund; to order the Reserve Bank of India to provide detailed information on management and utilization of the Settlement Fund by rendering faithful accounts relating to withdrawal of funds by Welfare Commissioner; to command Welfare Commissioner, Bhopal to provide complete information regarding process of identification and categorization of gas victims and the manner of disbursement of compensation to them; to rectify the methodology in the process of identification and categorization of gas victims and the manner of disbursement of compensation of amounts by enhancing compensation appropriately. 2. The case relates to Bhopal Gas Tragedy. On December 2, 1984, there was a massive escape of lethal gas from a storage tank at Bhopal Plant of the Union Carbide (India) Ltd. resulting in large scale of deaths, injuries to several persons and destruction of properties, livestock, etc. Several suits were filed for compensation and damages in different Courts in India as also in the United States. Prosecution had also been launched. Ultimately, however, a settlement had been arrived at between the Union of India and the Union Carbide. The Union of India agreed to withdraw all cases and claims against the Union Carbide and its officers. For the said purpose, Parliament also enacted an Act known as the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 which empowered the Union of India to take over the conduct of all litigation in regard to claims arising out of gas disaster and to award compensation to the victims and affected persons. 3. According to the applicants, BGPMUS is an organization formed by the Bhopal Gas Victims in 1986. Likewise, BGPSSS is an association constituted in 1989 by a coalition of over 20 voluntary organizations of Scientists, Lawyers, Teachers, Artists, Journalists, Workers, Women, Students, Youths etc. The object of these two organizations is to support the struggle of the Bhopal Gas Victims for justice. Both the organizations have consistently championed the cause of Bhopal Gas Victims by seeking medical/economic/social relief and also payment of adequate compensation. It was stated in the applications that several steps were taken by the organizations so as to provide Bhopal Gas Victims and their families benefits to which they were entitled. Reference was made to various orders passed by this Court from time to time and it was stated that neither all eligible victims had been identified and ascertained nor adequate compensation had been paid to them. It was also alleged that though many persons lost their lives and several others injured, the number of cases in which compensation had been awarded under the head death (category 04) were very small. Likewise, compensation awarded to persons who sustained injury (category 01) were also showed to be less and several others had not been paid any amount whatsoever. It was asserted that the magnitude of the disaster in case of death as also injury was at least five times larger than what was assumed at the time settlement had been reached. It was, therefore, prayed that appropriate directions be issued so that all Bhopal Gas Victims may get compensation as gas victims/affected persons. 4. Notice was issued pursuant to which the respondents appeared. Counter affidavits were filed on behalf of Union of India contesting the applications. It was, inter alia, contended that the applications were based on assumptions, surmises and conjectures and on misreading of judgments of this Court. According to the respondents, the applicants are trying to reiterate and reopen the issue as to compensation which had been settled with the Union Carbide Corporation (UCC) and the Union of India and this Court had approved the said settlement. Even adequacy of amount of compensation has been finally decided by this Court. The applications, therefore, are liable to be dismissed. Further affidavits were also filed by the parties. 5. We have heard the learned Counsel appearing on both the sides. 6. The learned Counsel for the applicants contended that the applications deserve to be allowed on the ground that there were many more deaths under category 04 than what was shown by the respondents and compensation had been paid. In the same manner, injuries were sustained by several persons that to whom compensation had been awarded under category 01. For the said purpose, attention of the Court was invited to the figures which had been placed on record. Reference was also made to 2003 (Annual Report published by the Bhopal Gas Tragedy (Relief and Rehabilitation) Department. Reliance was placed on an order dated July 19, 2004 passed by a two-Judge Bench of this Court and an order dated August 23, 2006 passed in the present applications. It was submitted that when authentic figures are available as to death and injury cases, appropriate directions may be issued to the Union of India to pay compensation to gas victims under both the heads i.e. death (category 04) and injury (category 01). It was also submitted that such payment must be made in US Dollars and not in Indian Rupees since the settlement was with a Foreign Company and the amount had been paid in US Dollars. Since the victims had not been paid their legal dues, the applicants were constrained to approach this Court by filing the present applications. 7. The learned Additional Solicitor General, on the other hand, submitted that from 1989 onwards, several orders had been passed by this Court from time to time. A Scheme was framed in exercise of statutory power which provided for processing of claims and in accordance with the procedure laid down therein, claims had been adjudicated and payment of compensation had been made. It was also stated that even now, if the applicants feel that the cases of death category 04) or of personal injury (category 01) are more, a remedy available to the victims is not to approach this Court by filing writ petitions or Interlocutory Applications, but to invoke the Scheme and to get the claims adjudicated. It was, therefore, submitted that the applications are liable to be dismissed.

1[ds]n of settlement or inadequacy of amount is concerned, in our opinion, it cannot be done as the said issue has already been decided by this Court. In this connection, we may refer to a decision of a Constitution Bench of this Court in Union Carbide Corporation v. Union of India & Others, I (1989) ACC 376 (SC)=(1989) 1 SCC 674 . In that case, after careful consideration of the facts and circumstances of the case, the Court held the case to bey fit for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster. The Court, therefore, passed the following order observing that it was just, equitable and reasonable(1) The Union Carbide Corporation shall pay a sum of U.S. Dollars 470 millions (Four hundred and seventy Millions) to the Union of India in full settlement of all claims, rights and liabilities related to and arising out of the Bhopal Gas disaster(2) The aforesaid sum shall be paid by the Union Carbide Corporation to the Union of India on or before 31st March, 1989(3) To enable the effectuation of the settlement, all civil proceedings related to and arising out of the Bhopal Gas disaster shall hereby stand transferred to this Court and shall stand concluded in terms of the settlement, and all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending19. From what we have stated hereinabove, it is abundantly clear that this Court has streamlined the claims arising out of Bhopal Gas Tragedy Disaster. Precisely to deal with the cases of Bhopal Gas Tragedy that an Act has been enacted, a Scheme has been framed under the Act and the Procedure has been laid down. They have been held to be constitutional and intra vires. Any person lodging a claim is required to make an application and a duty is cast on the authority to take an appropriate decision on the basis of the Scheme and Guidelines. Such adjudication has been heldl in nature subject to appeal, revision and judicial review before the High Court under Articles 226 and 227 and even thereafter before this Court under Article 136 of the Constitution. Since the consideration of claim and adjudication thereof require determination of facts, the Court ruled that it must be done in accordance with the Scheme, Guidelines and Procedure under the Act and not in any other manner. So far as compensation is concerned, this Court has held that it should be in Indian currency and even under the Scheme, such amount is fixed in Indian Rupees. We, therefore, see no grievance now can be made on that issue20. The learned Additional Solicitor General stated that several false and vexatious claims under category 04 (death) and category 01 (injury) had been lodged. It would not be appropriate for this Court to express any opinion one way or the other, particularly in the light of the decisions of Larger Bench of this Court referred to hereinabove. If any person claims that he/she is adversely affected by Bhopal Gas Tragedy Disaster, he/she is at liberty to take appropriate steps as suggested by this Court in the above cases but not in any other manner.

### 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: times the initial fund; to order the Reserve Bank of India to provide detailed information on management and utilization of the Settlement Fund by rendering faithful accounts relating to withdrawal of funds by Welfare Commissioner; to command Welfare Commissioner, Bhopal to provide complete information regarding process of identification and categorization of gas victims and the manner of disbursement of compensation to them; to rectify the methodology in the process of identification and categorization of gas victims and the manner of disbursement of compensation of amounts by enhancing compensation appropriately. 2. The case relates to Bhopal Gas Tragedy. On December 2, 1984, there was a massive escape of lethal gas from a storage tank at Bhopal Plant of the Union Carbide (India) Ltd. resulting in large scale of deaths, injuries to several persons and destruction of properties, livestock, etc. Several suits were filed for compensation and damages in different Courts in India as also in the United States. Prosecution had also been launched. Ultimately, however, a settlement had been arrived at between the Union of India and the Union Carbide. The Union of India agreed to withdraw all cases and claims against the Union Carbide and its officers. For the said purpose, Parliament also enacted an Act known as the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985 which empowered the Union of India to take over the conduct of all litigation in regard to claims arising out of gas disaster and to award compensation to the victims and affected persons. 3. According to the applicants, BGPMUS is an organization formed by the Bhopal Gas Victims in 1986. Likewise, BGPSSS is an association constituted in 1989 by a coalition of over 20 voluntary organizations of Scientists, Lawyers, Teachers, Artists, Journalists, Workers, Women, Students, Youths etc. The object of these two organizations is to support the struggle of the Bhopal Gas Victims for justice. Both the organizations have consistently championed the cause of Bhopal Gas Victims by seeking medical/economic/social relief and also payment of adequate compensation. It was stated in the applications that several steps were taken by the organizations so as to provide Bhopal Gas Victims and their families benefits to which they were entitled. Reference was made to various orders passed by this Court from time to time and it was stated that neither all eligible victims had been identified and ascertained nor adequate compensation had been paid to them. It was also alleged that though many persons lost their lives and several others injured, the number of cases in which compensation had been awarded under the head death (category 04) were very small. Likewise, compensation awarded to persons who sustained injury (category 01) were also showed to be less and several others had not been paid any amount whatsoever. It was asserted that the magnitude of the disaster in case of death as also injury was at least five times larger than what was assumed at the time settlement had been reached. It was, therefore, prayed that appropriate directions be issued so that all Bhopal Gas Victims may get compensation as gas victims/affected persons. 4. Notice was issued pursuant to which the respondents appeared. Counter affidavits were filed on behalf of Union of India contesting the applications. It was, inter alia, contended that the applications were based on assumptions, surmises and conjectures and on misreading of judgments of this Court. According to the respondents, the applicants are trying to reiterate and reopen the issue as to compensation which had been settled with the Union Carbide Corporation (UCC) and the Union of India and this Court had approved the said settlement. Even adequacy of amount of compensation has been finally decided by this Court. The applications, therefore, are liable to be dismissed. Further affidavits were also filed by the parties. 5. We have heard the learned Counsel appearing on both the sides. 6. The learned Counsel for the applicants contended that the applications deserve to be allowed on the ground that there were many more deaths under category 04 than what was shown by the respondents and compensation had been paid. In the same manner, injuries were sustained by several persons that to whom compensation had been awarded under category 01. For the said purpose, attention of the Court was invited to the figures which had been placed on record. Reference was also made to 2003 (Annual Report published by the Bhopal Gas Tragedy (Relief and Rehabilitation) Department. Reliance was placed on an order dated July 19, 2004 passed by a two-Judge Bench of this Court and an order dated August 23, 2006 passed in the present applications. It was submitted that when authentic figures are available as to death and injury cases, appropriate directions may be issued to the Union of India to pay compensation to gas victims under both the heads i.e. death (category 04) and injury (category 01). It was also submitted that such payment must be made in US Dollars and not in Indian Rupees since the settlement was with a Foreign Company and the amount had been paid in US Dollars. Since the victims had not been paid their legal dues, the applicants were constrained to approach this Court by filing the present applications. 7. The learned Additional Solicitor General, on the other hand, submitted that from 1989 onwards, several orders had been passed by this Court from time to time. A Scheme was framed in exercise of statutory power which provided for processing of claims and in accordance with the procedure laid down therein, claims had been adjudicated and payment of compensation had been made. It was also stated that even now, if the applicants feel that the cases of death category 04) or of personal injury (category 01) are more, a remedy available to the victims is not to approach this Court by filing writ petitions or Interlocutory Applications, but to invoke the Scheme and to get the claims adjudicated. It was, therefore, submitted that the applications are liable to be dismissed. ### Response: 1 ### Explanation: n of settlement or inadequacy of amount is concerned, in our opinion, it cannot be done as the said issue has already been decided by this Court. In this connection, we may refer to a decision of a Constitution Bench of this Court in Union Carbide Corporation v. Union of India & Others, I (1989) ACC 376 (SC)=(1989) 1 SCC 674 . In that case, after careful consideration of the facts and circumstances of the case, the Court held the case to bey fit for an overall settlement between the parties covering all litigations, claims, rights and liabilities related to and arising out of the disaster. The Court, therefore, passed the following order observing that it was just, equitable and reasonable(1) The Union Carbide Corporation shall pay a sum of U.S. Dollars 470 millions (Four hundred and seventy Millions) to the Union of India in full settlement of all claims, rights and liabilities related to and arising out of the Bhopal Gas disaster(2) The aforesaid sum shall be paid by the Union Carbide Corporation to the Union of India on or before 31st March, 1989(3) To enable the effectuation of the settlement, all civil proceedings related to and arising out of the Bhopal Gas disaster shall hereby stand transferred to this Court and shall stand concluded in terms of the settlement, and all criminal proceedings related to and arising out of the disaster shall stand quashed wherever these may be pending19. From what we have stated hereinabove, it is abundantly clear that this Court has streamlined the claims arising out of Bhopal Gas Tragedy Disaster. Precisely to deal with the cases of Bhopal Gas Tragedy that an Act has been enacted, a Scheme has been framed under the Act and the Procedure has been laid down. They have been held to be constitutional and intra vires. Any person lodging a claim is required to make an application and a duty is cast on the authority to take an appropriate decision on the basis of the Scheme and Guidelines. Such adjudication has been heldl in nature subject to appeal, revision and judicial review before the High Court under Articles 226 and 227 and even thereafter before this Court under Article 136 of the Constitution. Since the consideration of claim and adjudication thereof require determination of facts, the Court ruled that it must be done in accordance with the Scheme, Guidelines and Procedure under the Act and not in any other manner. So far as compensation is concerned, this Court has held that it should be in Indian currency and even under the Scheme, such amount is fixed in Indian Rupees. We, therefore, see no grievance now can be made on that issue20. The learned Additional Solicitor General stated that several false and vexatious claims under category 04 (death) and category 01 (injury) had been lodged. It would not be appropriate for this Court to express any opinion one way or the other, particularly in the light of the decisions of Larger Bench of this Court referred to hereinabove. If any person claims that he/she is adversely affected by Bhopal Gas Tragedy Disaster, he/she is at liberty to take appropriate steps as suggested by this Court in the above cases but not in any other manner.

Heavy Engineering Corporation Limited, Ranchi Vs. K. Singh and Company, Ranchi

KRISHNA IYER, J. 1. The appellant, a public sector institution has come up in appeal by special leave granted under Article 136 complaining against the decision of the High Court that the objection to the award made by the appellant was beyond time. 2. An engineering contract contained a clause whereby any disputes that might arise in respect of the matters under the contract were to be settled by arbitration. Such a dispute arose between the two parties in this case and the nominee of the appellant, a Deputy Chief Engineer and a nominee of the respondent, a Chartered Engineer gave an award. Certain other facts which need not be stated for the purpose of this case follow. However, after taking adjournments for filing objections the appellant did file objections to the award but beyond the period of thirty days prescribed by the law. The short question which was urged before us by Shri Prasad on behalf of the appellant was that Section 5 of the Limitation Act operated in his favour and that the period of 30 days could therefore be extended, the view that it was an inelastically rigid period being wrong. 3. We have heard counsel on both sides but we are satisfied that although leave has been granted under Article 136 of the Constitution by this Court the circumstances are such that the ends of justice do not justify our interference in the present case. It is not as if, in an appeal with leave under Article 136, this Court is bound to decide the question if on the facts at the later hearing the Court feels that the ends of justice do not make it necessary to decide the point. This Court in Balwantrai Chimanlal Trivedi v. M.N. Nagrashna ([1961] 1 SCR 113 : AIR 1960 SC 1292 : [1962] 2 LLJ 236 ) has held that although the power of this Court are wide under Article 136 it cannot be urged that because leave has been granted the Court must always and in every case deal with the merits even though it is satisfied that the ends of justice do not justify its interference in the a given case. To the same effect is the decision in The Statesman Ltd. v. Workmen ([1976] 2 SCC 223 : 1976 SCC (L & S) 218).

0[ds]3. We have heard counsel on both sides but we are satisfied that although leave has been granted under Article 136 of the Constitution by this Court the circumstances are such that the ends of justice do not justify our interference in the present case. It is not as if, in an appeal with leave under Article 136, this Court is bound to decide the question if on the facts at the later hearing the Court feels that the ends of justice do not make it necessary to decide the point. This Court in Balwantrai Chimanlal Trivedi v. M.N. Nagrashna ([1961] 1 SCR 113 : AIR 1960 SC 1292 : [1962] 2 LLJ 236 ) has held that although the power of this Court are wide under Article 136 it cannot be urged that because leave has been granted the Court must always and in every case deal with the merits even though it is satisfied that the ends of justice do not justify its interference in the a given case. To the same effect is the decision in The Statesman Ltd. v. Workmen ([1976] 2 SCC 223 : 1976 SCC (L & S) 218).

### 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: KRISHNA IYER, J. 1. The appellant, a public sector institution has come up in appeal by special leave granted under Article 136 complaining against the decision of the High Court that the objection to the award made by the appellant was beyond time. 2. An engineering contract contained a clause whereby any disputes that might arise in respect of the matters under the contract were to be settled by arbitration. Such a dispute arose between the two parties in this case and the nominee of the appellant, a Deputy Chief Engineer and a nominee of the respondent, a Chartered Engineer gave an award. Certain other facts which need not be stated for the purpose of this case follow. However, after taking adjournments for filing objections the appellant did file objections to the award but beyond the period of thirty days prescribed by the law. The short question which was urged before us by Shri Prasad on behalf of the appellant was that Section 5 of the Limitation Act operated in his favour and that the period of 30 days could therefore be extended, the view that it was an inelastically rigid period being wrong. 3. We have heard counsel on both sides but we are satisfied that although leave has been granted under Article 136 of the Constitution by this Court the circumstances are such that the ends of justice do not justify our interference in the present case. It is not as if, in an appeal with leave under Article 136, this Court is bound to decide the question if on the facts at the later hearing the Court feels that the ends of justice do not make it necessary to decide the point. This Court in Balwantrai Chimanlal Trivedi v. M.N. Nagrashna ([1961] 1 SCR 113 : AIR 1960 SC 1292 : [1962] 2 LLJ 236 ) has held that although the power of this Court are wide under Article 136 it cannot be urged that because leave has been granted the Court must always and in every case deal with the merits even though it is satisfied that the ends of justice do not justify its interference in the a given case. To the same effect is the decision in The Statesman Ltd. v. Workmen ([1976] 2 SCC 223 : 1976 SCC (L & S) 218). ### Response: 0 ### Explanation: 3. We have heard counsel on both sides but we are satisfied that although leave has been granted under Article 136 of the Constitution by this Court the circumstances are such that the ends of justice do not justify our interference in the present case. It is not as if, in an appeal with leave under Article 136, this Court is bound to decide the question if on the facts at the later hearing the Court feels that the ends of justice do not make it necessary to decide the point. This Court in Balwantrai Chimanlal Trivedi v. M.N. Nagrashna ([1961] 1 SCR 113 : AIR 1960 SC 1292 : [1962] 2 LLJ 236 ) has held that although the power of this Court are wide under Article 136 it cannot be urged that because leave has been granted the Court must always and in every case deal with the merits even though it is satisfied that the ends of justice do not justify its interference in the a given case. To the same effect is the decision in The Statesman Ltd. v. Workmen ([1976] 2 SCC 223 : 1976 SCC (L & S) 218).

Raunaq Ram Tara Chand &amp; Ors. Etc Vs. The State Of Punjab &amp; Ors

on or before the date specified therein for obtaining licence, the prescribed authority may, before a licence is issued, impose on him such penalty not exceeding one hundred rupees as may be prescribed". By Section 5 of the Act the State Government by notification declares its intention of exercising control over the purchase, sale, storage and processing of specified agricultural produce in a specified area. By Section 6 (1) the Government by notification notifies a market area for the purpose of the Act, Section 6 (3) may be quoted :"6 (3). After the date of issue of such notification or from such later date as may be specified therein, no person, unless exempted by rules made under this Act, shall, either for himself or on behalf of another person, or of the State Government within the notified market area, set up, establish or continue or allow to be continued any place for the purchase. sale, storage and processing of the agricultural produce except under a licence granted in accordance with the provisions of the Act, the rules and bye-laws made thereunder and the conditions specified in the licence........."10. As we read the above sub-section it is clear that no person shall, unless exempted by rules, inter alia purchase, sell, store or process the specified agricultural produce except under a licence. It is not the case of the appellants that they belong to the exempted class.11. Rule 17 (1) provides that "a person desirous of obtaining a licence under Section 10 of the Act shall apply in Form A (to be submitted in duplicate) to the Chairman of the Board through the Committee of the area in which he wishes to carry on his business and shall also deposit with the committee the requisite licence fee". Sub-rule (3) provides that if any person on the specified date fails to apply for a licence, he is liable to penalty in accordance with a certain scale. Under sub-rule (7) "the Chairman may grant a licence to the applicant in Form B. The licence shall be subject to the conditions mentioned therein."12. When we look to Form A which is the form for application for a licence under Section 10 we find that against entry 8, the applicant has to give the "particulars of the business for which the licence is required" under four heads :(1) Kacha Arhtiya(2) Commission Agent.(3) Storage.(4) Processing.Similarly in Form B which is the form of the licence under Section 10, against entry 5, the same particulars of the business as against entry 8 in Form A appear. As a matter of fact one of the licences of the appellants was shown to us and it was in accordance with Form B. It is, therefore, clear that no licence has been issued to the appellants for doing business of buying and selling, agricultural produce. It is the case of the appellants that they make direct purchases and this fact is not controverted. Although, therefore, the appellants are licensees as required for some of the businesses mentioned in Form B, they have no licence for carrying on business of purchase and sale of agricultural produce within the notified market area.13. Now under Section 23 "a Committee may, subject to such rules as may be made by the State Government in this behalf, levy on ad valorembasis fees on the agricultural produce bought or sold by licensees in the notified market area at rate not exceeding rupee one fifty paise for every one hundred rupees, provided......" Section 43 provides for rulemaking power. Rule 24 is referable to Section 43 (2) (v), but we are not concerned with this rule in this case, Rule 29 provides that under Section 23 a Committee shall levy fees on the agricultural produce bought or sold by licensees in the notified market area at the rates fixed by the Board from time to time. Reading Section 23 and Rule 29 together it is not possible to escape from the conclusion that the Act authorises levy of fee on agricultural produce bought or sold in the notified market area by licensees only. The appellants have licence only in respect of the business of kacha arhtiya and commission agent. While we express no opinion on the point whether the absence of reference to buying and selling of agricultural produce in Form A and Form B disables the Committee to issue licences for that purpose, we are of opinion that the present appeals can be disposed of on the sole ground that the appellants have not as a matter of fact been issued such licences and no fees can, therefore be levied on them in respect of purchases and sales of agricultural produce by them. The appellants are, therefore, not liable to payment of fee under the Act as demanded.14. The appellants also contend that since gur and shakkar are manufactured products they cannot come under the definition of agricultural produce within the meaning of Section 2 (a) of the Act. Section . 2 (a) defines agricultural produce to mean "all produce whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to this Act" which mentions 85 items of commodities. These are statutorily agricultural produce under Section 2 (a). It is not possible to entertain the argument that the Court will undertake a judicial scrutiny of these items in order to come to a conclusion whether these are agricultural produce or not. In view of the definition in Section 2 (a) such an enquiry is out of place. In this context we may note that under Section 38 the State Government may by notification add to the schedule any other item of agricultural produce or amend or omit any such specified item. It is because of this power to add to the schedule items of agricultural produce that the first part of the definition under Section 2 (a) gives guidance as to what agricultural produce means. The submissions are, therefore, devoid of substance.

1[ds]10. As we read the above sub-section it is clear that no person shall, unless exempted by rules, inter alia purchase, sell, store or process the specified agricultural produce except under a licence. It is not the case of the appellants that they belong to the exemptedSection 23 and Rule 29 together it is not possible to escape from the conclusion that the Act authorises levy of fee on agricultural produce bought or sold in the notified market area by licensees only. The appellants have licence only in respect of the business of kacha arhtiya and commission agent. While we express no opinion on the point whether the absence of reference to buying and selling of agricultural produce in Form A and Form B disables the Committee to issue licences for that purpose, we are of opinion that the present appeals can be disposed of on the sole ground that the appellants have not as a matter of fact been issued such licences and no fees can, therefore be levied on them in respect of purchases and sales of agricultural produce by them. The appellants are, therefore, not liable to payment of fee under the Act as. 2 (a) defines agricultural produce to mean "all produce whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to this Act" which mentions 85 items of commodities. These are statutorily agricultural produce under Section 2 (a). It is not possible to entertain the argument that the Court will undertake a judicial scrutiny of these items in order to come to a conclusion whether these are agricultural produce or not. In view of the definition in Section 2 (a) such an enquiry is out of place. In this context we may note that under Section 38 the State Government may by notification add to the schedule any other item of agricultural produce or amend or omit any such specified item. It is because of this power to add to the schedule items of agricultural produce that the first part of the definition under Section 2 (a) gives guidance as to what agricultural produce means. The submissions are, therefore, devoid of substance.

### 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 or before the date specified therein for obtaining licence, the prescribed authority may, before a licence is issued, impose on him such penalty not exceeding one hundred rupees as may be prescribed". By Section 5 of the Act the State Government by notification declares its intention of exercising control over the purchase, sale, storage and processing of specified agricultural produce in a specified area. By Section 6 (1) the Government by notification notifies a market area for the purpose of the Act, Section 6 (3) may be quoted :"6 (3). After the date of issue of such notification or from such later date as may be specified therein, no person, unless exempted by rules made under this Act, shall, either for himself or on behalf of another person, or of the State Government within the notified market area, set up, establish or continue or allow to be continued any place for the purchase. sale, storage and processing of the agricultural produce except under a licence granted in accordance with the provisions of the Act, the rules and bye-laws made thereunder and the conditions specified in the licence........."10. As we read the above sub-section it is clear that no person shall, unless exempted by rules, inter alia purchase, sell, store or process the specified agricultural produce except under a licence. It is not the case of the appellants that they belong to the exempted class.11. Rule 17 (1) provides that "a person desirous of obtaining a licence under Section 10 of the Act shall apply in Form A (to be submitted in duplicate) to the Chairman of the Board through the Committee of the area in which he wishes to carry on his business and shall also deposit with the committee the requisite licence fee". Sub-rule (3) provides that if any person on the specified date fails to apply for a licence, he is liable to penalty in accordance with a certain scale. Under sub-rule (7) "the Chairman may grant a licence to the applicant in Form B. The licence shall be subject to the conditions mentioned therein."12. When we look to Form A which is the form for application for a licence under Section 10 we find that against entry 8, the applicant has to give the "particulars of the business for which the licence is required" under four heads :(1) Kacha Arhtiya(2) Commission Agent.(3) Storage.(4) Processing.Similarly in Form B which is the form of the licence under Section 10, against entry 5, the same particulars of the business as against entry 8 in Form A appear. As a matter of fact one of the licences of the appellants was shown to us and it was in accordance with Form B. It is, therefore, clear that no licence has been issued to the appellants for doing business of buying and selling, agricultural produce. It is the case of the appellants that they make direct purchases and this fact is not controverted. Although, therefore, the appellants are licensees as required for some of the businesses mentioned in Form B, they have no licence for carrying on business of purchase and sale of agricultural produce within the notified market area.13. Now under Section 23 "a Committee may, subject to such rules as may be made by the State Government in this behalf, levy on ad valorembasis fees on the agricultural produce bought or sold by licensees in the notified market area at rate not exceeding rupee one fifty paise for every one hundred rupees, provided......" Section 43 provides for rulemaking power. Rule 24 is referable to Section 43 (2) (v), but we are not concerned with this rule in this case, Rule 29 provides that under Section 23 a Committee shall levy fees on the agricultural produce bought or sold by licensees in the notified market area at the rates fixed by the Board from time to time. Reading Section 23 and Rule 29 together it is not possible to escape from the conclusion that the Act authorises levy of fee on agricultural produce bought or sold in the notified market area by licensees only. The appellants have licence only in respect of the business of kacha arhtiya and commission agent. While we express no opinion on the point whether the absence of reference to buying and selling of agricultural produce in Form A and Form B disables the Committee to issue licences for that purpose, we are of opinion that the present appeals can be disposed of on the sole ground that the appellants have not as a matter of fact been issued such licences and no fees can, therefore be levied on them in respect of purchases and sales of agricultural produce by them. The appellants are, therefore, not liable to payment of fee under the Act as demanded.14. The appellants also contend that since gur and shakkar are manufactured products they cannot come under the definition of agricultural produce within the meaning of Section 2 (a) of the Act. Section . 2 (a) defines agricultural produce to mean "all produce whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to this Act" which mentions 85 items of commodities. These are statutorily agricultural produce under Section 2 (a). It is not possible to entertain the argument that the Court will undertake a judicial scrutiny of these items in order to come to a conclusion whether these are agricultural produce or not. In view of the definition in Section 2 (a) such an enquiry is out of place. In this context we may note that under Section 38 the State Government may by notification add to the schedule any other item of agricultural produce or amend or omit any such specified item. It is because of this power to add to the schedule items of agricultural produce that the first part of the definition under Section 2 (a) gives guidance as to what agricultural produce means. The submissions are, therefore, devoid of substance. ### Response: 1 ### Explanation: 10. As we read the above sub-section it is clear that no person shall, unless exempted by rules, inter alia purchase, sell, store or process the specified agricultural produce except under a licence. It is not the case of the appellants that they belong to the exemptedSection 23 and Rule 29 together it is not possible to escape from the conclusion that the Act authorises levy of fee on agricultural produce bought or sold in the notified market area by licensees only. The appellants have licence only in respect of the business of kacha arhtiya and commission agent. While we express no opinion on the point whether the absence of reference to buying and selling of agricultural produce in Form A and Form B disables the Committee to issue licences for that purpose, we are of opinion that the present appeals can be disposed of on the sole ground that the appellants have not as a matter of fact been issued such licences and no fees can, therefore be levied on them in respect of purchases and sales of agricultural produce by them. The appellants are, therefore, not liable to payment of fee under the Act as. 2 (a) defines agricultural produce to mean "all produce whether processed or not, of agriculture, horticulture, animal husbandry or forest as specified in the Schedule to this Act" which mentions 85 items of commodities. These are statutorily agricultural produce under Section 2 (a). It is not possible to entertain the argument that the Court will undertake a judicial scrutiny of these items in order to come to a conclusion whether these are agricultural produce or not. In view of the definition in Section 2 (a) such an enquiry is out of place. In this context we may note that under Section 38 the State Government may by notification add to the schedule any other item of agricultural produce or amend or omit any such specified item. It is because of this power to add to the schedule items of agricultural produce that the first part of the definition under Section 2 (a) gives guidance as to what agricultural produce means. The submissions are, therefore, devoid of substance.

Syeda Rahimunnisa Vs. Malan Bi (Dead) By Lrs. &amp; Anr.Etc

In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court.32. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds?33. Section 100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent’s favour.34. The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect.35. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.36. We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trial court.37. Indeed, it is clear from mere reading of the pleadings. The main case set up by the respondents for claiming title over the suit-land was founded only on the plea of adverse possession against the State. In other words, the respondents’ case was that they acquired title over the suit-land on the strength of their adverse possession in the suit-land through their predecessors who were in continuous possession over the suit-land for the last 100 years qua state. The respondents did not claim title on the strength of any grant or Lease Deed or Patta etc. issued by the State in their favour.38. The only question which, therefore, arose for consideration before the courts below was whether the respondents were able to establish their adverse possession over the suit-land as against the State so as to entitle them to claim title in their favour over the suit-land.39. The respondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointed out.40. We also find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members of respondents’ family was of no relevance.41. In these circumstances, the alleged gift whether executed between the two members of respondents’ family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC.42. In the light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.43.

1[ds]In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that thesuit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on nosay the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer ine High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to thatis a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trialrespondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointedalso find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members offamily was of nothese circumstances, the alleged gift whether executed between the two members offamily or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 ofthe light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: In our opinion, the High Court had no jurisdiction to remand the case to the trial court inasmuch as no party to the appeal had even raised this ground before the first appellate court or/and the High Court as to why the remand of the case to the trial Court is called for and nor there was any finding recorded on this question by the first appellate court.32. We also find that no party to the appeals complained at any stage of the proceedings that the trial in the suits was unsatisfactory which caused prejudice to them requiring remand of the cases to the trial court to enable them to lead additional evidence. In any event, we find that the High Court also did not frame any substantial question of law on the question as to whether any case for remand of the case to the trial court has been made out and if so on what grounds?33. Section 100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer in respondent’s favour.34. The High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to that effect.35. It is a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.36. We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trial court.37. Indeed, it is clear from mere reading of the pleadings. The main case set up by the respondents for claiming title over the suit-land was founded only on the plea of adverse possession against the State. In other words, the respondents’ case was that they acquired title over the suit-land on the strength of their adverse possession in the suit-land through their predecessors who were in continuous possession over the suit-land for the last 100 years qua state. The respondents did not claim title on the strength of any grant or Lease Deed or Patta etc. issued by the State in their favour.38. The only question which, therefore, arose for consideration before the courts below was whether the respondents were able to establish their adverse possession over the suit-land as against the State so as to entitle them to claim title in their favour over the suit-land.39. The respondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointed out.40. We also find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members of respondents’ family was of no relevance.41. In these circumstances, the alleged gift whether executed between the two members of respondents’ family or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 of CPC.42. In the light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.43. ### Response: 1 ### Explanation: In our opinion, the High Court has erred in holding that the appellants have failed to establish their title to the suit property evidently without appreciating the evidence on record in its proper perspective by making only reference to portions of evidence having once decided to reappreciate the evidence. The High Court, in our opinion, ought to have examined the entire evidence both oral and documentary instead of only a portion thereof especially while deciding to look into and reappreciate the evidence despite the limited scope under Section 100 CPC. In our view, the learned Single Judge of the High Court has exceeded his jurisdiction in reassessing, reappreciating and making a roving enquiry by entering into the factual arena of the case which is not the one contemplated under the limited scope of jurisdiction of a second appeal under Section 100the present case, the lower appellate court fairly appreciated the evidence and arrived at a conclusion that thesuit was to be decreed and that the appellants are entitled to the relief as prayed for. Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on nosay the least the approach of the High Court was not proper. It is the obligation of the courts of law to further the clear intendment of the legislature and not frustrate it by excluding the same. This Court in a catena of decisions held that where findings of fact by the lower appellate court are based on evidence, the High Court in second appeal cannot substitute its own findings on reappreciation of evidence merely on the ground that another view was100 empowers the High court to decide the second appeal only on the questions framed. In other words, the jurisdiction of High Curt to decide the second appeal is confined only to questions framed. When the High Court did not frame any question on the question of remand, to the trial court a fortiori it had no jurisdiction to deal with such question much less to answer ine High Court, in our view, further failed to see that if the first appellate court could decide the appeal on merits without there being any objection raised for remanding of the case to the trial court, we are unable to appreciate as to why the High Court could not decide the appeal on merits and instead raised the issue of remand of its own and passed the order to thatis a settled principle of law that in order to claim remand of the case to the trial court, it is necessary for the appellant to first raise such plea and then make out a case of remand on facts. The power of the appellate court to remand the case to subordinate court is contained in order XLI Rule 23, 23-A and 25 of CPC. It is, therefore, obligatory upon the appellant to bring the case under any of these provisions before claiming a remand. The appellate court is required to record reasons as to why it has taken recourse to any one out of the three Rules of Order XLI of CPC for remanding the case to the trial court. In the absence of any ground taken by the respondents (appellants before the first appellate court and High Court) before the first appellate court and the High Court as to why the remand order in these cases is called for and if so under which Rule of Order XLI of CPC and further in the absence of any finding, there was no justification on the part of the High Court to remand the case to the trial court. The High Court instead should have decided the appeals on merits. We, however, do not consider proper to remand the case to High Court for deciding the appeals on merits and instead examine the merits of the case in these appeals.We, however, find no error in the judgment of the first appellate court, which in our view rightly upheld the judgment and decree of the trialrespondents having set up this plea were required to prove it with the aid of satisfactory evidence as the burden of proof lay on them being the plaintiffs. As observed (supra), both the courts held on appreciation of evidence that the respondents were failed to establish their adverse possession over the suit-land qua State for want of adequate evidence. It being a question of fact, a finding on this question was binding on the High Court unless any error of law in such finding had been pointed out. It was not so pointedalso find that the High Court had framed one question on the validity of one gift. This question in our view was of no significance for deciding the main question involved in this case. It is for the reason that the dispute in this case was between the respondents on the one hand and the State on the other relating to the title which was claimed by the respondents on the basis of their adverse possession and to decide this question, execution of gift inter se two members offamily was of nothese circumstances, the alleged gift whether executed between the two members offamily or not and if so whether it was valid or not, did not arise out of the case. It is apart from the fact that it did not constitute any substantial question of law within the meaning of Section 100 ofthe light of foregoing discussion, we are of the considered opinion that the reasoning and the conclusion arrived at by the High Court is not legally sustainable and is accordingly liable to be set aside.