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Sangam Spinners Vs. Regional Provident Fund Commissioner-I

Anr. (1999 Lab.I.C. 2197): "There is no doubt that the vested rights or benefits under the legislation could be retrospectively taken away by legislation, but then the statute taking away such rights or benefits must expressly reflect its intention to that effect. The infancy period prior to the amended provision Section 16(1)(d) was five years in the case of establishments employing 20 to 50 workers and in the event this infancy benefit was to be withdrawn, it was necessary that the intention of the Legislature should have been clearly reflected in the amended provision itself that the rights and benefits which had already accrued stood withdrawn. The amended clause 16(1)(d) came on the statute book on June 2, 1988, when it was assented by the President of India but the amended Section 16 was put into operation only with effect from August 1, 1988, which empowered the Central Government to appoint different dates for the coming into force of different provisions of the Act. We find it difficult in the circumstances, to conclude that the intention of the Legislature was to take away the benefit of infancy period which had already accrued to the existing establishments and this benefit has not been expressly taken away or by implication by the amended provision Section 16(1)(d). In the circumstances, we are of the opinion that the infancy period benefit of the petitioner for a period of five years with effect from May 26, 1986, is not taken away by the amended provision Section (1)(d) of the Act; and the petitioner could continue to enjoy the said infancy benefit for a period of five years till May, 1991. Therefore, the demand made by respondent 1 for the period up to May, 1991, has to be quashed. The petitioners are complying with the provisions of the Act with effect from June, 1991." 15. The matter can be looked at from another angle. Section 6 of the General Clauses Act, 1897 (in short General Clauses Act) deals with effect of repeal. The said provision so far relevant reads as follows: "6. Effect of repeal.- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." 16. In terms of Clause (c) of Section 6 as quoted above, unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repeal. The effect of the amendment in the instant case is the same.17. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation (See Keshvan Madhavan Memon v. State of Bombay AIR 1951 SC 128 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis. In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." (See Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi AIR 1927 PC 242). "Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect."(See Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 ). As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (See Reid v. Reid, (1886) 31 Ch D 402). In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union of India v. Raghubir Singh (AIR 1989 SC 1933 ). The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh." (Tenth Edition, 2006) at PP. 474 and 475) 18. In The State of Jammu and Kashmir v. Shri Triloki Nath Khosa & Others. (1974 (1) SCC 19 ) and in Chairman, Railway Board & Ors. v. C.R. Rangadhamaiah & Ors. (1997 (6) SCC 623 ), this Court held that provision which operates to affect only the future rights without affecting the benefits or rights which have already accrued or enjoyed, till the deletion, is not retrospective in operation.19. The above position was highlighted by this court in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India and Anr. [2006(2) SCC 740].

1[ds]14. A Division Bench of Bombay High Court while considering the earlier amendment to Section 16(1)(d) curtailing the infancy period from 5 years to 3 years, held thus, in Magic Wash Industries (P) Ltd v. Assistant Provident Fund Commissioner, Panaji and Anr. (1999 Lab.I.C.is no doubt that the vested rights or benefits under the legislation could be retrospectively taken away by legislation, but then the statute taking away such rights or benefits must expressly reflect its intention to that effect. The infancy period prior to the amended provision Section 16(1)(d) was five years in the case of establishments employing 20 to 50 workers and in the event this infancy benefit was to be withdrawn, it was necessary that the intention of the Legislature should have been clearly reflected in the amended provision itself that the rights and benefits which had already accrued stood withdrawn. The amended clause 16(1)(d) came on the statute book on June 2, 1988, when it was assented by the President of India but the amended Section 16 was put into operation only with effect from August 1, 1988, which empowered the Central Government to appoint different dates for the coming into force of different provisions of the Act. We find it difficult in the circumstances, to conclude that the intention of the Legislature was to take away the benefit of infancy period which had already accrued to the existing establishments and this benefit has not been expressly taken away or by implication by the amended provision Section 16(1)(d). In the circumstances, we are of the opinion that the infancy period benefit of the petitioner for a period of five years with effect from May 26, 1986, is not taken away by the amended provision Section (1)(d) of the Act; and the petitioner could continue to enjoy the said infancy benefit for a period of five years till May, 1991. Therefore, the demand made by respondent 1 for the period up to May, 1991, has to be quashed. The petitioners are complying with the provisions of the Act with effect from June, 1991.The matter can be looked at from another angle. Section 6 of the General Clauses Act, 1897 (in short General Clauses Act) deals with effect of repeal. The said provision so far relevant reads asEffect of repeal.- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.In terms of Clause (c) of Section 6 as quoted above, unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repeal. The effect of the amendment in the instant case is the same.17. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation (See Keshvan Madhavan Memon v. State of Bombay AIR 1951 SC 128 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis. In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." (See Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi AIR 1927 PCstatute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect."(See Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 ). As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (See Reid v. Reid, (1886) 31 Ch D 402). In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union of India v. Raghubir Singh (AIR 1989 SC 1933 ). The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh.(Tenth Edition, 2006) at PP. 474 andIn The State of Jammu and Kashmir v. Shri Triloki Nath Khosa & Others. (1974 (1) SCC 19 ) and in Chairman, Railway Board & Ors. v. C.R. Rangadhamaiah & Ors. (1997 (6) SCC 623 ), this Court held that provision which operates to affect only the future rights without affecting the benefits or rights which have already accrued or enjoyed, till the deletion, is not retrospective in operation.19. The above position was highlighted by this court in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India and Anr. [2006(2) SCC 740].

### 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: Anr. (1999 Lab.I.C. 2197): "There is no doubt that the vested rights or benefits under the legislation could be retrospectively taken away by legislation, but then the statute taking away such rights or benefits must expressly reflect its intention to that effect. The infancy period prior to the amended provision Section 16(1)(d) was five years in the case of establishments employing 20 to 50 workers and in the event this infancy benefit was to be withdrawn, it was necessary that the intention of the Legislature should have been clearly reflected in the amended provision itself that the rights and benefits which had already accrued stood withdrawn. The amended clause 16(1)(d) came on the statute book on June 2, 1988, when it was assented by the President of India but the amended Section 16 was put into operation only with effect from August 1, 1988, which empowered the Central Government to appoint different dates for the coming into force of different provisions of the Act. We find it difficult in the circumstances, to conclude that the intention of the Legislature was to take away the benefit of infancy period which had already accrued to the existing establishments and this benefit has not been expressly taken away or by implication by the amended provision Section 16(1)(d). In the circumstances, we are of the opinion that the infancy period benefit of the petitioner for a period of five years with effect from May 26, 1986, is not taken away by the amended provision Section (1)(d) of the Act; and the petitioner could continue to enjoy the said infancy benefit for a period of five years till May, 1991. Therefore, the demand made by respondent 1 for the period up to May, 1991, has to be quashed. The petitioners are complying with the provisions of the Act with effect from June, 1991." 15. The matter can be looked at from another angle. Section 6 of the General Clauses Act, 1897 (in short General Clauses Act) deals with effect of repeal. The said provision so far relevant reads as follows: "6. Effect of repeal.- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed." 16. In terms of Clause (c) of Section 6 as quoted above, unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repeal. The effect of the amendment in the instant case is the same.17. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation (See Keshvan Madhavan Memon v. State of Bombay AIR 1951 SC 128 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis. In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." (See Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi AIR 1927 PC 242). "Every statute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect."(See Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 ). As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (See Reid v. Reid, (1886) 31 Ch D 402). In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union of India v. Raghubir Singh (AIR 1989 SC 1933 ). The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh." (Tenth Edition, 2006) at PP. 474 and 475) 18. In The State of Jammu and Kashmir v. Shri Triloki Nath Khosa & Others. (1974 (1) SCC 19 ) and in Chairman, Railway Board & Ors. v. C.R. Rangadhamaiah & Ors. (1997 (6) SCC 623 ), this Court held that provision which operates to affect only the future rights without affecting the benefits or rights which have already accrued or enjoyed, till the deletion, is not retrospective in operation.19. The above position was highlighted by this court in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India and Anr. [2006(2) SCC 740]. ### Response: 1 ### Explanation: 3 years, held thus, in Magic Wash Industries (P) Ltd v. Assistant Provident Fund Commissioner, Panaji and Anr. (1999 Lab.I.C.is no doubt that the vested rights or benefits under the legislation could be retrospectively taken away by legislation, but then the statute taking away such rights or benefits must expressly reflect its intention to that effect. The infancy period prior to the amended provision Section 16(1)(d) was five years in the case of establishments employing 20 to 50 workers and in the event this infancy benefit was to be withdrawn, it was necessary that the intention of the Legislature should have been clearly reflected in the amended provision itself that the rights and benefits which had already accrued stood withdrawn. The amended clause 16(1)(d) came on the statute book on June 2, 1988, when it was assented by the President of India but the amended Section 16 was put into operation only with effect from August 1, 1988, which empowered the Central Government to appoint different dates for the coming into force of different provisions of the Act. We find it difficult in the circumstances, to conclude that the intention of the Legislature was to take away the benefit of infancy period which had already accrued to the existing establishments and this benefit has not been expressly taken away or by implication by the amended provision Section 16(1)(d). In the circumstances, we are of the opinion that the infancy period benefit of the petitioner for a period of five years with effect from May 26, 1986, is not taken away by the amended provision Section (1)(d) of the Act; and the petitioner could continue to enjoy the said infancy benefit for a period of five years till May, 1991. Therefore, the demand made by respondent 1 for the period up to May, 1991, has to be quashed. The petitioners are complying with the provisions of the Act with effect from June, 1991.The matter can be looked at from another angle. Section 6 of the General Clauses Act, 1897 (in short General Clauses Act) deals with effect of repeal. The said provision so far relevant reads asEffect of repeal.- Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not -(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed.In terms of Clause (c) of Section 6 as quoted above, unless a different intention appears the repeal shall not affect any right, privilege or liability acquired, accrued or incurred under the enactment repeal. The effect of the amendment in the instant case is the same.17. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have retrospective operation (See Keshvan Madhavan Memon v. State of Bombay AIR 1951 SC 128 ). But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only nova constitutio futuris formam imponere debet non praeteritis. In the words of LORD BLANESBURG, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." (See Delhi Cloth Mills & General Co. Ltd. v. CIT, Delhi AIR 1927 PCstatute, it has been said", observed LOPES, L.J., "which takes away or impairs vested rights acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect."(See Amireddi Raja Gopala Rao v. Amireddi Sitharamamma AIR 1965 SC 1970 ). As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (See Reid v. Reid, (1886) 31 Ch D 402). In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union of India v. Raghubir Singh (AIR 1989 SC 1933 ). The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh.(Tenth Edition, 2006) at PP. 474 andIn The State of Jammu and Kashmir v. Shri Triloki Nath Khosa & Others. (1974 (1) SCC 19 ) and in Chairman, Railway Board & Ors. v. C.R. Rangadhamaiah & Ors. (1997 (6) SCC 623 ), this Court held that provision which operates to affect only the future rights without affecting the benefits or rights which have already accrued or enjoyed, till the deletion, is not retrospective in operation.19. The above position was highlighted by this court in S.L. Srinivasa Jute Twine Mills (P) Ltd. v. Union of India and Anr. [2006(2) SCC 740].

World Wide Agencies Private Limited and Another Vs. Mrs. Margarat T. Desor and Others

member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purposed of transfer of shares under S. 109 of the Act.In some situations and contingencies, the "member" may be different from a "holder". A "member" may be a "holder" of shares but a "holder" may not be a "member". In that view of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal vs. Jay Engineering Works Ltd. & Ors. [1963 33 Company Cases 102], to which our attention was drawn. 17. Admittedly in the present case, the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under ss. 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under ss. 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under ss. 397 and 398 of the Act. The High Court held that this is a fallacy. That in the case of persons having blank transfer forms signed by members, it is the members themselves who are shown on the register of member and they are different from the persons with the blank transfer forms whereas in the case original representatives, it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is still on the register of members are entitled to petition under ss. 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention of the matter, it is not necessary for us to consider the decision of this court in Rajahmundry Electric Supply Corpn. Ltd. vs. A. Nageshwara Rao & Ors. AIR 1956 SC 213 . In view of the observations of this Court in Life Insurance Corpn of India vs. Escorts Ltd. & Ors. AIR 1986 SC 1370 at p. 1412, it is not necessary, in our opinion, to consider the contentions made on behalf of the appellant before the High court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the matter.The second question was whether a combined petition under ss. 397, 398 and 433(f) of the Act was maintainable. In view of the observations of this court in Shanti Prasad Jain vs. Kalinga Tubes 1965 35 Comp Cas 363 (SC) and the reasoning of the Bombay High Court in Bilasrai Joharmal & Ors. vs. Akola Electric Supply Co. (P) Ltd. [28 Comp Cas 549], we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under ss. 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory." As Halsburys Laws of England, 4th Edition, volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the companys affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of ss. 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) on the just and equitable ground, though they may appear to be rather conflicting if no contradictory. We are in agreement with High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under S. 397 can be granted. This is a well accepted remedy exercised by the courts. 18.

0[ds]28. A person becoming entitled to a share by reason of the death or insolvency of the holder shall be entitled to the same dividends or other advantages to which he would be entitled if he were the registered holder of the share, except that the shall not, before registered as a member in respect of the share, be entitled in respect of it to exercise any right conferred by membership in relation to meetings of the company :Provided that the Board may, at any time, give notice requiring any such person to elect either to be registered himself or to transfer the share, and if the notice is not complied with within ninety days, the Board may thereafter withhold payment of all dividends, bonuses or other moneys payable in respect of the share, until the requirements of the notice have been complied with."Art. 28 is more or less in pari materia to art. 32 to Table A to the English Companies Act. It may also be mentioned, as it has been mentioned by the High Court, that S. 210 of the English Companies Act, before its amendment in 1980, was substantially the same as S. 397 of the ActAs mentioned hereinbefore, it is the admitted case of the parties that the regulation for management of the company as contained in Table A to the Act apply to appellant no. 1 and the said relevant provision in the articles of association of the company regarding transfer of shares is Art. 17, which is as follows :"No share shall be transferred to any other than a shareholder of the company so long as any member of the company is willing to purchases the same at fair value. This clause shall not apply to the executor or administrator of a deceased shareholder, if there is will or to the heir or lineal descendants where no letter of administration has been taken."In 1st Supplement January, 1978 of Gore-Browne on Companies, at para 16, it is that "while the shares remain in the name of the deceased holder, his estate is Prima facie entitled to any subsequent benefits deriving from the shares" At p. 491 of Buckley on Companies Act, 1848, the decision of Re Jermyn Street Turkish Baths Ltd.s case (supra) has also been referred to and it was observed that for the purpose of the petition under S. 210 of the English companies Act, member included the personal representatives of a deceased member. Buckley also notes that this decision referred herein was reversed without affecting this point by the Court of Appeal. In Halsburys Laws of England, 4th edition, Vol. 7, parsa 1010, at p. 604, same view has been expressed. The division bench of the Delhi High Court also noticed that the view expressed in Re Jermyn Street Turkish Baths (supra) also find indirect support from various other decisions of the English Court. Reference was made to the decision in James vs. Buena Venture Nitrate Grounds Syndicate Ltd. 1896 I Ch. D. 456. Re Delewllyn vs. Kasintoe Rubber Estate Ltd. 1914 (15) All E.R. 558, New Zealand Gold Extraction Co. (Mewberyyaution Process) vs. Peocock 1894 (1) Q.B. 622. These decisions to indicate that the right of members in similar, though not identical situations, should be construed as belonging to the legal representative or heirs of deceased members.Our attention, however, was drawn to the decision of Supreme Court of Victoria in Re Meyer Doouglas Pty. Ltd. 1965 V.R. 638 by Gowans, J. Art. 22 of Table A to the Victorian Companies Act, 1938 4602 provides as follows that :"22. A person becoming entitled to a share by reason of the death, bankruptcy or insolvency of the holder shall be entitled to the same dividends and other advantages to which he would be entitled if he were the registered holder of the share, except that he shall not before being registered as a member in respect of the share be entitled in respect of its to exercise any right conferred by membership in relation to meeting of the company."Gowans, J. in that case found that there was a "careful distinction between members and persons entitled to share by reason of the death of a member but who are not registered appear to deny the status of a member to legal personal representative who is not a member". On an analysis of various decisions, Gowans, J. was of the view that a deceaseds estate and its representative may in a particular context have to be treated as not a member and in view of the provisions of S. 186(1) of the Victorian Companies Act, 1961 which provides "any member of a company who complains that the affairs of the company are being conducted in manner oppressive to one or more of the members (including himself) may ...... apply to the court for an order under that section", Gowans, J. came to the conclusion that there was no reason for treating the word "members" in that section as not applying to a legal representative who is not entitled the right which registration would give him to vote in regulating the conduct of the companys affairs. The object of the section, which is in pari material to S. 399 of the Act, was to provide a remedy for the case where, notwithstanding the fact to at a person possesses the right of a member enabling him to participate in the conduct of the affairs of the company, he can claim that he as a member or as one of number of members, is or are being oppressed by those who conduct the affairs of the company, is or are being oppressed by those who conduct the affairs of the company. According to Gowans, J., is should not be treated as applying to someone who is not so entitled and cannot so claim. With respect, we are unable to accept this view. Having regard to the purpose of the section as we conceive it, it would not be just construction to deny the legal representatives of the deceased member the right to maintain a petition under ss. 397 and 398. We would prefer to accept the view of Pennycuick, J. In Re Jermyn Street Turkish Baths Ltd.s case (supra). It appears to us that this will be in consonance with the equity of the sections. In Gowers Principles of Modern Company Law, at p. 558, reference has been made to Re Jermyn Street Turkish Baths Ltd.s case (supra), and also to Re Meyer Douglas (P) Ltd.s case (supra), which, according to the learned author, seems to be more convincing. Nariman also referred us to the comments in Hahlos Case book on Company Law, 2nd Edition, p. 351 where in footnote, reference was made to Re Jermyn Street Turkish Baths Ltd.s cased (supra), which have been followed in some decisions. It was noted as follows:"Itappears doubtful whether personal representatives of deceased shareholders, who themselves are not a cannot become, registered as shareholders, can be regarded as "members for the purpose of S. 210 of the 1948 Act : Re Cutnburt Cooper & Sons Ltd. 1973 Ch. 392. Re Meyer Doouglas Ltd. [1965 V.R. 635 at 655]."We do not agree for the reason mentioned before, If further appears to us the Australian judgment does not reconcile to logic in accepting that legal representative can petition for winding-up, which is called the "sledge-hammer remedy", but would refuse the lesser and alternative remedy of seeking relief against oppression and mismanagement though the latter remedy requires establishment of winding-up on just and equitable grounds as a precondition for its invocation. It would be rather incongruous to hold that the case for winding-up on just and equitable ground can be made out by the legal representatives under S. 439(4)(b) of the Act but not the other. This does not appear to be logical. It appears to us that to hold that the legal representatives of a deceased shareholder could not be given the same right of a member under ss. 397 and 398 of the Act, would be taking hyper-technical view which does not advance the case of equity or justice. The High Court in its judgment under appeal proceeded on the basis that legal representatives of a deceased member represent the estate of that member whose name is on the register of members. When the member dies, his estate is entrusted in the legal representatives. When, therefore, these vesting are illegally or wrongfully affected, the estate through the legal representatives must be enabled to petition in respect of oppression and mismanagement and it is as if the estate stands in the shoes of the deceased member. We are of the opinion that this view is correct view. It may be mentioned in this connection that succession is not kept in abeyance and the property of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purposed of transfer of shares under S. 109 of the Act.In some situations and contingencies, the "member" may be different from a "holder". A "member" may be a "holder" of shares but a "holder" may not be a "member". In that view of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal vs. Jay Engineering Works Ltd. & Ors. [1963 33 Company Cases 102], to which our attention was drawnAdmittedly in the present case, the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under ss. 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under ss. 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under ss. 397 and 398 of the Act. The High Court held that this is a fallacy. That in the case of persons having blank transfer forms signed by members, it is the members themselves who are shown on the register of member and they are different from the persons with the blank transfer forms whereas in the case original representatives, it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is still on the register of members are entitled to petition under ss. 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention of the matter, it is not necessary for us to consider the decision of this court in Rajahmundry Electric Supply Corpn. Ltd. vs. A. Nageshwara Rao & Ors. AIR 1956 SC 213 . In view of the observations of this Court in Life Insurance Corpn of India vs. Escorts Ltd. & Ors. AIR 1986 SC 1370 at p. 1412, it is not necessary, in our opinion, to consider the contentions made on behalf of the appellant before the High court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the matter.The second question was whether a combined petition under ss. 397, 398 and 433(f) of the Act was maintainable. In view of the observations of this court in Shanti Prasad Jain vs. Kalinga Tubes 1965 35 Comp Cas 363 (SC) and the reasoning of the Bombay High Court in Bilasrai Joharmal & Ors. vs. Akola Electric Supply Co. (P) Ltd. [28 Comp Cas 549], we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under ss. 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory." As Halsburys Laws of England, 4th Edition, volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the companys affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of ss. 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) on the just and equitable ground, though they may appear to be rather conflicting if no contradictory. We are in agreement with High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under S. 397 can be grantedThis is a well accepted remedy exercised by the courts.

### 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: member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purposed of transfer of shares under S. 109 of the Act.In some situations and contingencies, the "member" may be different from a "holder". A "member" may be a "holder" of shares but a "holder" may not be a "member". In that view of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal vs. Jay Engineering Works Ltd. & Ors. [1963 33 Company Cases 102], to which our attention was drawn. 17. Admittedly in the present case, the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under ss. 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under ss. 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under ss. 397 and 398 of the Act. The High Court held that this is a fallacy. That in the case of persons having blank transfer forms signed by members, it is the members themselves who are shown on the register of member and they are different from the persons with the blank transfer forms whereas in the case original representatives, it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is still on the register of members are entitled to petition under ss. 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention of the matter, it is not necessary for us to consider the decision of this court in Rajahmundry Electric Supply Corpn. Ltd. vs. A. Nageshwara Rao & Ors. AIR 1956 SC 213 . In view of the observations of this Court in Life Insurance Corpn of India vs. Escorts Ltd. & Ors. AIR 1986 SC 1370 at p. 1412, it is not necessary, in our opinion, to consider the contentions made on behalf of the appellant before the High court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the matter.The second question was whether a combined petition under ss. 397, 398 and 433(f) of the Act was maintainable. In view of the observations of this court in Shanti Prasad Jain vs. Kalinga Tubes 1965 35 Comp Cas 363 (SC) and the reasoning of the Bombay High Court in Bilasrai Joharmal & Ors. vs. Akola Electric Supply Co. (P) Ltd. [28 Comp Cas 549], we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under ss. 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory." As Halsburys Laws of England, 4th Edition, volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the companys affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of ss. 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) on the just and equitable ground, though they may appear to be rather conflicting if no contradictory. We are in agreement with High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under S. 397 can be granted. This is a well accepted remedy exercised by the courts. 18. ### Response: 0 ### Explanation: property of the deceased member vests in the legal representatives on the death of the deceased and they should be permitted to act for the deceased member for the purposed of transfer of shares under S. 109 of the Act.In some situations and contingencies, the "member" may be different from a "holder". A "member" may be a "holder" of shares but a "holder" may not be a "member". In that view of the matter, it is not necessary for the present purpose to examine this question from the angle in which the learned Single Judge of the Calcutta High Court analysed the position in the case of Kedar Nath Agarwal vs. Jay Engineering Works Ltd. & Ors. [1963 33 Company Cases 102], to which our attention was drawnAdmittedly in the present case, the legal representatives have been more than anxious to get their names put on the register of members in place of deceased member, who was the Managing Director and Chairman of the company and had the controlling interest. It would, therefore, be wrong to insist their names must be first put on the register before they can move an application under ss. 397 and 398 of the Act. This would frustrate the very purpose of the necessity of action. It was contended on behalf of the appellant before the High Court that if legal representatives who were only potential members or persons likely to come on the register of members, are permitted to file an application under ss. 397 and 398 of the Act, it would create havoc, as then persons having blank transfer forms signed by members, and as such having a financial interest, could also claim to move an application under ss. 397 and 398 of the Act. The High Court held that this is a fallacy. That in the case of persons having blank transfer forms signed by members, it is the members themselves who are shown on the register of member and they are different from the persons with the blank transfer forms whereas in the case original representatives, it is the deceased member who is shown on the register and the legal representatives are in effect exercising his right. A right has devolved on them through the death of the member whose name is still on the register. In our opinion, therefore, the High Court was pre-eminently right in holding that the legal representatives of deceased member whose name is still on the register of members are entitled to petition under ss. 397 and 398 of the Act. In the view we have taken, it is not necessary to consider the contention of the matter, it is not necessary for us to consider the decision of this court in Rajahmundry Electric Supply Corpn. Ltd. vs. A. Nageshwara Rao & Ors. AIR 1956 SC 213 . In view of the observations of this Court in Life Insurance Corpn of India vs. Escorts Ltd. & Ors. AIR 1986 SC 1370 at p. 1412, it is not necessary, in our opinion, to consider the contentions made on behalf of the appellant before the High court that the permission of the Reserve Bank of India had been erroneously obtained and consequently amounts to no permission. In the present context, we are of the matter.The second question was whether a combined petition under ss. 397, 398 and 433(f) of the Act was maintainable. In view of the observations of this court in Shanti Prasad Jain vs. Kalinga Tubes 1965 35 Comp Cas 363 (SC) and the reasoning of the Bombay High Court in Bilasrai Joharmal & Ors. vs. Akola Electric Supply Co. (P) Ltd. [28 Comp Cas 549], we are of the opinion that the averments which a petitioner would have to make to invoke the jurisdiction under ss. 397 and 398 are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) of the Act on the just and equitable ground, though they may appear to be contradictory." As Halsburys Laws of England, 4th Edition, volume 7, at p. 604-605, discusses that the prayer must be made stating that the affairs are such which fulfil the requirement of winding up but to wind up the company would unfairly prejudice that part of the members, but otherwise the facts would justify the making of a winding up order on the ground that it was just and equitable that the company should be wound up, the court may, with a view to bringing to an end the matters complained of, make such order as it thinks fit, whether for regulating the conduct of the companys affairs in future or otherwise. We are of the opinion that averments which a petitioner would have to make to invoke the jurisdiction of ss. 397 and 398 of the Act are not destructive of the averments which are required to be made in a case for winding up under S. 433(f) on the just and equitable ground, though they may appear to be rather conflicting if no contradictory. We are in agreement with High Court that the petition must proceed upto certain stage which is common to both winding up and though there may be some difference in procedure to be adopted, it is not such which is irreconcilable and cannot simultaneously be gone into. Indeed these are made in the manner indicated before. It has to be borne in mind that a discretion is conferred on the court and it is only when the Court is satisfied that the facts justify the making of a winding up order on the ground that it is just and equitable that the company should be wound up, but if the court is further of the opinion that it would be a remedy worse than the disease, then the Court can examine whether the alternative relief by way of a direction under S. 397 can be grantedThis is a well accepted remedy exercised by the courts.

M/S BHARTI AIRTEL LTD Vs. ASSESSING AUTHORITY, ORISSA ENTRY TAX

opinion that the State has the following three alternatives to impose a levy or tax which would not be violative of Article 301 meaning thereby it will not be treated as a hindrance in trade, commerce and intercourse. They are:- (i) if the levy imposed is compensatory in nature and facially or patently indicates the quantifiable data on the basis of which the compensatory levy or tax is sought to be levied and the Act facially indicates the benefits which is quantifiable or measurable and the proportionality of the quantifiable benefits and should be in the form of reimbursement/recompense for the quantifiable and measurable benefits to be provided to its payers or trades people. (ii) if the tax is levied under clause (a) of Article 304 but subject to conditions given therein that such levy or tax on goods would not result in discrimination between the goods imported from other States and similar goods manufactured or produced within the State entering into a local area. However, the scope of clause (a) of Article 304 is limited to the extent that the State cannot impose tax on the goods imported from other States and are not manufactured or produced within that State, (iii) if the tax is imposed following the provisions of clause (b) of Article 304 meaning thereby that the previous sanction of the President has been obtained in imposing the tax. 3. The plea of the State on the challenge predicated on Article 304(a) of the Constitution of India was noted and dealt with in paragraph 30 of the judgment and we reproduce the same as well: 30. The State has taken the plea that the Orissa Entry Tax Act has been enacted under clause (a) of Article 304 of the Constitution. Therefore, as discussed above no tax can be imposed on those goods imported from outside the State which are not manufactured or produced in the State of Orissa. However, we do not find any discrimination in the provisions of the Act between the goods imported from outside the State and those manufactured or produced in the State of Orissa and are bought into the local area within a State. In this regard, the definition of entry of goods given in clause (d) of section 2 is relevant which shows that there is no discrimination between the goods produced or manufactured within the State of Orissa or imported from outside and are brought within the local area. The rate of tax imposed under the Act or the Rules are also applicable uniformly on the goods imported from outside or goods manufactured within the State which are brought into a local area. Therefore, it cannot be said that the Orissa Entry Tax Act is not made under clause (a) of Article 304 of the Constitution. However, the State has no jurisdiction to impose tax on such goods imported from outside and are not manufactured within the State of Orissa. Therefore, the opposite parties may make scrutiny of the same and not realize entry tax on such goods but for this the Act cannot be declared ultra vires. 4. From the aforesaid, it becomes clear that some of the issues were decided against the State, though the overall conclusion was the dismissal of the writ petitions. The State against those findings also preferred appeals. Those appeals have been allowed by us in todays date by a separate order as the said issues stand concluded in favour of the State by a Nine Judge Bench in the case of Jindal Stainless Steel v. State of Haryana reported in 2016 (11) SCALE 1. 5. In these appeals preferred by the assessees, the assessees have challenged the findings contained in sub-para (ii) of Paragraph 28 wherein the High Court has held that Entry Tax is levied under clause (a) of Article 304 but subject to conditions given therein that such levy of tax on goods would not result in discrimination between the goods imported from other States and similar goods manufactured or produced within the State entering into a local area. On the aforesaid basis the Court has held that the Entry Tax was not discriminatory in nature. 6. It is clear from the reading of the judgment that the Court had gone by the rate of Entry Tax which was imposed and the benefit of VAT which was given and the rate whereof was also identical. 7. The Nine Judge Bench in Jindal Stainless Steel (supra) has dealt with the aforesaid issues as well. We may record that the argument before the Court was as to whether the grant of exemption of equivalent goods by giving the benefit of VAT/Sales Tax on such goods of equivalent rate was permissible or not and whether such provision was discriminatory. The Court held that this would not be discriminatory. While answering this aspect the Court accepted the submission of the State that so long as the intention behind the grant of exemption/adjustment/credit is equivalent to the fall of the fiscal burden on the goods within the State and those from outside the Court, there will not be any discrimination. 8. It is argued by learned counsel for the appellant that this Court went by the concept of burden and equalizing of said burden. It is submitted that since the law is now clarified, the validity of the provisions of Orissa Entry Tax are to be considered in the aforesaid prospect. We find that in some of the cases, particularly in the writ petition filed by M/s Vedanta Aluminium Ltd. this issue was specifically raised in the High Court out of which SLP(C) No. 8199 of 2008 arises. But the High Court did not decide it. Instead the High Court in the impugned judgment has gone by the rate of Entry Tax vis-a-viz the rate of VAT/Sales Tax. Since, in order to decide the question proper pleadings are required, which are not before us, it may not be possible for this Court to decide the issue.

1[ds]6. It is clear from the reading of the judgment that the Court had gone by the rate of Entry Tax which was imposed and the benefit of VAT which was given and the rate whereof was also identical.7. The Nine Judge Bench in Jindal Stainless Steel (supra) has dealt with the aforesaid issues as well. We may record that the argument before the Court was as to whether the grant of exemption of equivalent goods by giving the benefit of VAT/Sales Tax on such goods of equivalent rate was permissible or not and whether such provision was discriminatory. The Court held that this would not be discriminatory. While answering this aspect the Court accepted the submission of the State that so long as the intention behind the grant of exemption/adjustment/credit is equivalent to the fall of the fiscal burden on the goods within the State and those from outside the Court, there will not be any discrimination.We find that in some of the cases, particularly in the writ petition filed by M/s Vedanta Aluminium Ltd. this issue was specifically raised in the High Court out of which SLP(C) No. 8199 of 2008 arises. But the High Court did not decide it. Instead the High Court in the impugned judgment has gone by the rate of Entry Tax vis-a-viz the rate of VAT/Sales Tax. Since, in order to decide the question proper pleadings are required, which are not before us, it may not be possible for this Court to decide the issue.

### 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: opinion that the State has the following three alternatives to impose a levy or tax which would not be violative of Article 301 meaning thereby it will not be treated as a hindrance in trade, commerce and intercourse. They are:- (i) if the levy imposed is compensatory in nature and facially or patently indicates the quantifiable data on the basis of which the compensatory levy or tax is sought to be levied and the Act facially indicates the benefits which is quantifiable or measurable and the proportionality of the quantifiable benefits and should be in the form of reimbursement/recompense for the quantifiable and measurable benefits to be provided to its payers or trades people. (ii) if the tax is levied under clause (a) of Article 304 but subject to conditions given therein that such levy or tax on goods would not result in discrimination between the goods imported from other States and similar goods manufactured or produced within the State entering into a local area. However, the scope of clause (a) of Article 304 is limited to the extent that the State cannot impose tax on the goods imported from other States and are not manufactured or produced within that State, (iii) if the tax is imposed following the provisions of clause (b) of Article 304 meaning thereby that the previous sanction of the President has been obtained in imposing the tax. 3. The plea of the State on the challenge predicated on Article 304(a) of the Constitution of India was noted and dealt with in paragraph 30 of the judgment and we reproduce the same as well: 30. The State has taken the plea that the Orissa Entry Tax Act has been enacted under clause (a) of Article 304 of the Constitution. Therefore, as discussed above no tax can be imposed on those goods imported from outside the State which are not manufactured or produced in the State of Orissa. However, we do not find any discrimination in the provisions of the Act between the goods imported from outside the State and those manufactured or produced in the State of Orissa and are bought into the local area within a State. In this regard, the definition of entry of goods given in clause (d) of section 2 is relevant which shows that there is no discrimination between the goods produced or manufactured within the State of Orissa or imported from outside and are brought within the local area. The rate of tax imposed under the Act or the Rules are also applicable uniformly on the goods imported from outside or goods manufactured within the State which are brought into a local area. Therefore, it cannot be said that the Orissa Entry Tax Act is not made under clause (a) of Article 304 of the Constitution. However, the State has no jurisdiction to impose tax on such goods imported from outside and are not manufactured within the State of Orissa. Therefore, the opposite parties may make scrutiny of the same and not realize entry tax on such goods but for this the Act cannot be declared ultra vires. 4. From the aforesaid, it becomes clear that some of the issues were decided against the State, though the overall conclusion was the dismissal of the writ petitions. The State against those findings also preferred appeals. Those appeals have been allowed by us in todays date by a separate order as the said issues stand concluded in favour of the State by a Nine Judge Bench in the case of Jindal Stainless Steel v. State of Haryana reported in 2016 (11) SCALE 1. 5. In these appeals preferred by the assessees, the assessees have challenged the findings contained in sub-para (ii) of Paragraph 28 wherein the High Court has held that Entry Tax is levied under clause (a) of Article 304 but subject to conditions given therein that such levy of tax on goods would not result in discrimination between the goods imported from other States and similar goods manufactured or produced within the State entering into a local area. On the aforesaid basis the Court has held that the Entry Tax was not discriminatory in nature. 6. It is clear from the reading of the judgment that the Court had gone by the rate of Entry Tax which was imposed and the benefit of VAT which was given and the rate whereof was also identical. 7. The Nine Judge Bench in Jindal Stainless Steel (supra) has dealt with the aforesaid issues as well. We may record that the argument before the Court was as to whether the grant of exemption of equivalent goods by giving the benefit of VAT/Sales Tax on such goods of equivalent rate was permissible or not and whether such provision was discriminatory. The Court held that this would not be discriminatory. While answering this aspect the Court accepted the submission of the State that so long as the intention behind the grant of exemption/adjustment/credit is equivalent to the fall of the fiscal burden on the goods within the State and those from outside the Court, there will not be any discrimination. 8. It is argued by learned counsel for the appellant that this Court went by the concept of burden and equalizing of said burden. It is submitted that since the law is now clarified, the validity of the provisions of Orissa Entry Tax are to be considered in the aforesaid prospect. We find that in some of the cases, particularly in the writ petition filed by M/s Vedanta Aluminium Ltd. this issue was specifically raised in the High Court out of which SLP(C) No. 8199 of 2008 arises. But the High Court did not decide it. Instead the High Court in the impugned judgment has gone by the rate of Entry Tax vis-a-viz the rate of VAT/Sales Tax. Since, in order to decide the question proper pleadings are required, which are not before us, it may not be possible for this Court to decide the issue. ### Response: 1 ### Explanation: 6. It is clear from the reading of the judgment that the Court had gone by the rate of Entry Tax which was imposed and the benefit of VAT which was given and the rate whereof was also identical.7. The Nine Judge Bench in Jindal Stainless Steel (supra) has dealt with the aforesaid issues as well. We may record that the argument before the Court was as to whether the grant of exemption of equivalent goods by giving the benefit of VAT/Sales Tax on such goods of equivalent rate was permissible or not and whether such provision was discriminatory. The Court held that this would not be discriminatory. While answering this aspect the Court accepted the submission of the State that so long as the intention behind the grant of exemption/adjustment/credit is equivalent to the fall of the fiscal burden on the goods within the State and those from outside the Court, there will not be any discrimination.We find that in some of the cases, particularly in the writ petition filed by M/s Vedanta Aluminium Ltd. this issue was specifically raised in the High Court out of which SLP(C) No. 8199 of 2008 arises. But the High Court did not decide it. Instead the High Court in the impugned judgment has gone by the rate of Entry Tax vis-a-viz the rate of VAT/Sales Tax. Since, in order to decide the question proper pleadings are required, which are not before us, it may not be possible for this Court to decide the issue.

Isibars Limited Vs. Commerz Bank and Chairperson Debt Recovery Tribunal

from the said order was dismissed by the High Court. It was, inter alia, urged before the Supreme Court that the fact as to paid up share capital of rupees one crore or more of a company is a jurisdictional fact and in absence of such fact, the trial court had no jurisdiction to proceed on the basis that Rent Act is not applicable.9. The Supreme Court agreed with the submission of learned counsel that the fact as to paid up share capital of a company can be said to be a preliminary or jurisdictional fact and the said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable and proceeded to consider whether on account of reduction of paid up share capital, jurisdictional fact did not exist and, therefore, the Rent Act was applicable. On the basis of judgment of the Supreme Court in Pasupuleti Venkates Work v. Motor & General Traders (1975) 1 SCC 770 , it was argued that it was obligatory on the courts below including the High Court to take into consideration subsequent events. In Pasupuleti, the Supreme Court was dealing with a suit for possession on the ground of personal requirement for starting business. A decree for possession was passed in favour of the plaintiff-landlord which was confirmed by the appellate court. At the stage of revision, due to subsequent event of acquisition of non-residential building by the plaintiff-landlord, an application for amendment was made by the defendant-tenant which was allowed by the High Court. It was contended before the Supreme Court that the High Court committed an error in taking cognizance of subsequent event. The Supreme Court held that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, but if a fact arising after the lis has come to court has a fundamental impact on the right to relief or the manner of moulding it, the court cannot blink at it because equity justified bending the rules of procedure where no specific provisions or fairplay is violated with a view to promoting substantial justice subject to the absence of other dis-entitling circumstances. The Supreme Court affirmed the proposition that for making the right or remedy claimed by the party just and meaningful the court can, and in many cases, must take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.10. After noting these observations made in Pasupuleti on which reliance was placed by the appellant therein, in Carona Ltd., the Supreme Court observed that the law is fairly settled, that 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. The Supreme Court further observed that 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. Insofar as the facts before it were concerned, the Supreme Court held that the courts below were right in holding that the date on which tenancy was determined, the right in favour of the landlord got accrued. Such right could not have been set at naught by the tenant by unilateral act by passing a resolution to reduce paid up share capital of the company.11. In our opinion, the above observations of the Supreme Court are clearly attracted to the present case. No doubt, the court can take into account subsequent events. But in Pasupuleti, the Supreme Court has clarified that that has to be done on equitable considerations with a view to promoting substantial justice. In this case, the outstanding dues payable by the petitioners to respondent 1 as on 16/8/1999 are stated to be Rs.12,31,45,872/- towards principal amount and Rs. 2,04,19,983/- towards interest. There is no dispute about the fact that when respondent 1 filed the original application, the DRT had jurisdiction to entertain it. Respondent 1 had substantive right to claim the amount. It cannot be denied to it because it has surrendered its licence during the pendency of the original application. Surrender of the banking licence does not extinguish the petitioners liability. Respondent 1 cannot be denied relief because of the subsequent event since at the date of the institution of the suit, it had a substantive right to claim the relief. In any case, as observed by the Supreme Court, subsequent events may be taken into account to promote substantive justice and on equitable considerations. Surely, by ousting DRTs jurisdiction, there would be no promotion of substantial justice nor would that be equitable.12. We may also usefully refer to the judgment of the Supreme Court in Ujjam Bai where, while considering the concept of jurisdiction, the Supreme Court observed as under:Jurisdiction means authority to decide. Whenever a judicial or quasi judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion, of the inquiry. (emphasis supplied.)

0[ds]6. There is no dispute about the fact that when respondent 1 filed the application, it had banking licence. While accepting the surrender of the banking licence, the Reserve Bank of India had allowed respondent 1 to open Special Rupee Account with a bank inter alia for crediting the recovered loan amounts. The affidavit of Mr. C.G. Pradeep Kumar, HeadCredit Administration of respondent 1 discloses that the petitioners have admitted in the Restructuring Agreement dated 22/9/1999 that as on 16/8/1999, a sum of Rs.12,31,45,872/towards principal amount and an amount of Rs.2,04,19,983/towards interest is due and payable by the petitioners to respondent 1.The Supreme Court agreed with the submission of learned counsel that the fact as to paid up share capital of a company can be said to be a preliminary or jurisdictional fact and the said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable and proceeded to consider whether on account of reduction of paid up share capital, jurisdictional fact did not exist and, therefore, the Rent Act was applicable. On the basis of judgment of the Supreme Court in Pasupuleti Venkates Work v. MotorGeneral Traders (1975) 1 SCC 770 , it was argued that it was obligatory on the courts below including the High Court to take into consideration subsequent events. In Pasupuleti, the Supreme Court was dealing with a suit for possession on the ground of personal requirement for starting business. A decree for possession was passed in favour of thewhich was confirmed by the appellate court. At the stage of revision, due to subsequent event of acquisition ofbuilding by thean application for amendment was made by thewhich was allowed by the High Court. It was contended before the Supreme Court that the High Court committed an error in taking cognizance of subsequent event. The Supreme Court held that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, but if a fact arising after the lis has come to court has a fundamental impact on the right to relief or the manner of moulding it, the court cannot blink at it because equity justified bending the rules of procedure where no specific provisions or fairplay is violated with a view to promoting substantial justice subject to the absence of othercircumstances. The Supreme Court affirmed the proposition that for making the right or remedy claimed by the party just and meaningful the court can, and in many cases, must take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.In our opinion, the above observations of the Supreme Court are clearly attracted to the present case. No doubt, the court can take into account subsequent events. But in Pasupuleti, the Supreme Court has clarified that that has to be done on equitable considerations with a view to promoting substantial justice. In this case, the outstanding dues payable by the petitioners to respondent 1 as on 16/8/1999 are stated to be Rs.12,31,45,872/towards principal amount and Rs. 2,04,19,983/towards interest. There is no dispute about the fact that when respondent 1 filed the original application, the DRT had jurisdiction to entertain it. Respondent 1 had substantive right to claim the amount. It cannot be denied to it because it has surrendered its licence during the pendency of the original application. Surrender of the banking licence does not extinguish the petitioners liability. Respondent 1 cannot be denied relief because of the subsequent event since at the date of the institution of the suit, it had a substantive right to claim the relief. In any case, as observed by the Supreme Court, subsequent events may be taken into account to promote substantive justice and on equitable considerations. Surely, by ousting DRTs jurisdiction, there would be no promotion of substantial justice nor would that be equitable.

### 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 said order was dismissed by the High Court. It was, inter alia, urged before the Supreme Court that the fact as to paid up share capital of rupees one crore or more of a company is a jurisdictional fact and in absence of such fact, the trial court had no jurisdiction to proceed on the basis that Rent Act is not applicable.9. The Supreme Court agreed with the submission of learned counsel that the fact as to paid up share capital of a company can be said to be a preliminary or jurisdictional fact and the said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable and proceeded to consider whether on account of reduction of paid up share capital, jurisdictional fact did not exist and, therefore, the Rent Act was applicable. On the basis of judgment of the Supreme Court in Pasupuleti Venkates Work v. Motor & General Traders (1975) 1 SCC 770 , it was argued that it was obligatory on the courts below including the High Court to take into consideration subsequent events. In Pasupuleti, the Supreme Court was dealing with a suit for possession on the ground of personal requirement for starting business. A decree for possession was passed in favour of the plaintiff-landlord which was confirmed by the appellate court. At the stage of revision, due to subsequent event of acquisition of non-residential building by the plaintiff-landlord, an application for amendment was made by the defendant-tenant which was allowed by the High Court. It was contended before the Supreme Court that the High Court committed an error in taking cognizance of subsequent event. The Supreme Court held that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, but if a fact arising after the lis has come to court has a fundamental impact on the right to relief or the manner of moulding it, the court cannot blink at it because equity justified bending the rules of procedure where no specific provisions or fairplay is violated with a view to promoting substantial justice subject to the absence of other dis-entitling circumstances. The Supreme Court affirmed the proposition that for making the right or remedy claimed by the party just and meaningful the court can, and in many cases, must take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.10. After noting these observations made in Pasupuleti on which reliance was placed by the appellant therein, in Carona Ltd., the Supreme Court observed that the law is fairly settled, that 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. The Supreme Court further observed that 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. Insofar as the facts before it were concerned, the Supreme Court held that the courts below were right in holding that the date on which tenancy was determined, the right in favour of the landlord got accrued. Such right could not have been set at naught by the tenant by unilateral act by passing a resolution to reduce paid up share capital of the company.11. In our opinion, the above observations of the Supreme Court are clearly attracted to the present case. No doubt, the court can take into account subsequent events. But in Pasupuleti, the Supreme Court has clarified that that has to be done on equitable considerations with a view to promoting substantial justice. In this case, the outstanding dues payable by the petitioners to respondent 1 as on 16/8/1999 are stated to be Rs.12,31,45,872/- towards principal amount and Rs. 2,04,19,983/- towards interest. There is no dispute about the fact that when respondent 1 filed the original application, the DRT had jurisdiction to entertain it. Respondent 1 had substantive right to claim the amount. It cannot be denied to it because it has surrendered its licence during the pendency of the original application. Surrender of the banking licence does not extinguish the petitioners liability. Respondent 1 cannot be denied relief because of the subsequent event since at the date of the institution of the suit, it had a substantive right to claim the relief. In any case, as observed by the Supreme Court, subsequent events may be taken into account to promote substantive justice and on equitable considerations. Surely, by ousting DRTs jurisdiction, there would be no promotion of substantial justice nor would that be equitable.12. We may also usefully refer to the judgment of the Supreme Court in Ujjam Bai where, while considering the concept of jurisdiction, the Supreme Court observed as under:Jurisdiction means authority to decide. Whenever a judicial or quasi judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. The question whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable at the commencement, not at the conclusion, of the inquiry. (emphasis supplied.) ### Response: 0 ### Explanation: 6. There is no dispute about the fact that when respondent 1 filed the application, it had banking licence. While accepting the surrender of the banking licence, the Reserve Bank of India had allowed respondent 1 to open Special Rupee Account with a bank inter alia for crediting the recovered loan amounts. The affidavit of Mr. C.G. Pradeep Kumar, HeadCredit Administration of respondent 1 discloses that the petitioners have admitted in the Restructuring Agreement dated 22/9/1999 that as on 16/8/1999, a sum of Rs.12,31,45,872/towards principal amount and an amount of Rs.2,04,19,983/towards interest is due and payable by the petitioners to respondent 1.The Supreme Court agreed with the submission of learned counsel that the fact as to paid up share capital of a company can be said to be a preliminary or jurisdictional fact and the said fact would confer jurisdiction on the court to consider the question whether the provisions of the Rent Act were applicable and proceeded to consider whether on account of reduction of paid up share capital, jurisdictional fact did not exist and, therefore, the Rent Act was applicable. On the basis of judgment of the Supreme Court in Pasupuleti Venkates Work v. MotorGeneral Traders (1975) 1 SCC 770 , it was argued that it was obligatory on the courts below including the High Court to take into consideration subsequent events. In Pasupuleti, the Supreme Court was dealing with a suit for possession on the ground of personal requirement for starting business. A decree for possession was passed in favour of thewhich was confirmed by the appellate court. At the stage of revision, due to subsequent event of acquisition ofbuilding by thean application for amendment was made by thewhich was allowed by the High Court. It was contended before the Supreme Court that the High Court committed an error in taking cognizance of subsequent event. The Supreme Court held that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding, but if a fact arising after the lis has come to court has a fundamental impact on the right to relief or the manner of moulding it, the court cannot blink at it because equity justified bending the rules of procedure where no specific provisions or fairplay is violated with a view to promoting substantial justice subject to the absence of othercircumstances. The Supreme Court affirmed the proposition that for making the right or remedy claimed by the party just and meaningful the court can, and in many cases, must take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.In our opinion, the above observations of the Supreme Court are clearly attracted to the present case. No doubt, the court can take into account subsequent events. But in Pasupuleti, the Supreme Court has clarified that that has to be done on equitable considerations with a view to promoting substantial justice. In this case, the outstanding dues payable by the petitioners to respondent 1 as on 16/8/1999 are stated to be Rs.12,31,45,872/towards principal amount and Rs. 2,04,19,983/towards interest. There is no dispute about the fact that when respondent 1 filed the original application, the DRT had jurisdiction to entertain it. Respondent 1 had substantive right to claim the amount. It cannot be denied to it because it has surrendered its licence during the pendency of the original application. Surrender of the banking licence does not extinguish the petitioners liability. Respondent 1 cannot be denied relief because of the subsequent event since at the date of the institution of the suit, it had a substantive right to claim the relief. In any case, as observed by the Supreme Court, subsequent events may be taken into account to promote substantive justice and on equitable considerations. Surely, by ousting DRTs jurisdiction, there would be no promotion of substantial justice nor would that be equitable.

PSEB and Ors Vs. Kulwant Singh

BANUMATHI, J.1. Leave granted.2. The respondent-Kulwant Singh was employed as a daily-wager helper from April 1997 to April 1998 in the construction work with the appellant-Punjab State Power Supply Corporation Limited. His services were terminated in the year 1998. In the industrial dispute raised by the respondent-workman, the Industrial Tribunal held that the provisions of Section 25-F of the Industrial Disputes Act has not been complied with and on that ground the order of termination was set aside by the Industrial Tribunal and the respondent was directed to be reinstated with continuity of service along with 40% backwages.3. In the writ petition filed by the appellant-Corporation, the order of the Industrial Tribunal was affirmed by the Single Judge including the back-wages of 40%. In further appeal, the Division Bench of the High Court also upheld the order of the Single Judge as well as the Industrial Tribunal holding that there was non-compliance of Section 25-F of the Industrial Disputes Act.4. When the matter came up for hearing before this Court on 2 nd January, 2017, notice was issued limited to the question of payment of 40% back-wages. By the same order, this Court has directed that the respondent shall be reinstated forthwith and be paid all back-wages from 10th March, 2015.5. Mr. Satinder S. Gulati, learned counsel appearing for the appellant-Corporation, has submitted that in compliance of the said order, the respondent has been reinstated and paid backwages on 10th March, 2015.6. Despite service of notice, the respondent has not chosen to enter appearance. Accordingly, Mr. K. Parameshwar, Advocate, has been appointed as amicus to assist the Court.7. We have heard Mr. Satinder S. Gulati, learned counsel appearing for the appellant-Corporation and Mr. K. Parameshwar, learned amicus, and also perused the impugned judgment and the evidence/materials on record.8. In the case in hand, of course all the three fora have held that the respondent would be held entitled to 40% of the back-wages, it is well settled that whenever there was any violation of Section 25-F of the Industrial Disputes Act, payment of back-wages is not automatic (See: Rajasthan Lalit Kala Academy v. Radhey Shyam – (2008) 13 SCC 248 ). In this case, the respondent has been terminated way back in the year 1998. 40% back-wages from 2002 till 2015 for thirteen years would mean huge financial burden upon the appellantCorporation.

1[ds]8. In the case in hand, of course all the three fora have held that the respondent would be held entitled to 40% of the back-wages, it is well settled that whenever there was any violation of Section 25-F of the Industrial Disputes Act, payment of back-wages is not automatic (See: Rajasthan Lalit Kala Academy v. Radhey Shyam – (2008) 13 SCC 248 ). In this case, the respondent has been terminated way back in the year 1998. 40% back-wages from 2002 till 2015 for thirteen years would mean huge financial burden upon the appellantCorporation.

### 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: BANUMATHI, J.1. Leave granted.2. The respondent-Kulwant Singh was employed as a daily-wager helper from April 1997 to April 1998 in the construction work with the appellant-Punjab State Power Supply Corporation Limited. His services were terminated in the year 1998. In the industrial dispute raised by the respondent-workman, the Industrial Tribunal held that the provisions of Section 25-F of the Industrial Disputes Act has not been complied with and on that ground the order of termination was set aside by the Industrial Tribunal and the respondent was directed to be reinstated with continuity of service along with 40% backwages.3. In the writ petition filed by the appellant-Corporation, the order of the Industrial Tribunal was affirmed by the Single Judge including the back-wages of 40%. In further appeal, the Division Bench of the High Court also upheld the order of the Single Judge as well as the Industrial Tribunal holding that there was non-compliance of Section 25-F of the Industrial Disputes Act.4. When the matter came up for hearing before this Court on 2 nd January, 2017, notice was issued limited to the question of payment of 40% back-wages. By the same order, this Court has directed that the respondent shall be reinstated forthwith and be paid all back-wages from 10th March, 2015.5. Mr. Satinder S. Gulati, learned counsel appearing for the appellant-Corporation, has submitted that in compliance of the said order, the respondent has been reinstated and paid backwages on 10th March, 2015.6. Despite service of notice, the respondent has not chosen to enter appearance. Accordingly, Mr. K. Parameshwar, Advocate, has been appointed as amicus to assist the Court.7. We have heard Mr. Satinder S. Gulati, learned counsel appearing for the appellant-Corporation and Mr. K. Parameshwar, learned amicus, and also perused the impugned judgment and the evidence/materials on record.8. In the case in hand, of course all the three fora have held that the respondent would be held entitled to 40% of the back-wages, it is well settled that whenever there was any violation of Section 25-F of the Industrial Disputes Act, payment of back-wages is not automatic (See: Rajasthan Lalit Kala Academy v. Radhey Shyam – (2008) 13 SCC 248 ). In this case, the respondent has been terminated way back in the year 1998. 40% back-wages from 2002 till 2015 for thirteen years would mean huge financial burden upon the appellantCorporation. ### Response: 1 ### Explanation: 8. In the case in hand, of course all the three fora have held that the respondent would be held entitled to 40% of the back-wages, it is well settled that whenever there was any violation of Section 25-F of the Industrial Disputes Act, payment of back-wages is not automatic (See: Rajasthan Lalit Kala Academy v. Radhey Shyam – (2008) 13 SCC 248 ). In this case, the respondent has been terminated way back in the year 1998. 40% back-wages from 2002 till 2015 for thirteen years would mean huge financial burden upon the appellantCorporation.

C. Beepathumma & Others Vs. V.S. Kadambolithaya & Others

he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it:"(See Maitlands lectures on Equity Lecture18)The same principle is stated in White and Tudors Leading cases in Equity Vol, 1 8th Edn, at n. 444 as follows:"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both ...... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."18. The Indian courts have applied this doctrine in several cases and a reference to all of them is hardly necessary.We may, however, refer to a decision of the Madras High Court in Ramakottayya v. Viraraghavayya, ILR 52 Mad 556 : (AIR 1929 Mad 502 FB) where after referring to the passage quoted by us from White and Tudor, courts Trotter, G. J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial committee in Rangaswami Gounden v. Nachiappa Gounden, ILR 42 ) Mad 523: (AIR 1918 PC 196).Recently, this court has also considered the doctrine in Bhau Ram v. Baij Nath Singh, AIR 1961 SC 1327 .19. The short question is whether, in the words of the Scottish lawyers Kunhi Pakki can be said to have approbated Exs. P-1 and P-2(a) and therefore his successors-in-title cannot now reprobate them. In this connection, Exs. P-3 and P-4 quite clearly show that Kunhi Pakki considered that he was bound by Ex. P-2(a) and the mortgagors were bound by Ex. P-2. His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex. P-1. In Ex. P-3, he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufrucluary mortgage with a time limit) which indicated that the time limit imposed by Exs. P-2 and P-2(a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to the 3-16 share of Cheriamma but, to the entire 7-16 share of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs. P-6 and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2.Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through defendant 8.20. The next point that was urged was that the High Court and the Court below should not have awarded mesne profits against the appellants till they were paid the full price of redemption including the compensation for improvements. The trial court had found that an amount of Rs. 4,089-2-0 was due to defendant No. 8. This amount was increased by the High Court to Rs. 6,625-7-0. This was a substantial increase and even though the plaintiffs had earlier deposited the entire amount for redemption including the sum of Rs. 4,089-2-0, they cannot be said to have fulfilled the condition on which redemption was to be allowed to them, Under Ex. P-1 from which we have quoted the relevant passage earlier, it was agreed that the sum of 1250 varahas and the value of improvements would be paid in one lump sum. In the subsequent documents also the same term was included. The respondents contend that interest on the extra amount of compensation for improvement has been awarded by the High Court and this makes it equitable that the appellants should pay mesne profits for the period of their possession after the deposit of the amount found by the trial Judge in court. No question of equity really arises, because the mortgage had to be redeemed according to its own terms. The mortgagors undertook that they would redeed the properties by paying the principal of the mortgage amount and the compensation for improvements in a lump sum and cannot complain if the mortgagees are not compelled to hand over the property or to pay mesne profits till the mortgagors have paid the full amount. Both sides referred to certain cases which are really not in point because the facts were entirely different. It is not necessary to refer to them, because no principle can be gathered from them. In the present case, April 15, 1946 was fixed for redemption and the mortgagors put into court a sum of about Rs. 17,000/-. The appellate decree was passed on November 3, 1955 and possession was delivered in 1957. We were informed that a sum of Rs. ll,800/- per year was deposited in court by way of mesne profits.21. Now the mortgagees cannot claim to hold the lands and use the amount paid as price of redemption. Even if they were not required to hand over possession till the amount together with the compensation for improvements was paid in full to them, they could not have the use of the money as well.

1[ds]To understand this contention, it is necessary to give a short history of the Law of Limitation between the years 1842 and 1902. In 1842 when Ex.was executed there was no law prescribing a period of limitation for the redemption of a usufructuary mortgage such limit came in 1859 for the first time and a period of 60 years from the date of the mortgage was prescribed. it is this statute which seems to have been the cause for the execution of Exs.); the mortgagees were perhaps afraid that the mortgage could be redeemed at any time within 60 years from the date of the mortgage of 1842. The last date for redemption thus was 1902. By getting the term Certain for 40 years, the date for redemption was shifted by them to 1902 and redemption could not take place till that year. The mortgagors also benefited, because they obtained a release of some properties and received Rs. l00/in cash. The period of 60 years was repeated in the Act of 1871; but it contained a rider that if during the period of 60 years, there was an acknowledgment then the period would run from the date of that acknowledgment. Article 148 of the Limitation Act as it stands today was introduced by the Act of 1877. It makes the 60 years period run from the time when redemption isis no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it. This suit was filed in 1944 and the Act of 1877 governs it.There is no doubt that Kunhi Pakki was not directly bound by Exs.(a). Mr. Desai is right in contending that as Kunhi Pakki was a minor and no guardian signed on his behalf, Ex.(a) cannot be used to show either an acknowledgment by him or an extension of the term of the original usufructuarybinding Kunhi Pakki in this way, no question of extending the period of limitation or of acknowledgment arises, and S. 3 of the Limititation Act is not in the way because time would run only from 1902. This result follows because the mortgagors could not redeem the property including the share of Kunhi Pakki for 40 years from 1862.In this connection, Exs.quite clearly show that Kunhi Pakki considered that he was bound by Ex.and the mortgagors were bound by Ex.His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex.he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufrucluary mortgage with a time limit) which indicated that the time limit imposed by Exs.a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to theshare of Cheriamma but, to the entireshare of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs.and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex.in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex.was independent of Ex.and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through defendantquestion of equity really arises, because the mortgage had to be redeemed according to its own terms. The mortgagors undertook that they would redeed the properties by paying the principal of the mortgage amount and the compensation for improvements in a lump sum and cannot complain if the mortgagees are not compelled to hand over the property or to pay mesne profits till the mortgagors have paid the full amount. Both sides referred to certain cases which are really not in point because the facts were entirely different. It is not necessary to refer to them, because no principle can be gathered from them. In the present case, April 15, 1946 was fixed for redemption and the mortgagors put into court a sum of about Rs.The appellate decree was passed on November 3, 1955 and possession was delivered in 1957. We were informed that a sum of Rs. ll,800/per year was deposited in court by way of mesne profits.21. Now the mortgagees cannot claim to hold the lands and use the amount paid as price of redemption. Even if they were not required to hand over possession till the amount together with the compensation for improvements was paid in full to them, they could not have the use of the money as well.

### 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: he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it:"(See Maitlands lectures on Equity Lecture18)The same principle is stated in White and Tudors Leading cases in Equity Vol, 1 8th Edn, at n. 444 as follows:"Election is the obligation imposed upon a party by courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both ...... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument."18. The Indian courts have applied this doctrine in several cases and a reference to all of them is hardly necessary.We may, however, refer to a decision of the Madras High Court in Ramakottayya v. Viraraghavayya, ILR 52 Mad 556 : (AIR 1929 Mad 502 FB) where after referring to the passage quoted by us from White and Tudor, courts Trotter, G. J. observed that the principle is often put in another form that a person cannot approbate and reprobate the same transaction and he referred to the decision of the Judicial committee in Rangaswami Gounden v. Nachiappa Gounden, ILR 42 ) Mad 523: (AIR 1918 PC 196).Recently, this court has also considered the doctrine in Bhau Ram v. Baij Nath Singh, AIR 1961 SC 1327 .19. The short question is whether, in the words of the Scottish lawyers Kunhi Pakki can be said to have approbated Exs. P-1 and P-2(a) and therefore his successors-in-title cannot now reprobate them. In this connection, Exs. P-3 and P-4 quite clearly show that Kunhi Pakki considered that he was bound by Ex. P-2(a) and the mortgagors were bound by Ex. P-2. His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex. P-1. In Ex. P-3, he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufrucluary mortgage with a time limit) which indicated that the time limit imposed by Exs. P-2 and P-2(a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to the 3-16 share of Cheriamma but, to the entire 7-16 share of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs. P-6 and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex. P-2.Having in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex. P-1 was independent of Ex. P-2 and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through defendant 8.20. The next point that was urged was that the High Court and the Court below should not have awarded mesne profits against the appellants till they were paid the full price of redemption including the compensation for improvements. The trial court had found that an amount of Rs. 4,089-2-0 was due to defendant No. 8. This amount was increased by the High Court to Rs. 6,625-7-0. This was a substantial increase and even though the plaintiffs had earlier deposited the entire amount for redemption including the sum of Rs. 4,089-2-0, they cannot be said to have fulfilled the condition on which redemption was to be allowed to them, Under Ex. P-1 from which we have quoted the relevant passage earlier, it was agreed that the sum of 1250 varahas and the value of improvements would be paid in one lump sum. In the subsequent documents also the same term was included. The respondents contend that interest on the extra amount of compensation for improvement has been awarded by the High Court and this makes it equitable that the appellants should pay mesne profits for the period of their possession after the deposit of the amount found by the trial Judge in court. No question of equity really arises, because the mortgage had to be redeemed according to its own terms. The mortgagors undertook that they would redeed the properties by paying the principal of the mortgage amount and the compensation for improvements in a lump sum and cannot complain if the mortgagees are not compelled to hand over the property or to pay mesne profits till the mortgagors have paid the full amount. Both sides referred to certain cases which are really not in point because the facts were entirely different. It is not necessary to refer to them, because no principle can be gathered from them. In the present case, April 15, 1946 was fixed for redemption and the mortgagors put into court a sum of about Rs. 17,000/-. The appellate decree was passed on November 3, 1955 and possession was delivered in 1957. We were informed that a sum of Rs. ll,800/- per year was deposited in court by way of mesne profits.21. Now the mortgagees cannot claim to hold the lands and use the amount paid as price of redemption. Even if they were not required to hand over possession till the amount together with the compensation for improvements was paid in full to them, they could not have the use of the money as well. ### Response: 1 ### Explanation: To understand this contention, it is necessary to give a short history of the Law of Limitation between the years 1842 and 1902. In 1842 when Ex.was executed there was no law prescribing a period of limitation for the redemption of a usufructuary mortgage such limit came in 1859 for the first time and a period of 60 years from the date of the mortgage was prescribed. it is this statute which seems to have been the cause for the execution of Exs.); the mortgagees were perhaps afraid that the mortgage could be redeemed at any time within 60 years from the date of the mortgage of 1842. The last date for redemption thus was 1902. By getting the term Certain for 40 years, the date for redemption was shifted by them to 1902 and redemption could not take place till that year. The mortgagors also benefited, because they obtained a release of some properties and received Rs. l00/in cash. The period of 60 years was repeated in the Act of 1871; but it contained a rider that if during the period of 60 years, there was an acknowledgment then the period would run from the date of that acknowledgment. Article 148 of the Limitation Act as it stands today was introduced by the Act of 1877. It makes the 60 years period run from the time when redemption isis no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it. This suit was filed in 1944 and the Act of 1877 governs it.There is no doubt that Kunhi Pakki was not directly bound by Exs.(a). Mr. Desai is right in contending that as Kunhi Pakki was a minor and no guardian signed on his behalf, Ex.(a) cannot be used to show either an acknowledgment by him or an extension of the term of the original usufructuarybinding Kunhi Pakki in this way, no question of extending the period of limitation or of acknowledgment arises, and S. 3 of the Limititation Act is not in the way because time would run only from 1902. This result follows because the mortgagors could not redeem the property including the share of Kunhi Pakki for 40 years from 1862.In this connection, Exs.quite clearly show that Kunhi Pakki considered that he was bound by Ex.and the mortgagors were bound by Ex.His taking of the mortgage of the released properties clearly indicated that he accepted that the mortgagors were released from the obligations of Ex.he took the mortgage of the released properties for a period of 32 years which made the two mortgages run for an identical term, and that document referred to the earlier transaction as one under an Avadhi Illida Arwar (usufrucluary mortgage with a time limit) which indicated that the time limit imposed by Exs.a) was in his contemplation. In all subsequent documents, reference is to be found to the Illida Arwar and the reference is not only to theshare of Cheriamma but, to the entireshare of Kunhi Pakki, that is to say, his original share of 1/4 obtained by him through his father by Exs.and 3/16 share which he obtained later. In view of the fact that in this way, Kunhi Pakki obtained the enjoyment of the mortgage in respect of his 1/4 share for a period of 40 years certain, he must be taken to have elected to apply to his own 1/4 share the terms of Ex.in this way accepted benefit and thus approbated that document, neither he nor his successors could be heard to say that the mortgage in Ex.was independent of Ex.and that the limitation ran out on the lapse of 60 years from 1842. In our opinion, the doctrine of election was properly applied in respect of Kunhi Pakkis 1/4 share now in the possession of the present appellants through defendantquestion of equity really arises, because the mortgage had to be redeemed according to its own terms. The mortgagors undertook that they would redeed the properties by paying the principal of the mortgage amount and the compensation for improvements in a lump sum and cannot complain if the mortgagees are not compelled to hand over the property or to pay mesne profits till the mortgagors have paid the full amount. Both sides referred to certain cases which are really not in point because the facts were entirely different. It is not necessary to refer to them, because no principle can be gathered from them. In the present case, April 15, 1946 was fixed for redemption and the mortgagors put into court a sum of about Rs.The appellate decree was passed on November 3, 1955 and possession was delivered in 1957. We were informed that a sum of Rs. ll,800/per year was deposited in court by way of mesne profits.21. Now the mortgagees cannot claim to hold the lands and use the amount paid as price of redemption. Even if they were not required to hand over possession till the amount together with the compensation for improvements was paid in full to them, they could not have the use of the money as well.

Delhi Cloth & General Mills Co.Ltd Vs. State Of Rajasthan

should be deemed to come within the amendment made thereby, provided, of course, that it was of a kind that could so come. Reliance was placed by Mr Sorabjee also upon Udai Ram Sharma v. Union of India. In the case of State of M.P. v. Vishnu Prasad Sharma this Court had held that once a declaration under Section 6 of the Land Acquisition Act, 1894, had been made, the notification under Section 4(1) of the Act was exhausted and there could be no successive notifications under Section 6 with respect to land specified in one notifications under Section 4(1). A validating ordinance was promulgated to be succeeded by the Land Acquisition (Amendment and Validation) Act, 1967. The Amendment and Validation Act, 1967 amended Section 5-A of the principal Act to allow for the making of more than one report in respect of land which had been notified under Section 4(1). It also amended Section 6 so that different declarations made from time to time in respect of different parcels of land covered by the same notification under Section 4(1) were permissible. The Amendment and Validation Act, 1967, also validated all acquisitions which had been rendered invalid by reason of the judgment in V. P. Sharma case. The Amendment and Validation Act, 1967, was challenged. This Court rejected the challenge. It observed "All these decisions lay down that the power to legislate for validating actions taken under statute which were not sufficiently comprehensive for the purpose is only ancillary or subsidiary to legislate on any subject within the competence of the legislature and such Validating Acts cannot be struck down merely because courts of law have declared actions taken earlier to be invalid for want of jurisdiction. Nor is there any reason to hold that in order to validate action without legislative support the Validating Act must enact provisions to cure the defect for the future and also provide that all actions taken or notifications issued must be deemed to have been taken or issued under the new provisions so as to give them full retrospective effect." * 14. It is to be noted that in each of these two cases under the Land Acquisition Act, that Act was amended with retrospective effect. Under the amended Act, the acquisitions that had been rendered invalid by earlier judgments became valid and the validation was effected on the strength of such amendment. 15. In the case of the village of Raipura there was a preliminary notification calling for objections to the extension of the limits of the Kota Municipality to include it, but it was not followed by a final notification. In the case of the village of Ummedganj there was a notification extending the limits of the Kota Municipality to include it, but it had not been preceded by a notification inviting the objections of the public thereto. Later, another notification was published whereby the village of Ummedganj was excluded from the limits of the Kota Municipality. The provisions of Sections 4 to 7 of the 1959 Act and the earlier provisions of the 1951 Act in the same behalf were, therefore, not met in the case of either the village of Raipura or the village of Ummedganj. The Full Bench of the Rajasthan High Court has held that these provisions were mandatory and that judgment has become final. 16. The Validating Act provides that, notwithstanding anything contained in Sections 4 to 7 of 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes. This provision requires the deeming of the legal position that the villages of Raipura and Ummedganj fall within the limits of the Kota Municipality, not the deeming of facts from which this legal consequence would flow. A legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow. 17. Sections 4 to 7 remained on the statute book unamended when the Validating Act was passed. Their provisions were mandatory. They had admittedly not been followed. The defect of not following these mandatory provisions in the case of the villages of Raipura and Ummedganj was not cured by the Validating Act. The curing of the defect was an essential requirement for the passing of a valid validating statute, as held by the Constitution Bench in the case of Prithvi Cotton Mills Ltd. It must, therefore, be held that the Validating Act is bad in law and it must be struck down. 18. It must be made clear that in the suit that the appellants have filed in the court of the District Judge, Kota, for refund of the amount of octroi paid by them to the Kota Municipality, which is stated to be pending, it shall be open to the defendants to take every defence available to them other than that concluded by this judgment. 19. At the stage when special leave to appeal was granted, no stay was ordered except for the year 1974-75. Counsel on behalf of the Kota Municipality agreed that if the appeals were allowed and the Kota Municipality was required to refund the amount paid by the appellants by way of octroi duty, it would refund the same with interest at the rate of 8 per cent per annum. The time within which the refund would have to be made was left to be determined when the court heard and disposed of the appeals. The Kota Municipality is now directed to refund to the appellants the amounts of octroi duty paid by the appellants to it subsequent to the year amount 1974-75 with interest at the rate of 8 per cent per annum from the dates of payment till refund or realisation. Such refund shall be made on or before 15-7-1996.

1[ds]18. It must be made clear that in the suit that the appellants have filed in the court of the District Judge, Kota, for refund of the amount of octroi paid by them to the Kota Municipality, which is stated to be pending, it shall be open to the defendants to take every defence available to them other than that concluded by thisAt the stage when special leave to appeal was granted, no stay was ordered except for the year 1974-75. Counsel on behalf of the Kota Municipality agreed that if the appeals were allowed and the Kota Municipality was required to refund the amount paid by the appellants by way of octroi duty, it would refund the same with interest at the rate of 8 per cent per annum. The time within which the refund would have to be made was left to be determined when the court heard and disposed of the appeals. The Kota Municipality is now directed to refund to the appellants the amounts of octroi duty paid by the appellants to it subsequent to the year amount 1974-75 with interest at the rate of 8 per cent per annum from the dates of payment till refund or realisation. Such refund shall be made on or before 15-7-1996

### 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: should be deemed to come within the amendment made thereby, provided, of course, that it was of a kind that could so come. Reliance was placed by Mr Sorabjee also upon Udai Ram Sharma v. Union of India. In the case of State of M.P. v. Vishnu Prasad Sharma this Court had held that once a declaration under Section 6 of the Land Acquisition Act, 1894, had been made, the notification under Section 4(1) of the Act was exhausted and there could be no successive notifications under Section 6 with respect to land specified in one notifications under Section 4(1). A validating ordinance was promulgated to be succeeded by the Land Acquisition (Amendment and Validation) Act, 1967. The Amendment and Validation Act, 1967 amended Section 5-A of the principal Act to allow for the making of more than one report in respect of land which had been notified under Section 4(1). It also amended Section 6 so that different declarations made from time to time in respect of different parcels of land covered by the same notification under Section 4(1) were permissible. The Amendment and Validation Act, 1967, also validated all acquisitions which had been rendered invalid by reason of the judgment in V. P. Sharma case. The Amendment and Validation Act, 1967, was challenged. This Court rejected the challenge. It observed "All these decisions lay down that the power to legislate for validating actions taken under statute which were not sufficiently comprehensive for the purpose is only ancillary or subsidiary to legislate on any subject within the competence of the legislature and such Validating Acts cannot be struck down merely because courts of law have declared actions taken earlier to be invalid for want of jurisdiction. Nor is there any reason to hold that in order to validate action without legislative support the Validating Act must enact provisions to cure the defect for the future and also provide that all actions taken or notifications issued must be deemed to have been taken or issued under the new provisions so as to give them full retrospective effect." * 14. It is to be noted that in each of these two cases under the Land Acquisition Act, that Act was amended with retrospective effect. Under the amended Act, the acquisitions that had been rendered invalid by earlier judgments became valid and the validation was effected on the strength of such amendment. 15. In the case of the village of Raipura there was a preliminary notification calling for objections to the extension of the limits of the Kota Municipality to include it, but it was not followed by a final notification. In the case of the village of Ummedganj there was a notification extending the limits of the Kota Municipality to include it, but it had not been preceded by a notification inviting the objections of the public thereto. Later, another notification was published whereby the village of Ummedganj was excluded from the limits of the Kota Municipality. The provisions of Sections 4 to 7 of the 1959 Act and the earlier provisions of the 1951 Act in the same behalf were, therefore, not met in the case of either the village of Raipura or the village of Ummedganj. The Full Bench of the Rajasthan High Court has held that these provisions were mandatory and that judgment has become final. 16. The Validating Act provides that, notwithstanding anything contained in Sections 4 to 7 of 1959 Act or in any judgment, decree, order or direction of any court, the villages of Raipura and Ummedganj should be deemed always to have continued to exist and they continue to exist within the limits of the Kota Municipality, to all intents and for all purposes. This provision requires the deeming of the legal position that the villages of Raipura and Ummedganj fall within the limits of the Kota Municipality, not the deeming of facts from which this legal consequence would flow. A legal consequence cannot be deemed nor, therefrom, can the events that should have preceded it. Facts may be deemed and, therefrom, the legal consequences that follow. 17. Sections 4 to 7 remained on the statute book unamended when the Validating Act was passed. Their provisions were mandatory. They had admittedly not been followed. The defect of not following these mandatory provisions in the case of the villages of Raipura and Ummedganj was not cured by the Validating Act. The curing of the defect was an essential requirement for the passing of a valid validating statute, as held by the Constitution Bench in the case of Prithvi Cotton Mills Ltd. It must, therefore, be held that the Validating Act is bad in law and it must be struck down. 18. It must be made clear that in the suit that the appellants have filed in the court of the District Judge, Kota, for refund of the amount of octroi paid by them to the Kota Municipality, which is stated to be pending, it shall be open to the defendants to take every defence available to them other than that concluded by this judgment. 19. At the stage when special leave to appeal was granted, no stay was ordered except for the year 1974-75. Counsel on behalf of the Kota Municipality agreed that if the appeals were allowed and the Kota Municipality was required to refund the amount paid by the appellants by way of octroi duty, it would refund the same with interest at the rate of 8 per cent per annum. The time within which the refund would have to be made was left to be determined when the court heard and disposed of the appeals. The Kota Municipality is now directed to refund to the appellants the amounts of octroi duty paid by the appellants to it subsequent to the year amount 1974-75 with interest at the rate of 8 per cent per annum from the dates of payment till refund or realisation. Such refund shall be made on or before 15-7-1996. ### Response: 1 ### Explanation: 18. It must be made clear that in the suit that the appellants have filed in the court of the District Judge, Kota, for refund of the amount of octroi paid by them to the Kota Municipality, which is stated to be pending, it shall be open to the defendants to take every defence available to them other than that concluded by thisAt the stage when special leave to appeal was granted, no stay was ordered except for the year 1974-75. Counsel on behalf of the Kota Municipality agreed that if the appeals were allowed and the Kota Municipality was required to refund the amount paid by the appellants by way of octroi duty, it would refund the same with interest at the rate of 8 per cent per annum. The time within which the refund would have to be made was left to be determined when the court heard and disposed of the appeals. The Kota Municipality is now directed to refund to the appellants the amounts of octroi duty paid by the appellants to it subsequent to the year amount 1974-75 with interest at the rate of 8 per cent per annum from the dates of payment till refund or realisation. Such refund shall be made on or before 15-7-1996

Sumitra Devi Vs. Shri Sheo Shanker Prasad Yadav & Ors

careful consideration of the evidence of the witnesses found, that the allegations in the election petitions were vague and that evidence adduced to prove them was unreliable, and so, dismissed the petition.6. The appellant submitted before us that the evidence of the witnesses examined by her would prove the several illegalities alleged to have been committed in the counting of the ballot papers and that, in any event, the appellants application for inspection should have been allowed.7. We are satisfied that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct perspective. It has been the consistent practice of this Court not to interfere with findings on questions of fact unless there is some grave or palpable error in the appreciation of the evidence on the basis of which the findings were arrived at (see Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 ).8. We also think that there is no substance in the contention of the appellant that the High Court was in error in rejecting her application for inspection of the ballot papers. As already stated, the High Court rejected the application for the reason that the allegations in the election petition were vague and that the petition did not contain an adequate statement of the material facts. In Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 = (AIR 1964 SC 1249 ) this Court said that an order for inspection would not be granted as a matter of course: that having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection only where the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and it is necessary to decide the dispute and to do complete justice between the parties. The Court also said that an order for inspection of ballot papers would not be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The Court emphasized that mere allegations that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. In AIR 1966 SC 773 at p. 783 this Court again said that an election petition should contain a concise statement of the material facts on which the petitioner relies, that vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted, would not serve the purpose and that an application made for the inspection of ballot boxes must give material facts which would enable the tribunal to consider whether, in the interests of justice, the ballot boxes should be inspected or not. The Court further said that in dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored and that, it has always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. The Court emphasized that in some cases, the ends of justice would make it necessary for the tribunal or Court to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void.9. In Jitendra Bahadur Singh v. Krishna Behari, (1970) 1 SCR 852 = (AIR 1970 SC 276 ) this Court observed that in view of the importance of maintaining the secrecy of the ballot papers, scrutiny can only be ordered if the election-petition contains an adequate statement of the material facts on which the petitioner relies, that is, the material facts disclosed must afford an adequate basis for the allegations; and, the election tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.10. In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter or right but only on the basis of evidence of goods grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.11. Counsel for the appellant relied on Bhim Sen v. Gopali, (1961) 22 Ele LR 288 (SC) and contended that an inspection of the ballot papers should be granted even if no prima facie case has been made out by the allegations in the election petition. That case was considered by this Court in (1964) 6 SCR 238 = (AIR 1964 SC 1249 ) and the Court was of the view that unless an election petition contains an adequate statement of the material facts, an election tribunal would not be justified in ordering an inspection of the ballot papers. As the appellant did not make out a case for inspection, the High Court was justified in dismissing the application. In these circumstances, we do not think that there is any substance in the prayer of the appellant for a recount of the votes.12

0[ds]10. In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter or right but only on the basis of evidence of goods grounds for believing that there has been a mistake in the counting.It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.Counsel for the appellant relied on Bhim Sen v. Gopali, (1961) 22 Ele LR 288 (SC) and contended that an inspection of the ballot papers should be granted even if no prima facie case has been made out by the allegations in the election petition. That case was considered by this Court in (1964) 6 SCR 238 = (AIR 1964 SC 1249 ) and the Court was of the view that unless an election petition contains an adequate statement of the material facts, an election tribunal would not be justified in ordering an inspection of the ballot papers. As the appellant did not make out a case for inspection, the High Court was justified in dismissing the application. In these circumstances, we do not think that there is any substance in the prayer of the appellant for a recount of the votes.

### 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: careful consideration of the evidence of the witnesses found, that the allegations in the election petitions were vague and that evidence adduced to prove them was unreliable, and so, dismissed the petition.6. The appellant submitted before us that the evidence of the witnesses examined by her would prove the several illegalities alleged to have been committed in the counting of the ballot papers and that, in any event, the appellants application for inspection should have been allowed.7. We are satisfied that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct perspective. It has been the consistent practice of this Court not to interfere with findings on questions of fact unless there is some grave or palpable error in the appreciation of the evidence on the basis of which the findings were arrived at (see Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 ).8. We also think that there is no substance in the contention of the appellant that the High Court was in error in rejecting her application for inspection of the ballot papers. As already stated, the High Court rejected the application for the reason that the allegations in the election petition were vague and that the petition did not contain an adequate statement of the material facts. In Ram Sewak Yadav v. Hussain Kamil Kidwai, (1964) 6 SCR 238 = (AIR 1964 SC 1249 ) this Court said that an order for inspection would not be granted as a matter of course: that having regard to the insistence upon the secrecy of the ballot papers, the Court would be justified in granting an order for inspection only where the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support of his case and it is necessary to decide the dispute and to do complete justice between the parties. The Court also said that an order for inspection of ballot papers would not be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas. The Court emphasized that mere allegations that the petitioner suspects or believes that there has been an improper reception, refusal or rejection of votes will not be sufficient to support an order for inspection. In AIR 1966 SC 773 at p. 783 this Court again said that an election petition should contain a concise statement of the material facts on which the petitioner relies, that vague or general allegations that valid votes were improperly rejected or invalid votes were improperly accepted, would not serve the purpose and that an application made for the inspection of ballot boxes must give material facts which would enable the tribunal to consider whether, in the interests of justice, the ballot boxes should be inspected or not. The Court further said that in dealing with this question, the importance of the secrecy of the ballot papers cannot be ignored and that, it has always to be borne in mind that the statutory rules framed under the Act are intended to provide adequate safeguard for the examination of the validity or invalidity of votes and for their proper counting. The Court emphasized that in some cases, the ends of justice would make it necessary for the tribunal or Court to allow a party to inspect the ballot boxes and consider his objections about the improper acceptance or improper rejection of votes tendered by voters at any given election; but in considering the requirements of justice, care must be taken to see that election petitioners do not get a chance to make a roving or fishing enquiry in the ballot boxes so as to justify their claim that the returned candidates election is void.9. In Jitendra Bahadur Singh v. Krishna Behari, (1970) 1 SCR 852 = (AIR 1970 SC 276 ) this Court observed that in view of the importance of maintaining the secrecy of the ballot papers, scrutiny can only be ordered if the election-petition contains an adequate statement of the material facts on which the petitioner relies, that is, the material facts disclosed must afford an adequate basis for the allegations; and, the election tribunal must be prima facie satisfied that in order to decide the dispute and to do complete justice between the parties, inspection of the ballot papers is necessary.10. In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter or right but only on the basis of evidence of goods grounds for believing that there has been a mistake in the counting. It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.11. Counsel for the appellant relied on Bhim Sen v. Gopali, (1961) 22 Ele LR 288 (SC) and contended that an inspection of the ballot papers should be granted even if no prima facie case has been made out by the allegations in the election petition. That case was considered by this Court in (1964) 6 SCR 238 = (AIR 1964 SC 1249 ) and the Court was of the view that unless an election petition contains an adequate statement of the material facts, an election tribunal would not be justified in ordering an inspection of the ballot papers. As the appellant did not make out a case for inspection, the High Court was justified in dismissing the application. In these circumstances, we do not think that there is any substance in the prayer of the appellant for a recount of the votes.12 ### Response: 0 ### Explanation: 10. In the case at hand, the allegations in the election petition were vague and the petition did not contain an adequate statement of the material facts. The evidence adduced by the appellant to prove the allegations was found unreliable. No definite particulars were also given in the application for inspection as to the illegalities alleged to have been committed in the counting of the ballot papers. A recount will not be granted as a matter or right but only on the basis of evidence of goods grounds for believing that there has been a mistake in the counting.It has to be decided in each case whether a prima facie ground has been made out for ordering an inspection.Counsel for the appellant relied on Bhim Sen v. Gopali, (1961) 22 Ele LR 288 (SC) and contended that an inspection of the ballot papers should be granted even if no prima facie case has been made out by the allegations in the election petition. That case was considered by this Court in (1964) 6 SCR 238 = (AIR 1964 SC 1249 ) and the Court was of the view that unless an election petition contains an adequate statement of the material facts, an election tribunal would not be justified in ordering an inspection of the ballot papers. As the appellant did not make out a case for inspection, the High Court was justified in dismissing the application. In these circumstances, we do not think that there is any substance in the prayer of the appellant for a recount of the votes.

Dental Council of India Vs. Anhad Raj Singh & Another

migration without deviation therefrom, the request of applicant for migration from MNDA Dental College, Solan to Baba Jaswant Singh Dental College, Ludhiana in 2nd year BDS course may not be acceded to.With the above, the decision of the Executive Committee of the DCI is communicated to you for your information and ready reference.Yours faithfully,(Dr.Sabyasachi Saha)SecretaryDental Council of India."2. The learned Single Judge after adverting to the aforementioned communication, opined that the decision of the Dental Council of India was unexceptionable. Accordingly, the writ petition was dismissed by the learned Single Judge vide judgment and order dated 25.4.2017. The respondent No.1 filed Letters Patent Appeal, bearing LPA No.336/2017 against the said decision. Additionally, the respondent No.1 filed interlocutory application, bearing C.M. No.2190/2017 to allow the appellant to join second year BDS Course at Baba Jaswant Singh Dental College, Ludhiana. The Division Bench while issuing notice on the Letters Patent Appeal vide impugned judgment dated 31.05.2017, granted interim direction permitting respondent No.1 to join the second year BDS Course in the Dental College situated at Ludhiana, i.e. Baba Jaswant Singh Dental College, Ludhiana and for appearing in the supplementary examination, which would be subject to the outcome of the appeal.3. This interim order passed by the Division Bench of the High Court is the subject matter of this appeal. This Court while issuing notice on 9.10.2017, in the appeal, stayed the operation of the impugned order. Pursuant to the notice, the respondent No.1 has appeared and would submit that the direction issued by the Division Bench is just and proper. It being a discretionary order, the Court should be loath to interfere with the same. The respondent No.1 has placed reliance on the medical record which is indicative of the fact that he is suffering from Asthama. According to respondent No.1, the appellant had no objection for migration of other students similarly placed, from one University to another. In the present case, no objection has been issued by the Institution at Solan where the respondent No.1 has been admitted and is pursuing the BDS Course as also by the Institution at Ludhiana. No prejudice will be caused to the appellant. Further, the Division Bench was satisfied that irreparable loss will be caused to respondent No.1.4. The learned counsel for the appellant, on the other hand, contends that the Division Bench has exceeded its jurisdiction in passing a mandatory order in the guise of interim relief. That has been passed without considering the objections of the appellant including that such transfer is not permissible in terms of Revised BDS Course Regulation, 2007. He submits that the issue of migration is governed by clause IV of the Regulation which reads thus:"IV. Migration:(1)Migration from one dental college to another is not a right of a student. However, migration of students from one dental college to another dental college in India may be considered by the Dental Council of India. Only in exceptional cases on extreme compassionate grounds, provided the following criteria are fulfilled. Routine migrations on other ground shall not be allowed.(2) Both the colleges, i.e. one at which the student is studying at present and one to which migration is sought, are recognised by the Dental Council of India.(3) The applicant candidate should have passed first professional BDS examination.(4) The applicant candidate submits his application for migration, complete in all respects, to all authorities concerned within a period of one month of passing (declaration of results) the first professional Bachelor of Dental Surgery (BDS) examination.(5) The applicant candidate must submit an affidavit stating that he/she will pursue 240 days of prescribed study before appearing at IInd professional Bachelor of Dental Surgery (BDS) examination at the transferee dental college, which should be duly certified by the Registrar of the concerned University in which he/she is seeking transfer. The transfer will be applicable only after receipt of the affidavit.Note 1:(i) Migration is permitted only in the beginning of IInd year BDS Course in recognised Institutions.(ii) All applications for migration shall be referred to Dental Council of India by the college authorities. No Institution/University shall allow migration directly without the prior approval of the Council.(iii) Council reserves the right not to entertain any application which is not under the prescribed compassionate grounds and also to take independent decisions where applicant has been allowed to migrate without referring the same to the Council.Note 2: Compassionate ground criteria:(i) Death of supporting guardian.(ii) Disturbed conditions as declared by Government in the Dental College area."He has also invited our attention to the decisions of this Court which have expounded that such transfer can be only in exceptional situation and that it is not a right of the student. See: Medical Council of India v. Sarang and Ors., (2001) 8 SCC 427 and Shirish Govind Prabhudesai v. State of Maharashtra and Ors., (1993) 1 SCC 211. 5. We have heard Mr. Gaurav Sharma, learned counsel appearing for the appellant and Mr. Siddharth Luthra, learned senior counsel appearing for the respondents.6. After considering the rival submissions we are disposed to accept the argument of the appellant that the nature of interim order passed by the Division Bench of the High Court is nothing short of a mandatory order. For, direction has been given to the appellant during the pendency of the appeal and more so, without even briefly adjudicating the concerns and objections of the appellant about the impermissibility of migration. We find that the High Court has not even adverted to the aspects noted by the appellant in the communication sent to the respondent No.1 whilst rejecting the request for migration. The said communication has been reproduced in its entirety in the earlier part of this judgment. Besides, the Division Bench has also not considered the efficacy of Regulation IV of the Regulation, 2007 and the two decisions of this Court referred to earlier. It is not necessary for us to examine the merits of the controversy required to be decided in the Letters Patent Appeal pending before the Delhi High Court.

1[ds]6. After considering the rival submissions we are disposed to accept the argument of the appellant that the nature of interim order passed by the Division Bench of the High Court is nothing short of a mandatory order. For, direction has been given to the appellant during the pendency of the appeal and more so, without even briefly adjudicating the concerns and objections of the appellant about the impermissibility of migration. We find that the High Court has not even adverted to the aspects noted by the appellant in the communication sent to the respondent No.1 whilst rejecting the request for migration. The said communication has been reproduced in its entirety in the earlier part of this judgment. Besides, the Division Bench has also not considered the efficacy of Regulation IV of the Regulation, 2007 and the two decisions of this Court referred to earlier. It is not necessary for us to examine the merits of the controversy required to be decided in the Letters Patent Appeal pending before the Delhi High Court.

### 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: migration without deviation therefrom, the request of applicant for migration from MNDA Dental College, Solan to Baba Jaswant Singh Dental College, Ludhiana in 2nd year BDS course may not be acceded to.With the above, the decision of the Executive Committee of the DCI is communicated to you for your information and ready reference.Yours faithfully,(Dr.Sabyasachi Saha)SecretaryDental Council of India."2. The learned Single Judge after adverting to the aforementioned communication, opined that the decision of the Dental Council of India was unexceptionable. Accordingly, the writ petition was dismissed by the learned Single Judge vide judgment and order dated 25.4.2017. The respondent No.1 filed Letters Patent Appeal, bearing LPA No.336/2017 against the said decision. Additionally, the respondent No.1 filed interlocutory application, bearing C.M. No.2190/2017 to allow the appellant to join second year BDS Course at Baba Jaswant Singh Dental College, Ludhiana. The Division Bench while issuing notice on the Letters Patent Appeal vide impugned judgment dated 31.05.2017, granted interim direction permitting respondent No.1 to join the second year BDS Course in the Dental College situated at Ludhiana, i.e. Baba Jaswant Singh Dental College, Ludhiana and for appearing in the supplementary examination, which would be subject to the outcome of the appeal.3. This interim order passed by the Division Bench of the High Court is the subject matter of this appeal. This Court while issuing notice on 9.10.2017, in the appeal, stayed the operation of the impugned order. Pursuant to the notice, the respondent No.1 has appeared and would submit that the direction issued by the Division Bench is just and proper. It being a discretionary order, the Court should be loath to interfere with the same. The respondent No.1 has placed reliance on the medical record which is indicative of the fact that he is suffering from Asthama. According to respondent No.1, the appellant had no objection for migration of other students similarly placed, from one University to another. In the present case, no objection has been issued by the Institution at Solan where the respondent No.1 has been admitted and is pursuing the BDS Course as also by the Institution at Ludhiana. No prejudice will be caused to the appellant. Further, the Division Bench was satisfied that irreparable loss will be caused to respondent No.1.4. The learned counsel for the appellant, on the other hand, contends that the Division Bench has exceeded its jurisdiction in passing a mandatory order in the guise of interim relief. That has been passed without considering the objections of the appellant including that such transfer is not permissible in terms of Revised BDS Course Regulation, 2007. He submits that the issue of migration is governed by clause IV of the Regulation which reads thus:"IV. Migration:(1)Migration from one dental college to another is not a right of a student. However, migration of students from one dental college to another dental college in India may be considered by the Dental Council of India. Only in exceptional cases on extreme compassionate grounds, provided the following criteria are fulfilled. Routine migrations on other ground shall not be allowed.(2) Both the colleges, i.e. one at which the student is studying at present and one to which migration is sought, are recognised by the Dental Council of India.(3) The applicant candidate should have passed first professional BDS examination.(4) The applicant candidate submits his application for migration, complete in all respects, to all authorities concerned within a period of one month of passing (declaration of results) the first professional Bachelor of Dental Surgery (BDS) examination.(5) The applicant candidate must submit an affidavit stating that he/she will pursue 240 days of prescribed study before appearing at IInd professional Bachelor of Dental Surgery (BDS) examination at the transferee dental college, which should be duly certified by the Registrar of the concerned University in which he/she is seeking transfer. The transfer will be applicable only after receipt of the affidavit.Note 1:(i) Migration is permitted only in the beginning of IInd year BDS Course in recognised Institutions.(ii) All applications for migration shall be referred to Dental Council of India by the college authorities. No Institution/University shall allow migration directly without the prior approval of the Council.(iii) Council reserves the right not to entertain any application which is not under the prescribed compassionate grounds and also to take independent decisions where applicant has been allowed to migrate without referring the same to the Council.Note 2: Compassionate ground criteria:(i) Death of supporting guardian.(ii) Disturbed conditions as declared by Government in the Dental College area."He has also invited our attention to the decisions of this Court which have expounded that such transfer can be only in exceptional situation and that it is not a right of the student. See: Medical Council of India v. Sarang and Ors., (2001) 8 SCC 427 and Shirish Govind Prabhudesai v. State of Maharashtra and Ors., (1993) 1 SCC 211. 5. We have heard Mr. Gaurav Sharma, learned counsel appearing for the appellant and Mr. Siddharth Luthra, learned senior counsel appearing for the respondents.6. After considering the rival submissions we are disposed to accept the argument of the appellant that the nature of interim order passed by the Division Bench of the High Court is nothing short of a mandatory order. For, direction has been given to the appellant during the pendency of the appeal and more so, without even briefly adjudicating the concerns and objections of the appellant about the impermissibility of migration. We find that the High Court has not even adverted to the aspects noted by the appellant in the communication sent to the respondent No.1 whilst rejecting the request for migration. The said communication has been reproduced in its entirety in the earlier part of this judgment. Besides, the Division Bench has also not considered the efficacy of Regulation IV of the Regulation, 2007 and the two decisions of this Court referred to earlier. It is not necessary for us to examine the merits of the controversy required to be decided in the Letters Patent Appeal pending before the Delhi High Court. ### Response: 1 ### Explanation: 6. After considering the rival submissions we are disposed to accept the argument of the appellant that the nature of interim order passed by the Division Bench of the High Court is nothing short of a mandatory order. For, direction has been given to the appellant during the pendency of the appeal and more so, without even briefly adjudicating the concerns and objections of the appellant about the impermissibility of migration. We find that the High Court has not even adverted to the aspects noted by the appellant in the communication sent to the respondent No.1 whilst rejecting the request for migration. The said communication has been reproduced in its entirety in the earlier part of this judgment. Besides, the Division Bench has also not considered the efficacy of Regulation IV of the Regulation, 2007 and the two decisions of this Court referred to earlier. It is not necessary for us to examine the merits of the controversy required to be decided in the Letters Patent Appeal pending before the Delhi High Court.

Municipal Corporation Jabalpur & Another Vs. Soorji Bhanji Keniya

of the appeals, they were not disposed of, and ultimately the High Court had to hear the petition and dispose it of in March, 1971. 12. We find no substance in this appeal. It is not disputed that the goods imported within the octroi limits by the respondent fall within the following description "(a) Steel iron and mild steel section including plates, bars G. I. and black sheets and other iron and steel manufactures and (b) spares and component parts of machinery." 13. Both these items are liable to pay octroi not in excess of two annas per maund by reason of Government Notification No. 3821/179/M. XIII dated July 12, 1954. That notification was issued by the State Government under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948.The sub-section provided that the State Government may, by rules made under the Act, regulate the imposition, assessment and collection of taxes under Section 120 and specify maximum amounts of rates for any tax and for preventing evasion of assessment and payment of taxes. The notification specified the maximum amount of rate for octroi in respect of specified goods. Therefore, any imposition of the tax by the Municipality under Section 120 (1) which exceeded the limits prescribed by the notification would be obviously bad. The Corporation had not imposed directly any tax under Section 120 (1) of the Act, but had purported to impose the tax as authorised by the rules made by the Municipality under the Central Provinces and Berar Act, 1922 on 14-5-1943. Those rules, it was contended, prescribed the ad valorem rate of Rs. 2/5/6 per cent on such goods, and continued to remain in force by virtue of Section 3 (2) of the City of Jubbulpore Corporation Act, 1948.That is undoubtedly true. The taxes imposed by the Municipality under section 66 (1) of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force as if they were imposed under the new Act under Section 120 (1). But even as the taxes would continue to be in force under Section 120 (1), the notification issued by the State Government on 29-4-1950 under sub-section (2) of section 66 of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force under sub-section (3) of Section 120 of the City of Jubbulpore Corporation Act, 1948, r/w Section 3 (2) of that Act. The notification had clearly prescribed the maximum octroi for these goods as annas two per maund. Hence side by side we had two orders with regard to the imposition and levy of octroi on these goods. One was the imposition made by the Municipality under Section 120 (1) of the City of Jubbulpore Corporation Act which prescribed an ad valorem rate and, the other was the notification issued by the State Government prescribing the maximum rate for octroi which could be imposed. In the case of conflict between the two it is obvious that the maximum prescribed by the State Government would hold the field. The notification issued by the State Government either under Section 66 (2) of the Central Provinces and Berar Municipality Act, 1922 or under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948 or under S. 132 (6) of the Madhya Pradesh Municipal Corporation Act, 1956 after its application to Jubbulpore in 1961 would be binding upon the Municipal Corporation and any tax imposed by it exceeding that limit would be invalid. 14. That position was not seriously contested before us. Mr. Mukherjee, on behalf of the appellant Corporation, however, attempted to contend that these two notifications of the State Government dated 29-4-1950 and 12-7-1954 were ultra vires of the powers of the State Government. It is rather difficult to understand this contention. The Corporation was the respondent in the High Court and it does not appear that at any time it had sought to challenge these notifications issued by the State Government. The point was not argued before the High Court and it is difficult to see how in the absence of the State Government as a party to the proceeding such a contention could at all be taken. We did not, therefore, permit Mr. Mukherjee to argue that the above notifications were ultra vires of the powers of the State Government. 15. It was then contended by Mr. Mukherjee that the form in which the mandamus has been issued would require him to charge octroi at the rate of two annas per maund for all time. He submits that when the Writ Petition was pending in the High Court the State Government had issued a notification dated 27-9-1968 whereby it had fixed the octroi rate of Rupees 2.35 p. per cent ad valorem on similar goods and therefore, at least from that date the two annas per maund rule must be deemed to have been abrogated. We are not concerned with that contention now. It does not appear from the judgment that the attention of the High Court was invited to any such notification issued by the State Government. The Writ Petition had been filed in 1965 and the complaint was that octroi was being imposed upon goods at a rate in excess of the maximum prescribed by the State Government at that time. The High Court was concerned with that limited question and not with the question whether at some future date it was not open to the State Government to fix another rate as the maximum. We are also not concerned with the same. If, after 1965, octroi was levied at a higher rate, merchants would be liable to pay octroi at that rate, provided, always, the levy was legal and valid. But so far as the petition itself was concerned the complaint made by the respondent in the High Court was well-founded viz. that octroi was being charged at a rate in excess of the maximum permitted by the State Government. On that finding the mandamus was rightly issued.

0[ds]12. We find no substance in this appeal. It is not disputed that the goods imported within the octroi limits by the respondent fall within the following description "(a) Steel iron and mild steel section including plates, bars G. I. and black sheets and other iron and steel manufactures and (b) spares and component parts of machinery."13. Both these items are liable to pay octroi not in excess of two annas per maund by reason of Government Notification No. 3821/179/M.I datedJuly 12, 1954. That notification was issued by the State Government under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948.Then provided that the State Government may, by rules made under the Act, regulate the imposition, assessment and collection of taxes under Section120and specify maximum amounts of rates for any taxand for preventing evasion of assessment and payment of taxes. The notification specified the maximum amount of rate for octroi in respect of specified goods. Therefore, any imposition of the tax by the Municipality under Section120(1) which exceeded the limits prescribed by the notification would be obviously bad. The Corporation had not imposed directly any tax under Section120(1) of the Act, but had purported to impose the tax as authorised by the rules made by the Municipality under the Central Provinces and Berar Act, 1922 on. Those rules, it was contended, prescribed the ad valorem rate of Rs. 2/5/6 per cent on such goods, and continued to remain in force by virtue of Section 3 (2) of the City of Jubbulpore Corporation Act, 1948.That is undoubtedly true. The taxes imposed by the Municipality under section 66 (1) of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force as if they were imposed under the new Act under Section120(1). But even as the taxes would continue to be in force under Section120(1), the notification issued by the State Government on0 undern (2) of section 66 of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force undern (3) of Section120of the City of Jubbulpore Corporation Act, 1948, r/w Section 3 (2) of that Act. The notification had clearly prescribed the maximum octroi for these goods as annas two per maund. Hence side by side we had two orders with regard to the imposition and levy of octroi on these goods. One was the imposition made by the Municipality under Section120(1) of the City of Jubbulpore Corporation Act which prescribed an ad valorem rate and, the other was the notification issued by the State Government prescribing the maximum rate for octroi which could be imposed. In the case of conflict between the two it is obvious that the maximum prescribed by the State Government would hold the field. The notification issued by the State Government either under Section 66 (2) of the Central Provinces and Berar Municipality Act, 1922 or under Section120(3) of the City of Jubbulpore Corporation Act, 1948 or under S. 132 (6) of the Madhya Pradesh Municipal Corporation Act, 1956 after its application to Jubbulpore in 1961 would be binding upon the Municipal Corporation and any tax imposed by it exceeding that limit would be invalid14. That position was not seriously contested before us.Mr. Mukherjee, on behalf of the appellant Corporation, however, attempted to contend that these two notifications of the State Government dated0 and4 were ultra vires of the powers of the StateGovernment.It is rather difficult to understand this contention. The Corporation was the respondent in the High Court and it does not appear that at any time it had sought to challenge these notifications issued by the StateGovernment.15. It was then contended by Mr. Mukherjee that the form in which the mandamus has been issued would require him to charge octroi at the rate of two annas per maund for all time. He submits that when the Writ Petition was pending in the High Court the State Government had issued a notification dated8 whereby it had fixed the octroi rate of Rupees 2.35 p. per cent ad valorem on similar goods and therefore, at least from that date the two annas per maund rule must be deemed to have been abrogated.We are not concerned with that contention now. It does not appear from the judgment that the attention of the High Court was invited to any such notification issued by the StateGovernment.The Writ Petition had been filed in 1965 and the complaint was that octroi was being imposed upon goods at a rate in excess of the maximum prescribed by the State Government at that time. The High Court was concerned with that limited question and not with the question whether at some future date it was not open to the State Government to fix another rate as the maximum. We are also not concerned with the same. If, after 1965, octroi was levied at a higher rate, merchants would be liable to pay octroi at that rate, provided, always, the levy was legal and valid. But so far as the petition itself was concerned the complaint made by the respondent in the High Court wasd viz. that octroi was being charged at a rate in excess of the maximum permitted by the StateGovernment.On that finding the mandamus was rightly issued.

### 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: of the appeals, they were not disposed of, and ultimately the High Court had to hear the petition and dispose it of in March, 1971. 12. We find no substance in this appeal. It is not disputed that the goods imported within the octroi limits by the respondent fall within the following description "(a) Steel iron and mild steel section including plates, bars G. I. and black sheets and other iron and steel manufactures and (b) spares and component parts of machinery." 13. Both these items are liable to pay octroi not in excess of two annas per maund by reason of Government Notification No. 3821/179/M. XIII dated July 12, 1954. That notification was issued by the State Government under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948.The sub-section provided that the State Government may, by rules made under the Act, regulate the imposition, assessment and collection of taxes under Section 120 and specify maximum amounts of rates for any tax and for preventing evasion of assessment and payment of taxes. The notification specified the maximum amount of rate for octroi in respect of specified goods. Therefore, any imposition of the tax by the Municipality under Section 120 (1) which exceeded the limits prescribed by the notification would be obviously bad. The Corporation had not imposed directly any tax under Section 120 (1) of the Act, but had purported to impose the tax as authorised by the rules made by the Municipality under the Central Provinces and Berar Act, 1922 on 14-5-1943. Those rules, it was contended, prescribed the ad valorem rate of Rs. 2/5/6 per cent on such goods, and continued to remain in force by virtue of Section 3 (2) of the City of Jubbulpore Corporation Act, 1948.That is undoubtedly true. The taxes imposed by the Municipality under section 66 (1) of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force as if they were imposed under the new Act under Section 120 (1). But even as the taxes would continue to be in force under Section 120 (1), the notification issued by the State Government on 29-4-1950 under sub-section (2) of section 66 of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force under sub-section (3) of Section 120 of the City of Jubbulpore Corporation Act, 1948, r/w Section 3 (2) of that Act. The notification had clearly prescribed the maximum octroi for these goods as annas two per maund. Hence side by side we had two orders with regard to the imposition and levy of octroi on these goods. One was the imposition made by the Municipality under Section 120 (1) of the City of Jubbulpore Corporation Act which prescribed an ad valorem rate and, the other was the notification issued by the State Government prescribing the maximum rate for octroi which could be imposed. In the case of conflict between the two it is obvious that the maximum prescribed by the State Government would hold the field. The notification issued by the State Government either under Section 66 (2) of the Central Provinces and Berar Municipality Act, 1922 or under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948 or under S. 132 (6) of the Madhya Pradesh Municipal Corporation Act, 1956 after its application to Jubbulpore in 1961 would be binding upon the Municipal Corporation and any tax imposed by it exceeding that limit would be invalid. 14. That position was not seriously contested before us. Mr. Mukherjee, on behalf of the appellant Corporation, however, attempted to contend that these two notifications of the State Government dated 29-4-1950 and 12-7-1954 were ultra vires of the powers of the State Government. It is rather difficult to understand this contention. The Corporation was the respondent in the High Court and it does not appear that at any time it had sought to challenge these notifications issued by the State Government. The point was not argued before the High Court and it is difficult to see how in the absence of the State Government as a party to the proceeding such a contention could at all be taken. We did not, therefore, permit Mr. Mukherjee to argue that the above notifications were ultra vires of the powers of the State Government. 15. It was then contended by Mr. Mukherjee that the form in which the mandamus has been issued would require him to charge octroi at the rate of two annas per maund for all time. He submits that when the Writ Petition was pending in the High Court the State Government had issued a notification dated 27-9-1968 whereby it had fixed the octroi rate of Rupees 2.35 p. per cent ad valorem on similar goods and therefore, at least from that date the two annas per maund rule must be deemed to have been abrogated. We are not concerned with that contention now. It does not appear from the judgment that the attention of the High Court was invited to any such notification issued by the State Government. The Writ Petition had been filed in 1965 and the complaint was that octroi was being imposed upon goods at a rate in excess of the maximum prescribed by the State Government at that time. The High Court was concerned with that limited question and not with the question whether at some future date it was not open to the State Government to fix another rate as the maximum. We are also not concerned with the same. If, after 1965, octroi was levied at a higher rate, merchants would be liable to pay octroi at that rate, provided, always, the levy was legal and valid. But so far as the petition itself was concerned the complaint made by the respondent in the High Court was well-founded viz. that octroi was being charged at a rate in excess of the maximum permitted by the State Government. On that finding the mandamus was rightly issued. ### Response: 0 ### Explanation: 12. We find no substance in this appeal. It is not disputed that the goods imported within the octroi limits by the respondent fall within the following description "(a) Steel iron and mild steel section including plates, bars G. I. and black sheets and other iron and steel manufactures and (b) spares and component parts of machinery."13. Both these items are liable to pay octroi not in excess of two annas per maund by reason of Government Notification No. 3821/179/M.I datedJuly 12, 1954. That notification was issued by the State Government under Section 120 (3) of the City of Jubbulpore Corporation Act, 1948.Then provided that the State Government may, by rules made under the Act, regulate the imposition, assessment and collection of taxes under Section120and specify maximum amounts of rates for any taxand for preventing evasion of assessment and payment of taxes. The notification specified the maximum amount of rate for octroi in respect of specified goods. Therefore, any imposition of the tax by the Municipality under Section120(1) which exceeded the limits prescribed by the notification would be obviously bad. The Corporation had not imposed directly any tax under Section120(1) of the Act, but had purported to impose the tax as authorised by the rules made by the Municipality under the Central Provinces and Berar Act, 1922 on. Those rules, it was contended, prescribed the ad valorem rate of Rs. 2/5/6 per cent on such goods, and continued to remain in force by virtue of Section 3 (2) of the City of Jubbulpore Corporation Act, 1948.That is undoubtedly true. The taxes imposed by the Municipality under section 66 (1) of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force as if they were imposed under the new Act under Section120(1). But even as the taxes would continue to be in force under Section120(1), the notification issued by the State Government on0 undern (2) of section 66 of the Central Provinces and Berar Municipality Act, 1922 would continue to be in force undern (3) of Section120of the City of Jubbulpore Corporation Act, 1948, r/w Section 3 (2) of that Act. The notification had clearly prescribed the maximum octroi for these goods as annas two per maund. Hence side by side we had two orders with regard to the imposition and levy of octroi on these goods. One was the imposition made by the Municipality under Section120(1) of the City of Jubbulpore Corporation Act which prescribed an ad valorem rate and, the other was the notification issued by the State Government prescribing the maximum rate for octroi which could be imposed. In the case of conflict between the two it is obvious that the maximum prescribed by the State Government would hold the field. The notification issued by the State Government either under Section 66 (2) of the Central Provinces and Berar Municipality Act, 1922 or under Section120(3) of the City of Jubbulpore Corporation Act, 1948 or under S. 132 (6) of the Madhya Pradesh Municipal Corporation Act, 1956 after its application to Jubbulpore in 1961 would be binding upon the Municipal Corporation and any tax imposed by it exceeding that limit would be invalid14. That position was not seriously contested before us.Mr. Mukherjee, on behalf of the appellant Corporation, however, attempted to contend that these two notifications of the State Government dated0 and4 were ultra vires of the powers of the StateGovernment.It is rather difficult to understand this contention. The Corporation was the respondent in the High Court and it does not appear that at any time it had sought to challenge these notifications issued by the StateGovernment.15. It was then contended by Mr. Mukherjee that the form in which the mandamus has been issued would require him to charge octroi at the rate of two annas per maund for all time. He submits that when the Writ Petition was pending in the High Court the State Government had issued a notification dated8 whereby it had fixed the octroi rate of Rupees 2.35 p. per cent ad valorem on similar goods and therefore, at least from that date the two annas per maund rule must be deemed to have been abrogated.We are not concerned with that contention now. It does not appear from the judgment that the attention of the High Court was invited to any such notification issued by the StateGovernment.The Writ Petition had been filed in 1965 and the complaint was that octroi was being imposed upon goods at a rate in excess of the maximum prescribed by the State Government at that time. The High Court was concerned with that limited question and not with the question whether at some future date it was not open to the State Government to fix another rate as the maximum. We are also not concerned with the same. If, after 1965, octroi was levied at a higher rate, merchants would be liable to pay octroi at that rate, provided, always, the levy was legal and valid. But so far as the petition itself was concerned the complaint made by the respondent in the High Court wasd viz. that octroi was being charged at a rate in excess of the maximum permitted by the StateGovernment.On that finding the mandamus was rightly issued.

Syed Ahmed Vs. State Of Karnataka

the substance of the issue before us, namely, whether Syed Ahmed demanded and accepted illegal gratification from Nagaraja or not. But, it is submitted that the complaint against Syed Ahmed was motivated. This is traced to an earlier dispute between Nagaraja’s elder brother (also named Thimmegowda) and Syed Ahmed. It appears that sometime in May, 1993 Nagaraja had taken some utensils belonging to the village community for performing the marriage of his younger brother. These utensils were retained by Nagaraja for quite some time. A complaint came to be made against Thimmegowda (PW4) in this regard and at that time, Syed Ahmed assaulted Thimmegowda (elder brother of Nagaraja) for not promptly returning the utensils. Due to this incident, and by way of revenge, Syed Ahmed is said to have been falsely implicated by Nagaraja.We are not inclined to give much weight to this incident. The reason is that the issue regarding the return of utensils was settled as testified by Nagaraja and S.C. Rangasetty (PW7). In addition, we find that no suggestion was given by Syed Ahmed to any witness that the complaint of 28th June, 1993 was a result of this particular incident. Even in his statement recorded under Section 313 of the Criminal Procedure Code, Syed Ahmed does not make out a case that that incident had some nexus with this complaint. Also, if anybody had to have any grievance in this regard, it would be Thimmegowda (elder brother of Nagaraja) and not Nagaraja. In fact, it appears that Nagaraja was not particularly happy with his brother because he says in his cross examination that during 1993-94 he was managing the family affairs since his father was aged and infirm and his elder brother was a drunkard. The next two submissions of learned counsel were to the effect that a currency note of Rs.10/- recovered from the wallet of Syed Ahmed and indeed the wallet also were not sent for forensic examination to ascertain the presence of phenolphthalein powder. Moreover, there is nothing on record to indicate what eventually happened to that currency note. We cannot see relevance of these submissions. What we are concerned with is whether Syed Ahmed had demanded illegal gratification from Nagaraja and whether he had received and accepted that illegal gratification. The tainted currency notes given to Syed Ahmed as illegal gratification are material and not the untreated Rs.10/- currency note or the wallet in which all the currency notes were kept. These are minor issues that have no real bearing on the controversy on hand. The final contention was that there is considerable doubt about the attire of Syed Ahmed at the time of receiving the illegal gratification from Nagaraja. It is pointed out that Nagaraja stated that Syed Ahmed had kept the tainted currency notes in a purse and that the purse was kept in the hip pocket of his trousers. It is suggested by learned counsel that this would indicate that Syed Ahmed was wearing trousers at that point of time. In his cross-examination also, Nagaraja stated that Syed Ahmed was wearing his uniform when the illegal gratification was given to him. According to learned counsel, both these statements confirm that Syed Ahmed was wearing his trousers when the concerned incident took place. In this context, reference was made to the testimony of Sidheshwara Swamy (PW2) who stated that Syed Ahmed kept the tainted currency notes in a purse which he put in the pocket of his trousers hanging on a wall. In his cross-examination this witness stated that at the relevant time, Syed Ahmed was sitting on a cot wearing a vest and a lungi. On this basis, it is submitted by learned counsel that there is a discrepancy in the testimony of the witnesses with regard to the dress worn by Syed Ahmed when he was sought to be trapped. It is submitted by learned counsel that the discrepancy casts a doubt on the correctness of the events said to have taken place on 28th June, 1993 and the benefit of this must go to Syed Ahmed. In our opinion, the discrepancy with regard to the attire of Syed Ahmedthe Rs.10/- currency note and the forensic examination of the wallet are rather minor matters. What is a minor discrepancy? This has been the subject matter of discussion in Abdul Nawaz v. State of West Bengal, 2012 (5) SCALE 357 and Jugendra Singh. After referring to a few earlier decisions of this Court, it was held that a discrepancy would be minor if it did not affect the substratum of the prosecution’s case or impact on the core issue. In such an event, the minor discrepancy could be ignored.As far as we are concerned, whether the absence of the Rs. 10/- currency note could or could not be explained or why Syed Ahmed’s wallet was not sent for forensic examination or whether he was wearing trousers or a lungi at the relevant point of time are matters of minor detail which do not impact on the substratum of the prosecution’s case. We are required to look at the core issue and at the overall picture of the events that transpired on 28th June, 1993 and not get diverted by minor discrepancies or trivialities.It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed against the quantum of sentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentence awarded.

0[ds]In our opinion, the discrepancy with regard to the attire of Syed Ahmedthe Rs.10/- currency note and the forensiche wallet are rather minor matters. What is a minor discrepancy? This has been the subject matter of discussion in Abdul Nawaz v. State of West Bengal, 2012 (5) SCALE 357 and Jugendra Singh. After referring to a few earlier decisions of this Court, it was held that a discrepancy would be minor if it did not affect the substratum of thecase or impact on the core issue. In such an event, the minor discrepancy could be ignored.As far as we are concerned, whether the absence of the Rs. 10/- currency note could or could not be explained or why Syedwallet was not sent for forensic examination or whether he was wearing trousers or a lungi at the relevant point of time are matters of minor detail which do not impact on the substratum of thecase. We are required to look at the core issue and at the overall picture of the events that transpired on 28th June, 1993 and not get diverted by minor discrepancies or trivialities.It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed againstthe quantum ofsentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentenceour opinion, the discrepancy with regard to the attire of Syed Ahmedthe Rs.10/currency note and the forensiche wallet are rather minor matters. What is a minor discrepancy? This has been the subject matter of discussion in Abdul Nawaz v. State of West Bengal, 2012 (5) SCALE 357 and Jugendra Singh. After referring to a few earlier decisions of this Court, it was held that a discrepancy would be minor if it did not affect the substratum of thee or impact on the core issue. In such an event, the minor discrepancy could be ignored.As far as we are concerned, whether the absence of the Rs. 10/currency note could or could not be explained or why Syedt was not sent for forensic examination or whether he was wearing trousers or a lungi at the relevant point of time are matters of minor detail which do not impact on the substratum of the. We are required to look at the core issue and at the overall picture of the events that transpired on 28th June, 1993 and not get diverted by minor discrepancies or trivialities.It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed againstthe quantum ofsentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentencecannot see relevance of these submissions.we are concerned with is whether Syed Ahmed had demanded illegal gratification from Nagaraja and whether he had received and accepted that illegal gratification.The tainted currency notes given to Syed Ahmed as illegal gratification are material and not the untreated Rs.10/currency note or the wallet in which all the currency notes were kept. These are minor issues that have no real bearing on the controversy onregards settlement of the dispute referred to in the complaint dated 7th June, 1993 in our opinion that would not take away the substance of the issue before us, namely, whether Syed Ahmed demanded and accepted illegal gratification from Nagaraja or not. But, it is submitted that the complaint against Syed Ahmed was motivated. This is traced to an earlier dispute betweenelder brother (also named Thimmegowda) and Syed Ahmed. It appears that sometime in May, 1993 Nagaraja had taken some utensils belonging to the village community for performing the marriage of his younger brother. These utensils were retained by Nagaraja for quite some time. A complaint came to be made against Thimmegowda (PW4) in this regard and at that time, Syed Ahmed assaulted Thimmegowda (elder brother of Nagaraja) for not promptly returning the utensils. Due to this incident, and by way of revenge, Syed Ahmed is said to have been falsely implicated by Nagaraja.We areunable to accept this submission. The basis of the action against Syed Ahmed was not the complaint dated 27th June, 1993 but the complaint dated 28th June, 1993 made by Nagaraja to the Lok Ayukta Police. This complaint is on the record and is marked as Exhibit P.3. In the complaint, it is alleged, that Syed Ahmed had demanded illegal gratification from Nagaraja and it is on a follow up of this complaint that arrangements were made to lay a trap against Syed Ahmed. Learned counsel is, therefore, in error in assuming that action against Syed Ahmed was based on the complaint dated 27th June, 1993. As mentioned above, this is factually notagree with the High Court that in view of Explanation (d) to Section 7 of the Act, the issue whether Syed Ahmed could or could not deliver results (as it were) becomes irrelevant in view of the acceptance of the testimony of Nagaraja (PW1) and Sidheshwara Swamycontention does not appeal to us, particularly in view of the unshaken testimony of Nagaraja (PW1) and the corroborative evidence of the eye witness Sidheshwara Swamy (PW2). This witness was near the window and just outside the room occupied by Syed Ahmed. He refers to some conversation that took place between Syed Ahmed and Nagaraja in a low tone and which he could not hear. Thereafter, this witness specifically states that Syed Ahmed asked Nagaraja if he had brought what he was told to bring. Nagaraja replied in the affirmative and thereupon Nagaraja gave the tainted currency notes to Syed Ahmed, which he accepted. Thereafter, Syed Ahmed kept the tainted currency notes in a purse which was then placed in the pocket of his trousers hung on the wall. There is, therefore, a clear statement of Sidheshwara Swamy (PW2), which has not been shaken in crossexamination, to the effect that there was a demand for some gratification by Syed Ahmed from Nagaraja and that Nagaraja paid some money to Syed Ahmed by way of gratification. The ingredients of Section 13(1)(d) of the Act are fulfilled in this case and have been proved beyond any doubt.

### 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 substance of the issue before us, namely, whether Syed Ahmed demanded and accepted illegal gratification from Nagaraja or not. But, it is submitted that the complaint against Syed Ahmed was motivated. This is traced to an earlier dispute between Nagaraja’s elder brother (also named Thimmegowda) and Syed Ahmed. It appears that sometime in May, 1993 Nagaraja had taken some utensils belonging to the village community for performing the marriage of his younger brother. These utensils were retained by Nagaraja for quite some time. A complaint came to be made against Thimmegowda (PW4) in this regard and at that time, Syed Ahmed assaulted Thimmegowda (elder brother of Nagaraja) for not promptly returning the utensils. Due to this incident, and by way of revenge, Syed Ahmed is said to have been falsely implicated by Nagaraja.We are not inclined to give much weight to this incident. The reason is that the issue regarding the return of utensils was settled as testified by Nagaraja and S.C. Rangasetty (PW7). In addition, we find that no suggestion was given by Syed Ahmed to any witness that the complaint of 28th June, 1993 was a result of this particular incident. Even in his statement recorded under Section 313 of the Criminal Procedure Code, Syed Ahmed does not make out a case that that incident had some nexus with this complaint. Also, if anybody had to have any grievance in this regard, it would be Thimmegowda (elder brother of Nagaraja) and not Nagaraja. In fact, it appears that Nagaraja was not particularly happy with his brother because he says in his cross examination that during 1993-94 he was managing the family affairs since his father was aged and infirm and his elder brother was a drunkard. The next two submissions of learned counsel were to the effect that a currency note of Rs.10/- recovered from the wallet of Syed Ahmed and indeed the wallet also were not sent for forensic examination to ascertain the presence of phenolphthalein powder. Moreover, there is nothing on record to indicate what eventually happened to that currency note. We cannot see relevance of these submissions. What we are concerned with is whether Syed Ahmed had demanded illegal gratification from Nagaraja and whether he had received and accepted that illegal gratification. The tainted currency notes given to Syed Ahmed as illegal gratification are material and not the untreated Rs.10/- currency note or the wallet in which all the currency notes were kept. These are minor issues that have no real bearing on the controversy on hand. The final contention was that there is considerable doubt about the attire of Syed Ahmed at the time of receiving the illegal gratification from Nagaraja. It is pointed out that Nagaraja stated that Syed Ahmed had kept the tainted currency notes in a purse and that the purse was kept in the hip pocket of his trousers. It is suggested by learned counsel that this would indicate that Syed Ahmed was wearing trousers at that point of time. In his cross-examination also, Nagaraja stated that Syed Ahmed was wearing his uniform when the illegal gratification was given to him. According to learned counsel, both these statements confirm that Syed Ahmed was wearing his trousers when the concerned incident took place. In this context, reference was made to the testimony of Sidheshwara Swamy (PW2) who stated that Syed Ahmed kept the tainted currency notes in a purse which he put in the pocket of his trousers hanging on a wall. In his cross-examination this witness stated that at the relevant time, Syed Ahmed was sitting on a cot wearing a vest and a lungi. On this basis, it is submitted by learned counsel that there is a discrepancy in the testimony of the witnesses with regard to the dress worn by Syed Ahmed when he was sought to be trapped. It is submitted by learned counsel that the discrepancy casts a doubt on the correctness of the events said to have taken place on 28th June, 1993 and the benefit of this must go to Syed Ahmed. In our opinion, the discrepancy with regard to the attire of Syed Ahmedthe Rs.10/- currency note and the forensic examination of the wallet are rather minor matters. What is a minor discrepancy? This has been the subject matter of discussion in Abdul Nawaz v. State of West Bengal, 2012 (5) SCALE 357 and Jugendra Singh. After referring to a few earlier decisions of this Court, it was held that a discrepancy would be minor if it did not affect the substratum of the prosecution’s case or impact on the core issue. In such an event, the minor discrepancy could be ignored.As far as we are concerned, whether the absence of the Rs. 10/- currency note could or could not be explained or why Syed Ahmed’s wallet was not sent for forensic examination or whether he was wearing trousers or a lungi at the relevant point of time are matters of minor detail which do not impact on the substratum of the prosecution’s case. We are required to look at the core issue and at the overall picture of the events that transpired on 28th June, 1993 and not get diverted by minor discrepancies or trivialities.It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed against the quantum of sentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentence awarded. ### Response: 0 ### Explanation: that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed againstthe quantum ofsentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentenceour opinion, the discrepancy with regard to the attire of Syed Ahmedthe Rs.10/currency note and the forensiche wallet are rather minor matters. What is a minor discrepancy? This has been the subject matter of discussion in Abdul Nawaz v. State of West Bengal, 2012 (5) SCALE 357 and Jugendra Singh. After referring to a few earlier decisions of this Court, it was held that a discrepancy would be minor if it did not affect the substratum of thee or impact on the core issue. In such an event, the minor discrepancy could be ignored.As far as we are concerned, whether the absence of the Rs. 10/currency note could or could not be explained or why Syedt was not sent for forensic examination or whether he was wearing trousers or a lungi at the relevant point of time are matters of minor detail which do not impact on the substratum of the. We are required to look at the core issue and at the overall picture of the events that transpired on 28th June, 1993 and not get diverted by minor discrepancies or trivialities.It is while undertaking this exercise that we find from the evidence of the witnesses that there was sufficient evidence of Syed Ahmed demanding illegal gratification from Nagaraja and receiving and accepting it when given by him. On this basis, we find no reason to interfere with the judgment and order under appeal.With regard to the sentence awarded to Syed Ahmed, the High Court has erred in awarding a sentence of only three months rigorous imprisonment. Section 13(2) of the Act prescribes a minimum sentence of one year imprisonment. However, the State has not appealed againstthe quantum ofsentence. Moreover, the incident is of 1993, which is about 19 years ago. Keeping these factors in mind, we do not propose to interfere with the sentencecannot see relevance of these submissions.we are concerned with is whether Syed Ahmed had demanded illegal gratification from Nagaraja and whether he had received and accepted that illegal gratification.The tainted currency notes given to Syed Ahmed as illegal gratification are material and not the untreated Rs.10/currency note or the wallet in which all the currency notes were kept. These are minor issues that have no real bearing on the controversy onregards settlement of the dispute referred to in the complaint dated 7th June, 1993 in our opinion that would not take away the substance of the issue before us, namely, whether Syed Ahmed demanded and accepted illegal gratification from Nagaraja or not. But, it is submitted that the complaint against Syed Ahmed was motivated. This is traced to an earlier dispute betweenelder brother (also named Thimmegowda) and Syed Ahmed. It appears that sometime in May, 1993 Nagaraja had taken some utensils belonging to the village community for performing the marriage of his younger brother. These utensils were retained by Nagaraja for quite some time. A complaint came to be made against Thimmegowda (PW4) in this regard and at that time, Syed Ahmed assaulted Thimmegowda (elder brother of Nagaraja) for not promptly returning the utensils. Due to this incident, and by way of revenge, Syed Ahmed is said to have been falsely implicated by Nagaraja.We areunable to accept this submission. The basis of the action against Syed Ahmed was not the complaint dated 27th June, 1993 but the complaint dated 28th June, 1993 made by Nagaraja to the Lok Ayukta Police. This complaint is on the record and is marked as Exhibit P.3. In the complaint, it is alleged, that Syed Ahmed had demanded illegal gratification from Nagaraja and it is on a follow up of this complaint that arrangements were made to lay a trap against Syed Ahmed. Learned counsel is, therefore, in error in assuming that action against Syed Ahmed was based on the complaint dated 27th June, 1993. As mentioned above, this is factually notagree with the High Court that in view of Explanation (d) to Section 7 of the Act, the issue whether Syed Ahmed could or could not deliver results (as it were) becomes irrelevant in view of the acceptance of the testimony of Nagaraja (PW1) and Sidheshwara Swamycontention does not appeal to us, particularly in view of the unshaken testimony of Nagaraja (PW1) and the corroborative evidence of the eye witness Sidheshwara Swamy (PW2). This witness was near the window and just outside the room occupied by Syed Ahmed. He refers to some conversation that took place between Syed Ahmed and Nagaraja in a low tone and which he could not hear. Thereafter, this witness specifically states that Syed Ahmed asked Nagaraja if he had brought what he was told to bring. Nagaraja replied in the affirmative and thereupon Nagaraja gave the tainted currency notes to Syed Ahmed, which he accepted. Thereafter, Syed Ahmed kept the tainted currency notes in a purse which was then placed in the pocket of his trousers hung on the wall. There is, therefore, a clear statement of Sidheshwara Swamy (PW2), which has not been shaken in crossexamination, to the effect that there was a demand for some gratification by Syed Ahmed from Nagaraja and that Nagaraja paid some money to Syed Ahmed by way of gratification. The ingredients of Section 13(1)(d) of the Act are fulfilled in this case and have been proved beyond any doubt.

Mahindra & Mahindra F.S.Ltd Vs. Rajiv Dubey

as on 25th March 2000, the total outstanding against respondent Team Finance Corporation Pvt. Ltd. stood at Rs.2,39,73,795/- the said amount being unpaid despite several reminders to settle the outstanding amount. 6. The appellants presented 7 cheques on 29-03-2000 bearing numbers and amounts as following: Cheque No.AmountDated 78915781655516/-29.3.2000 78915792526794/-29.3.2000 78915801477323/-29.3.2000 7891581722419/-29.3.2000 789158219631031/-29.3.2000 78915831942609/-29.3.2000 78915844712236/-29.3.2000 7. The appellants presented 3 cheques on 2-08-2000 against the discharge of the remaining outstanding payments bearing the number and amounts as follows: Cheque No.AmountDated 78915853515726/-2.8.2000 78915863530903/-2.8.2000 78915871927166/-2.8.2000 8. All these cheques were returned by the Bank to the appellants with the endorsement that the account is not valid and insufficient funds. 9. In the meanwhile, in order to pre-empt the impending proceeding under sec 138 of the Act, the respondent filed a criminal complaint CC No.210 of 2000 against the appellants under Sections 406, 420, 294, 506, 34 IPC before SDJM Bhubneshwar on 11-05-2000, inter-alia, claiming that the cheques issued by respondent were towards an outstanding amount of Rs.1,89,000/- and the said payment has already been made by the Respondent by way of a Demand Draft of which no number, date or any other details are provided in the complaint. The appellants became aware of institution of such a case only later when the process was issued on 18.04.2001 and the same was received by the appellants. 10. On 02-08-2000 the appellants filed Case No.753/S/2000 U/s 138 of the Act read with section 34 of IPC before ACMM, Esplanade, Bombay. 11. The respondent in the meanwhile kept on representing that he will clear the payments and vide letter dated 8-11-2000 made an offer to the appellants to agree for the full and final settlement of the outstanding dues for a mere sum of 25,00,000/- against a balance of 2,39,73,795/-. 12. On 18.04.2001, the Learned Court of SDJM, Bhubaneshwar in ICC 210 of 2000 issued process against the appellants under Section 406/420 IPC. 13. According to the appellants the ingredients of Section 405 are not present. In any event, the plea of the respondent filing the petition mala fide is clearly borne out.14. Learned counsel for the respondent on the other hand submitted that the appellants have not come to this Court with clean hands.15. The appellants have introduced a fabricated letter dated 24.6.1995. It is their stand that the entire amount was paid and, therefore, on receiving the full payment, the appellants ought to have returned the cheques which were held only as a collateral security. 16. It is not in dispute that the proceedings under Section 138 are pending. That being so, the question of proceeding for alleged breach of trust does not arise. 17. It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law. In State of Haryana v. Bhajan Lal (AIR 1992 SC 604 ), it was, inter-alia, observed as follows: "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 18. The case at hand falls under category (7).19.

1[ds]It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law. In State of Haryana v. Bhajan Lal (AIR 1992 SC 604 ), it was, inter-alia, observed asIn the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personalcase at hand falls under category (7).

### 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: as on 25th March 2000, the total outstanding against respondent Team Finance Corporation Pvt. Ltd. stood at Rs.2,39,73,795/- the said amount being unpaid despite several reminders to settle the outstanding amount. 6. The appellants presented 7 cheques on 29-03-2000 bearing numbers and amounts as following: Cheque No.AmountDated 78915781655516/-29.3.2000 78915792526794/-29.3.2000 78915801477323/-29.3.2000 7891581722419/-29.3.2000 789158219631031/-29.3.2000 78915831942609/-29.3.2000 78915844712236/-29.3.2000 7. The appellants presented 3 cheques on 2-08-2000 against the discharge of the remaining outstanding payments bearing the number and amounts as follows: Cheque No.AmountDated 78915853515726/-2.8.2000 78915863530903/-2.8.2000 78915871927166/-2.8.2000 8. All these cheques were returned by the Bank to the appellants with the endorsement that the account is not valid and insufficient funds. 9. In the meanwhile, in order to pre-empt the impending proceeding under sec 138 of the Act, the respondent filed a criminal complaint CC No.210 of 2000 against the appellants under Sections 406, 420, 294, 506, 34 IPC before SDJM Bhubneshwar on 11-05-2000, inter-alia, claiming that the cheques issued by respondent were towards an outstanding amount of Rs.1,89,000/- and the said payment has already been made by the Respondent by way of a Demand Draft of which no number, date or any other details are provided in the complaint. The appellants became aware of institution of such a case only later when the process was issued on 18.04.2001 and the same was received by the appellants. 10. On 02-08-2000 the appellants filed Case No.753/S/2000 U/s 138 of the Act read with section 34 of IPC before ACMM, Esplanade, Bombay. 11. The respondent in the meanwhile kept on representing that he will clear the payments and vide letter dated 8-11-2000 made an offer to the appellants to agree for the full and final settlement of the outstanding dues for a mere sum of 25,00,000/- against a balance of 2,39,73,795/-. 12. On 18.04.2001, the Learned Court of SDJM, Bhubaneshwar in ICC 210 of 2000 issued process against the appellants under Section 406/420 IPC. 13. According to the appellants the ingredients of Section 405 are not present. In any event, the plea of the respondent filing the petition mala fide is clearly borne out.14. Learned counsel for the respondent on the other hand submitted that the appellants have not come to this Court with clean hands.15. The appellants have introduced a fabricated letter dated 24.6.1995. It is their stand that the entire amount was paid and, therefore, on receiving the full payment, the appellants ought to have returned the cheques which were held only as a collateral security. 16. It is not in dispute that the proceedings under Section 138 are pending. That being so, the question of proceeding for alleged breach of trust does not arise. 17. It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law. In State of Haryana v. Bhajan Lal (AIR 1992 SC 604 ), it was, inter-alia, observed as follows: "108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." 18. The case at hand falls under category (7).19. ### Response: 1 ### Explanation: It is interesting to note that the respondent does not dispute issuance of cheques. Even a casual reading of the complaint does not show that the ingredients of Section 406 IPC are in any event made out. It is also not understandable as to how Section 294 has any application to the facts of the case much less Section 506 IPC. In addition to this, perusal of the complaint apparently shows the ulterior motive. It is clear that the proceeding initiated by the respondent clearly amounted to abuse of the process of law. In State of Haryana v. Bhajan Lal (AIR 1992 SC 604 ), it was, inter-alia, observed asIn the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personalcase at hand falls under category (7).

Gurnam Singh (D) Thr. Lrs Vs. Gurbachan Kaur (D) By Lrs

Others v. Chaman Paswan & Others (AIR 1954 SC 340 ), the learned Judge Venkatarama Ayyar speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature:"It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."16. The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. The reasons are not far to seek.17. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, `the Code) for bringing their names on record in place of the dead persons to enable them to continue the lis.18. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".19. Order 22 Rule 3(2) which applies in the case of the death of plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of defendant/respondent provides the consequences for not filing the application for substitution of legal representatives by the parties concerned within the time prescribed. These provisions read as under:-Order 22 Rule 3(2)"Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."Order 22 Rule 4(3)"Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."20. In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994.21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.22. It is a fundamental principle of law laid down by this Court in Kiran Singhs case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a "nullity" (See-N. Jayaram Reddy & Anr. v. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578 , Ashok Transport Agency v. Awadhesh Kumar & Anr., 1999(1) R.C.R.(Civil) 197 : (1998) 5 SCC 567 and Amba Bai & Ors. v. Gopal & Ors., 2001(3) R.C.R.(Civil) 169 : (2001) 5 SCC 570 ).23. The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld.

1[ds]17. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, `the Code) for bringing their names on record in place of the dead persons to enable them to continue the lis.18. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994.21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.22. It is a fundamental principle of law laid down by this Court in Kiran Singhs case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a "nullity"23. The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld.

### 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: Others v. Chaman Paswan & Others (AIR 1954 SC 340 ), the learned Judge Venkatarama Ayyar speaking for the Bench in his distinctive style of writing laid down the following principle of law being fundamental in nature:"It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties."16. The question, therefore, is whether the impugned judgment/order is a nullity because it was passed by the High Court in favour of and also against the dead persons. In our considered opinion, it is a nullity. The reasons are not far to seek.17. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, `the Code) for bringing their names on record in place of the dead persons to enable them to continue the lis.18. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".19. Order 22 Rule 3(2) which applies in the case of the death of plaintiff/appellant and Order 22 Rule 4(3) which applies in the case of defendant/respondent provides the consequences for not filing the application for substitution of legal representatives by the parties concerned within the time prescribed. These provisions read as under:-Order 22 Rule 3(2)"Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff."Order 22 Rule 4(3)"Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant."20. In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994.21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.22. It is a fundamental principle of law laid down by this Court in Kiran Singhs case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a "nullity" (See-N. Jayaram Reddy & Anr. v. Revenue Divisional Officer & Land Acquisition Officer, Kurnool, (1979) 3 SCC 578 , Ashok Transport Agency v. Awadhesh Kumar & Anr., 1999(1) R.C.R.(Civil) 197 : (1998) 5 SCC 567 and Amba Bai & Ors. v. Gopal & Ors., 2001(3) R.C.R.(Civil) 169 : (2001) 5 SCC 570 ).23. The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld. ### Response: 1 ### Explanation: 17. It is not in dispute that the appellant and the two respondents expired during the pendency of the second appeal. It is also not in dispute that no steps were taken by any of the legal representatives representing the dead persons and on whom the right to sue had devolved to file an application under Order 22 Rules 3 and 4 of the Code of Civil Procedure,1908 (for short, `the Code) for bringing their names on record in place of the dead persons to enable them to continue the lis.18. The law on the point is well settled. On the death of a party to the appeal, if no application is made by the party concerned to the appeal or by the legal representatives of the deceased on whom the right to sue has devolved for substitution of their names in place of the deceased party within 90 days from the date of death of the party, such appeal abates automatically on expiry of 90 days from the date of death of the party. In other words, on 91st day, there is no appeal pending before the Court. It is "dismissed as abated".In the case at hand, both the aforementioned provisions came in operation because the appellant and the two respondents expired during the pendency of second appeal and no application was filed to bring their legal representatives on record. As held above, the legal effect of the non-compliance of Rules 3(2) and 4(3) of Order 22, therefore, came into operation resulting in dismissal of second appeal as abated on the expiry of 90 days from 10.05.1994, i.e., on 10.08.1994. The High Court, therefore, ceased to have jurisdiction to decide the second appeal which stood already dismissed on 10.08.1994. Indeed, there was no pending appeal on and after 10.08.1994.21. In our considered view, the appeal could be revived for hearing only when firstly, the proposed legal representatives of the deceased persons had filed an application for substitution of their names and secondly, they had applied for setting aside of the abatement under Order 22 Rule 9 of the Code and making out therein a sufficient cause for setting aside of an abatement and lastly, had filed an application under Section 5 of the Limitation Act seeking condonation of delay in filing the substitution application under Order 22 Rules 3 and 4 of the Code beyond the statutory period of 90 days. If these applications had been allowed by the High Court, the second appeal could have been revived for final hearing but not otherwise. Such was not the case here because no such applications had been filed.22. It is a fundamental principle of law laid down by this Court in Kiran Singhs case (supra) that a decree passed by the Court, if it is a nullity, its validity can be questioned in any proceeding including in execution proceedings or even in collateral proceedings whenever such decree is sought to be enforced by the decree holder. The reason is that the defect of this nature affects the very authority of the Court in passing such decree and goes to the root of the case. This principle, in our considered opinion, squarely applies to this case because it is a settled principle of law that the decree passed by a Court for or against a dead person is a "nullity"23. The appellants are the legal representatives of defendant Nos. 2 and 4 on whom the right to sue has devolved. They had, therefore, right to question the legality of the impugned order inter alia on the ground of it being a nullity. Such objection, in our opinion, could be raised in appeal or even in execution proceedings arising out of such decree. In our view, the objection, therefore, deserves to be upheld. It is, accordingly, upheld.

Exposure Insurance Services Limited Vs. Larsen & Toubro Limited

1. This Special Leave Petition is directed against the judgment and order dated 19th July, 2007, passed by the Division Bench of the Bombay High Court in Appeal No.382/07 arising out of Company Petition No. 419/06, filed by the petitioner herein. Claiming to be a Holder in Due Course of two Bills of Exchange, both dated 15th December 2002, the petitioner filed the Company Petition No.419/06 for winding up of the respondent Company. The Bills of Exchange were said to have been endorsed in favour of the petitioner on 28 th January, 2003, and the same were payable on 15th March, 2003. The claim of the petitioner is on the strength of the endorsement alleged to have been made in its favour and the petitioner claims thereunder as a Holder in Due Course. Opposing the petition, the respondent Company took the defence that nothing was payable in respect of the said two Bills of Exchange on account of two Credit Notes dated 27.2.2003 having been issued by the supplier to the petitioner confirming that goods supplied to the respondent had been received back by the supplier at Dubai and that, consequently, nothing further was payable on the basis of the said Bills of Exchange. It also appears that the Bills of Exchange were not presented for a period of two years after the date of maturity and only on 4th February, 2005, Carbon Technologies Limited issued notice demanding payment on the basis thereof. On reply being sent on 7th March 2005, by the respondent Company, the said notice was withdrawn. 2. Subsequently, a similar notice was issued on 29th March, 2005 on behalf of a company by the name of Buxley Industries Limited. Pursuant to the similar reply being sent on behalf of the respondent company, no further proceedings have been taken although the notice issued has not been withdrawn. Thereafter, on 13th February, 2006, the present petitioner sent a notice to the respondent Company demanding payment of the said two Bills of Exchange again indicating that it was the Holder in Due Course of the same. 3. The defence taken by the respondent company indicates that there was a genuine dispute with regard to the claim put forward by the petitioner company. The said question has been gone into by the learned Company Judge while dismissing the Winding Up petition by his order dated 21st March, 2007. The same view was expressed by the Division Bench in Appeal No.382/2007 arising out of Company Petition No.419/2006. 4. Having heard learned counsel for the respective parties, we are inclined to accept the reasoning of the Division Bench endorsing the judgment of the learned Single Judge, since having regard to the facts, we are also of the view that this is a matter which is required to be heard and decided in a properly constituted suit on account of the contentious nature of the objection taken by the respondent on account whereof the parties have been relegated to a suit. 5.

0[ds]Having heard learned counsel for the respective parties, we are inclined to accept the reasoning of the Division Bench endorsing the judgment of the learned Single Judge, since having regard to the facts, we are also of the view that this is a matter which is required to be heard and decided in a properly constituted suit on account of the contentious nature of the objection taken by the respondent on account whereof the parties have been relegated to a suit.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: 1. This Special Leave Petition is directed against the judgment and order dated 19th July, 2007, passed by the Division Bench of the Bombay High Court in Appeal No.382/07 arising out of Company Petition No. 419/06, filed by the petitioner herein. Claiming to be a Holder in Due Course of two Bills of Exchange, both dated 15th December 2002, the petitioner filed the Company Petition No.419/06 for winding up of the respondent Company. The Bills of Exchange were said to have been endorsed in favour of the petitioner on 28 th January, 2003, and the same were payable on 15th March, 2003. The claim of the petitioner is on the strength of the endorsement alleged to have been made in its favour and the petitioner claims thereunder as a Holder in Due Course. Opposing the petition, the respondent Company took the defence that nothing was payable in respect of the said two Bills of Exchange on account of two Credit Notes dated 27.2.2003 having been issued by the supplier to the petitioner confirming that goods supplied to the respondent had been received back by the supplier at Dubai and that, consequently, nothing further was payable on the basis of the said Bills of Exchange. It also appears that the Bills of Exchange were not presented for a period of two years after the date of maturity and only on 4th February, 2005, Carbon Technologies Limited issued notice demanding payment on the basis thereof. On reply being sent on 7th March 2005, by the respondent Company, the said notice was withdrawn. 2. Subsequently, a similar notice was issued on 29th March, 2005 on behalf of a company by the name of Buxley Industries Limited. Pursuant to the similar reply being sent on behalf of the respondent company, no further proceedings have been taken although the notice issued has not been withdrawn. Thereafter, on 13th February, 2006, the present petitioner sent a notice to the respondent Company demanding payment of the said two Bills of Exchange again indicating that it was the Holder in Due Course of the same. 3. The defence taken by the respondent company indicates that there was a genuine dispute with regard to the claim put forward by the petitioner company. The said question has been gone into by the learned Company Judge while dismissing the Winding Up petition by his order dated 21st March, 2007. The same view was expressed by the Division Bench in Appeal No.382/2007 arising out of Company Petition No.419/2006. 4. Having heard learned counsel for the respective parties, we are inclined to accept the reasoning of the Division Bench endorsing the judgment of the learned Single Judge, since having regard to the facts, we are also of the view that this is a matter which is required to be heard and decided in a properly constituted suit on account of the contentious nature of the objection taken by the respondent on account whereof the parties have been relegated to a suit. 5. ### Response: 0 ### Explanation: Having heard learned counsel for the respective parties, we are inclined to accept the reasoning of the Division Bench endorsing the judgment of the learned Single Judge, since having regard to the facts, we are also of the view that this is a matter which is required to be heard and decided in a properly constituted suit on account of the contentious nature of the objection taken by the respondent on account whereof the parties have been relegated to a suit.

Central Coalfields Limited Through its Chairman and Managing Director & Ors Vs. Smt. Parden Oraon

being the reason for rejection of request for compassionate appointment, the High Court observed that there is no policy decision of the appellant company not to offer compassionate appointment in cases of double employment. As the order of termination of services of Respondents husband was quashed by the High Court, Respondents son was held to be entitled for appointment. The Division Bench of the High Court dismissed the appeal filed by the appellants. The National Coal Wage Agreement was examined in detail by the Division Bench to come to a conclusion that civil death of employee cannot be a disqualification for compassionate appointment of the member of his family. The contention of the Appellant that the decision was taken by the Directors (Personnel) not to provide employment to the children of employees who have suffered civil death was not accepted by the Division Bench as it could not be termed as a policy decision. The High Court observed that there is no delay in seeking compassionate appointment after having obtained a decree from the Civil Court declaring the Respondents husband to have suffered civil death. The Division Bench upheld the finding of the Single Judge of the High Court that there is no clause in the National Coal Wage Agreement which prevents a claim for compassionate appointment on the ground that another member of the family is in service. 6. The contention of the Appellant is that there is no right for compassionate appointment available to the surviving family members of the deceased employee in harness and one must seek appointment on compassionate basis in accordance with the relevant rules, regulations and schemes. It was submitted on behalf of the Appellants that the Respondents husband was missing since 2002. The suit filed by the Respondent seeking for declaration of civil death of her husband was in 2009. The request for compassionate appointment was made much later in 2013. In view of the delay in making a claim for compassionate appointment, the very purpose of providing compassionate appointment owing to the death of the breadwinner is not served. In addition, the Respondent was in service of the Appellant. It was also argued that though the National Coal Wage Agreement does not contain any clause relating to the dependents of the employee who suffered civil death to be ineligible for compassionate appointment, the decision taken by the Directors (Personnel) in 2013 should be treated as a policy decision governing compassionate appointment. 7. On behalf of the Respondent, it was submitted that there is no provision in the National Coal Wage Agreement that a family member of an employee who suffered civil death is not eligible for compassionate appointment. There is also no provision that the Respondents son cannot be given compassionate appointment on the ground that she is working in the company. The Respondent submitted that she was diligent in participating in the departmental inquiry initiated against her husband and in filing the civil suit for declaration of civil death of her husband immediately on completion of 7 years from 2002. According to the Respondent, the order of termination of services of her husband was set aside by the High Court which has become final. In any event, the respondent has retired from service in 2018 and her son needs the employment to take care of his family. 8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over. 9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.

1[ds]8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over.9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.

### 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: being the reason for rejection of request for compassionate appointment, the High Court observed that there is no policy decision of the appellant company not to offer compassionate appointment in cases of double employment. As the order of termination of services of Respondents husband was quashed by the High Court, Respondents son was held to be entitled for appointment. The Division Bench of the High Court dismissed the appeal filed by the appellants. The National Coal Wage Agreement was examined in detail by the Division Bench to come to a conclusion that civil death of employee cannot be a disqualification for compassionate appointment of the member of his family. The contention of the Appellant that the decision was taken by the Directors (Personnel) not to provide employment to the children of employees who have suffered civil death was not accepted by the Division Bench as it could not be termed as a policy decision. The High Court observed that there is no delay in seeking compassionate appointment after having obtained a decree from the Civil Court declaring the Respondents husband to have suffered civil death. The Division Bench upheld the finding of the Single Judge of the High Court that there is no clause in the National Coal Wage Agreement which prevents a claim for compassionate appointment on the ground that another member of the family is in service. 6. The contention of the Appellant is that there is no right for compassionate appointment available to the surviving family members of the deceased employee in harness and one must seek appointment on compassionate basis in accordance with the relevant rules, regulations and schemes. It was submitted on behalf of the Appellants that the Respondents husband was missing since 2002. The suit filed by the Respondent seeking for declaration of civil death of her husband was in 2009. The request for compassionate appointment was made much later in 2013. In view of the delay in making a claim for compassionate appointment, the very purpose of providing compassionate appointment owing to the death of the breadwinner is not served. In addition, the Respondent was in service of the Appellant. It was also argued that though the National Coal Wage Agreement does not contain any clause relating to the dependents of the employee who suffered civil death to be ineligible for compassionate appointment, the decision taken by the Directors (Personnel) in 2013 should be treated as a policy decision governing compassionate appointment. 7. On behalf of the Respondent, it was submitted that there is no provision in the National Coal Wage Agreement that a family member of an employee who suffered civil death is not eligible for compassionate appointment. There is also no provision that the Respondents son cannot be given compassionate appointment on the ground that she is working in the company. The Respondent submitted that she was diligent in participating in the departmental inquiry initiated against her husband and in filing the civil suit for declaration of civil death of her husband immediately on completion of 7 years from 2002. According to the Respondent, the order of termination of services of her husband was set aside by the High Court which has become final. In any event, the respondent has retired from service in 2018 and her son needs the employment to take care of his family. 8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over. 9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing. ### Response: 1 ### Explanation: 8. The whole object of granting compassionate appointment is to enable the family to tide over the sudden crisis which arises due to the death of the sole breadwinner. The mere death of an employee in harness does not entitle his family to such source of livelihood. The authority concerned has to examine the financial condition of the family of the deceased, and it is only if it is satisfied that but for the provision of employment, the family will not be able to meet the crisis that the job is offered to the eligible member of the family(Umesh Kumar Nagpal vs. State of Haryana, (1994) 4 SCC 138 ) . It was further asseverated in the said judgment that compassionate employment cannot be granted after a lapse of reasonable period as the consideration of such employment is not a vested right which can be exercised at any time in the future. It was further held that the object of compassionate appointment is to enable the family to get over the financial crisis that it faces at the time of the death of sole breadwinner, compassionate appointment cannot be claimed or offered after a signficant lapse of time and after the crisis is over.9. We are in agreement with the High Court that the reasons given by the employer for denying compassionate appointment to the Respondents son are not justified. There is no bar in the National Coal Wage Agreement for appointment of the son of an employee who has suffered civil death. In addition, merely because the respondent is working, her son cannot be denied compassionate appointment as per the relevant clauses of the National Coal Wage Agreement. However, the Respondents husband is missing since 2002. Two sons of the Respondent who are the dependents of her husband as per the records, are also shown as dependents of the Respondent. It cannot be said that there was any financial crisis created immediately after Respondents husband went missing in view of the employment of the Respondent. Though the reasons given by the employer to deny the relief sought by the Respondent are not sustainable, we are convinced that the Respondents son cannot be given compassionate appointment at this point of time. The application for compassionate appointment of the son was filed by the Respondent in the year 2013 which is more than 10 years after the Respondents husband had gone missing. As the object of compassionate appointment is for providing immediate succour to the family of a deceased employee, the Respondents son is not entitled for compassionate appointment after the passage of a long period of time since his father has gone missing.

Brig. Sawai Bhawani Singh Vs. Indian Hotels Company Limited and Others

1. Leave granted. 2. These appeals by special leave arise from the order of the High Court of Rajasthan, Jaipur Bench made on 4-2-1994 in Civil Miscellaneous Appeals Nos. 294 of 1988 and 311 of 1988.3. The admitted position is that pursuant to an agreement, the respondents are alleged to have come into possession of the suit property for running the business of a hotel. It is the case of the respondents that the appellant was unlawfully interfering with their possession and running of the business. On the other hand, it is the case of the appellant that it is his exclusively property and the respondents have no manner of right to come into possession. Consequently, the respondents filed the suit for perpetual injunction restraining the appellant from interfering with their possession and running of the business. Pending suit, both the parties came to file applications. The appellant filed an application under Order 40 Rule 1 CPC for appointment of a Receiver and the respondents filed an application under Order 39 Rule 1 for an ad interim injunction. Though the trial court had refused to issue the direction for appointment of Receiver, it had issued an injunction against the respondents restraining them from running the business. But, on appeal, the district court has set aside the direction not to run the business and dismissed the applications for appointment of the Receiver which came to be affirmed but the High Court. The High Court has set aside the appointment of the Receiver qua the property. Thus, these appeals by special leave.4. In view of the fact that the respondents are continuing, as alleged, to be under an agreement, they would obviously act as a custodia legis pending the suit as Receivers on behalf of the court. But any rights accrued or claimed by them will be subject to the result in the suit. The claim for enhancement of the rentals cannot be gone into this case and it is dehors the relief in the suit. Under these circumstances, if it is permissible, appropriate steps may be taken by the appellant in any appropriate proceedings as per law.

0[ds]4. In view of the fact that the respondents are continuing, as alleged, to be under an agreement, they would obviously act as a custodia legis pending the suit as Receivers on behalf of the court. But any rights accrued or claimed by them will be subject to the result in the suit. The claim for enhancement of the rentals cannot be gone into this case and it is dehors the relief in the suit. Under these circumstances, if it is permissible, appropriate steps may be taken by the appellant in any appropriate proceedings as per law.

### 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: 1. Leave granted. 2. These appeals by special leave arise from the order of the High Court of Rajasthan, Jaipur Bench made on 4-2-1994 in Civil Miscellaneous Appeals Nos. 294 of 1988 and 311 of 1988.3. The admitted position is that pursuant to an agreement, the respondents are alleged to have come into possession of the suit property for running the business of a hotel. It is the case of the respondents that the appellant was unlawfully interfering with their possession and running of the business. On the other hand, it is the case of the appellant that it is his exclusively property and the respondents have no manner of right to come into possession. Consequently, the respondents filed the suit for perpetual injunction restraining the appellant from interfering with their possession and running of the business. Pending suit, both the parties came to file applications. The appellant filed an application under Order 40 Rule 1 CPC for appointment of a Receiver and the respondents filed an application under Order 39 Rule 1 for an ad interim injunction. Though the trial court had refused to issue the direction for appointment of Receiver, it had issued an injunction against the respondents restraining them from running the business. But, on appeal, the district court has set aside the direction not to run the business and dismissed the applications for appointment of the Receiver which came to be affirmed but the High Court. The High Court has set aside the appointment of the Receiver qua the property. Thus, these appeals by special leave.4. In view of the fact that the respondents are continuing, as alleged, to be under an agreement, they would obviously act as a custodia legis pending the suit as Receivers on behalf of the court. But any rights accrued or claimed by them will be subject to the result in the suit. The claim for enhancement of the rentals cannot be gone into this case and it is dehors the relief in the suit. Under these circumstances, if it is permissible, appropriate steps may be taken by the appellant in any appropriate proceedings as per law. ### Response: 0 ### Explanation: 4. In view of the fact that the respondents are continuing, as alleged, to be under an agreement, they would obviously act as a custodia legis pending the suit as Receivers on behalf of the court. But any rights accrued or claimed by them will be subject to the result in the suit. The claim for enhancement of the rentals cannot be gone into this case and it is dehors the relief in the suit. Under these circumstances, if it is permissible, appropriate steps may be taken by the appellant in any appropriate proceedings as per law.

Commissioner Of Income Tax, Calcutta Vs. British Paints India Ltd

impossible accurately to assess the true profits without taking into account the value of the stock-in-trade at the beginning and at the end of the year..." * 16. The Income Tax Act does not contain any specific provision for the valuation of stock. Income, profits and gains must, however, be computed in the manner provided by the Act. It is the duty of the officer to determine the profits and gains of a commercial adventure according to the correct principle of accounting. In doing so, he might, dependent on the nature of the business and its special character, allow certain adjustments, but his primary purpose and duty is to deduce the correct income, profits and gains, and this he cannot do without taking into account the value of the stock-in-trade at the beginning and at the end of the year and by ascertaining the difference between them : See P.M. Mohammed Meerakhan v. CIT [ 1969 (2) SCC 2517. The object of stock valuation is the correct determination of the profit and loss resulting from a years trading. It is the true result of the trading activity of that year that must be disclosed by the books: "... the profits are the profits realised in the course of the year. What seems an exception is recognised where a trader purchased and still holds goods or stocks which have fallen in value. No loss has been realised. Loss may not occur. Nevertheless, at the close of the year he is permitted to treat these goods or stocks as of their market value." * [Whimster & Co. v. IRC, 1926 (12) Tax(Cases) 813, 827]. "As stated by Patanjali Sastri, C.J., in Chainrup Sampatram v. CIT [ 1953 (24) ITR 481 "... It is wrong to assume that the valuation of the closing stock at market rate has, for its object, the bringing into charge any appreciation in the value of such stock. The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the account at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions on which there have been actual sales in the course of the year showing the profit or loss actually realised on the years trading...." * In the words of Singleton L.J. in Patrick (Inspector of Taxes) v. Broadstone Mills Ltd. [ 1954 (25) ITR 377 "... (1) One cannot arrive at the profits of the year without taking into account the value of the stock one has at the beginning of, and at the end of, the accounting year. (2) The figures for stock are just as important as any other figures. Values may have to be estimated when market price is taken, but any departure from accuracy is reflected in the trading account. (3) Stock should be taken either at cost price or at market price, whichever is the lower..." * 18. Lord Herschell in Russell v. Town and Country Bank [ 1888 (13) AC 418, 424 : 4 TLR 500] observes : (AC p. 424) "The profit of a trade or business was the surplus by which the receipts exceeded the expenditure necessary for the purpose of earning those receipts...." 19. What is the profit of a trade or business is a question of fact and it must be ascertained, as all facts must be ascertained, with reference to the relevant evidence, and not on doctrines or theories : "no assumption need be made unless the facts cannot be ascertained, and then only to the extent to which they cannot be ascertained. There is no room for theories as to flow of costs..." * [Minister of National Revenue v. Anaconda American Brass Ltd. 20. Section 145 of the Income Tax Act, 1961 confers sufficient power upon the officer - nay it imposes a duty upon him - to make such computation in such manner as he determines for deducing the correct profits and gains. This means that where accounts are prepared without disclosing the real cost of the stock-in-trade, albeit on sound expert advice in the interest of efficient administration of the company, it is the duty of the Income Tax Officer to determine the taxable income by making such computation as he thinks fit. 21. Any system of accounting which excludes, for the valuation of the stock-in-trade, all costs other than the cost of raw material for the goods in process and finished products, is likely to result in a distorted picture of the true state of the business for the purpose of computing the chargeable income. Such a system may produce a comparatively lower valuation of the opening stock and the closing stock, thus showing a comparatively low difference between the two. In a period of rising turnover and rising prices, the system adopted by the assessee, as found by the Tribunal, is apt to diminish the assessment of the taxable profit of a year. The profit of one year is likely to be shifted to another year which is an incorrect method of computing profits and gains for the purpose of assessment. Each year being a self-contained unit, and the taxes of a particular year being payable with reference to the income of that year, as computed in terms of the Act, the method adopted by the assessee has been found to be such that income cannot properly be deduced therefrom. It is, therefore, not only the right but the duty of the Assessing Officer to act in exercise of his statutory power, as he has done in the instant case, for determining what, in his opinion, is the correct taxable income. 22. The Tribunals order, affirming that of the Assessing Officer, was based on findings of fact made on cogent evidence and in accordance with correct principles. The High Court was clearly wrong in interfering with those findings.

1[ds]20. Section 145 ofthe Income Tax Act, 1961 confers sufficient power upon the officer - nay it imposes a duty upon him - to make such computation in such manner as he determines for deducing the correct profits and gains. This means that where accounts are prepared without disclosing the real cost of the stock-in-trade, albeit on sound expert advice in the interest of efficient administration of the company, it is the duty of the Income Tax Officer to determine the taxable income by making such computation as he thinksAny system of accounting which excludes, for the valuation of the stock-in-trade, all costs other than the cost of raw material for the goods in process and finished products, is likely to result in a distorted picture of the true state of the business for the purpose of computing the chargeable income. Such a system may produce a comparatively lower valuation of the opening stock and the closing stock, thus showing a comparatively low difference between the two. In a period of rising turnover and rising prices, the system adopted by the assessee, as found by the Tribunal, is apt to diminish the assessment of the taxable profit of a year. The profit of one year is likely to be shifted to another year which is an incorrect method of computing profits and gains for the purpose of assessment. Each year being a self-contained unit, and the taxes of a particular year being payable with reference to the income of that year, as computed in terms of the Act, the method adopted by the assessee has been found to be such that income cannot properly be deduced therefrom. It is, therefore, not only the right but the duty of the Assessing Officer to act in exercise of his statutory power, as he has done in the instant case, for determining what, in his opinion, is the correct taxableThe Tribunals order, affirming that of the Assessing Officer, was based on findings of fact made on cogent evidence and in accordance with correct principles. The High Court was clearly wrong in interfering with those findings

### 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: impossible accurately to assess the true profits without taking into account the value of the stock-in-trade at the beginning and at the end of the year..." * 16. The Income Tax Act does not contain any specific provision for the valuation of stock. Income, profits and gains must, however, be computed in the manner provided by the Act. It is the duty of the officer to determine the profits and gains of a commercial adventure according to the correct principle of accounting. In doing so, he might, dependent on the nature of the business and its special character, allow certain adjustments, but his primary purpose and duty is to deduce the correct income, profits and gains, and this he cannot do without taking into account the value of the stock-in-trade at the beginning and at the end of the year and by ascertaining the difference between them : See P.M. Mohammed Meerakhan v. CIT [ 1969 (2) SCC 2517. The object of stock valuation is the correct determination of the profit and loss resulting from a years trading. It is the true result of the trading activity of that year that must be disclosed by the books: "... the profits are the profits realised in the course of the year. What seems an exception is recognised where a trader purchased and still holds goods or stocks which have fallen in value. No loss has been realised. Loss may not occur. Nevertheless, at the close of the year he is permitted to treat these goods or stocks as of their market value." * [Whimster & Co. v. IRC, 1926 (12) Tax(Cases) 813, 827]. "As stated by Patanjali Sastri, C.J., in Chainrup Sampatram v. CIT [ 1953 (24) ITR 481 "... It is wrong to assume that the valuation of the closing stock at market rate has, for its object, the bringing into charge any appreciation in the value of such stock. The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the account at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions on which there have been actual sales in the course of the year showing the profit or loss actually realised on the years trading...." * In the words of Singleton L.J. in Patrick (Inspector of Taxes) v. Broadstone Mills Ltd. [ 1954 (25) ITR 377 "... (1) One cannot arrive at the profits of the year without taking into account the value of the stock one has at the beginning of, and at the end of, the accounting year. (2) The figures for stock are just as important as any other figures. Values may have to be estimated when market price is taken, but any departure from accuracy is reflected in the trading account. (3) Stock should be taken either at cost price or at market price, whichever is the lower..." * 18. Lord Herschell in Russell v. Town and Country Bank [ 1888 (13) AC 418, 424 : 4 TLR 500] observes : (AC p. 424) "The profit of a trade or business was the surplus by which the receipts exceeded the expenditure necessary for the purpose of earning those receipts...." 19. What is the profit of a trade or business is a question of fact and it must be ascertained, as all facts must be ascertained, with reference to the relevant evidence, and not on doctrines or theories : "no assumption need be made unless the facts cannot be ascertained, and then only to the extent to which they cannot be ascertained. There is no room for theories as to flow of costs..." * [Minister of National Revenue v. Anaconda American Brass Ltd. 20. Section 145 of the Income Tax Act, 1961 confers sufficient power upon the officer - nay it imposes a duty upon him - to make such computation in such manner as he determines for deducing the correct profits and gains. This means that where accounts are prepared without disclosing the real cost of the stock-in-trade, albeit on sound expert advice in the interest of efficient administration of the company, it is the duty of the Income Tax Officer to determine the taxable income by making such computation as he thinks fit. 21. Any system of accounting which excludes, for the valuation of the stock-in-trade, all costs other than the cost of raw material for the goods in process and finished products, is likely to result in a distorted picture of the true state of the business for the purpose of computing the chargeable income. Such a system may produce a comparatively lower valuation of the opening stock and the closing stock, thus showing a comparatively low difference between the two. In a period of rising turnover and rising prices, the system adopted by the assessee, as found by the Tribunal, is apt to diminish the assessment of the taxable profit of a year. The profit of one year is likely to be shifted to another year which is an incorrect method of computing profits and gains for the purpose of assessment. Each year being a self-contained unit, and the taxes of a particular year being payable with reference to the income of that year, as computed in terms of the Act, the method adopted by the assessee has been found to be such that income cannot properly be deduced therefrom. It is, therefore, not only the right but the duty of the Assessing Officer to act in exercise of his statutory power, as he has done in the instant case, for determining what, in his opinion, is the correct taxable income. 22. The Tribunals order, affirming that of the Assessing Officer, was based on findings of fact made on cogent evidence and in accordance with correct principles. The High Court was clearly wrong in interfering with those findings. ### Response: 1 ### Explanation: 20. Section 145 ofthe Income Tax Act, 1961 confers sufficient power upon the officer - nay it imposes a duty upon him - to make such computation in such manner as he determines for deducing the correct profits and gains. This means that where accounts are prepared without disclosing the real cost of the stock-in-trade, albeit on sound expert advice in the interest of efficient administration of the company, it is the duty of the Income Tax Officer to determine the taxable income by making such computation as he thinksAny system of accounting which excludes, for the valuation of the stock-in-trade, all costs other than the cost of raw material for the goods in process and finished products, is likely to result in a distorted picture of the true state of the business for the purpose of computing the chargeable income. Such a system may produce a comparatively lower valuation of the opening stock and the closing stock, thus showing a comparatively low difference between the two. In a period of rising turnover and rising prices, the system adopted by the assessee, as found by the Tribunal, is apt to diminish the assessment of the taxable profit of a year. The profit of one year is likely to be shifted to another year which is an incorrect method of computing profits and gains for the purpose of assessment. Each year being a self-contained unit, and the taxes of a particular year being payable with reference to the income of that year, as computed in terms of the Act, the method adopted by the assessee has been found to be such that income cannot properly be deduced therefrom. It is, therefore, not only the right but the duty of the Assessing Officer to act in exercise of his statutory power, as he has done in the instant case, for determining what, in his opinion, is the correct taxableThe Tribunals order, affirming that of the Assessing Officer, was based on findings of fact made on cogent evidence and in accordance with correct principles. The High Court was clearly wrong in interfering with those findings

State Of Tamil Nadu Vs. Thirumagal Mills Ltd. Etc

other valuable consideration, and includes a transfer of property in goods involved in the execution of a works contract, but does not include a mortgage, hypothecation, charge or pledge". By the Madras General Sales Tax (Second Amendment) Act, 1964, cl. (d) of S.2 was substituted by the following clause:"business" includes- (i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern and (ii) any transaction in connection with or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern". Section 9 validated the levy and collection of certain taxes in the following terms:S.9. Notwithstanding anything contained in any judgment, decree or order of any Court, no levy or collection of any tax under the provisions of the principal Act and of rules made thereunder in respect of sales in the course of business, whether or not it is carried on with a motive to make gain or profit shall be deemed to be invalid or ever to have been invalid on the ground only that such levy or collection was not in accordance with law and such tax levied or collected or purporting to have been levied or collected shall, for all purposes, be deemed to be and always to have been validly levied or collected and accordingly- (a) all acts, proceedings or things done or taken by the State Government or by any officer of the State Government or by any other authority in connection with the levy or collection of such tax shall, for all purposes, be deemed to be, and to have always been, done or taken in accordance with law, (b) no suit or other proceedings shall be maintained or continued in any Court against the State Government or any person or authority whatsoever for the refund of any tax so paid; and (c) no Court shall enforce any decree or order directing the refund of any tax so paid; (d) any such tax levied under the principal Act before the commencement of this Act but not collected before such commencement or any such tax leviable under the Principal Act but not levied before such commencement may be collected (after levy of the tax wherever necessary) in the manner provided in the principal Act." 5. It has not been contended before us on behalf of the Revenue that the turnover of the sales by the fair price shop and the canteen could be included in the taxable turnover according to the definition of "business" as it stood in the original Act. The contention raised is that S.2 of the second Amendment Act 1964 substituted the new definition of "business" with retrospective effect. This result flows, it is said, from the language of S.9 although in S.2 of that Act no such language has been used as can give retrospective operation to the amendment made. We are unable to agree that S.9 by itself would make the definition of "business" as substituted in S.2 retrospective. In State of Tamil Nadu v. M. Rayappa Gounder etc. AIR 1971 SC 231, S.7 of the Madras Entertainment Act (Amendment) Act 1966 which was similar to Section 9 mentioned above came up for consideration. The question was whether the assessment were validly protected by that section. Reliance was placed on certain decisions of this Court which laid down that it is over to the legislature within certain limits to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been but it was not open to the legislature to say that a judgment of a Court properly constituted and rendered shall be deemed to be ineffective. Hence it was held that the impugned assessment in that case could not be sustained. The principle which has been laid down clearly is that validation of tax which has been declared to be illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is achieved by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. The legislature can give its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon the Courts. None of these methods has been adopted in the present case. (See Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, 79 ITR 136 = (AIR 1970 SC 192 ). Although the definition of "business" was substituted by the Second Amendment Act of 1964 it was not made retrospective by the usual words that it should be deemed to have been always substituted nor was any other language employed to show that the substantive provision, namely, the definition of "business" was being amended retrospectively. Section 9, therefore, can be of no avail to the Revenue. It has been pointed out that in the other decision rendered by this Court in which similar validation provision appeared the substantive section had not been amended at all. That, in our judgment will not make any difference between the essence of the matter is that the definition of the word "business" which was material was amended only prospectively and not with retrospective effect. It is common ground and has not been disputed that if retrospective operation is not given to Section 2 (d) of the Second Amendment Act 1964 the Revenue must fail in these appeals. We may add that we have not considered the question of the liability of the assessee to be assessed subsequent to the amendment made by the Second Amendment Act of 1964.

0[ds]Hence it was held that the impugned assessment in that case could not be sustained. The principle which has been laid down clearly is that validation of tax which has been declared to be illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is achieved by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. The legislature can give its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon the Courts. None of these methods has been adopted in the present caseAlthough the definition of "business" was substituted by the Second Amendment Act of 1964 it was not made retrospective by the usual words that it should be deemed to have been always substituted nor was any other language employed to show that the substantive provision, namely, the definition of "business" was being amended retrospectively. Section 9, therefore, can be of no avail to the Revenue. It has been pointed out that in the other decision rendered by this Court in which similar validation provision appeared the substantive section had not been amended at all. That, in our judgment will not make any difference between the essence of the matter is that the definition of the word "business" which was material was amended only prospectively and not with retrospective effect. It is common ground and has not been disputed that if retrospective operation is not given to Section 2 (d) of the Second Amendment Act 1964 the Revenue must fail in these appeals. We may add that we have not considered the question of the liability of the assessee to be assessed subsequent to the amendment made by the Second Amendment Act of 1964We are unable to agree that S.9 by itself would make the definition of "business" as substituted in S.2 retrospective. In State of Tamil Nadu v. M. Rayappa Gounder etc. AIR 1971 SC 231, S.7 of the Madras Entertainment Act (Amendment) Act 1966 which was similar to Section 9 mentioned above came up for consideration. The question was whether the assessment were validly protected by that sectionReliance was placed on certain decisions of this Court which laid down that it is over to the legislature within certain limits to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been but it was not open to the legislature to say that a judgment of a Court properly constituted and rendered shall be deemed to be ineffective.

### 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: other valuable consideration, and includes a transfer of property in goods involved in the execution of a works contract, but does not include a mortgage, hypothecation, charge or pledge". By the Madras General Sales Tax (Second Amendment) Act, 1964, cl. (d) of S.2 was substituted by the following clause:"business" includes- (i) any trade, commerce or manufacture or any adventure or concern in the nature of trade, commerce or manufacture whether or not such trade, commerce, manufacture, adventure or concern is carried on with a motive to make gain or profit and whether or not any profit accrues from such trade, commerce, manufacture, adventure or concern and (ii) any transaction in connection with or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern". Section 9 validated the levy and collection of certain taxes in the following terms:S.9. Notwithstanding anything contained in any judgment, decree or order of any Court, no levy or collection of any tax under the provisions of the principal Act and of rules made thereunder in respect of sales in the course of business, whether or not it is carried on with a motive to make gain or profit shall be deemed to be invalid or ever to have been invalid on the ground only that such levy or collection was not in accordance with law and such tax levied or collected or purporting to have been levied or collected shall, for all purposes, be deemed to be and always to have been validly levied or collected and accordingly- (a) all acts, proceedings or things done or taken by the State Government or by any officer of the State Government or by any other authority in connection with the levy or collection of such tax shall, for all purposes, be deemed to be, and to have always been, done or taken in accordance with law, (b) no suit or other proceedings shall be maintained or continued in any Court against the State Government or any person or authority whatsoever for the refund of any tax so paid; and (c) no Court shall enforce any decree or order directing the refund of any tax so paid; (d) any such tax levied under the principal Act before the commencement of this Act but not collected before such commencement or any such tax leviable under the Principal Act but not levied before such commencement may be collected (after levy of the tax wherever necessary) in the manner provided in the principal Act." 5. It has not been contended before us on behalf of the Revenue that the turnover of the sales by the fair price shop and the canteen could be included in the taxable turnover according to the definition of "business" as it stood in the original Act. The contention raised is that S.2 of the second Amendment Act 1964 substituted the new definition of "business" with retrospective effect. This result flows, it is said, from the language of S.9 although in S.2 of that Act no such language has been used as can give retrospective operation to the amendment made. We are unable to agree that S.9 by itself would make the definition of "business" as substituted in S.2 retrospective. In State of Tamil Nadu v. M. Rayappa Gounder etc. AIR 1971 SC 231, S.7 of the Madras Entertainment Act (Amendment) Act 1966 which was similar to Section 9 mentioned above came up for consideration. The question was whether the assessment were validly protected by that section. Reliance was placed on certain decisions of this Court which laid down that it is over to the legislature within certain limits to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been but it was not open to the legislature to say that a judgment of a Court properly constituted and rendered shall be deemed to be ineffective. Hence it was held that the impugned assessment in that case could not be sustained. The principle which has been laid down clearly is that validation of tax which has been declared to be illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is achieved by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. The legislature can give its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon the Courts. None of these methods has been adopted in the present case. (See Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, 79 ITR 136 = (AIR 1970 SC 192 ). Although the definition of "business" was substituted by the Second Amendment Act of 1964 it was not made retrospective by the usual words that it should be deemed to have been always substituted nor was any other language employed to show that the substantive provision, namely, the definition of "business" was being amended retrospectively. Section 9, therefore, can be of no avail to the Revenue. It has been pointed out that in the other decision rendered by this Court in which similar validation provision appeared the substantive section had not been amended at all. That, in our judgment will not make any difference between the essence of the matter is that the definition of the word "business" which was material was amended only prospectively and not with retrospective effect. It is common ground and has not been disputed that if retrospective operation is not given to Section 2 (d) of the Second Amendment Act 1964 the Revenue must fail in these appeals. We may add that we have not considered the question of the liability of the assessee to be assessed subsequent to the amendment made by the Second Amendment Act of 1964. ### Response: 0 ### Explanation: Hence it was held that the impugned assessment in that case could not be sustained. The principle which has been laid down clearly is that validation of tax which has been declared to be illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed. Sometimes this is done by providing for jurisdiction where jurisdiction had not been properly invested before. Sometimes this is achieved by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already collected to stand under the re-enacted law. The legislature can give its own meaning and interpretation of the law under which the tax was collected and by legislative fiat makes the new meaning binding upon the Courts. None of these methods has been adopted in the present caseAlthough the definition of "business" was substituted by the Second Amendment Act of 1964 it was not made retrospective by the usual words that it should be deemed to have been always substituted nor was any other language employed to show that the substantive provision, namely, the definition of "business" was being amended retrospectively. Section 9, therefore, can be of no avail to the Revenue. It has been pointed out that in the other decision rendered by this Court in which similar validation provision appeared the substantive section had not been amended at all. That, in our judgment will not make any difference between the essence of the matter is that the definition of the word "business" which was material was amended only prospectively and not with retrospective effect. It is common ground and has not been disputed that if retrospective operation is not given to Section 2 (d) of the Second Amendment Act 1964 the Revenue must fail in these appeals. We may add that we have not considered the question of the liability of the assessee to be assessed subsequent to the amendment made by the Second Amendment Act of 1964We are unable to agree that S.9 by itself would make the definition of "business" as substituted in S.2 retrospective. In State of Tamil Nadu v. M. Rayappa Gounder etc. AIR 1971 SC 231, S.7 of the Madras Entertainment Act (Amendment) Act 1966 which was similar to Section 9 mentioned above came up for consideration. The question was whether the assessment were validly protected by that sectionReliance was placed on certain decisions of this Court which laid down that it is over to the legislature within certain limits to amend the provisions of the Act retrospectively and to declare what the law shall be deemed to have been but it was not open to the legislature to say that a judgment of a Court properly constituted and rendered shall be deemed to be ineffective.

UNION OF INDIA & ORS Vs. MANJU ARORA & ANR

thereafter, he shall become eligible for the secondup-gradation under the ACP Scheme only after he completes the required eligibility service/ period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a persons has got one financial up-gradation after rendering 12 years of regular service and after 2 years there from if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+12+1) of regular service, he shall be eligible for consideration for the second up-gradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial up-gradation (2+10) in the higher grade i.e. after 25 years (12+12+1) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade. 11. As can be seen, the benefit of the financial upgradation under the ACP Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition no. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non-acceptance of such promotion would impact only their second upgradation. With such finding, the respondents were held entitled to the relief under the ACP Scheme, although it was a case of refusal of promotion offered to the employee. 12. The learned counsel for the appellant has taken us through the relevant conditions in the ACP Scheme notified on 9.8.1999 and more particularly clause 5.1 and Clause 10 thereof. She has also brought to the notice of the Court, the promotions offered to the employees and their refusal to accept the promotion for their own personal reasons, such as family needs or movement to another station etc. 13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, the O.M. dated 9.8.1999 was introduced as a safety net to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee when she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition? 14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancy based promotion before grant of ACP benefit and the regular promotion was refused, she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over. 15. However, despite the clear wordings in condition 5.1, the purport of the OM dated 9.8.1999 was missed out in the impugned judgment and the learned Court unnecessarily adverted to the words in condition 10 of the O.M. to hold in favor of the employees who have refused promotion for their own personal reasons. 16. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees. 17. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting. 18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Consequently, it is declared that the employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999. In this situation, the Scottish doctrine of Approbate and Reprobate springs to mind. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd. [1940] A.C 412 wherein Lord Atkin observed at page 429, …………In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other…………. The above doctrine is attracted to the circumstances in this case.

1[ds]13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, the O.M. dated 9.8.1999 was introduced as a safety net to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee when she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition?14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancy based promotion before grant of ACP benefit and the regular promotion was refused, she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over.15. However, despite the clear wordings in condition 5.1, the purport of the OM dated 9.8.1999 was missed out in the impugned judgment and the learned Court unnecessarily adverted to the words in condition 10 of the O.M. to hold in favor of the employees who have refused promotion for their own personal reasons.16. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees.17. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting.18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Consequently, it is declared that the employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999. In this situation, the Scottish doctrine of Approbate and Reprobate springs to mind. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd. [1940] A.C 412 wherein Lord Atkin observed at page 429,…………In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other………….The above doctrine is attracted to the circumstances in this case. The concerned employees cannot therefore be allowed to simultaneously approbate and reprobate, or to put it colloquially, eat their cake and have it too. It is declared accordingly for the respondents in the C.A. Nos.7027-28/2009.19. However, the above would not apply to the two respondent employees Kanta Suri and Veena Arora in C.A Nos.7150-7151/2009 as they were not offered regular promotion but conditional promotion on officiating basis subject to reversion, by the order dated 29.12.1988. These two employees cannot be said to have exercised a choice between alternatives and as such the above Principle would not apply and their refusal to accept the officiating promotion cannot be held against them.

### 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: thereafter, he shall become eligible for the secondup-gradation under the ACP Scheme only after he completes the required eligibility service/ period under the ACP Scheme in that higher grade subject to the condition that the period for which he was debarred for regular promotion shall not count for the purpose. For example, if a persons has got one financial up-gradation after rendering 12 years of regular service and after 2 years there from if he refuses regular promotion and is consequently debarred for one year and subsequently he is promoted to the higher grade on regular basis after completion of 15 years (12+12+1) of regular service, he shall be eligible for consideration for the second up-gradation under the ACP Scheme only after rendering ten more years in addition to two years of service already rendered by him after the first financial up-gradation (2+10) in the higher grade i.e. after 25 years (12+12+1) of regular service because the debarment period of one year cannot be taken into account towards the required 12 years of regular service in that higher grade. 11. As can be seen, the benefit of the financial upgradation under the ACP Scheme shall be available only if regular promotion during the prescribed intervals, 12 years and 24 years, could not be availed by an employee. While Condition no. 5.1 is clear to this effect, the Division Bench unnecessarily referred to condition No. 10 to hold in favor of employees who have refused promotion offered to them. The Court was of the opinion that the employees concerned are entitled to one financial upgradation, even if they turn down the offer of promotion, as non-acceptance of such promotion would impact only their second upgradation. With such finding, the respondents were held entitled to the relief under the ACP Scheme, although it was a case of refusal of promotion offered to the employee. 12. The learned counsel for the appellant has taken us through the relevant conditions in the ACP Scheme notified on 9.8.1999 and more particularly clause 5.1 and Clause 10 thereof. She has also brought to the notice of the Court, the promotions offered to the employees and their refusal to accept the promotion for their own personal reasons, such as family needs or movement to another station etc. 13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, the O.M. dated 9.8.1999 was introduced as a safety net to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee when she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition? 14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancy based promotion before grant of ACP benefit and the regular promotion was refused, she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over. 15. However, despite the clear wordings in condition 5.1, the purport of the OM dated 9.8.1999 was missed out in the impugned judgment and the learned Court unnecessarily adverted to the words in condition 10 of the O.M. to hold in favor of the employees who have refused promotion for their own personal reasons. 16. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees. 17. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting. 18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Consequently, it is declared that the employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999. In this situation, the Scottish doctrine of Approbate and Reprobate springs to mind. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd. [1940] A.C 412 wherein Lord Atkin observed at page 429, …………In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other…………. The above doctrine is attracted to the circumstances in this case. ### Response: 1 ### Explanation: 13. Reading of the ACP Scheme shows that financial upgradation would accrue to an employee only if no regular promotions have been received by her/him at the prescribed intervals of 12 and 24 years respectively. In the entire service career, an employee is entitled to financial upgradation if the concerned employee had to suffer stagnation in the same post without benefit of any regular promotion and, as earlier stated, the O.M. dated 9.8.1999 was introduced as a safety net to deal with the problems of genuine stagnation and hardship faced by the employees due to lack of adequate promotional avenues. But can the benefit of the Scheme be claimed by an employee when she, despite offer of regular promotion, refuses to accept the same and chooses to remain in the existing grade of her own volition?14. As can be seen from the records, Manju Arora and Suman Lata Bhatia were offered promotion to higher grade on multiple occasions, but they refused the same and chose to continue in the existing pay scale. The purport of the O.M. dated 9.8.1999 was subsequently clarified by the O.M. dated 18.7.2001 where it was specifically provided that an employee who had been offered regular vacancy based promotion before grant of ACP benefit and the regular promotion was refused, she/he become ineligible to the grant of the ACP benefits. Even without the clarificatory notification dated 18.7.2001, a plain reading of clause 5.1 of the O.M. dated 9.8.1999 makes it abundantly clear that an employee who has opted to remain in the existing grade, by refusing offer of promotion, forfeits the rights to ACP benefits and such employee, on account of refusal, can be considered for regular promotion only after necessary debarment period is over.15. However, despite the clear wordings in condition 5.1, the purport of the OM dated 9.8.1999 was missed out in the impugned judgment and the learned Court unnecessarily adverted to the words in condition 10 of the O.M. to hold in favor of the employees who have refused promotion for their own personal reasons.16. We are quite certain that if a regular promotion is offered but is refused by the employee before becoming entitled to a financial upgradation, she/he shall not be entitled to financial upgradation only because she has suffered stagnation. This is because, it is not a case of lack of promotional opportunities but an employee opting to forfeit offered promotion, for her own personal reasons. However, this vital aspect was not appropriately appreciated by the High Court while granting relief to the employees.17. It may also be observed that when an employee refuses the offered promotion, difficulties in manning the higher position might arise which give rise to administrative difficulties as the concerned employee very often refuse promotion in order to continue in his/her own place of posting.18. In the above circumstances, we find merit in the submissions made on behalf of the appellants. Consequently, it is declared that the employees who have refused the offer of regular promotion are disentitled to the financial upgradation benefits envisaged under the O.M. dated 9.8.1999. In this situation, the Scottish doctrine of Approbate and Reprobate springs to mind. The English equivalent of the doctrine was explained in Lissenden v. CAV Bosch Ltd. [1940] A.C 412 wherein Lord Atkin observed at page 429,…………In cases where the doctrine does apply the person concerned has the choice of two rights, either of which he is at liberty to adopt, but not both. Where the doctrine does apply, if the person to whom the choice belongs irrevocably and with knowledge adopts the one he cannot afterwards assert the other………….The above doctrine is attracted to the circumstances in this case. The concerned employees cannot therefore be allowed to simultaneously approbate and reprobate, or to put it colloquially, eat their cake and have it too. It is declared accordingly for the respondents in the C.A. Nos.7027-28/2009.19. However, the above would not apply to the two respondent employees Kanta Suri and Veena Arora in C.A Nos.7150-7151/2009 as they were not offered regular promotion but conditional promotion on officiating basis subject to reversion, by the order dated 29.12.1988. These two employees cannot be said to have exercised a choice between alternatives and as such the above Principle would not apply and their refusal to accept the officiating promotion cannot be held against them.

Sunil B. Naik Vs. Geowave Commander

These words are clearly inapt to describe the possession of a demise charterer.... In my view, the expression beneficial owner was chosen to serve as an instruction, in a system of registration of ownership rights, to look beyond the register in searching for the relevant person. But such search cannot go so far as to encompass a demise charterer who has no equitable or proprietary interest which could burden the title of the registered owner of the registered owner. As I see it, the expression beneficial owner serves to include someone who stands behind the registered owner in situations where the latter functions merely as an intermediary, like a trustee, a legal representative or an agent. The French corresponding expression veritable proprietaire leaves no doubt to that effect." 63. The Supreme Court of Canada in Antares Shipping Corporation v. The Ship `Capricorn et al.,also referred to the concept of beneficial ownership and cited with the approval, observations made in Halsburys Laws of England at para 15 as follows: "Ownership in a British ship or share therein may be acquired in any of three ways - by transfer from a person entitled to transfer, by transmission or by building. Acquisition by transfer and transmission have been the subject of statutory enactment. Acquisition by building is governed by the common law. Ownership in a British ship or share therein is a question of fact and does not depend upon registration of title. Whether registered or unregistered, a person in whom ownership in fact vests is regarded in law as the owner if registered, as the legal owner; if unregistered, as the beneficial owner." (emphasis supplied) 64. The successor to the 1956 Act is the Supreme Court Act of 1981. Section 21(4) of that Act of U.K. recognizes the discussion in view of Robert Goff, J. by the following provision: "21. (4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where(a) the claim arises in connection with a ship ; and(b) the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against -i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise ; or(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it." 65. There is a clear distinction between a beneficial ownership of a ship and the charterer of a ship.66. In the aforesaid context, now turning to the Arrest Convention of 1999, Article 1 specifies that the maritime claim means a claim inter alia arising out of an agreement relating to use or hire of "the ship." The connotation of "the ship" would mean the 16 trawlers or the Orion Laxmi and not the respondent ship. Thus, there is no maritime claim against the respondent ship. Article 3 deals with the exercise of rights of arrest and the eventualities are specified thereunder. In terms of clause (2) of Article 3 (these Articles are reproduced in paras 25 to 27 above), the arrest is permissible of any other ship (which would connote the respondent ship), which, when the arrest is effected is owned by the person who is liable for the maritime claim. The liability of the maritime claim is Reflect Geophysical and not the owners of the respondent ship. In terms of sub-clause (b) of clause (2) of Article 3, a demise charterer, time charterer or voyage charterer of that ship is liable. The ship in question, as noticed above, is not the respondent but the 16 trawlers or the Orion Laxmi. In view of the discussion aforesaid, really speaking Reflect Geophysical cannot be said to be the beneficial owner in the capacity of a demised charterer of the respondent ship. Reflect Geophysical is not the owner of the respondent ship and the owner cannot be made liable for a maritime claim, which is against the trawlers and Orion Laxmi.67. We may also note that in the 2017 Act in India clause 5(b) states as under: "5. Arrest of vessel in rem.-(1) The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that-xxxx xxxx xxxx xxxx xxxx(b) the demise charterer of the vessel at the time when the maritime claim arose is liable for the claim and is the demise charterer or the owner of the vessel when the arrest is effected; or" 68. The aforesaid is in consonance with Article 3 of the 1999 Convention and, thus, must be read in that context (incidentally the Bill was introduced on 21.11.2016 and passed by the Lok Sabha and the Rajya Sabha on 10.3.2017 and 24.7.2017 respectively. It was published in the Gazette on 9.8.2017 but is still not notified). The incident in this question is, thus, prior to beginning of this exercise. The expression "the vessel", "owner" and "demise charterer", thus, must be read in the aforesaid context and the maritime claims in respect of 16 trawlers and Orion Laxmi cannot be converted into a maritime claim against the respondent ship not owned by Reflect Geophysical.69. The appellants have neither any agreement with the owners of the respondent vessel nor any claim against the respondent vessel but their claim is on account of their own vessels hired by the charterer of the respondent vessel. There is no claim against the owners of the respondent vessel.

0[ds]42. Insofar as the respondent vessel is concerned, there is no agreement entered into by either of the two appellants and, thus, it cannot be a maritime claim in respect of Article 1(1)(f) of the Arrest Convention. Consequently, there would be no occasion to arrest the vessel under Article 3(1)(b) of the Arrest Convention as no maritime claim has resulted in the hands of the demised charterer with regard to the demised vessel. The maritime claim by either of the appellants could, thus, be enforced only by arresting another vessel owned by Reflect Geophysical and the de facto ownership, could not be converted into a de jure ownership. In respect of Article 1(1)(l), it was, once again, held that there was no supply of goods to the vessel or of supply of services to the vessel in question, which was the respondent vessel. Insofar as the reasoning in Sunil B. Naiks case, so far as Article 1(1)(l) is concerned, it has been categorically found that it was not a case where goods had been given on hire or for use of the respondent vessel.On giving our thoughtful consideration to the issue at hand, we are in full agreement with the view taken by the Courts below and find no reason to interfere in appeal.44. We have referred to the various terms of the bareboat charter which make it quite clear that Reflect Geophysical had the status of a de facto owner. The charter agreement did contain a clause for conversion of the status into a de jure owner but the occasion for the same never arose. The option to purchase was to be exercised by an advance intimation of six months prior to the end of the charter period and the purchase price was also specified as US$ 3,01,50,000. The charterer could not make any structural changes in the vessel or in the machinery, boilers, appurtenances or space parts thereof without first securing the owners approval and the vessel had to be restored to its former condition before the termination of the charter, if so required by the owners. This was, thus, a deed between the owner of the respondent and Reflect Geophysical.45. The contracts entered into with the appellants by Reflect Geophysical are completely another set of charter hire agreements/contracts. The unpaid amounts under these contracts amount to claims against Reflect Geophysical. Thus, if there was another vessel owned by Reflect Geophysical, the appellants would have been well within their rights to seek detention of that vessel as they have a maritime claim but not in respect of the respondent vessel. The maritime claim is in respect of the vessels which are owned by the appellants and the party liable in personam is Reflect Geophysical. Were the respondent vessel put under the de jure ownership of Reflect Geophysical, the appellants would have been within their rights to seek a detention order against that vessel for recovery of their claims.46. In the facts of the present case the owners of the respondent vessel, in fact, also have a claim against Reflect Geophysical for unpaid charter amount. Thus, unfortunately it is both the owner of the respondent vessel on the one hand and the appellants on the other, who have a maritime claim against Reflect Geophysical, which has gone into liquidation. The appellants quite conscious of the limitations of any endeavour to recover the amount from Reflect Geophysical, have ventured into this litigation to somehow recover the amount from, in effect, the owners of the respondent vessel by detention of the respondent vessel. That may also be the reason why the appellants did not even think it worth their while to implead Reflect Geophysical against whom they have their claim in personam, possibly envisaged as a futile exercise.The aforesaid issue has also been discussed in Polestar Maritime Ltd.,while dealing with Article 3(2) of the Arrest Convention. The test of the ownership of both the ships as one and the same is not satisfied in the present case. The second situation envisaged is where another ship owned by the charterer is detained, i.e., he has taken `A ship on charter where he has only de facto ownership and his ship `B is detained where charterer has de jure ownership. It cannot be countenanced that where no in personam claim lies against an entity, still the ship of that entity taken on bareboat charter can be detained to recover the dues. The owner of the respondent vessel is as much a creditor of Reflect Geophysical as the appellants.49. Mr. Naphade, learned Senior Advocate while relying on the judgment in M.V. Elisabeth & Ors.,had referred to the expanding jurisdiction of a maritime claim. However, the observations made in the said judgment reproduced hereinabove in para 21 would show that the arrest of the ship is regarded as a mere procedure to obtain security to satisfy the judgment. To that extent it is distinguished from a right in personam to proceed against the owner but there has to be a liability of the ship owner and in that eventuality the legal proceedings commenced in rem would become a personal action in personam against the defendant when he enters appearance. There cannot be a detention of a ship as a security and guarantee arising from its owner for a claim which is in respect of aor a charterer of the ship.50. On turning to the provisions of the Convention, a maritime claim is specified as relating to use or hire of a ship whether contained in a charter party or otherwise [clause (f)]. Insofar as clause (l) is concerned they relate inter alia to services rendered to the ship. The question, however, isAs an illustrative example if we consider the principles of a garnishee order where amounts held by a third party on behalf of a defendant can be injuncted or attached to satisfy the ultimate claim, which may arise against the defendant. It is not as if somebody elses money is attached in pursuance to a garnishees order. Similarly for a claim against the owner of the vessel, a vessel may be detained and not that somebody elses vessel would be detained for the said purpose. The crucial test would be of ownership, which in the present case clearly does not vest with Reflect Geophysical and the de facto ownership under their bareboat charter cannot be equated to a de jure owner, which is necessary for an action in personam.There is a clear distinction between a beneficial ownership of a ship and the charterer of a ship.66. In the aforesaid context, now turning to the Arrest Convention of 1999, Article 1 specifies that the maritime claim means a claim inter alia arising out of an agreement relating to use or hire of "the ship." The connotation of "the ship" would mean the 16 trawlers or the Orion Laxmi and not the respondent ship. Thus, there is no maritime claim against the respondent ship. Article 3 deals with the exercise of rights of arrest and the eventualities are specified thereunder. In terms of clause (2) of Article 3 (these Articles are reproduced in paras 25 to 27 above), the arrest is permissible of any other ship (which would connote the respondent ship), which, when the arrest is effected is owned by the person who is liable for the maritime claim. The liability of the maritime claim is Reflect Geophysical and not the owners of the respondent ship. In terms of(b) of clause (2) of Article 3, a demise charterer, time charterer or voyage charterer of that ship is liable. The ship in question, as noticed above, is not the respondent but the 16 trawlers or the Orion Laxmi. In view of the discussion aforesaid, really speaking Reflect Geophysical cannot be said to be the beneficial owner in the capacity of a demised charterer of the respondent ship. Reflect Geophysical is not the owner of the respondent ship and the owner cannot be made liable for a maritime claim, which is against the trawlers and Orion Laxmi.67. We may also note that in the 2017 Act in India clause 5(b) states asArrest of vessel inThe High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believexxxx xxxx xxxx xxxx(b) the demise charterer of the vessel at the time when the maritime claim arose is liable for the claim and is the demise charterer or the owner of the vessel when the arrest is effected;The aforesaid is in consonance with Article 3 of the 1999 Convention and, thus, must be read in that context (incidentally the Bill was introduced on 21.11.2016 and passed by the Lok Sabha and the Rajya Sabha on 10.3.2017 and 24.7.2017 respectively. It was published in the Gazette on 9.8.2017 but is still not notified). The incident in this question is, thus, prior to beginning of this exercise. The expression "the vessel", "owner" and "demise charterer", thus, must be read in the aforesaid context and the maritime claims in respect of 16 trawlers and Orion Laxmi cannot be converted into a maritime claim against the respondent ship not owned by Reflect Geophysical.69. The appellants have neither any agreement with the owners of the respondent vessel nor any claim against the respondent vessel but their claim is on account of their own vessels hired by the charterer of the respondent vessel. There is no claim against the owners of the respondent vessel.

### 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: These words are clearly inapt to describe the possession of a demise charterer.... In my view, the expression beneficial owner was chosen to serve as an instruction, in a system of registration of ownership rights, to look beyond the register in searching for the relevant person. But such search cannot go so far as to encompass a demise charterer who has no equitable or proprietary interest which could burden the title of the registered owner of the registered owner. As I see it, the expression beneficial owner serves to include someone who stands behind the registered owner in situations where the latter functions merely as an intermediary, like a trustee, a legal representative or an agent. The French corresponding expression veritable proprietaire leaves no doubt to that effect." 63. The Supreme Court of Canada in Antares Shipping Corporation v. The Ship `Capricorn et al.,also referred to the concept of beneficial ownership and cited with the approval, observations made in Halsburys Laws of England at para 15 as follows: "Ownership in a British ship or share therein may be acquired in any of three ways - by transfer from a person entitled to transfer, by transmission or by building. Acquisition by transfer and transmission have been the subject of statutory enactment. Acquisition by building is governed by the common law. Ownership in a British ship or share therein is a question of fact and does not depend upon registration of title. Whether registered or unregistered, a person in whom ownership in fact vests is regarded in law as the owner if registered, as the legal owner; if unregistered, as the beneficial owner." (emphasis supplied) 64. The successor to the 1956 Act is the Supreme Court Act of 1981. Section 21(4) of that Act of U.K. recognizes the discussion in view of Robert Goff, J. by the following provision: "21. (4) In the case of any such claim as is mentioned in section 20(2)(e) to (r), where(a) the claim arises in connection with a ship ; and(b) the person who would be liable on the claim in an action in personam ("the relevant person") was, when the cause of action arose, the owner or charterer of, or in possession or in control of, the ship,an action in rem may (whether or not the claim gives rise to a maritime lien on that ship) be brought in the High Court against -i) that ship, if at the time when the action is brought the relevant person is either the beneficial owner of that ship as respects all the shares in it or the charterer of it under a charter by demise ; or(ii) any other ship of which, at the time when the action is brought, the relevant person is the beneficial owner as respects all the shares in it." 65. There is a clear distinction between a beneficial ownership of a ship and the charterer of a ship.66. In the aforesaid context, now turning to the Arrest Convention of 1999, Article 1 specifies that the maritime claim means a claim inter alia arising out of an agreement relating to use or hire of "the ship." The connotation of "the ship" would mean the 16 trawlers or the Orion Laxmi and not the respondent ship. Thus, there is no maritime claim against the respondent ship. Article 3 deals with the exercise of rights of arrest and the eventualities are specified thereunder. In terms of clause (2) of Article 3 (these Articles are reproduced in paras 25 to 27 above), the arrest is permissible of any other ship (which would connote the respondent ship), which, when the arrest is effected is owned by the person who is liable for the maritime claim. The liability of the maritime claim is Reflect Geophysical and not the owners of the respondent ship. In terms of sub-clause (b) of clause (2) of Article 3, a demise charterer, time charterer or voyage charterer of that ship is liable. The ship in question, as noticed above, is not the respondent but the 16 trawlers or the Orion Laxmi. In view of the discussion aforesaid, really speaking Reflect Geophysical cannot be said to be the beneficial owner in the capacity of a demised charterer of the respondent ship. Reflect Geophysical is not the owner of the respondent ship and the owner cannot be made liable for a maritime claim, which is against the trawlers and Orion Laxmi.67. We may also note that in the 2017 Act in India clause 5(b) states as under: "5. Arrest of vessel in rem.-(1) The High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believe that-xxxx xxxx xxxx xxxx xxxx(b) the demise charterer of the vessel at the time when the maritime claim arose is liable for the claim and is the demise charterer or the owner of the vessel when the arrest is effected; or" 68. The aforesaid is in consonance with Article 3 of the 1999 Convention and, thus, must be read in that context (incidentally the Bill was introduced on 21.11.2016 and passed by the Lok Sabha and the Rajya Sabha on 10.3.2017 and 24.7.2017 respectively. It was published in the Gazette on 9.8.2017 but is still not notified). The incident in this question is, thus, prior to beginning of this exercise. The expression "the vessel", "owner" and "demise charterer", thus, must be read in the aforesaid context and the maritime claims in respect of 16 trawlers and Orion Laxmi cannot be converted into a maritime claim against the respondent ship not owned by Reflect Geophysical.69. The appellants have neither any agreement with the owners of the respondent vessel nor any claim against the respondent vessel but their claim is on account of their own vessels hired by the charterer of the respondent vessel. There is no claim against the owners of the respondent vessel. ### Response: 0 ### Explanation: also be the reason why the appellants did not even think it worth their while to implead Reflect Geophysical against whom they have their claim in personam, possibly envisaged as a futile exercise.The aforesaid issue has also been discussed in Polestar Maritime Ltd.,while dealing with Article 3(2) of the Arrest Convention. The test of the ownership of both the ships as one and the same is not satisfied in the present case. The second situation envisaged is where another ship owned by the charterer is detained, i.e., he has taken `A ship on charter where he has only de facto ownership and his ship `B is detained where charterer has de jure ownership. It cannot be countenanced that where no in personam claim lies against an entity, still the ship of that entity taken on bareboat charter can be detained to recover the dues. The owner of the respondent vessel is as much a creditor of Reflect Geophysical as the appellants.49. Mr. Naphade, learned Senior Advocate while relying on the judgment in M.V. Elisabeth & Ors.,had referred to the expanding jurisdiction of a maritime claim. However, the observations made in the said judgment reproduced hereinabove in para 21 would show that the arrest of the ship is regarded as a mere procedure to obtain security to satisfy the judgment. To that extent it is distinguished from a right in personam to proceed against the owner but there has to be a liability of the ship owner and in that eventuality the legal proceedings commenced in rem would become a personal action in personam against the defendant when he enters appearance. There cannot be a detention of a ship as a security and guarantee arising from its owner for a claim which is in respect of aor a charterer of the ship.50. On turning to the provisions of the Convention, a maritime claim is specified as relating to use or hire of a ship whether contained in a charter party or otherwise [clause (f)]. Insofar as clause (l) is concerned they relate inter alia to services rendered to the ship. The question, however, isAs an illustrative example if we consider the principles of a garnishee order where amounts held by a third party on behalf of a defendant can be injuncted or attached to satisfy the ultimate claim, which may arise against the defendant. It is not as if somebody elses money is attached in pursuance to a garnishees order. Similarly for a claim against the owner of the vessel, a vessel may be detained and not that somebody elses vessel would be detained for the said purpose. The crucial test would be of ownership, which in the present case clearly does not vest with Reflect Geophysical and the de facto ownership under their bareboat charter cannot be equated to a de jure owner, which is necessary for an action in personam.There is a clear distinction between a beneficial ownership of a ship and the charterer of a ship.66. In the aforesaid context, now turning to the Arrest Convention of 1999, Article 1 specifies that the maritime claim means a claim inter alia arising out of an agreement relating to use or hire of "the ship." The connotation of "the ship" would mean the 16 trawlers or the Orion Laxmi and not the respondent ship. Thus, there is no maritime claim against the respondent ship. Article 3 deals with the exercise of rights of arrest and the eventualities are specified thereunder. In terms of clause (2) of Article 3 (these Articles are reproduced in paras 25 to 27 above), the arrest is permissible of any other ship (which would connote the respondent ship), which, when the arrest is effected is owned by the person who is liable for the maritime claim. The liability of the maritime claim is Reflect Geophysical and not the owners of the respondent ship. In terms of(b) of clause (2) of Article 3, a demise charterer, time charterer or voyage charterer of that ship is liable. The ship in question, as noticed above, is not the respondent but the 16 trawlers or the Orion Laxmi. In view of the discussion aforesaid, really speaking Reflect Geophysical cannot be said to be the beneficial owner in the capacity of a demised charterer of the respondent ship. Reflect Geophysical is not the owner of the respondent ship and the owner cannot be made liable for a maritime claim, which is against the trawlers and Orion Laxmi.67. We may also note that in the 2017 Act in India clause 5(b) states asArrest of vessel inThe High Court may order arrest of any vessel which is within its jurisdiction for the purpose of providing security against a maritime claim which is the subject of an admiralty proceeding, where the court has reason to believexxxx xxxx xxxx xxxx(b) the demise charterer of the vessel at the time when the maritime claim arose is liable for the claim and is the demise charterer or the owner of the vessel when the arrest is effected;The aforesaid is in consonance with Article 3 of the 1999 Convention and, thus, must be read in that context (incidentally the Bill was introduced on 21.11.2016 and passed by the Lok Sabha and the Rajya Sabha on 10.3.2017 and 24.7.2017 respectively. It was published in the Gazette on 9.8.2017 but is still not notified). The incident in this question is, thus, prior to beginning of this exercise. The expression "the vessel", "owner" and "demise charterer", thus, must be read in the aforesaid context and the maritime claims in respect of 16 trawlers and Orion Laxmi cannot be converted into a maritime claim against the respondent ship not owned by Reflect Geophysical.69. The appellants have neither any agreement with the owners of the respondent vessel nor any claim against the respondent vessel but their claim is on account of their own vessels hired by the charterer of the respondent vessel. There is no claim against the owners of the respondent vessel.

INDIAN OVERSEAS BANK Vs. THE REGIONAL LABOUR COMMISSIONER (C) AND APPELLATE AUTHORITY AND ORS

the judgment of this Court in the case of Central Bank (supra) has clearly upheld fixation of cut-off date for different purposes, which is clear from paragraph 8 of the judgment. Paragraph Nos. 5 and 8 of the judgment in Central Bank of India (supra) are as follows:-"5. We find that during the pendency of the matters before this Court, a Full Bench of the High Court of Kerala, having regard to the divergent views taken by Division Benches of the said Court, has considered this issue, leading to the judgment dated 3-3-2016 in R. Parasurama Iyer v. State Bank of Travancore, (2016) 2 KLJ 105 and it has been held that fixation of cut-off date for extending the benefit of gratuity from a different date as compared to revision of payscale can neither be said to be arbitrary, discriminatory or violative of Articles 14 and 16 of the Constitution of India. The Full Bench has also placed reliance on the decisions of this Court in State Govt. Pensioners Assn. v. State of A.P., (1986) 3 SCC 501 , State of A.P. v. A.P. Pensioners Assn., (2005) 13 SCC 161 and State of Bihar v. Bihar Pensioners Samaj, (2006) 5 SCC 65. 8. Fixing of the cut-off date has been a wellaccepted principle and we do not find that the same needs to be supported by any judgment since it has been the consistent view taken by this Court. In State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 , which was subsequently followed in State of A.P. v. N. Subbarayudu, (2008) 14 SCC 702 , this Court has referred to all the judgments in that regard. In the peculiar facts of this case, having regard to the background of the regularisation making process, we are of the view that the cut-off date fixed by the appellants in the regularisation was not arbitrary, unjust or unfair." 10. One more judgment of this court, which is relevant for the issue, which has arisen in the present appeal is judgment of this Court in State of Bihar and Others v. Bihar Pensioners Samaj, (2006) 5 SCC 65. The State of Bihar has taken a Resolution on 19.04.1990 for revising certain benefits of its employees, including the revision regulating family pension, death-cum-retirement gratuity. Paragraph No.2 of the judgment refers to the Resolution of the Government, which is to the following effect:-"2. A notification, Resolution No. PCI-Id/S7- 1853-F dated 19-4-1990, was issued by the State Government relating to the provisions regulating pension and death-cum-retirement gratuity pursuant to the recommendations of a special committee known as "Fitment-cum-Pay Revision Committee". The notification declared that after considering the recommendations of the aforesaid Committee the State Government, after due deliberations, had decided to revise the provisions regulating pension, family pension and death-cum-retirement gratuity of the State Government employees "to the effect and extent indicated in the subsequent paragraphs". That certain benefits were made available under the said notification is common ground. However, the effective date of the notification was fixed as 1-11986, although the notification declared that, the financial benefits of revision of pension would be admissible only with effect from 1-3-1989 and no arrears would be paid for the period 1-1-1986 to 28-2-1989. Para 1 of the said notification is relevant and reads as under:"1. (i) Date of effect.-The revised provisions as per these orders shall apply to government servants, who retire/die in harness on or after 1-1-1986. The revision of pension with effect from 1-1-1986 shall be merely notional as the financial benefit of revision of pension will be admissible only with effect from 1-3-1989, to it, no arrears accruing from revision of pension during the period from 1-1-1986 to 28-2-1989 shall be paid to the pensioners.(ii) Where pension has been provisionally sanctioned in cases occurring on or after 1-1-1986, the same shall be revised in terms of these orders. In cases where pension has been finally sanctioned under the pre-revised orders, the same shall be revised in terms of these orders, provided such revision is to the advantage of the pensioner (sic)." 11. The Association of Employees filed a Writ Petition in the Patna High Court, which writ petition was allowed on 21.08.1996. Notifications in questions were quashed and Government was directed to reconsider the matter in accordance with law. The judgment was although challenged in this Court but the special leave petition was summarily dismissed by this Court on 20.01.1997. The Governor of Bihar issued an Ordinance namely "the Bihar State Government Employees Revision of Pension, Family Pension and Death-cum-Retirement Gratuity (Validation and Enforcement) Ordinance, 2000", which was subsequently replaced by the Bihar Act 3 of 2001. The Act validated the revision of pension and gratuity in accordance with earlier two resolutions dated 19.04.1990. A writ petition was filed in the High Court challenging the Ordinance, which was struck down by the High Court. The challenge to the Ordinance and the Act on the ground of violation of Article 14, i.e. cut-off date for payment of the pensionary benefits w.e.f. 01.03.1989 was repelled by this Court. In Paragraph No. 17, this Court held:-"17................The only ground on which Article 14 has been put forward by the learned counsel for the respondent is that the fixation of the cut-off date for payment of the revised benefits under the two notifications concerned was arbitrary and it resulted in denying arrears of payments to certain sections of the employees. This argument is no longer res integra. It has been held in a catena of judgments that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration." 12. Thus, this Court held that the fixation of date for payment of financial benefits, w.e.f. 01.03.1989, does not suffer from any infirmity, even though the effective date of the notification was fixed as 01.01.1986. The above ratio fully supports the view, which we have taken above.

1[ds]We are sure that the third respondent must have received the different in the amount of gratuity, which was already allowed to him7. The High Court in the impugned judgment has taken the view that in the settlement entered into in respect of revision of salary a subsequent cut-off date was 1st November, 1994 for the purpose of gratuity, which is unsustainable8. The Division Bench has taken the view that fixation of cut-off date for payment of gratuity is unsustainable. In the present case the cut-off date was 1st November, 1994 which was the date fixed for computation of payment of gratuity in the revised pay scale on the basis of settlement relied upon by the respondents as well as the bank9. The cut-off date for revision of the wages is a different concept than payment of gratuity on a particular date. As per the provisions of the Payment of Gratuity Act, 1972 which were existing on the date of retirement of the third respondent, the maximum gratuity payment was Rs. 1,00,000/- (Rupees one lac). The Full Bench of the Kerala High Court had considered all aspects of the matter including the divergent views taken by different High Courts and has upheld the cut-off date. The judgment of this court in the case of Central Bank (supra) has also referred to the judgment of the Kerala High Court with approval in paragraph 5 of the judgment. Although learned counsel for the appellant is correct in his submission that no further consideration has been made in the said judgment, the judgment of this Court in the case of Central Bank (supra) has clearly upheld fixation of cut-off date for different purposes, which is clear from paragraph 8 of the judgment11. The Association of Employees filed a Writ Petition in the Patna High Court, which writ petition was allowed on 21.08.1996. Notifications in questions were quashed and Government was directed to reconsider the matter in accordance with law. The judgment was although challenged in this Court but the special leave petition was summarily dismissed by this Court on 20.01.1997. The Governor of Bihar issued an Ordinance namely "the Bihar State Government Employees Revision of Pension, Family Pension and Death-cum-Retirement Gratuity (Validation and Enforcement) Ordinance, 2000", which was subsequently replaced by the Bihar Act 3 of 2001. The Act validated the revision of pension and gratuity in accordance with earlier two resolutions dated 19.04.1990. A writ petition was filed in the High Court challenging the Ordinance, which was struck down by the High Court. The challenge to the Ordinance and the Act on the ground of violation of Article 14, i.e. cut-off date for payment of the pensionary benefits w.e.f. 01.03.1989 was repelled by this Court. In Paragraph No. 17, this Court held:-"17................The only ground on which Article 14 has been put forward by the learned counsel for the respondent is that the fixation of the cut-off date for payment of the revised benefits under the two notifications concerned was arbitrary and it resulted in denying arrears of payments to certain sections of the employees. This argument is no longer res integra. It has been held in a catena of judgments that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration."12. Thus, this Court held that the fixation of date for payment of financial benefits, w.e.f. 01.03.1989, does not suffer from any infirmity, even though the effective date of the notification was fixed as 01.01.1986. The above ratio fully supports the view, which we have taken above.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: the judgment of this Court in the case of Central Bank (supra) has clearly upheld fixation of cut-off date for different purposes, which is clear from paragraph 8 of the judgment. Paragraph Nos. 5 and 8 of the judgment in Central Bank of India (supra) are as follows:-"5. We find that during the pendency of the matters before this Court, a Full Bench of the High Court of Kerala, having regard to the divergent views taken by Division Benches of the said Court, has considered this issue, leading to the judgment dated 3-3-2016 in R. Parasurama Iyer v. State Bank of Travancore, (2016) 2 KLJ 105 and it has been held that fixation of cut-off date for extending the benefit of gratuity from a different date as compared to revision of payscale can neither be said to be arbitrary, discriminatory or violative of Articles 14 and 16 of the Constitution of India. The Full Bench has also placed reliance on the decisions of this Court in State Govt. Pensioners Assn. v. State of A.P., (1986) 3 SCC 501 , State of A.P. v. A.P. Pensioners Assn., (2005) 13 SCC 161 and State of Bihar v. Bihar Pensioners Samaj, (2006) 5 SCC 65. 8. Fixing of the cut-off date has been a wellaccepted principle and we do not find that the same needs to be supported by any judgment since it has been the consistent view taken by this Court. In State of Punjab v. Amar Nath Goyal, (2005) 6 SCC 754 , which was subsequently followed in State of A.P. v. N. Subbarayudu, (2008) 14 SCC 702 , this Court has referred to all the judgments in that regard. In the peculiar facts of this case, having regard to the background of the regularisation making process, we are of the view that the cut-off date fixed by the appellants in the regularisation was not arbitrary, unjust or unfair." 10. One more judgment of this court, which is relevant for the issue, which has arisen in the present appeal is judgment of this Court in State of Bihar and Others v. Bihar Pensioners Samaj, (2006) 5 SCC 65. The State of Bihar has taken a Resolution on 19.04.1990 for revising certain benefits of its employees, including the revision regulating family pension, death-cum-retirement gratuity. Paragraph No.2 of the judgment refers to the Resolution of the Government, which is to the following effect:-"2. A notification, Resolution No. PCI-Id/S7- 1853-F dated 19-4-1990, was issued by the State Government relating to the provisions regulating pension and death-cum-retirement gratuity pursuant to the recommendations of a special committee known as "Fitment-cum-Pay Revision Committee". The notification declared that after considering the recommendations of the aforesaid Committee the State Government, after due deliberations, had decided to revise the provisions regulating pension, family pension and death-cum-retirement gratuity of the State Government employees "to the effect and extent indicated in the subsequent paragraphs". That certain benefits were made available under the said notification is common ground. However, the effective date of the notification was fixed as 1-11986, although the notification declared that, the financial benefits of revision of pension would be admissible only with effect from 1-3-1989 and no arrears would be paid for the period 1-1-1986 to 28-2-1989. Para 1 of the said notification is relevant and reads as under:"1. (i) Date of effect.-The revised provisions as per these orders shall apply to government servants, who retire/die in harness on or after 1-1-1986. The revision of pension with effect from 1-1-1986 shall be merely notional as the financial benefit of revision of pension will be admissible only with effect from 1-3-1989, to it, no arrears accruing from revision of pension during the period from 1-1-1986 to 28-2-1989 shall be paid to the pensioners.(ii) Where pension has been provisionally sanctioned in cases occurring on or after 1-1-1986, the same shall be revised in terms of these orders. In cases where pension has been finally sanctioned under the pre-revised orders, the same shall be revised in terms of these orders, provided such revision is to the advantage of the pensioner (sic)." 11. The Association of Employees filed a Writ Petition in the Patna High Court, which writ petition was allowed on 21.08.1996. Notifications in questions were quashed and Government was directed to reconsider the matter in accordance with law. The judgment was although challenged in this Court but the special leave petition was summarily dismissed by this Court on 20.01.1997. The Governor of Bihar issued an Ordinance namely "the Bihar State Government Employees Revision of Pension, Family Pension and Death-cum-Retirement Gratuity (Validation and Enforcement) Ordinance, 2000", which was subsequently replaced by the Bihar Act 3 of 2001. The Act validated the revision of pension and gratuity in accordance with earlier two resolutions dated 19.04.1990. A writ petition was filed in the High Court challenging the Ordinance, which was struck down by the High Court. The challenge to the Ordinance and the Act on the ground of violation of Article 14, i.e. cut-off date for payment of the pensionary benefits w.e.f. 01.03.1989 was repelled by this Court. In Paragraph No. 17, this Court held:-"17................The only ground on which Article 14 has been put forward by the learned counsel for the respondent is that the fixation of the cut-off date for payment of the revised benefits under the two notifications concerned was arbitrary and it resulted in denying arrears of payments to certain sections of the employees. This argument is no longer res integra. It has been held in a catena of judgments that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration." 12. Thus, this Court held that the fixation of date for payment of financial benefits, w.e.f. 01.03.1989, does not suffer from any infirmity, even though the effective date of the notification was fixed as 01.01.1986. The above ratio fully supports the view, which we have taken above. ### Response: 1 ### Explanation: We are sure that the third respondent must have received the different in the amount of gratuity, which was already allowed to him7. The High Court in the impugned judgment has taken the view that in the settlement entered into in respect of revision of salary a subsequent cut-off date was 1st November, 1994 for the purpose of gratuity, which is unsustainable8. The Division Bench has taken the view that fixation of cut-off date for payment of gratuity is unsustainable. In the present case the cut-off date was 1st November, 1994 which was the date fixed for computation of payment of gratuity in the revised pay scale on the basis of settlement relied upon by the respondents as well as the bank9. The cut-off date for revision of the wages is a different concept than payment of gratuity on a particular date. As per the provisions of the Payment of Gratuity Act, 1972 which were existing on the date of retirement of the third respondent, the maximum gratuity payment was Rs. 1,00,000/- (Rupees one lac). The Full Bench of the Kerala High Court had considered all aspects of the matter including the divergent views taken by different High Courts and has upheld the cut-off date. The judgment of this court in the case of Central Bank (supra) has also referred to the judgment of the Kerala High Court with approval in paragraph 5 of the judgment. Although learned counsel for the appellant is correct in his submission that no further consideration has been made in the said judgment, the judgment of this Court in the case of Central Bank (supra) has clearly upheld fixation of cut-off date for different purposes, which is clear from paragraph 8 of the judgment11. The Association of Employees filed a Writ Petition in the Patna High Court, which writ petition was allowed on 21.08.1996. Notifications in questions were quashed and Government was directed to reconsider the matter in accordance with law. The judgment was although challenged in this Court but the special leave petition was summarily dismissed by this Court on 20.01.1997. The Governor of Bihar issued an Ordinance namely "the Bihar State Government Employees Revision of Pension, Family Pension and Death-cum-Retirement Gratuity (Validation and Enforcement) Ordinance, 2000", which was subsequently replaced by the Bihar Act 3 of 2001. The Act validated the revision of pension and gratuity in accordance with earlier two resolutions dated 19.04.1990. A writ petition was filed in the High Court challenging the Ordinance, which was struck down by the High Court. The challenge to the Ordinance and the Act on the ground of violation of Article 14, i.e. cut-off date for payment of the pensionary benefits w.e.f. 01.03.1989 was repelled by this Court. In Paragraph No. 17, this Court held:-"17................The only ground on which Article 14 has been put forward by the learned counsel for the respondent is that the fixation of the cut-off date for payment of the revised benefits under the two notifications concerned was arbitrary and it resulted in denying arrears of payments to certain sections of the employees. This argument is no longer res integra. It has been held in a catena of judgments that fixing of a cut-off date for granting of benefits is well within the powers of the Government as long as the reasons therefor are not arbitrary and are based on some rational consideration."12. Thus, this Court held that the fixation of date for payment of financial benefits, w.e.f. 01.03.1989, does not suffer from any infirmity, even though the effective date of the notification was fixed as 01.01.1986. The above ratio fully supports the view, which we have taken above.

Godrej Industries Limited & Others Vs. Colin Mario Rebello & Others

shareholders were struggling against Dr.Gharda employing oppressive tactics to squeeze Minority Shareholders out of existence. It was crucial for the minority shareholders to stay together to remain as a significant minority. Individual holding of each of the Minority Shareholders had to be pooled together as it was vital for their collective shareholding. The position of the minority shareholding was so precarious that even if some of the Minority Shareholders were to part with their shares, minority shareholders together would cease to be a significant minority. It was, thus, absolutely essential that the minority shareholders stayed together and acted in one unit. Thus, the parties at the time of executing the MoU were aware that if any dispute arises, even between the Minority Shareholders, in respect of the shares, the object of all Minority Shareholders remaining together as the significant minority and getting the Company listed on a registered stock exchange would be lost. Thus, it cannot be said that dispute amongst the Minority Shareholders was not contemplated when the MoU was executed with Clause 28 herein. The interpretation of Clause 28 and circumstances in which it was executed do, therefore, indicate that it was intended to cover all the signatories to the MoU. We, therefore, do not agree with the submission made on behalf of Percy and Darius Kavasmaneck that there is no arbitration agreement between them and the other parties.50. The next ingredient for grant of injunction is balance of convenience. To put this balance in perspective, a brief repetition of the background is necessary. The MoU is in respect of the shares of the Company. There is dispute between the Minority Shareholders and Dr Gharda, the majority shareholder. It is alleged that Dr Gharda is trying to break up the minority shareholders. Minority Shareholders were struggling to retain their existence in the Company when they turned to Godrej Industries for financial assistance to purchase the shares. Godrej in their pleadings and in the correspondence has maintained that the shares were held by them as pledge for the loans advanced. These shares are not common commodities which can be just bought and sold, with no other value attached to it. It is clear that these shares are not to be computed merely in terms of money. They also denote tools for the control of the Company. The shares were not acquired for the purpose of investment or gaining dividends alone but to retain the status of the minority shareholders as a significant minority. If the shares are transferred or sold, not only there will be trading in terms of money but will tilt the precarious balance of shareholding in the Company. These shares are not to be treated as mere pledge, but a device to gain control of the Company. The injunction sought is that the shares should remain as they are till the parties go for arbitration. The importance of this status quo till the dispute is resolved by the Arbitrator, is immense for the petitioners, as otherwise they will lose their toe-hold in the Company. With Godrej allegedly siding with Dr Gharda and two Kavasmanecks going along with them, the petitioners will be reduced to a non-significant minority. Once this takes place before the Company is listed on registered Stock Exchange, position of the petitioners will be gravely prejudiced. The position will become irreparable once a significant majority is reached in favour of Dr.Gharda taking his shareholding closer to 75%. Important decisions in the Company will be taken swiftly and any opposition of the petitioners will be crushed. If that happens, the whole purpose of the MoU will be defeated.51. Inspite of the detailed arguments made on behalf of the Godrej, no special reason why shares cannot remain in the same position till the arbitration proceedings is shown except the argument that Godrej cannot be stopped from perfecting their security. As noted above, the Godrej had in their letter dated 13 June 1992, immediately after execution of the MoU on 3 June 1992, had indicated that they will not enforce loans or claim interest notwithstanding the agreement. The tussle is not for the monetary value of the shares, but what the shares represent. The dispute is no longer for money but for the control of the Company. Once this fact is established before us, it will be too nave to assume that Godrej is only looking at the shares as a monetary investment. This was evident during the course of the hearing when an offer was made on behalf of the petitioners to return the amount of loan in return of shares from Godrej, there was no response of that offer from Godrej. The petitioners while making the offer of payment of principal amount drew our attention to the letter of Mr Adi Godrej dated 13 June 1992, wherein it was stated that Godrej is not claiming any interest on the loan amount. Though on record Godrej keeps asserting that the shares are merely pledged, its actions, the surrounding circumstances and the arguments advanced show that Godrej is trying to deal with the shares, prima facie, in furtherance of its intention to side with Dr Gharda and to extinguish the opposition of Minority Shareholders. This being the position, the balance of convenience clearly lies in favour of the petitioners. The shares in question need to be kept as they are till the parties approach the Arbitrator. The true purport of the negative covenant can be decided by the Arbitrator.52. Therefore, we find that the petitioners have made out a strong prima facie case and balance of convenience is in their favour. The submissions of the appellants that the petitioners do not deserve any equitable relief and that there was no arbitration clause between the Minority Shareholders interse is without any substance. The learned single Judge has considered all the aspects of the case and has found that the Arbitration Petition requires to be made absolute. There is no reason to take a different view in the matter

0[ds]36. We have gone through the judgment of the learned Company Judge referred to above. We do not find from the judgment or the contentions of the petitioners reproduced in the judgment that the petitioners were opposing the listing of the Company on the Stock Exchange. Reading of the MoU shows that the arrangement contemplated under the MoU was to continue till the shares of the Company are listed on the Stock Exchange and become freely tradeable. The apprehension of the petitioners was that Dr Gharda will dispense with the right ofcreating a situation whereby Minority Shareholders will not be able to sell their shares in the open market and realize their market value but will be forced to sell their shares to Dr.Gharda at the price to be determined by him. Consequently the Minority Shareholders will be squeezed out. This would not be possible if the Company gets listed on registered Stock Exchange and shares become freely tradable. It is for this purpose, MoU was entered into and free marketibility of shares is the end situation the Minority Shareholders have been striving for. There is no question of opposing the status of the Company becoming a public company as the company any way by virtue of its turnover was already a deemed public company. The MoU was not regarding the Company becoming Public Company alone, but making its shares become fully tradable on the stock exchange. We have not been shown that the petitioners anytime opposed the listing of the shares on a recognised stock exchange. According to us therefore the petitioners have not committed breach of Clause 21 of the MoU. The attempt of the petitioners is only to ensure that the petitioners are not deprived of their shareholding before the shares become fully tradeable on the stock exchange.37. The second breach of the MoU alleged was that the petitioners were opposing registration and transfer of 3199 shares and obstructing transfer of 461 shares. It is submitted on behalf of petitioners that as far as 461 shares are concerned they have never opposed are not opposing registration in the name of Godrej Industries if Godrej Industries adhere to negative covenants stipulated under the MoU. It has to be noted that before the dispute arose between the Parties, Godrej had assured the petitioners that shares were only being treated as pledge for the loan. However, now the petitioners apprehend that Godrej is trying to deal with the shares for the purpose of getting control of the Company along with Dr Gharda. Godrej Industries is now trying to deal with the shares so as to defeat the right of Minority Shareholders. These 3199 shares constitute approximately 5% shareholding of the Company. 5% becomes crucial when it is pooled together with shareholding of Dr Gharda and Percy, Aban Kavasmaneck and Oomrigar. This group will acquire special majority. Once special majority is reached the significant minority will be extinguished. We find merit in the contention that the opposition by the petitioner in respect of 3199 shares being dealt with by Godrej Industries is because Godrej Industries is no longer trading the shares as means of recovering the loan but as means of getting control of the Company. Such action would, obviously, run against the spirit of MoU and frustrate the very purpose for which it was entered into. We find that by opposing the transfer of 3199 shares to Godrej, in these changed equations, the petitioners did not commit any breach of Clause 9 of the MoU.38. Third breach alleged to be committed by the petitioners is that under the MoU, the petitioners were required to pay dividends which they have failed to pay. It has been placed on record by the petitioners that Godrej never demanded dividends for the last 22 years. In fact, theof dividend was not even considered as a breach till 5 July, 2012 when Godrej filed further affidavit. It appears to us that in view of the change of intention by Godrej, even the issues which were never considered to be breaches are now sought to be raised against the petitioners. If for the last 22 years there has never been a demand for payment of dividend, it clearly means that Godrej never consideredof dividend as a breach of the MoU. The argument ofof dividend is advanced to some how create a case to restrain the petitioners from invoking a negative covenant stipulated under the MoU. Thus, three breaches of the MoU, which according to the Godrej disentitle the petitioners from relying on the MoU, do not constitute any breaches.The argument of Godrej based on impossibility is thus contradictory to the stand taken on affidavit filed by it in the earlier arbitration petition. Apart from this position, petitioners have pointed out that when the MoU was entered into in the year 1992, the collective shareholding of the Minority Shareholders was 27%. Thus, both Godrej and Minority Shareholders believed that 27% share holding was sufficient to enable the parties to work towards the Company being listed on the Stock Exchange. At that time, no apprehension was raised by Godrej in respect of lack of share holding of the minority shareholding to achieve this object. If the parties found 27% shareholder was then sufficient to achieve the object of MoU, one fails to understand how an argument based on an impossibility can be advanced when the shareholding has now increased from 27% to 34%(approx). We thus do not find any substance in this argument.41. Thus, the negative covenant binds Godrej as well and the argument that the petitioners have committed breaches of the MoU do not impress us. In any case, all these points will be gone into in detail during the arbitration proceedings. Thus, we are in agreement with the learned single Judge that the petitioners had established that they had a prima facie case based on the MoU and that there is enough prima facie material to show that the negative covenant regarding dealing with the shares till the Company is registered or the Company is listed on the Stock Exchange is applicable to all the signatories to the MoU.rim relief was moved by the petitioners with notice to the Godrej Industries. There is reference to theagreement and power of attorney in the arbitration petition. The impugned order came to be passed after both the parties had full opportunity of producing documents on record. The said MoU and power of attorney were available on the record of the learned single Judge. It cannot be said that the petitioners conduct is of such a grave nature that the injunction granted in their favour should be vacated on the ground of suppression of documents when the MoU and the arbitration petition itself refers to execution of loan cum pledge agreement and power of attorney. It has been pointed out that Mr.Adi Godrej had agreed by letter dated 13 June 1992 not to claim interest or recall loans under these pledge agreements and power of attorneys. These documents were thus not the principal documents on which relief was being sought. These documents were the part of defence of Godrej, which had full opportunity to defend the application. Matter was fully heard by the learned Judge and then impugned relief was granted. In view of these circumstances, we do not find that the conduct of Jer, Darius Kavasmaneck was blameworthy, as alleged. On the other hand, the conduct of Godrej Industries in not placing on record letter dated 13 June 1992 wherein Mr Adi Godrej reiterated that notwithstanding theagreement, Godrej Industries will not enforce loans or claim interest, needs to be noticed. In any case, no such allegation can be made and has not been made against Rebellos that they have suppressed any documents.There is no absolute bar in employing the rules relating to interpretation of statutes, for the purpose of interpretation of deeds and documents, in a given case. One of the settled principles of interpretation of statutes is, when in relation to the same subject matter different words are used in the same instrument, presumption arises that they are used not in the sense, but carry different meanings. This principle can be borrowed for the construction of the present MoU. The MoU refers to the parties in several ways. The parties are referred to as parties, parties of the first part and parties hereto, both parties. It is significant to note that the expression parties hereto appears both in Clause 16 of the MoU and Clause 28 of the MoU, which are the most material clauses in the present case. In many paragraphs the reference is to party of the first part and party of the second part. In some paragraph, such as paragraph 15, there is reference to either of the parties. In paragraph 21 reference is made to both parties. However, the two clauses i.e. 16 and 28 which areof the debate, have used the phrase the parties hereto. What we find clinching is that immediately after clause 28, which is the last clause which employ the phrase parties hereto, concluding recitals and names of all the signatories and their signatures appear.Apart from the language of this Clause, the surrounding circumstances indicate that the arbitration clause is to cover all the signatories to the MoU. The MoU came to be executed when minority shareholders were struggling against Dr.Gharda employing oppressive tactics to squeeze Minority Shareholders out of existence. It was crucial for the minority shareholders to stay together to remain as a significant minority. Individual holding of each of the Minority Shareholders had to be pooled together as it was vital for their collective shareholding. The position of the minority shareholding was so precarious that even if some of the Minority Shareholders were to part with their shares, minority shareholders together would cease to be a significant minority. It was, thus, absolutely essential that the minority shareholders stayed together and acted in one unit. Thus, the parties at the time of executing the MoU were aware that if any dispute arises, even between the Minority Shareholders, in respect of the shares, the object of all Minority Shareholders remaining together as the significant minority and getting the Company listed on a registered stock exchange would be lost. Thus, it cannot be said that dispute amongst the Minority Shareholders was not contemplated when the MoU was executed with Clause 28 herein. The interpretation of Clause 28 and circumstances in which it was executed do, therefore, indicate that it was intended to cover all the signatories to the MoU. We, therefore, do not agree with the submission made on behalf of Percy and Darius Kavasmaneck that there is no arbitration agreement between them and the other parties.Inspite of the detailed arguments made on behalf of the Godrej, no special reason why shares cannot remain in the same position till the arbitration proceedings is shown except the argument that Godrej cannot be stopped from perfecting their security. As noted above, the Godrej had in their letter dated 13 June 1992, immediately after execution of the MoU on 3 June 1992, had indicated that they will not enforce loans or claim interest notwithstanding the agreement. The tussle is not for the monetary value of the shares, but what the shares represent. The dispute is no longer for money but for the control of the Company. Once this fact is established before us, it will be tooto assume that Godrej is only looking at the shares as a monetary investment. This was evident during the course of the hearing when an offer was made on behalf of the petitioners to return the amount of loan in return of shares from Godrej, there was no response of that offer from Godrej. The petitioners while making the offer of payment of principal amount drew our attention to the letter of Mr Adi Godrej dated 13 June 1992, wherein it was stated that Godrej is not claiming any interest on the loan amount. Though on record Godrej keeps asserting that the shares are merely pledged, its actions, the surrounding circumstances and the arguments advanced show that Godrej is trying to deal with the shares, prima facie, in furtherance of its intention to side with Dr Gharda and to extinguish the opposition of Minority Shareholders. This being the position, the balance of convenience clearly lies in favour of the petitioners. The shares in question need to be kept as they are till the parties approach the Arbitrator. The true purport of the negative covenant can be decided by the Arbitrator.52. Therefore, we find that the petitioners have made out a strong prima facie case and balance of convenience is in their favour. The submissions of the appellants that the petitioners do not deserve any equitable relief and that there was no arbitration clause between the Minority Shareholders interse is without any substance. The learned single Judge has considered all the aspects of the case and has found that the Arbitration Petition requires to be made absolute. There is no reason to take a different view in the matter

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: shareholders were struggling against Dr.Gharda employing oppressive tactics to squeeze Minority Shareholders out of existence. It was crucial for the minority shareholders to stay together to remain as a significant minority. Individual holding of each of the Minority Shareholders had to be pooled together as it was vital for their collective shareholding. The position of the minority shareholding was so precarious that even if some of the Minority Shareholders were to part with their shares, minority shareholders together would cease to be a significant minority. It was, thus, absolutely essential that the minority shareholders stayed together and acted in one unit. Thus, the parties at the time of executing the MoU were aware that if any dispute arises, even between the Minority Shareholders, in respect of the shares, the object of all Minority Shareholders remaining together as the significant minority and getting the Company listed on a registered stock exchange would be lost. Thus, it cannot be said that dispute amongst the Minority Shareholders was not contemplated when the MoU was executed with Clause 28 herein. The interpretation of Clause 28 and circumstances in which it was executed do, therefore, indicate that it was intended to cover all the signatories to the MoU. We, therefore, do not agree with the submission made on behalf of Percy and Darius Kavasmaneck that there is no arbitration agreement between them and the other parties.50. The next ingredient for grant of injunction is balance of convenience. To put this balance in perspective, a brief repetition of the background is necessary. The MoU is in respect of the shares of the Company. There is dispute between the Minority Shareholders and Dr Gharda, the majority shareholder. It is alleged that Dr Gharda is trying to break up the minority shareholders. Minority Shareholders were struggling to retain their existence in the Company when they turned to Godrej Industries for financial assistance to purchase the shares. Godrej in their pleadings and in the correspondence has maintained that the shares were held by them as pledge for the loans advanced. These shares are not common commodities which can be just bought and sold, with no other value attached to it. It is clear that these shares are not to be computed merely in terms of money. They also denote tools for the control of the Company. The shares were not acquired for the purpose of investment or gaining dividends alone but to retain the status of the minority shareholders as a significant minority. If the shares are transferred or sold, not only there will be trading in terms of money but will tilt the precarious balance of shareholding in the Company. These shares are not to be treated as mere pledge, but a device to gain control of the Company. The injunction sought is that the shares should remain as they are till the parties go for arbitration. The importance of this status quo till the dispute is resolved by the Arbitrator, is immense for the petitioners, as otherwise they will lose their toe-hold in the Company. With Godrej allegedly siding with Dr Gharda and two Kavasmanecks going along with them, the petitioners will be reduced to a non-significant minority. Once this takes place before the Company is listed on registered Stock Exchange, position of the petitioners will be gravely prejudiced. The position will become irreparable once a significant majority is reached in favour of Dr.Gharda taking his shareholding closer to 75%. Important decisions in the Company will be taken swiftly and any opposition of the petitioners will be crushed. If that happens, the whole purpose of the MoU will be defeated.51. Inspite of the detailed arguments made on behalf of the Godrej, no special reason why shares cannot remain in the same position till the arbitration proceedings is shown except the argument that Godrej cannot be stopped from perfecting their security. As noted above, the Godrej had in their letter dated 13 June 1992, immediately after execution of the MoU on 3 June 1992, had indicated that they will not enforce loans or claim interest notwithstanding the agreement. The tussle is not for the monetary value of the shares, but what the shares represent. The dispute is no longer for money but for the control of the Company. Once this fact is established before us, it will be too nave to assume that Godrej is only looking at the shares as a monetary investment. This was evident during the course of the hearing when an offer was made on behalf of the petitioners to return the amount of loan in return of shares from Godrej, there was no response of that offer from Godrej. The petitioners while making the offer of payment of principal amount drew our attention to the letter of Mr Adi Godrej dated 13 June 1992, wherein it was stated that Godrej is not claiming any interest on the loan amount. Though on record Godrej keeps asserting that the shares are merely pledged, its actions, the surrounding circumstances and the arguments advanced show that Godrej is trying to deal with the shares, prima facie, in furtherance of its intention to side with Dr Gharda and to extinguish the opposition of Minority Shareholders. This being the position, the balance of convenience clearly lies in favour of the petitioners. The shares in question need to be kept as they are till the parties approach the Arbitrator. The true purport of the negative covenant can be decided by the Arbitrator.52. Therefore, we find that the petitioners have made out a strong prima facie case and balance of convenience is in their favour. The submissions of the appellants that the petitioners do not deserve any equitable relief and that there was no arbitration clause between the Minority Shareholders interse is without any substance. The learned single Judge has considered all the aspects of the case and has found that the Arbitration Petition requires to be made absolute. There is no reason to take a different view in the matter ### Response: 0 ### Explanation: were the part of defence of Godrej, which had full opportunity to defend the application. Matter was fully heard by the learned Judge and then impugned relief was granted. In view of these circumstances, we do not find that the conduct of Jer, Darius Kavasmaneck was blameworthy, as alleged. On the other hand, the conduct of Godrej Industries in not placing on record letter dated 13 June 1992 wherein Mr Adi Godrej reiterated that notwithstanding theagreement, Godrej Industries will not enforce loans or claim interest, needs to be noticed. In any case, no such allegation can be made and has not been made against Rebellos that they have suppressed any documents.There is no absolute bar in employing the rules relating to interpretation of statutes, for the purpose of interpretation of deeds and documents, in a given case. One of the settled principles of interpretation of statutes is, when in relation to the same subject matter different words are used in the same instrument, presumption arises that they are used not in the sense, but carry different meanings. This principle can be borrowed for the construction of the present MoU. The MoU refers to the parties in several ways. The parties are referred to as parties, parties of the first part and parties hereto, both parties. It is significant to note that the expression parties hereto appears both in Clause 16 of the MoU and Clause 28 of the MoU, which are the most material clauses in the present case. In many paragraphs the reference is to party of the first part and party of the second part. In some paragraph, such as paragraph 15, there is reference to either of the parties. In paragraph 21 reference is made to both parties. However, the two clauses i.e. 16 and 28 which areof the debate, have used the phrase the parties hereto. What we find clinching is that immediately after clause 28, which is the last clause which employ the phrase parties hereto, concluding recitals and names of all the signatories and their signatures appear.Apart from the language of this Clause, the surrounding circumstances indicate that the arbitration clause is to cover all the signatories to the MoU. The MoU came to be executed when minority shareholders were struggling against Dr.Gharda employing oppressive tactics to squeeze Minority Shareholders out of existence. It was crucial for the minority shareholders to stay together to remain as a significant minority. Individual holding of each of the Minority Shareholders had to be pooled together as it was vital for their collective shareholding. The position of the minority shareholding was so precarious that even if some of the Minority Shareholders were to part with their shares, minority shareholders together would cease to be a significant minority. It was, thus, absolutely essential that the minority shareholders stayed together and acted in one unit. Thus, the parties at the time of executing the MoU were aware that if any dispute arises, even between the Minority Shareholders, in respect of the shares, the object of all Minority Shareholders remaining together as the significant minority and getting the Company listed on a registered stock exchange would be lost. Thus, it cannot be said that dispute amongst the Minority Shareholders was not contemplated when the MoU was executed with Clause 28 herein. The interpretation of Clause 28 and circumstances in which it was executed do, therefore, indicate that it was intended to cover all the signatories to the MoU. We, therefore, do not agree with the submission made on behalf of Percy and Darius Kavasmaneck that there is no arbitration agreement between them and the other parties.Inspite of the detailed arguments made on behalf of the Godrej, no special reason why shares cannot remain in the same position till the arbitration proceedings is shown except the argument that Godrej cannot be stopped from perfecting their security. As noted above, the Godrej had in their letter dated 13 June 1992, immediately after execution of the MoU on 3 June 1992, had indicated that they will not enforce loans or claim interest notwithstanding the agreement. The tussle is not for the monetary value of the shares, but what the shares represent. The dispute is no longer for money but for the control of the Company. Once this fact is established before us, it will be tooto assume that Godrej is only looking at the shares as a monetary investment. This was evident during the course of the hearing when an offer was made on behalf of the petitioners to return the amount of loan in return of shares from Godrej, there was no response of that offer from Godrej. The petitioners while making the offer of payment of principal amount drew our attention to the letter of Mr Adi Godrej dated 13 June 1992, wherein it was stated that Godrej is not claiming any interest on the loan amount. Though on record Godrej keeps asserting that the shares are merely pledged, its actions, the surrounding circumstances and the arguments advanced show that Godrej is trying to deal with the shares, prima facie, in furtherance of its intention to side with Dr Gharda and to extinguish the opposition of Minority Shareholders. This being the position, the balance of convenience clearly lies in favour of the petitioners. The shares in question need to be kept as they are till the parties approach the Arbitrator. The true purport of the negative covenant can be decided by the Arbitrator.52. Therefore, we find that the petitioners have made out a strong prima facie case and balance of convenience is in their favour. The submissions of the appellants that the petitioners do not deserve any equitable relief and that there was no arbitration clause between the Minority Shareholders interse is without any substance. The learned single Judge has considered all the aspects of the case and has found that the Arbitration Petition requires to be made absolute. There is no reason to take a different view in the matter

Union Of India Vs. West Coast Paper Mills Ltd

even in a dispute relating to the matters set out in Section 41 (1) (a), (b) and (c), where the Central Government has fixed by general or special order maximum and minimum range of rates for the whole or any part of a railway the complaint that the railway administration has contravened any order issued by the Central Government may be determined by the Central Government and not by the Tribunal. Similarly, the Central Government has and the Tribunal has not the power to classify or reclassify any commodity and to increase or reduce the level of class rates and other charges. Subject to these restrictions, the Tribunal has the power to determine whether the Railway Administration has acted in contravention of the provisions of Section 28, i. e., it has granted any undue or unreasonable preference or advantage to, or in favour of any particular person, or shown any undue or unreasonable prejudice or disadvantage to any person or railway administration or any particular description of traffic, and was charging for the carriage of any commodity between two stations a rate which was unreasonable or was levying any other charge which was unreasonable.11. In the present case the maximum and minimum range of rates have been fixed by the Central Government. A complaint that the railway administration has acted in contravention of the order issued by the Central Government may be determined by the Central Government and not by the Tribunal. Again the Central Government alone has the power to classify or reclassify any commodity or to increase or reduce the level of class rates and other charges. The Tribunal accepted these limitations upon the exercise of its powers. The Tribunal however found that the charge made by the railway administration under the order of the Railway Board levying tariff at the standard rates but on the footing that for each kilometer the goods are transported the charge will be levied at three times the standard rate is unreasonable and discriminatory. The finding proceeds upon appreciation of evidence which has been examined in great detail. The finding of the Tribunal cannot be challenged in this appeal with special leave under Art. 136 of the Constitution, and no attempt has been made to challenge before us that finding.12. On behalf of the Union it was urged by the Solicitor-General that the impugned rates were station to station rates "and relying upon certain rules framed by the Railway Board, counsel contended that in respect of station-to-station rates the Tribunal had no jurisdiction to give relief. Rule 63 of Goods Tariff No. 28 in force from August 1, 1950, provided for the station-to-station rates as one of the types of rates chargeable. Cl. (7) provided that a "station-to-station rate" is a special rate for the total distance between two specific points (stations only): and cl. (8) provided that:"Station-to-station rates are as follows-(i) those between two stations on the same Railway, that is local station-to-station rates;(ii) those between a station on one railway and a station on another railway."Similarly in Rule 67 of Goods Tariff No. 29 in force from June 1, 1954, similar definition of station-to-station rates was given. In Rule 67 of Goods Tariff No. 29 effective from October 1, 1958, rates were divided into two types - (i) Class rates; and (ii) station-to-station rates. By cl (3) it was provided:"(i) Station-to-station rate means a special reduced rate applicable to a specific commodity booked from one specified station to another specified station.(ii) Station-to-station rates may be quoted from and to stations on the same railway or from a station on one railway to a station on another railway."These rules have, in our judgment, no relevance in determining the matter in dispute in this appeal, for in S. 41 (1) (b) the expression used is not "station-to-station rates", but a rate between two stations which is unreasonable. There is nothing in the rules which even indirectly affects the jurisdiction of the Tribunal to determine whether the rates for carriage of certain specified commodities between two stations are unreasonable. The Tribunal has expressly observed that the relief granted to the Company must be within the range of rates prescribed by the Central Government. The Tribunal has expressly observed that it is incompetent to grant relief which might even indirectly cancel the order of the Central Government under Section 10 (1), for, it would amount to changing the range and level of class rates applicable to the branch line. But if the Tribunal declared that only certain rates for specific commodities, between specified pairs of stations, are unreasonable, the level of class rates is not affected. The Tribunal is invested with the authority subject to the limitations contained in S. 29 (3) and S. 42 to entertain a complaint and to give relief in respect of rates which are found to be unreasonable between two stations. The complaint made by the Company did not seek intervention of the Tribunal in matters which may be raised only for decision to the Central Government by S. 29 and S. 42 of the Act, and the Tribunal has not given any relief in contravention of those provisions. The Tribunal has merely declared that the chargeable rate of freight determined by multiplying by three the distance over which the goods are transported for specific commodities is in contravention of S. 28 of the Indian Railways Act, 1890.13. We do not see force in the opinion expressed by Mr. V. R. Rangaswami and even if the Tribunal holds that the rates between two stations in respect of a specific commodity are unreasonable, it cannot make a declaration to that effect. Such a view would deprive the Tribunal of its power to give formal shape to its view. We are not called upon to decide whether the Tribunal has power to fix rates in substitution of rates declared unreasonable in exercise of the jurisdiction under S. 41 (1) (b), because no such rates are fixed by order of the Tribunal.

1[ds]11. In the present case the maximum and minimum range of rates have been fixed by the Central Government. A complaint that the railway administration has acted in contravention of the order issued by the Central Government may be determined by the Central Government and not by the Tribunal. Again the Central Government alone has the power to classify or reclassify any commodity or to increase or reduce the level of class rates and other charges. The Tribunal accepted these limitations upon the exercise of its powers. The Tribunal however found that the charge made by the railway administration under the order of the Railway Board levying tariff at the standard rates but on the footing that for each kilometer the goods are transported the charge will be levied at three times the standard rate is unreasonable and discriminatory. The finding proceeds upon appreciation of evidence which has been examined in great detail. The finding of the Tribunal cannot be challenged in this appeal with special leave under Art. 136 of the Constitution, and no attempt has been made to challenge before us thatrules have, in our judgment, no relevance in determining the matter in dispute in this appeal, for in S. 41 (1) (b) the expression used is notrates", but a rate between two stations which is unreasonable. There is nothing in the rules which even indirectly affects the jurisdiction of the Tribunal to determine whether the rates for carriage of certain specified commodities between two stations are unreasonable. The Tribunal has expressly observed that the relief granted to the Company must be within the range of rates prescribed by the Central Government. The Tribunal has expressly observed that it is incompetent to grant relief which might even indirectly cancel the order of the Central Government under Section 10 (1), for, it would amount to changing the range and level of class rates applicable to the branch line. But if the Tribunal declared that only certain rates for specific commodities, between specified pairs of stations, are unreasonable, the level of class rates is not affected. The Tribunal is invested with the authority subject to the limitations contained in S. 29 (3) and S. 42 to entertain a complaint and to give relief in respect of rates which are found to be unreasonable between two stations. The complaint made by the Company did not seek intervention of the Tribunal in matters which may be raised only for decision to the Central Government by S. 29 and S. 42 of the Act, and the Tribunal has not given any relief in contravention of those provisions. The Tribunal has merely declared that the chargeable rate of freight determined by multiplying by three the distance over which the goods are transported for specific commodities is in contravention of S. 28 of the Indian Railways Act, 1890.13. We do not see force in the opinion expressed by Mr. V. R. Rangaswami and even if the Tribunal holds that the rates between two stations in respect of a specific commodity are unreasonable, it cannot make a declaration to that effect. Such a view would deprive the Tribunal of its power to give formal shape to its view. We are not called upon to decide whether the Tribunal has power to fix rates in substitution of rates declared unreasonable in exercise of the jurisdiction under S. 41 (1) (b), because no such rates are fixed by order of the Tribunal.

### 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: even in a dispute relating to the matters set out in Section 41 (1) (a), (b) and (c), where the Central Government has fixed by general or special order maximum and minimum range of rates for the whole or any part of a railway the complaint that the railway administration has contravened any order issued by the Central Government may be determined by the Central Government and not by the Tribunal. Similarly, the Central Government has and the Tribunal has not the power to classify or reclassify any commodity and to increase or reduce the level of class rates and other charges. Subject to these restrictions, the Tribunal has the power to determine whether the Railway Administration has acted in contravention of the provisions of Section 28, i. e., it has granted any undue or unreasonable preference or advantage to, or in favour of any particular person, or shown any undue or unreasonable prejudice or disadvantage to any person or railway administration or any particular description of traffic, and was charging for the carriage of any commodity between two stations a rate which was unreasonable or was levying any other charge which was unreasonable.11. In the present case the maximum and minimum range of rates have been fixed by the Central Government. A complaint that the railway administration has acted in contravention of the order issued by the Central Government may be determined by the Central Government and not by the Tribunal. Again the Central Government alone has the power to classify or reclassify any commodity or to increase or reduce the level of class rates and other charges. The Tribunal accepted these limitations upon the exercise of its powers. The Tribunal however found that the charge made by the railway administration under the order of the Railway Board levying tariff at the standard rates but on the footing that for each kilometer the goods are transported the charge will be levied at three times the standard rate is unreasonable and discriminatory. The finding proceeds upon appreciation of evidence which has been examined in great detail. The finding of the Tribunal cannot be challenged in this appeal with special leave under Art. 136 of the Constitution, and no attempt has been made to challenge before us that finding.12. On behalf of the Union it was urged by the Solicitor-General that the impugned rates were station to station rates "and relying upon certain rules framed by the Railway Board, counsel contended that in respect of station-to-station rates the Tribunal had no jurisdiction to give relief. Rule 63 of Goods Tariff No. 28 in force from August 1, 1950, provided for the station-to-station rates as one of the types of rates chargeable. Cl. (7) provided that a "station-to-station rate" is a special rate for the total distance between two specific points (stations only): and cl. (8) provided that:"Station-to-station rates are as follows-(i) those between two stations on the same Railway, that is local station-to-station rates;(ii) those between a station on one railway and a station on another railway."Similarly in Rule 67 of Goods Tariff No. 29 in force from June 1, 1954, similar definition of station-to-station rates was given. In Rule 67 of Goods Tariff No. 29 effective from October 1, 1958, rates were divided into two types - (i) Class rates; and (ii) station-to-station rates. By cl (3) it was provided:"(i) Station-to-station rate means a special reduced rate applicable to a specific commodity booked from one specified station to another specified station.(ii) Station-to-station rates may be quoted from and to stations on the same railway or from a station on one railway to a station on another railway."These rules have, in our judgment, no relevance in determining the matter in dispute in this appeal, for in S. 41 (1) (b) the expression used is not "station-to-station rates", but a rate between two stations which is unreasonable. There is nothing in the rules which even indirectly affects the jurisdiction of the Tribunal to determine whether the rates for carriage of certain specified commodities between two stations are unreasonable. The Tribunal has expressly observed that the relief granted to the Company must be within the range of rates prescribed by the Central Government. The Tribunal has expressly observed that it is incompetent to grant relief which might even indirectly cancel the order of the Central Government under Section 10 (1), for, it would amount to changing the range and level of class rates applicable to the branch line. But if the Tribunal declared that only certain rates for specific commodities, between specified pairs of stations, are unreasonable, the level of class rates is not affected. The Tribunal is invested with the authority subject to the limitations contained in S. 29 (3) and S. 42 to entertain a complaint and to give relief in respect of rates which are found to be unreasonable between two stations. The complaint made by the Company did not seek intervention of the Tribunal in matters which may be raised only for decision to the Central Government by S. 29 and S. 42 of the Act, and the Tribunal has not given any relief in contravention of those provisions. The Tribunal has merely declared that the chargeable rate of freight determined by multiplying by three the distance over which the goods are transported for specific commodities is in contravention of S. 28 of the Indian Railways Act, 1890.13. We do not see force in the opinion expressed by Mr. V. R. Rangaswami and even if the Tribunal holds that the rates between two stations in respect of a specific commodity are unreasonable, it cannot make a declaration to that effect. Such a view would deprive the Tribunal of its power to give formal shape to its view. We are not called upon to decide whether the Tribunal has power to fix rates in substitution of rates declared unreasonable in exercise of the jurisdiction under S. 41 (1) (b), because no such rates are fixed by order of the Tribunal. ### Response: 1 ### Explanation: 11. In the present case the maximum and minimum range of rates have been fixed by the Central Government. A complaint that the railway administration has acted in contravention of the order issued by the Central Government may be determined by the Central Government and not by the Tribunal. Again the Central Government alone has the power to classify or reclassify any commodity or to increase or reduce the level of class rates and other charges. The Tribunal accepted these limitations upon the exercise of its powers. The Tribunal however found that the charge made by the railway administration under the order of the Railway Board levying tariff at the standard rates but on the footing that for each kilometer the goods are transported the charge will be levied at three times the standard rate is unreasonable and discriminatory. The finding proceeds upon appreciation of evidence which has been examined in great detail. The finding of the Tribunal cannot be challenged in this appeal with special leave under Art. 136 of the Constitution, and no attempt has been made to challenge before us thatrules have, in our judgment, no relevance in determining the matter in dispute in this appeal, for in S. 41 (1) (b) the expression used is notrates", but a rate between two stations which is unreasonable. There is nothing in the rules which even indirectly affects the jurisdiction of the Tribunal to determine whether the rates for carriage of certain specified commodities between two stations are unreasonable. The Tribunal has expressly observed that the relief granted to the Company must be within the range of rates prescribed by the Central Government. The Tribunal has expressly observed that it is incompetent to grant relief which might even indirectly cancel the order of the Central Government under Section 10 (1), for, it would amount to changing the range and level of class rates applicable to the branch line. But if the Tribunal declared that only certain rates for specific commodities, between specified pairs of stations, are unreasonable, the level of class rates is not affected. The Tribunal is invested with the authority subject to the limitations contained in S. 29 (3) and S. 42 to entertain a complaint and to give relief in respect of rates which are found to be unreasonable between two stations. The complaint made by the Company did not seek intervention of the Tribunal in matters which may be raised only for decision to the Central Government by S. 29 and S. 42 of the Act, and the Tribunal has not given any relief in contravention of those provisions. The Tribunal has merely declared that the chargeable rate of freight determined by multiplying by three the distance over which the goods are transported for specific commodities is in contravention of S. 28 of the Indian Railways Act, 1890.13. We do not see force in the opinion expressed by Mr. V. R. Rangaswami and even if the Tribunal holds that the rates between two stations in respect of a specific commodity are unreasonable, it cannot make a declaration to that effect. Such a view would deprive the Tribunal of its power to give formal shape to its view. We are not called upon to decide whether the Tribunal has power to fix rates in substitution of rates declared unreasonable in exercise of the jurisdiction under S. 41 (1) (b), because no such rates are fixed by order of the Tribunal.

Gopal Krishna Potnay Vs. Union Of India & Anr

notice of discharge from service with effect from the 4th July 1949 A. N."On the 30h July 1949 the plaintiff appealed from the order passed by the chief administrative Officer and contended that the said order was illegal, being in contravention of section 240 of the Government of India Act, 1935. No point was taken that the plaintiff had not in fact executed any service agreement in terms of which he could be removed from service on one months notice. That appeal was dismissed by Railway Board in November 1949. The plaintiff thereupon, on the 3rd October 1950, filed the suit out of which the present appeal arises.3. The trial Court found that the defendant had not proved that the plaintiff had executed any service agreement and that being so there was no question of his discharge from service on a months notice and without formulating a charge-sheet and giving him an opportunity to answer the same. Accordingly a decree was passed in terms of the prayer. On appeal by the defendant, the High Court came to the conclusion that the defendant had amply proved the service agreement and reversing the decree of the trial Court, dismissed the suit.4. It is not disputed that the plaintiff joined the Railway service at Lahore and that he was at the date of his discharge in June 1949 a non-pensionable and non-gazetted Railway servant. After the partition of India most of the papers relating to the plaintiff were left in Lahore and had not been received from the Pakistan authorities. The defendant sought, in the circumstances, to adduce secondary evidence to establish the fact of execution of such agreement and the terms thereof.5. It is quite true that none of the defence witnesses had any personal knowledge of the fact of the execution of such a service agreement by the plaintiff but their evidence shows that according to the rules it was incumbent on a Railway servant to enter into such agreement. Indeed, this is also admitted by J. N. Khanna (P. W. 1). It is further in evidence that such agreements were to be in the form set out in the rules and invariably contained a clause that the service would be terminable on a months notice on either side. In view, however, of the evidence of some of the defence witnesses that in many cases the rules had not been complied with and occasionally some employees did not execute such documents through oversight the trial Court held that the evidence was not sufficient to establish that such an agreement must have been executed by the plaintiff.6. If the matter stood there, there might have been some force in the observation of the trial Court. There are, however, certain other materials on record which clearly indicate that the plaintiff must have executed a service agreement in the usual form. It will be recalled that the order of discharge was made under Para. 1708 XI. The proviso to that paragraph saves the right of the authorities to remove a non-pensionable non-gazetted Railway servant from service in terms of agreement without the application of the procedure described in the rules. The plaintiff, in his evidence, admits that as a Head Clerk he was fully acquainted with the rules and regulations. He preferred an appeal to the Railway Board but in that application he confined himself to legal grounds and did not assert that he had not entered into any service agreement which he certainly would have done had that been a fact. In the next place, the plaintiff made an application for payment of gratuity. In that application (Ex. D/9) the reason for termination of his service is stated to be discharged in terms of agreement" and he was basing his claim for gratuity on that fact.7. During the hearing before us learned counsel appearing for the plaintiff contends that there is no evidence that Ex. D/9 had been filed in by the plaintiff himself. We do not think there is any substance in this plea. While the plaintiff was under examination he called for certain documents from the defendant and tendered some of them. One of the documents called for by him and produced by the defendant and exhibited as exhibit D/9 was "plaintiffs gratuity application regarding full gratuity being paid to him". In the circumstances, the plaintiff cannot be heard to say that the document called for and exhibited by him was not his gratuity application. The plaintiff has taken no steps to put on record his application calling for this document in support of his plea.8. Further, Rules 1504 and 1505 clearly indicate that no gratuity was payable to a Railway servant dismissed or removed from service by reason of any misconduct except with the sanction of the controlling officer. Therefore, his application for gratuity was founded on the allegation that he was discharged in terms of the agreement. The plaintiff has actually received gratuity amounting to Rs. 3,150/- on the basis that he was discharged from service in terms of his service agreement. He also received one months pay in lieu of notice as provided in clause 3 (a) of the service agreement. In view of the facts referred to above and the other facts mentioned in the judgment of the High Court there remains no doubt in our mind that the High Court was perfectly justified in coming to the conclusion that the defendant had amply proved that the plaintiff had executed a service agreement. On the hypothesis that the plaintiff had in fact executed a service agreement there is no suggestion that that agreement was in terms different from the usual form of such service agreement as to be found in the rules. In this view of the matter the plaintiff cannot be heard to complain that no charge-sheet had been formulated against him and proceedings had not been taken thereunder. In the view we have taken, the other points raised on the pleadings need not be considered.

0[ds]6. If the matter stood there, there might have been some force in the observation of the trial Court. There are, however, certain other materials on record which clearly indicate that the plaintiff must have executed a service agreement in the usual form.During the hearing before us learned counsel appearing for the plaintiff contends that there is no evidence that Ex. D/9 had been filed in by the plaintiff himself.We do not think there is any substance in this plea. While the plaintiff was under examination he called for certain documents from the defendant and tendered some of them. One of the documents called for by him and produced by the defendant and exhibited as exhibit D/9 was "plaintiffs gratuity application regarding full gratuity being paid to him". In the circumstances, the plaintiff cannot be heard to say that the document called for and exhibited by him was not his gratuity application. The plaintiff has taken no steps to put on record his application calling for this document in support of his plea.Further, Rules 1504 and 1505 clearly indicate that no gratuity was payable to a Railway servant dismissed or removed from service by reason of any misconduct except with the sanction of the controlling officer. Therefore, his application for gratuity was founded on the allegation that he was discharged in terms of the agreement. The plaintiff has actually received gratuity amounting to Rs. 3,150/on the basis that he was discharged from service in terms of his service agreement. He also received one months pay in lieu of notice as provided in clause 3 (a) of the service agreement. In view of the facts referred to above and the other facts mentioned in the judgment of the High Court there remains no doubt in our mind that the High Court was perfectly justified in coming to the conclusion that the defendant had amply proved that the plaintiff had executed a service agreement. On the hypothesis that the plaintiff had in fact executed a service agreement there is no suggestion that that agreement was in terms different from the usual form of such service agreement as to be found in the rules. In this view of the matter the plaintiff cannot be heard to complain that nohad been formulated against him and proceedings had not been taken thereunder. In the view we have taken, the other points raised on the pleadings need not be considered.

### 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: notice of discharge from service with effect from the 4th July 1949 A. N."On the 30h July 1949 the plaintiff appealed from the order passed by the chief administrative Officer and contended that the said order was illegal, being in contravention of section 240 of the Government of India Act, 1935. No point was taken that the plaintiff had not in fact executed any service agreement in terms of which he could be removed from service on one months notice. That appeal was dismissed by Railway Board in November 1949. The plaintiff thereupon, on the 3rd October 1950, filed the suit out of which the present appeal arises.3. The trial Court found that the defendant had not proved that the plaintiff had executed any service agreement and that being so there was no question of his discharge from service on a months notice and without formulating a charge-sheet and giving him an opportunity to answer the same. Accordingly a decree was passed in terms of the prayer. On appeal by the defendant, the High Court came to the conclusion that the defendant had amply proved the service agreement and reversing the decree of the trial Court, dismissed the suit.4. It is not disputed that the plaintiff joined the Railway service at Lahore and that he was at the date of his discharge in June 1949 a non-pensionable and non-gazetted Railway servant. After the partition of India most of the papers relating to the plaintiff were left in Lahore and had not been received from the Pakistan authorities. The defendant sought, in the circumstances, to adduce secondary evidence to establish the fact of execution of such agreement and the terms thereof.5. It is quite true that none of the defence witnesses had any personal knowledge of the fact of the execution of such a service agreement by the plaintiff but their evidence shows that according to the rules it was incumbent on a Railway servant to enter into such agreement. Indeed, this is also admitted by J. N. Khanna (P. W. 1). It is further in evidence that such agreements were to be in the form set out in the rules and invariably contained a clause that the service would be terminable on a months notice on either side. In view, however, of the evidence of some of the defence witnesses that in many cases the rules had not been complied with and occasionally some employees did not execute such documents through oversight the trial Court held that the evidence was not sufficient to establish that such an agreement must have been executed by the plaintiff.6. If the matter stood there, there might have been some force in the observation of the trial Court. There are, however, certain other materials on record which clearly indicate that the plaintiff must have executed a service agreement in the usual form. It will be recalled that the order of discharge was made under Para. 1708 XI. The proviso to that paragraph saves the right of the authorities to remove a non-pensionable non-gazetted Railway servant from service in terms of agreement without the application of the procedure described in the rules. The plaintiff, in his evidence, admits that as a Head Clerk he was fully acquainted with the rules and regulations. He preferred an appeal to the Railway Board but in that application he confined himself to legal grounds and did not assert that he had not entered into any service agreement which he certainly would have done had that been a fact. In the next place, the plaintiff made an application for payment of gratuity. In that application (Ex. D/9) the reason for termination of his service is stated to be discharged in terms of agreement" and he was basing his claim for gratuity on that fact.7. During the hearing before us learned counsel appearing for the plaintiff contends that there is no evidence that Ex. D/9 had been filed in by the plaintiff himself. We do not think there is any substance in this plea. While the plaintiff was under examination he called for certain documents from the defendant and tendered some of them. One of the documents called for by him and produced by the defendant and exhibited as exhibit D/9 was "plaintiffs gratuity application regarding full gratuity being paid to him". In the circumstances, the plaintiff cannot be heard to say that the document called for and exhibited by him was not his gratuity application. The plaintiff has taken no steps to put on record his application calling for this document in support of his plea.8. Further, Rules 1504 and 1505 clearly indicate that no gratuity was payable to a Railway servant dismissed or removed from service by reason of any misconduct except with the sanction of the controlling officer. Therefore, his application for gratuity was founded on the allegation that he was discharged in terms of the agreement. The plaintiff has actually received gratuity amounting to Rs. 3,150/- on the basis that he was discharged from service in terms of his service agreement. He also received one months pay in lieu of notice as provided in clause 3 (a) of the service agreement. In view of the facts referred to above and the other facts mentioned in the judgment of the High Court there remains no doubt in our mind that the High Court was perfectly justified in coming to the conclusion that the defendant had amply proved that the plaintiff had executed a service agreement. On the hypothesis that the plaintiff had in fact executed a service agreement there is no suggestion that that agreement was in terms different from the usual form of such service agreement as to be found in the rules. In this view of the matter the plaintiff cannot be heard to complain that no charge-sheet had been formulated against him and proceedings had not been taken thereunder. In the view we have taken, the other points raised on the pleadings need not be considered. ### Response: 0 ### Explanation: 6. If the matter stood there, there might have been some force in the observation of the trial Court. There are, however, certain other materials on record which clearly indicate that the plaintiff must have executed a service agreement in the usual form.During the hearing before us learned counsel appearing for the plaintiff contends that there is no evidence that Ex. D/9 had been filed in by the plaintiff himself.We do not think there is any substance in this plea. While the plaintiff was under examination he called for certain documents from the defendant and tendered some of them. One of the documents called for by him and produced by the defendant and exhibited as exhibit D/9 was "plaintiffs gratuity application regarding full gratuity being paid to him". In the circumstances, the plaintiff cannot be heard to say that the document called for and exhibited by him was not his gratuity application. The plaintiff has taken no steps to put on record his application calling for this document in support of his plea.Further, Rules 1504 and 1505 clearly indicate that no gratuity was payable to a Railway servant dismissed or removed from service by reason of any misconduct except with the sanction of the controlling officer. Therefore, his application for gratuity was founded on the allegation that he was discharged in terms of the agreement. The plaintiff has actually received gratuity amounting to Rs. 3,150/on the basis that he was discharged from service in terms of his service agreement. He also received one months pay in lieu of notice as provided in clause 3 (a) of the service agreement. In view of the facts referred to above and the other facts mentioned in the judgment of the High Court there remains no doubt in our mind that the High Court was perfectly justified in coming to the conclusion that the defendant had amply proved that the plaintiff had executed a service agreement. On the hypothesis that the plaintiff had in fact executed a service agreement there is no suggestion that that agreement was in terms different from the usual form of such service agreement as to be found in the rules. In this view of the matter the plaintiff cannot be heard to complain that nohad been formulated against him and proceedings had not been taken thereunder. In the view we have taken, the other points raised on the pleadings need not be considered.

Securities & Exchange Board of India Vs. Ajay Agarwal

Act, 1947 are adjudicatory in character and not criminal proceedings (See Director of Enforcement v. M.C.T.M. Corporation Pvt. Ltd. and others, (1996) 2 SCC 471 ). Persons who are subjected to such penalties are also not entitled to the protection under Article 20(1) of the Constitution. 38. Following the aforesaid ratio, this Court cannot hold that protection under Article 20(1) of the Constitution in respect of ex-post facto laws is available to the respondent in this case. 39. If we look at the legislative intent for enacting the said Act, it transpires that the same was enacted to achieve the twin purposes of promoting orderly and healthy growth of securities market and for protecting the interest of the investors. The requirement of such an enactment was felt in view of substantial growth in the capital market by increasing participation of the investors. In fact such enactment was necessary in order to ensure the confidence of the investors in the capital market by giving them some protection. 40. The said Act is pre-eminently a social welfare legislation seeking to protect the interests of common men who are small investors. 41. It is a well known canon of construction that when Court is called upon to interpret provisions of a social welfare legislation the paramount duty of the Court is to adopt such an interpretation as to further the purposes of law and if possible eschew the one which frustrates it. 42. Keeping this principle in mind if we analyse some of the provisions of the Act it appears that the Board has been established under Section 3 as a body corporate and the powers and functions of the Board have been clearly stated in Chapter IV and under Section 11 of the said Act. 43. A perusal of Section 11, Sub-Section 2(a) of the said Act makes it clear that the primary function of the Board is to regulate the business in stock exchanges and any other securities markets and in order to do so it has been entrusted with various powers. 44. Section 11 had to be amended on several occasions to keep pace with the `felt necessities of time. One such amendment was made in Sub Section (4) of Section 11 of the said Act, which gives the Board the power to restrain persons from accessing the securities market and to prohibit such persons from being associated with securities market to buy and sell or deal in securities. Such an amendment came in 2002. 45. From the statement of objects and reasons of the Amendment Act of 2002, it appears that the Parliament thought that in view of growing importance of stock market in national economy, SEBI will have to deal with new demands in terms of improving organisational structure and strengthening institutional capacity. 46. Therefore, certain shortcomings which were in the existing structure of law were sought to be amended by strengthening the mechanisms available to SEBI for investigation and enforcement, so that it is better equipped to investigate and enforce against market malpractices. (See Paragraph 3 of the Statement of objects and reasons). 47. Section 11-B which empowers the Board to issue certain directions also came up by way of amendment in 1995 by Act 9 of 1995. The Statements of Objects and Reasons of such amendments show one of the objects is to empower the Board to issue regulations without the approval of the Central Government. (See para 3(e) of the Statements of Objects and Reasons). Section 11-B of the Act thus empowers the Board to give directions in the interest of the investors and for orderly development of securities market, which, as noted above, is one of the twin purposes to be achieved by the said Act. Therefore, by the 1995 amendment by way of Section 11-B Board has been empowered to carry out the purposes of the said Act. 48. As noted above, there is no challenge to those provisions which came by way of amendment. In the absence of any challenge to those provisions, it cannot be said that even though Board is statutorily empowered to exercise functions in accordance with the amended law, its power to act under the law, as amended, will stand frozen in respect of any violation which might have taken place prior to the enactment of those provisions. It is nobodys case that Board has exercised those powers in respect of a proceeding which was initiated prior to the enactment of those provisions. In fact Board has issued the show cause notice in terms of Section 11-B and considered the reply of the respondent. In such a situation, there has no infraction in the procedure. 49. Therefore, the entire basis of the order of the Appellate Tribunal that provision of Section 11- B cannot be applied retrospectively has been passed on an erroneous basis, as discussed herein above. 50. Provisions of Section 11-B being procedural in nature can be applied retrospectively. 51. The appellate Tribunal made a manifest error by not appreciating that Section 11-B is procedural in nature. It is a time honoured principle if the law affects matters of procedure, then prima facie it applies to all actions, pending as well as future. See K.Eapan Chako v. The Provident Investment Company (P.) Ltd.,[AIR 1976 SC 2610 ] wherein Chief Justice A.N. Ray laid down those principles. 52. Maxwell in his "Interpretation of Statutes" also indicated that no one has a vested right in any course of procedure. A persons right of either prosecution or defence is conditioned by the manner prescribed for the time being by the law and if by the Act of Parliament, the mode of proceeding is altered, and then no one has any other right than to proceed under the alternate mode. [Maxwell Interpretation of Statutes, 11th Edition, p.216]. 53. These principles, enunciated by Maxwell, have been quoted with approval by the Supreme Court in its Constitution Bench judgment in Union of India v. Sukumar Pyne [AIR 1966 SC 1206 at p.1209]

1[ds]49. Therefore, the entire basis of the order of the Appellate Tribunal that provision of Section 11- B cannot be applied retrospectively has been passed on an erroneous basis, as discussed herein above50. Provisions of Section 11-B being procedural in nature can be applied retrospectively18. It is clear from the aforesaid discussion that the ratio in Govinddass case does not apply to this case in as much as no tax liability has been created under the order of the Board21. Therefore, restrain order passed on the respondent strictly speaking was not under Section11B ofthe said Act. However, the provisions of Section 11(4)(B) of the said Act also came by way of amendment in 2002. It should, however, be noted that by the time the Board passed the order on 31st March 2004 all the amendments were on the statuteEven if the amendments to the said Act are allowed to operate prospectively by the time the order was passed by the Board, it was empowered by the aforesaid amendments to do so23. Therefore, without giving any retrospective operation to those provisions, the impugned order can be passed by the Board in as much as the amendments in questions empowered the Board to pass such an order when it passed the order. So, the question that survives is whether the Board could pass the order in respect of allegations which surfaced prior to the coming into effect of those amendments in 1995 and 200225. In this connection it may be noticed that Section11B ofthe Act was invoked even at the show cause stage. Therefore, it cannot be said that any provision has been invoked in the midst of any pending proceeding initiated by the Board. The respondent was, thus, put on notice that the Board is invoking its power under Section11Bwhich was available to it under the law on the date of issuance of show cause notice26. In the premises, it cannot be said that any new provision has been invoked in connection with any pending proceeding. Nor can it be contended by the respondent that there was any unfairness in the proceeding. Respondent was given adequate notice of the charges in the show cause notice. He was given an opportunity to reply to the show cause notice and, thereafter, a fair opportunity of hearing was given before the order was passed by the Board. The entire gamut of a fair procedure was thus observed27. This Court also finds that there is no challenge to the amended provision of the law. Even if the law applies prospectively, the Board cannot be prevented from acting in terms of the law which exists on the day the Board passed its order38. Following the aforesaid ratio, this Court cannot hold that protection under Article 20(1) of the Constitution in respect oft facto laws is available to the respondent in this case48. As noted above, there is no challenge to those provisions which came by way of amendment. In the absence of any challenge to those provisions, it cannot be said that even though Board is statutorily empowered to exercise functions in accordance with the amended law, its power to act under the law, as amended, will stand frozen in respect of any violation which might have taken place prior to the enactment of those provisions. It is nobodys case that Board has exercised those powers in respect of a proceeding which was initiated prior to the enactment of those provisions. In fact Board has issued the show cause notice in terms of Section11Band considered the reply of the respondent. In such a situation, there has no infraction in the procedure49. Therefore, the entire basis of the order of the Appellate Tribunal that provision of Section 11B cannot be applied retrospectively has been passed on an erroneous basis, as discussed herein above50. Provisions of Section11Bbeing procedural in nature can be applied retrospectively51. The appellate Tribunal made a manifest error by not appreciating that Section11Bis procedural in nature. It is a time honoured principle if the law affects matters of procedure, then prima facie it applies to all actions, pending as well as future. See K.Eapan Chako v. The Provident Investment Company (P.) Ltd.,[AIR 1976 SC 2610 ] wherein Chief Justice A.N. Ray laid down those principles52. Maxwell in his "Interpretation of Statutes" also indicated that no one has a vested right in any course of procedure. A persons right of either prosecution or defence is conditioned by the manner prescribed for the time being by the law and if by the Act of Parliament, the mode of proceeding is altered, and then no one has any other right than to proceed under the alternate mode. [Maxwell Interpretation of Statutes, 11th Edition, p.216]53. These principles, enunciated by Maxwell, have been quoted with approval by the Supreme Court in its Constitution Bench judgment in Union of India v. Sukumar Pyne [AIR 1966 SC 1206 at p.1209]54. For the reasons discussed above, this Court is constrained to quash the order of the Appellate Tribunal and upholds the order of the Chairman of the Board.

### 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: Act, 1947 are adjudicatory in character and not criminal proceedings (See Director of Enforcement v. M.C.T.M. Corporation Pvt. Ltd. and others, (1996) 2 SCC 471 ). Persons who are subjected to such penalties are also not entitled to the protection under Article 20(1) of the Constitution. 38. Following the aforesaid ratio, this Court cannot hold that protection under Article 20(1) of the Constitution in respect of ex-post facto laws is available to the respondent in this case. 39. If we look at the legislative intent for enacting the said Act, it transpires that the same was enacted to achieve the twin purposes of promoting orderly and healthy growth of securities market and for protecting the interest of the investors. The requirement of such an enactment was felt in view of substantial growth in the capital market by increasing participation of the investors. In fact such enactment was necessary in order to ensure the confidence of the investors in the capital market by giving them some protection. 40. The said Act is pre-eminently a social welfare legislation seeking to protect the interests of common men who are small investors. 41. It is a well known canon of construction that when Court is called upon to interpret provisions of a social welfare legislation the paramount duty of the Court is to adopt such an interpretation as to further the purposes of law and if possible eschew the one which frustrates it. 42. Keeping this principle in mind if we analyse some of the provisions of the Act it appears that the Board has been established under Section 3 as a body corporate and the powers and functions of the Board have been clearly stated in Chapter IV and under Section 11 of the said Act. 43. A perusal of Section 11, Sub-Section 2(a) of the said Act makes it clear that the primary function of the Board is to regulate the business in stock exchanges and any other securities markets and in order to do so it has been entrusted with various powers. 44. Section 11 had to be amended on several occasions to keep pace with the `felt necessities of time. One such amendment was made in Sub Section (4) of Section 11 of the said Act, which gives the Board the power to restrain persons from accessing the securities market and to prohibit such persons from being associated with securities market to buy and sell or deal in securities. Such an amendment came in 2002. 45. From the statement of objects and reasons of the Amendment Act of 2002, it appears that the Parliament thought that in view of growing importance of stock market in national economy, SEBI will have to deal with new demands in terms of improving organisational structure and strengthening institutional capacity. 46. Therefore, certain shortcomings which were in the existing structure of law were sought to be amended by strengthening the mechanisms available to SEBI for investigation and enforcement, so that it is better equipped to investigate and enforce against market malpractices. (See Paragraph 3 of the Statement of objects and reasons). 47. Section 11-B which empowers the Board to issue certain directions also came up by way of amendment in 1995 by Act 9 of 1995. The Statements of Objects and Reasons of such amendments show one of the objects is to empower the Board to issue regulations without the approval of the Central Government. (See para 3(e) of the Statements of Objects and Reasons). Section 11-B of the Act thus empowers the Board to give directions in the interest of the investors and for orderly development of securities market, which, as noted above, is one of the twin purposes to be achieved by the said Act. Therefore, by the 1995 amendment by way of Section 11-B Board has been empowered to carry out the purposes of the said Act. 48. As noted above, there is no challenge to those provisions which came by way of amendment. In the absence of any challenge to those provisions, it cannot be said that even though Board is statutorily empowered to exercise functions in accordance with the amended law, its power to act under the law, as amended, will stand frozen in respect of any violation which might have taken place prior to the enactment of those provisions. It is nobodys case that Board has exercised those powers in respect of a proceeding which was initiated prior to the enactment of those provisions. In fact Board has issued the show cause notice in terms of Section 11-B and considered the reply of the respondent. In such a situation, there has no infraction in the procedure. 49. Therefore, the entire basis of the order of the Appellate Tribunal that provision of Section 11- B cannot be applied retrospectively has been passed on an erroneous basis, as discussed herein above. 50. Provisions of Section 11-B being procedural in nature can be applied retrospectively. 51. The appellate Tribunal made a manifest error by not appreciating that Section 11-B is procedural in nature. It is a time honoured principle if the law affects matters of procedure, then prima facie it applies to all actions, pending as well as future. See K.Eapan Chako v. The Provident Investment Company (P.) Ltd.,[AIR 1976 SC 2610 ] wherein Chief Justice A.N. Ray laid down those principles. 52. Maxwell in his "Interpretation of Statutes" also indicated that no one has a vested right in any course of procedure. A persons right of either prosecution or defence is conditioned by the manner prescribed for the time being by the law and if by the Act of Parliament, the mode of proceeding is altered, and then no one has any other right than to proceed under the alternate mode. [Maxwell Interpretation of Statutes, 11th Edition, p.216]. 53. These principles, enunciated by Maxwell, have been quoted with approval by the Supreme Court in its Constitution Bench judgment in Union of India v. Sukumar Pyne [AIR 1966 SC 1206 at p.1209] ### Response: 1 ### Explanation: 49. Therefore, the entire basis of the order of the Appellate Tribunal that provision of Section 11- B cannot be applied retrospectively has been passed on an erroneous basis, as discussed herein above50. Provisions of Section 11-B being procedural in nature can be applied retrospectively18. It is clear from the aforesaid discussion that the ratio in Govinddass case does not apply to this case in as much as no tax liability has been created under the order of the Board21. Therefore, restrain order passed on the respondent strictly speaking was not under Section11B ofthe said Act. However, the provisions of Section 11(4)(B) of the said Act also came by way of amendment in 2002. It should, however, be noted that by the time the Board passed the order on 31st March 2004 all the amendments were on the statuteEven if the amendments to the said Act are allowed to operate prospectively by the time the order was passed by the Board, it was empowered by the aforesaid amendments to do so23. Therefore, without giving any retrospective operation to those provisions, the impugned order can be passed by the Board in as much as the amendments in questions empowered the Board to pass such an order when it passed the order. So, the question that survives is whether the Board could pass the order in respect of allegations which surfaced prior to the coming into effect of those amendments in 1995 and 200225. In this connection it may be noticed that Section11B ofthe Act was invoked even at the show cause stage. Therefore, it cannot be said that any provision has been invoked in the midst of any pending proceeding initiated by the Board. The respondent was, thus, put on notice that the Board is invoking its power under Section11Bwhich was available to it under the law on the date of issuance of show cause notice26. In the premises, it cannot be said that any new provision has been invoked in connection with any pending proceeding. Nor can it be contended by the respondent that there was any unfairness in the proceeding. Respondent was given adequate notice of the charges in the show cause notice. He was given an opportunity to reply to the show cause notice and, thereafter, a fair opportunity of hearing was given before the order was passed by the Board. The entire gamut of a fair procedure was thus observed27. This Court also finds that there is no challenge to the amended provision of the law. Even if the law applies prospectively, the Board cannot be prevented from acting in terms of the law which exists on the day the Board passed its order38. Following the aforesaid ratio, this Court cannot hold that protection under Article 20(1) of the Constitution in respect oft facto laws is available to the respondent in this case48. As noted above, there is no challenge to those provisions which came by way of amendment. In the absence of any challenge to those provisions, it cannot be said that even though Board is statutorily empowered to exercise functions in accordance with the amended law, its power to act under the law, as amended, will stand frozen in respect of any violation which might have taken place prior to the enactment of those provisions. It is nobodys case that Board has exercised those powers in respect of a proceeding which was initiated prior to the enactment of those provisions. In fact Board has issued the show cause notice in terms of Section11Band considered the reply of the respondent. In such a situation, there has no infraction in the procedure49. Therefore, the entire basis of the order of the Appellate Tribunal that provision of Section 11B cannot be applied retrospectively has been passed on an erroneous basis, as discussed herein above50. Provisions of Section11Bbeing procedural in nature can be applied retrospectively51. The appellate Tribunal made a manifest error by not appreciating that Section11Bis procedural in nature. It is a time honoured principle if the law affects matters of procedure, then prima facie it applies to all actions, pending as well as future. See K.Eapan Chako v. The Provident Investment Company (P.) Ltd.,[AIR 1976 SC 2610 ] wherein Chief Justice A.N. Ray laid down those principles52. Maxwell in his "Interpretation of Statutes" also indicated that no one has a vested right in any course of procedure. A persons right of either prosecution or defence is conditioned by the manner prescribed for the time being by the law and if by the Act of Parliament, the mode of proceeding is altered, and then no one has any other right than to proceed under the alternate mode. [Maxwell Interpretation of Statutes, 11th Edition, p.216]53. These principles, enunciated by Maxwell, have been quoted with approval by the Supreme Court in its Constitution Bench judgment in Union of India v. Sukumar Pyne [AIR 1966 SC 1206 at p.1209]54. For the reasons discussed above, this Court is constrained to quash the order of the Appellate Tribunal and upholds the order of the Chairman of the Board.

PAPPU DEO YADAV Vs. NARESH KUMAR & ORS

hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. 10. In some cases for personal injury, the claim could be in respect of lifetimes earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases—and that is now recognised mode as to the proper measure of compensation—is taking an appropriate multiplier of an appropriate multiplicand. In that case, after following the judgment in Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 , the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident. In the instant case, the MACT had quantified the income of the appellant at Rs. 10,000, i.e. Rs. 1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70%, the compensation under this head would be worked out at Rs. 14,28,000. The MACT had awarded compensation of Rs. 70,000 for permanent disability, which stands enhanced to Rs. 14,28,000. For mental and physical agony and frustration and disappointment towards life, the MACT has awarded a sum of Rs. 30,000, which we enhance to Rs. 1,30,000. 20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some proportionate principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case. 21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning Rs.12,000/- could not be discarded substantially, to the extent of bringing it down to Rs. 8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than Rs. 1,60,000/- per annum. (First Schedule, Finance Act, 2011.) The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellants monthly earnings at Rs. 8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs. 8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40% (By applying the ratio in Pranay Sethi) , the income should be taken as Rs.14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/- (i.e., Rs. 14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only. 22. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victims having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judges mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. 23. The High Courts assessment of amounts payable under other heads (such as compensation for medical expenses, compensation for pain and suffering, compensation for special diet and attendant, conveyance charges, loss of amenities and enjoyment of life, disfigurement and loss of income during treatment), do not call for interference.

1[ds]6. The principle consistently followed by this court in assessing motor vehicle compensation claims, is to place the victim in as near a position as she or he was in before the accident, with other compensatory directions for loss of amenities and other payments.On the first question, the High Court no doubt, is technically correct in holding that Pranay Sethi (Supra n.2) involved assessment of compensation in a case where the victim died. However, it went wrong in saying that later, the three-judge bench decision in Jagdish (Supra n.3) was not binding, but rather that the subsequent decision in Anant (Supra n.6) to the extent that it did not award compensation for future prospects, was binding. This court is of the opinion that there was no justification for the High Court to have read the previous rulings of this court, to exclude the possibility of compensation for future prospects in accident cases involving serious injuries resulting in permanent disablement. Such a narrow reading of Pranay Sethi (Supra n.2) is illogical, because it denies altogether the possibility of the living victim progressing further in life in accident cases - and admits such possibility of future prospects, in case of the victims death.8. This court has emphasized time and again that just compensation should include all elements that would go to place the victim in as near a position as she or he was in, before the occurrence of the accident. Whilst no amount of money or other material compensation can erase the trauma, pain and suffering that a victim undergoes after a serious accident, (or replace the loss of a loved one), monetary compensation is the manner known to law, whereby society assures some measure of restitution to those who survive, and the victims who have to face their lives.9. In Jagdish (Supra.n.3) the victim, a carpenter, suffered permanent disablement, and his claim for compensation including for loss of future prospects was considered by a three-judge bench (which included, incidentally, the judges who had decided Pranay Sethi (Supra n.2) ). This court held that:13. In the judgment of the Constitution Bench in Pranay Sethi [National Insurance Co. Ltd. v. Pranay Sethi, (2017) 16 SCC 680 ], this Court has held that the benefit of future prospects should not be confined only to those who have a permanent job and would extend to self-employed individuals. In the case of a self-employed person, an addition of 40% of the established income should be made where the age of the victim at the time of the accident was below 40 years. Hence, in the present case, the appellant would be entitled to an enhancement of Rs 2400 towards loss of future prospects.14. In making the computation in the present case, the court must be mindful of the fact that the appellant has suffered a serious disability in which he has suffered a loss of the use of both his hands. For a person engaged in manual activities, it requires no stretch of imagination to understand that a loss of hands is a complete deprivation of the ability to earn. Nothing—at least in the facts of this case—can restore lost hands. But the measure of compensation must reflect a genuine attempt of the law to restore the dignity of the being. Our yardsticks of compensation should not be so abysmal as to lead one to question whether our law values human life. If it does, as it must, it must provide a realistic recompense for the pain of loss and the trauma of suffering. Awards of compensation are not laws doles. In a discourse of rights, they constitute entitlements under law. Our conversations about law must shift from a paternalistic subordination of the individual to an assertion of enforceable rights as intrinsic to human dignity.15. The Tribunal has noted that the appellant is unable to even eat or to attend to a visit to the toilet without the assistance of an attendant. In this background, it would be a denial of justice to compute the disability at 90%. The disability is indeed total. Having regard to the age of the appellant, the Tribunal applied a multiplier of 18. In the circumstances, the compensation payable to the appellant on account of the loss of income, including future prospects, would be Rs 18, 14,400. In addition to this amount, the appellant should be granted an amount of Rs 2 lakhs on account of pain, suffering and loss of amenities. The amount awarded by the Tribunal towards medical expenses (Rs 98,908); for extra nourishment (Rs 25,000) and for attendants expenses (Rs 1 lakh) is maintained. The Tribunal has declined to award any amount towards future treatment. The appellant should be allowed an amount of Rs 3 lakhs towards future medical expenses. The appellant is thus awarded a total sum of Rs 25,38,308 by way of compensation. The appellant would be entitled to interest at the rate of 9% p.a. on the compensation from the date of the filing of the claim petition. The liability to pay compensation has been fastened by the Tribunal and by the High Court on the insurer, owner and driver jointly and severally which is affirmed. The amount shall be deposited before the Tribunal within a period of 6 weeks from today and shall be paid over to the appellant upon proper identification.12. In view of the above decisive rulings of this court, the High Court clearly erred in holding that compensation for loss of future prospects could not be awarded. In addition to loss of future earnings (based on a determination of the income at the time of accident), the appellant is also entitled to compensation for loss of future prospects, @ 40% (following the Pranay Sethi principle).13. The factual narrative discloses that the appellant, a 20-year-old data entry operator (who had studied up to 12 th standard) incurred permanent disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re-assessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so a functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity.20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some proportionate principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case.21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning Rs.12,000/- could not be discarded substantially, to the extent of bringing it down to Rs. 8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than Rs. 1,60,000/- per annum. (First Schedule, Finance Act, 2011.) The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellants monthly earnings at Rs. 8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs. 8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40% (By applying the ratio in Pranay Sethi) , the income should be taken as Rs.14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/- (i.e., Rs. 14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only.22. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victims having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judges mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.23. The High Courts assessment of amounts payable under other heads (such as compensation for medical expenses, compensation for pain and suffering, compensation for special diet and attendant, conveyance charges, loss of amenities and enjoyment of life, disfigurement and loss of income during treatment), do not call for interference.

### 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: hardly possible but one has to keep in mind that the victim has done no wrong; he has suffered at the hands of the wrongdoer and the court must take care to give him full and fair compensation for that he had suffered. 10. In some cases for personal injury, the claim could be in respect of lifetimes earnings lost because, though he will live, he cannot earn his living. In others, the claim may be made for partial loss of earnings. Each case has to be considered in the light of its own facts and at the end, one must ask whether the sum awarded is a fair and reasonable sum. The conventional basis of assessing compensation in personal injury cases—and that is now recognised mode as to the proper measure of compensation—is taking an appropriate multiplier of an appropriate multiplicand. In that case, after following the judgment in Kerala SRTC v. Susamma Thomas (1994) 2 SCC 176 , the Court chose to apply multiplier of 18 keeping in view the age of the victim, who as 25 years at the time of the accident. In the instant case, the MACT had quantified the income of the appellant at Rs. 10,000, i.e. Rs. 1,20,000 per annum. Going by the age of the appellant at the time of the accident, multiplier of 17 would be admissible. Keeping in view that the permanent disability is 70%, the compensation under this head would be worked out at Rs. 14,28,000. The MACT had awarded compensation of Rs. 70,000 for permanent disability, which stands enhanced to Rs. 14,28,000. For mental and physical agony and frustration and disappointment towards life, the MACT has awarded a sum of Rs. 30,000, which we enhance to Rs. 1,30,000. 20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some proportionate principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case. 21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning Rs.12,000/- could not be discarded substantially, to the extent of bringing it down to Rs. 8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than Rs. 1,60,000/- per annum. (First Schedule, Finance Act, 2011.) The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellants monthly earnings at Rs. 8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs. 8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40% (By applying the ratio in Pranay Sethi) , the income should be taken as Rs.14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/- (i.e., Rs. 14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only. 22. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victims having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judges mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim. 23. The High Courts assessment of amounts payable under other heads (such as compensation for medical expenses, compensation for pain and suffering, compensation for special diet and attendant, conveyance charges, loss of amenities and enjoyment of life, disfigurement and loss of income during treatment), do not call for interference. ### Response: 1 ### Explanation: In addition to loss of future earnings (based on a determination of the income at the time of accident), the appellant is also entitled to compensation for loss of future prospects, @ 40% (following the Pranay Sethi principle).13. The factual narrative discloses that the appellant, a 20-year-old data entry operator (who had studied up to 12 th standard) incurred permanent disability, i.e. loss of his right hand (which was amputated). The disability was assessed to be 89%. However, the tribunal and the High Court re-assessed the disability to be only 45%, on the assumption that the assessment for compensation was to be on a different basis, as the injury entailed loss of only one arm. This approach, in the opinion of this court, is completely mechanical and entirely ignores realities. Whilst it is true that assessment of injury of one limb or to one part may not entail permanent injury to the whole body, the inquiry which the court has to conduct is the resultant loss which the injury entails to the earning or income generating capacity of the claimant. Thus, loss of one leg to someone carrying on a vocation such as driving or something that entails walking or constant mobility, results in severe income generating impairment or its extinguishment altogether. Likewise, for one involved in a job like a carpenter or hairdresser, or machinist, and an experienced one at that, loss of an arm, (more so a functional arm) leads to near extinction of income generation. If the age of the victim is beyond 40, the scope of rehabilitation too diminishes. These individual factors are of crucial importance which are to be borne in mind while determining the extent of permanent disablement, for the purpose of assessment of loss of earning capacity.20. Courts should not adopt a stereotypical or myopic approach, but instead, view the matter taking into account the realities of life, both in the assessment of the extent of disabilities, and compensation under various heads. In the present case, the loss of an arm, in the opinion of the court, resulted in severe income earning impairment upon the appellant. As a typist/data entry operator, full functioning of his hands was essential to his livelihood. The extent of his permanent disablement was assessed at 89%; however, the High Court halved it to 45% on an entirely wrong application of some proportionate principle, which was illogical and is unsupportable in law. What is to be seen, as emphasized by decision after decision, is the impact of the injury upon the income generating capacity of the victim. The loss of a limb (a leg or arm) and its severity on that account is to be judged in relation to the profession, vocation or business of the victim; there cannot be a blind arithmetic formula for ready application. On an overview of the principles outlined in the previous decisions, it is apparent that the income generating capacity of the appellant was undoubtedly severely affected. Maybe, it is not to the extent of 89%, given that he still has the use of one arm, is young and as yet, hopefully training (and rehabilitating) himself adequately for some other calling. Nevertheless, the assessment of disability cannot be 45%; it is assessed at 65% in the circumstances of this case.21. This court is also of the opinion that the courts below needlessly discounted the evidence presented by the appellant in respect of the income earned by him. Working in the informal sector as he did, i.e. as a typist/data entry operator in court premises in Delhi, his assertion about earning Rs.12,000/- could not be discarded substantially, to the extent of bringing it down to Rs. 8,000/- per month. Such self employed professionals, it is noticeable, were not obliged to file income tax returns for AY 2011-2012, when no levy existed for anyone earning less than Rs. 1,60,000/- per annum. (First Schedule, Finance Act, 2011.) The advocate who deposed about the earnings of the appellant was believed to the extent that the tribunal fixed the appellants monthly earnings at Rs. 8,000/-. If one takes into account contemporary minimum wages for skilled workers (which was in the range of Rs. 8,500/-) the realistic figure would be Rs.10,000/- per month. Adding future prospects at 40% (By applying the ratio in Pranay Sethi) , the income should be taken as Rs.14,000 for the purpose of calculation of compensation. Accordingly, this court finds that the compensation payable for the disability of loss of an arm (assessed at 65%) would be Rs.19,65,600/- (i.e., Rs. 14,000/- x 12 x 65% x 18) or Rupees Nineteen lakhs sixty five thousand six hundred only.22. In parting, it needs to be underlined that Courts should be mindful that a serious injury not only permanently imposes physical limitations and disabilities but too often inflicts deep mental and emotional scars upon the victim. The attendant trauma of the victims having to live in a world entirely different from the one she or he is born into, as an invalid, and with degrees of dependence on others, robbed of complete personal choice or autonomy, should forever be in the judges mind, whenever tasked to adjudge compensation claims. Severe limitations inflicted due to such injuries undermine the dignity (which is now recognized as an intrinsic component of the right to life under Article 21) of the individual, thus depriving the person of the essence of the right to a wholesome life which she or he had lived, hitherto. From the world of the able bodied, the victim is thrust into the world of the disabled, itself most discomfiting and unsettling. If courts nit-pick and award niggardly amounts oblivious of these circumstances, there is resultant affront to the injured victim.23. The High Courts assessment of amounts payable under other heads (such as compensation for medical expenses, compensation for pain and suffering, compensation for special diet and attendant, conveyance charges, loss of amenities and enjoyment of life, disfigurement and loss of income during treatment), do not call for interference.

M/S. S.E. GRAPHITES PRIVATE LIMITED Vs. STATE OF TELANGANA

decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent. 12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority. 13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld. 14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect. 15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us. 16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed. 17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax dues.

1[ds]8. These provisions have been interpreted by the Division Bench of the High Court in the case of Ankamma Trading Company (supra). We are essentially concerned with the second proviso of Section 19 and Section 31 of the respective enactment; and first proviso of Section 21(2) and Section 33(2) of the respective enactment. Upon reading the Section under consideration as a whole, it is evident that the first proviso in the concerned Section (Section 19 and Section 31, as the case may be) pertains to limitation period for filing of an appeal; and discretion of the Appellate Authority to condone the delay in filing of such appeal, up to a maximum period specified therein. Indeed, the second proviso is part of the same Section. However, it is an independent condition and in one sense, mutually exclusive condition mandating or enjoining the appellant to produce proof of payment of tax dues in respect of which the appeal is preferred. That obligation, in our opinion, can be discharged until the appeal is considered for admission and/or condonation of delay in filing of the appeal, as the case may be, by the Appellate Authority for the first time. We are inclined to take this view as even the High Court in Ankamma Trading Company (supra) had justly noted that the said proviso does not provide for any specific period within which the tax dues should be paid. Moreover, there is no express stipulation to deposit the tax dues in respect of which the appeal is preferred, at the time of its filing, institution or presentation as such. In the absence of such a clear stipulation, it must necessarily follow that it is open to the assessee to file the appeal within the statutory period of limitation provided therefor and later on, deposit the specified tax dues but before the appeal is taken up for consideration by the Appellate Authority for the first time – be it for condonation of delay in filing the appeal and/or to admit it on merits or otherwise. The proof of such payment having been made could be produced thereat. Failing which, the Appellate Authority will have no other option but to reject the appeal on that count. The Appellate Authority has no power to extend the time to deposit the specified tax dues9. Suffice it to observe that, stricto sensu, the said proviso is not a provision of pre-deposit at the stage of filing, institution or presentation of the appeal as such; but is a provision stipulating payment of tax dues as a pre-requisite or sine qua non for consideration of appeal on merits or otherwise and/or for condonation of delay in filing the same, as the case may be, for the first time. If we may say so, it is also to impose fetter on the Appellate Authority from admitting the appeal for consideration on merits. It is well recognized that filing, institution or presentation of appeal in the office of the Appellate Authority is an independent event than the appeal being taken up for consideration for the first time for being admitted on merits or otherwise and/or for condonation of delay in filing it, as the case may be. There is no reason to interpret the stated proviso in any other manner lest, inevitably, it would result in re¬writing the same and entail in doing violence to the legislative intent. Presumably, this Court in M/s. Innovatives Systems (supra), and other decisions rendered following the same, therefore, was persuaded to allow the appeal preferred by the assessee and to relegate the parties before the Appellate Authority for consideration of the appeal for admission on merits10. Concededly, this Court was conscious of the decision in Ankamma Trading Company (supra). In that, the judgment under challenge before it in the concerned appeal was founded on the view already taken by the coordinate bench of the same High Court [including in Ankamma Trading Company (supra)]. It has been so recorded by this Court. In that sense, the legal position expounded in Ankamma Trading Company (supra), stood impliedly overruled, even though that decision has not been adverted to or expressly overruled by this Court11. The argument of the respondent proceeds that the decision in M/s. Innovatives Systems (supra), neither refers to any specific provision nor has it expressly over turned the decision of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax duesCivil Appeal Nos.4098/2016 & 4099/201619. These appeals were heard analogously with Civil Appeal No.7574/2014. In this set of appeals, admittedly, the appellant¬ assessee deposited the amount after the appeal filed by them came to be rejected by the Appellate Authority. In that sense, the appellant-assessee failed to produce proof of payment of tax dues in respect of which the appeal was preferred before the Appellate Authority when their appeal was taken up for consideration for admission. In Civil Appeal No.7574/2014, we have held that it is open to the assessee to deposit the amount before the event of first date of hearing of the appeal for admission and/or for condonation of delay in filing the appeal.21. This appeal was analogously heard along with Civil Appeal No.7574/2014. In the present appeal, the State has challenged the judgment and order passed by the High Court in Writ Petition No.22337 of 2015 and, in particular, the liberty granted to the respondent (writ petitioner) to pay the requisite amount after expiry of the limitation period prescribed under Section 33 of AP VAT Act, 2005 and on such deposit being made, the Appellate Authority is directed to consider the appeal on merits22. The background in which such direction came to be issued, can be discerned from the appeal filed by the State. To wit, the respondent, who was dealing in works contracts and was registered under APGST Act, 1957, was assessed by the appropriate authority but that assessment was revised by the Commercial Tax Officer by passing a revision order dated 25 th March, 2013. Against that decision, respondent¬assessee preferred appeal before the State Sales Tax Appellate Tribunal. During the pendency of the said appeal, respondent filed a writ petition to challenge the orders passed by the Commercial Tax Officer dated 27 th February, 2013 and 25 th March, 2013. That writ petition has been disposed of by the High Court vide impugned judgment, with liberty to comply with the condition of paying the tax dues in terms of the second proviso of the concerned provision within a period of six weeks from the date of receipt of the copy of order and upon such compliance, the Appellate Authority would decide the pending appeal on merits23. Having regard to the exposition in Civil Appeal No.7574 of 2014, decided today, it must follow that if the appeal filed by the respondent is still pending and has not been taken up for consideration so far by the Appellate Authority, only then it would be open to the respondent to deposit the requisite amount and produce the proof of such deposit before the Appellate Authority. If, however, the appeal has already been taken up for consideration for being admitted on merits or otherwise and by that date the respondent had not deposited the requisite amount as prescribed in terms of stated proviso, the Appellate Authority would be well within its jurisdiction and rather duty bound to reject the appeal on the ground of an institutional defect. That is a matter to be considered by the Appellate Authority. Besides this observation, nothing more is required to be stated in this appeal filed by the Stateg out of SLP (C) No.19961/2015)26. This appeal takes exception to the judgment and order dated 31 st October, 2014 passed by the High Court of Judicature at Hyderabad for the State of Telangana and the State of Andhra Pradesh in Writ Petition No.837 of 2014, whereby the writ petition filed by the assessee challenging the order passed by the second respondent-Appellate Authority dated 31 st December, 2013 came to be rejected. The appeal was dismissed on the sole ground that the appellant had failed to pay the required twelve and a half percent (12.5%) disputed tax in terms of Section 31 of AP VAT Act, 2005. Initially, the Commercial Tax Officer passed an assessment order on 11 th June, 2012. The appellant filed appeal against the said assessment order on 11 th July, 2012. The appellant was called upon by the Appellate Authority vide communication dated 12 th July, 2012 to make good the short payment of pre¬deposit in the sum of Rs.1,35,00,512/¬ as also the institution fee. The appellant filed response to the said communication contending that there was input tax credit to the account of the appellant in the sum of Rs.1080,01,63,420/¬ and that amount would arise only in respect of the tax paid on taxable purchases effected within the State. Despite that factual aspect brought to the notice of the first Appellate Authority, it rejected the appeal for non-payment of pre¬deposit amount vide order dated 24 th July, 2012. This was an ex¬parte order27. The appellant then filed representation to the assessing authority for issuing tax credit certificate for giving necessary adjustments against the taxes payable for 04/2010 to 06/2011 and pointing out the order of the Tribunal dated 18 th October, 2011 which was communicated long back but not implemented thus far. The appellant, therefore, submitted new representation to the assessing authority on 15 th September, 2012. The Commercial Tax Officer eventually, issued a certificate on 12 th October, 2012 certifying that the appellant has input tax credit of Rs. 92,01,606/-, eligible to be refunded either in cash or adjusted. On 13 th October, 2012, the Commercial Tax Officer issued proceedings holding that the appellant has an excess tax credit of Rs.66,46,284/- for adjustment or refund28. The appellant being aggrieved by the orders passed by the Appellate Deputy Commissioner rejecting appeal on 24 th July, 2012 on the ground of non-payment of requisite disputed tax amount, filed second appeal before the Sales Tax Appellate Tribunal. That came to be allowed by setting aside the order rejecting the first appeal and instead directing the first Appellate Authority to restore the appeal and hear the appellant, as the order dated 24 th July, 2012 was an ex parte order passed without hearing the appellant29. In remanded proceedings, appellant filed evidence before the first Appellate Authority on 21 st July, 2013 and requested to consider the evidence and give adjustment of the excess payment due to the appellant as certified by the assessing authority. Thus, the appellant requested the Appellate Authority to accept the tax credit certificates and take the appeal on file for disposal on merits. Despite production of the said certificates, the Appellate Deputy Commissioner once again called upon the appellant to pay the balance amount towards pre¬deposit, vide communication dated 15 th May, 2013. In response thereto, the appellant filed representation reiterating its earlier stand. Nevertheless, the Appellate Deputy Commissioner once again rejected the appeal on 31 st December, 2013, for non¬payment of pre¬deposit amount primarily relying upon the judgment of Ankamma Trading Company (supra). Eventually, the appellant challenged the aforementioned decision by filing writ petition No.847 of 2013. That writ petition has been dismissed by the High Court on the basis of the exposition in Ankamma Trading Company (supra)30. The principal grievance of the appellant is that after remand, the first Appellate Authority failed to consider the specific stand taken by the appellant that it was entitled to adjustment of the amount mentioned in the tax credit certificate and if so done the appellant had complied with the pre¬condition of deposit of twelve and a half percent (12.5%) of the amount in respect of which the appeal was filed by the appellant before the first Appellate Authority. Although, this plea was specifically taken before the Appellate Authority, the judgment of the Appellate Authority has not analysed the same at all. Instead, it proceeded to dismiss the appeal merely by relying on the exposition in Ankamma Trading Company (supra). Similarly, even the High Court after recording this argument of the learned counsel for the appellant, has not analysed the same and mechanically rejected the writ petition on the ground that appellant had failed to comply with the pre¬condition of deposit. This approach of the High Court as well as of the first Appellate Authority is the subject matter of assail in the present appeal31. We have heard the counsel for the parties. As regards the legal position expounded in Ankamma Trading Company (supra), we have already answered the same in Civil Appeal No.7574/2014 decided today. That appeal was heard along with all connected matters. In the present case, however, the additional point which arises is whether the appellant was entitled for adjustment of the amount mentioned in the tax credit certificate issued in favour of the appellant. Admittedly, the appellant had specifically taken that plea before the first Appellate Authority. However, as already mentioned hitherto the first Appellate Authority failed to analyse that aspect ¬ which it was expected to do, in terms of the earlier order passed by the second Appellate Authority and even otherwise.32. However, even the High Court has not answered this specific plea urged by the appellant, in the impugned judgment. If the appellant is right in contending that the appellant is entitled for an adjustment of amount and if so done, there would be no need for the appellant to deposit twelve and a half percent (12.5%) amount as required by the second proviso of Section 31 of the Act. The appellant had relied on the decisions of this Court to buttress that argument. However, the same has remained to be analysed and considered even by the High Court33. In that view of the matter, we deem it appropriate to set aside the impugned judgment and relegate the parties before the High Court for reconsideration of the Writ Petition No.837/2014 afresh on its own merits in accordance with law and including in light of decision of this Court in Civil Appeal No.7574/2014 decided today. All contentions available to both sides in the remanded writ petition are left open to be considered on its own merits and in accordance with law34. Accordingly, this appeal is allowed. The impugned judgment and order passed by the High Court dated 31 st October, 2014 in Writ Petition No.837/2014 is set aside and instead the writ petition is restored to the file of the High Court for fresh consideration in light of the observations made hitherto. All contentions available to the parties are left open. All pending applications are also disposed of. No order as to costsUpon perusal of order passed by the Appellate Authority, it is noticed that even the Appellate Authority rejected the appeal without taking notice of the prayer made by the appellant on oath that a tax credit of Rs.10,67,683/- is available to the appellant and that such credit has not been adjusted towards any other tax liability and can be adjusted towards the twelve and a half percent (12.5%) of disputed tax amount of Rs.67,57,696/¬, which comes to Rs.4,44,712/- only. The order of the Appellate Authority, as communicated to the appellant, reads thus:The appeal petition along with stay petition (main appeal & penalty appeal) are returned as the same are not in accordance in terms of second provision to sec.31(1) of read with Rule 38 of the AP VAT, 2005 for the reasonProvided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due or of such instalments as have been granted and the proof of payment of 12.5% of the difference of the tax assessed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferredFurther they have not filled the challan for appeal fee in original and also medical certificate for delay in submission of the appealHence, in view of the above, the admission of the two appeals stand rejected38. Even the High Court has failed to consider this aspect of the matter. Whereas, if the representation/request made by the appellant is just and deserved to be accepted, the appellant would be right in contending that no payment towards the amount specified in the stated proviso under consideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for consideration for admission on merits. In that, upon accepting the representation to adjust the tax credit of Rs.10,63,683/¬, a certificate/endorsement could be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent (12.5%). There is force in this submission. However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to consider the same on its own merits, in accordance with law. We do not wish to dilate on any other contention in this judgment. We leave all questions and contentions, available to both sides, open to be decided by the High Court on its own merits40. This appeal was tagged along with the Civil Appeal No.7574/2014 and other connected matters. However, in those cases, the High Court had rejected the writ petition on the sole ground that the concerned writ petitioner had failed to comply with the condition of deposit prescribed in terms of stated proviso of the provision(s) under consideration. In none of these cases, the High Court considered the matter on merits regarding the challenge to the original assessment order. In the present appeal, the appellant cannot be heard to agitate the question already decided in Civil Appeal No.7574/2014 as nothing has been brought to our notice to show that the appellant had deposited the specified tax dues, in respect of which the appeal was filed, before the first date of consideration of the appeal by the Appellate Authority.

### 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 of the Division Bench of the High Court in Ankamma Trading Company (supra). Thus, it cannot be considered as a binding precedent. We are not impressed by this submission. Indeed, the decision of this Court in M/s. Innovatives Systems (supra), is a brief judgment. That, however, would make no difference. For, it is well established that once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. Resultantly, the order impugned before the Supreme Court became an order appealed against and any order passed thereafter would be an appellate order and attract the doctrine of merger despite the fact that the order is of reversal or of modification or of affirming the order appealed against and including is a speaking or non-speaking one. This legal position has been restated in Kunhayammed (supra). Having said this, we must reject the argument of the respondent¬State that the decision of this Court in M/s. Innovatives Systems (supra), and other decisions following the same, cannot be considered as binding precedent. 12. In addition, the appellant¬assessee has rightly placed reliance on the decision of this Court in Ranjit Impex (supra). In that case, the Court considered almost similar stipulation in Section 51 of the Tamil Nadu VAT Act, 2006. Indeed, the second proviso therein uses the expression no appeal shall be entertained, unlike the expression used in the provisions under consideration that the appeal so preferred shall not be admitted. We are conscious of the fact that the first proviso pertaining to maximum period of delay to be condoned by the Appellate Authority, also uses the expression admit the appeal. That expression admit, however, must be read to mean filing, institution or presentation of the appeal in the office of the Appellate Authority. Whereas, the expression admitted used in the second proviso will have to be construed as analogous to expression entertained. We are inclined to take this view as the setting in which the provisions under consideration appear leaves no manner of doubt that it is ascribable to the event of taking up the appeal for consideration, for the first time, to admit it on merits or otherwise and/or for condonation of delay in filing the appeal, as the case may be. Before that event occurs, it is open to the appellant to deposit the tax dues in respect of which the appeal is preferred and produce proof of such deposit before the Appellate Authority. 13. This view is reinforced from the exposition of this Court in Ranjit Impex (supra), wherein the view taken by the Division Bench of the High Court of Madras that the proof of deposit of tax has to be produced at the time when the appeal is taken up for consideration, but not at the time of filing or presentation of the appeal, has been upheld. 14. Even the decision of this Court in M/s. Lakshmi Rattan Engineering Works Ltd. (supra), heavily relied upon by the respondent-State, does not militate against the view taken by us ¬ that the true purport of the said proviso is that the Appellate Authority shall proceed with the consideration of appeal for admission for hearing on merits or otherwise and/or for condonation of delay in filing appeal, as the case may be, if the proof of payment of the specified tax dues referred to in the said proviso is produced by the appellant on the first date of such consideration of the appeal. Similarly, the case of Narayan Chandra Ghosh (supra), will be of no avail to the respondent, wherein the Court opined that there is an absolute bar to entertain an appeal under Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002, unless the conditions and stipulation are fulfilled. Inasmuch as, the second proviso under consideration does not require payment of tax dues referred to therein, at the time of filing, institution or presentation of the appeal but the proof of such payment has been made, is required to be produced before the Appellate Authority at the first hearing of the appeal; failing which the Appellate Authority would be well within its jurisdiction to reject it rather duty bound not to proceed with the appeal on merits and to reject the same at the threshold on the ground of an institutional defect. 15. For the view that we have taken, it is wholly unnecessary to deal with the other reported decisions relied upon by the parties or to deal with other arguments which have no bearing on the conclusion reached by us. 16. Reverting to the factual position in the appeals under consideration, admittedly, the appellant¬assessee had deposited the specified tax dues before the date on which appeal preferred by them was taken up for consideration for the first time for admission on merits. In such a situation, the stated proviso becomes unavailable to reject the appeal on the ground of institutional defect. In this view of the matter, all these appeals must succeed. 17. While parting, we may observe that taking advantage of the interpretation given by us, it is possible that some unscrupulous litigant (assessee) may file an appeal within the limitation period but keep it under defect so that the same does not proceed for consideration before the Appellate Authority. To obviate such a mischief, we hold and direct that the Appellate Authority shall be obliged to take up every singular appeal for consideration for admission on merits and/or for condonation of delay in filing the appeal for the first time, no later than thirty days from the date of its filing, institution or presentation in the office of the Appellate Authority. This direction shall be complied with by all concerned meticulously, without any exception. That is the only way to secure the interests of the Revenue and at the same time to effectuate the purpose underlying the proviso regarding the deposit of specified amount of tax dues. ### Response: 1 ### Explanation: argument of the learned counsel for the appellant, has not analysed the same and mechanically rejected the writ petition on the ground that appellant had failed to comply with the pre¬condition of deposit. This approach of the High Court as well as of the first Appellate Authority is the subject matter of assail in the present appeal31. We have heard the counsel for the parties. As regards the legal position expounded in Ankamma Trading Company (supra), we have already answered the same in Civil Appeal No.7574/2014 decided today. That appeal was heard along with all connected matters. In the present case, however, the additional point which arises is whether the appellant was entitled for adjustment of the amount mentioned in the tax credit certificate issued in favour of the appellant. Admittedly, the appellant had specifically taken that plea before the first Appellate Authority. However, as already mentioned hitherto the first Appellate Authority failed to analyse that aspect ¬ which it was expected to do, in terms of the earlier order passed by the second Appellate Authority and even otherwise.32. However, even the High Court has not answered this specific plea urged by the appellant, in the impugned judgment. If the appellant is right in contending that the appellant is entitled for an adjustment of amount and if so done, there would be no need for the appellant to deposit twelve and a half percent (12.5%) amount as required by the second proviso of Section 31 of the Act. The appellant had relied on the decisions of this Court to buttress that argument. However, the same has remained to be analysed and considered even by the High Court33. In that view of the matter, we deem it appropriate to set aside the impugned judgment and relegate the parties before the High Court for reconsideration of the Writ Petition No.837/2014 afresh on its own merits in accordance with law and including in light of decision of this Court in Civil Appeal No.7574/2014 decided today. All contentions available to both sides in the remanded writ petition are left open to be considered on its own merits and in accordance with law34. Accordingly, this appeal is allowed. The impugned judgment and order passed by the High Court dated 31 st October, 2014 in Writ Petition No.837/2014 is set aside and instead the writ petition is restored to the file of the High Court for fresh consideration in light of the observations made hitherto. All contentions available to the parties are left open. All pending applications are also disposed of. No order as to costsUpon perusal of order passed by the Appellate Authority, it is noticed that even the Appellate Authority rejected the appeal without taking notice of the prayer made by the appellant on oath that a tax credit of Rs.10,67,683/- is available to the appellant and that such credit has not been adjusted towards any other tax liability and can be adjusted towards the twelve and a half percent (12.5%) of disputed tax amount of Rs.67,57,696/¬, which comes to Rs.4,44,712/- only. The order of the Appellate Authority, as communicated to the appellant, reads thus:The appeal petition along with stay petition (main appeal & penalty appeal) are returned as the same are not in accordance in terms of second provision to sec.31(1) of read with Rule 38 of the AP VAT, 2005 for the reasonProvided further that an appeal so preferred shall not be admitted by the appellate authority concerned unless the dealer produces proof of payment of tax admitted to be due or of such instalments as have been granted and the proof of payment of 12.5% of the difference of the tax assessed and the tax admitted by the appellant, for the relevant tax period, in respect of which the appeal is preferredFurther they have not filled the challan for appeal fee in original and also medical certificate for delay in submission of the appealHence, in view of the above, the admission of the two appeals stand rejected38. Even the High Court has failed to consider this aspect of the matter. Whereas, if the representation/request made by the appellant is just and deserved to be accepted, the appellant would be right in contending that no payment towards the amount specified in the stated proviso under consideration was required to be made by the appellant and for that reason, the appeal preferred by the appellant ought to proceed for consideration for admission on merits. In that, upon accepting the representation to adjust the tax credit of Rs.10,63,683/¬, a certificate/endorsement could be issued to the appellant by the department so that the said amount is adjusted towards payment of specified amount of tax dues including twelve and a half percent (12.5%). There is force in this submission. However, instead of examining this plea raised by the appellant in this appeal, we deem it proper to relegate the parties before the High Court to consider the same on its own merits, in accordance with law. We do not wish to dilate on any other contention in this judgment. We leave all questions and contentions, available to both sides, open to be decided by the High Court on its own merits40. This appeal was tagged along with the Civil Appeal No.7574/2014 and other connected matters. However, in those cases, the High Court had rejected the writ petition on the sole ground that the concerned writ petitioner had failed to comply with the condition of deposit prescribed in terms of stated proviso of the provision(s) under consideration. In none of these cases, the High Court considered the matter on merits regarding the challenge to the original assessment order. In the present appeal, the appellant cannot be heard to agitate the question already decided in Civil Appeal No.7574/2014 as nothing has been brought to our notice to show that the appellant had deposited the specified tax dues, in respect of which the appeal was filed, before the first date of consideration of the appeal by the Appellate Authority.

M/S.Hbl Aircraft Batteries Ltd Vs. Commnr. Of Central Excise,Hyd

price is not the sole consideration in the transaction with MOD, the money value of the silver flowing from MOD to the appellant, i.e. Rs.2500/- per kg. should be taken into account while determining the assessable value. Appellants contend that the comparable price taken by the silver in determining the value of silver is not correct. Comparable value under Rule 6(b)(ii) could be taken into account when the value of the excisable goods cannot be ascertained under Rule 4 or Rule 5. Reliance is placed on Ashok Leyland Ltd. vs. Collector of Central Excise, Madras, 2002 (146) ELT 503 (SC) , in which it was held that sale of goods to different classes of buyers does not make normal price unascertainable as to attract Section 4(1)(d). It is contended that the normal price of battery is the price at which it is sold to MOD and accordingly the value of silver is to be ascertained. 6. Respondents contend that normal price should be ascertained by reference to the transaction. Since the transaction with MOD is a special arrangement, the contract price cannot be taken into account as such transaction is not done in the ordinary course of business. Therefore, the market value of the silver should be taken into account. It is contended that in order to claim the benefit of the proviso, the appellant should show normal practice of whole sale trade. Since the supply of old life expired batteries to retrieve the silver forms a special arrangement it will not constitute a normal practice. It is contended that even if some raw material is supplied free of cost for the purpose of excise duty, the market value should be taken into account. 7. Section 4 of the Central Excise and Salt Act deals with valuation of excisable goods which are chargeable to duty with reference to the value. Valuation is based ordinarily on the price thereof that is at the price at which goods subject to excise duty are sold by manufacturer to a buyer. In exceptional circumstances when the valuation cannot be so more that closest equivalent thereof is determined in the manner prescribed in the valuation Rules. Value for the purpose of the said Rules is value under Section 4 of the Act and is to be determined under Rules 4 and 5. Rule 6 has to be invoked only in situation when assessment of value of goods subject to excise duty cannot be determined under Rules 4 & 5. When the goods are not sold by the manufacturer but are used or consumed in the manufacture of other goods, the value is to be determined upon the value of compatable goods manufactured, and if that cannot be done on the cost of production, if any, which he would have normally earned as the sale of such goods. 8. This view, we have set out above finds support, from decisions in Ashok Layland vs. CCE Madras, 2002 (146) ELT 503 ; Union Carbide (India) vs. CCE Calcutta, 2003 (158) ELT 15 , Burn Standard Company Ltd. vs. UOI, 1992 (60) 671; CCE vs. Dai Ichi Karkaria Ltd., 1999 (112) ELT 353. 9. The assessable value of the silver should be taken at Rs.2500/- per kg. which is the rate at which MOD used to get the silver from the mint. The price charged by the appellants was in terms of the contract entered into by them with MOD. As per the terms of the contract, MOD was to supply the silver to manufacture the batteries. Since the stock of silver in the mint depleted, MOD supplied the old life expired batteries to retrieve the silver and to use the recovered silver in the manufacture of new batteries. As per terms of the contract, the appellants were to give a rebate to the MOD in the price to be charged per battery and this was the reason for the difference in prices between the batteries supplied to MOD and HAL. 10. The value of the silver supplied to the appellants is determinable. Had the stock of silver in the mint did not deplete, MOD would have supplied silver from the mint. Since the stock depleted, MOD supplied old life expired batteries for the recovery of silver. This will not make the value of silver undeterminable. The value of the silver supplied would be Rs. 2500/- per kg., the price at which MOD would get the silver from the mint. The question of determining the assessable value of silver based on the value of the comparable goods would arise only when the value is undeterminable. The the present case that question does not arise. 11. The supply of silver by MOD being one of the stipulation in the contract between MOD and the appellant, would constitute a normal practice of the wholesale trade in such goods. As per the first proviso to Section 4(1)(d), where in the accordance with the normal practice of the wholesale trade, goods are sold at different prices to different classes of buyers, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. Therefore, the normal price of battery sold to MOD by the appellants is Rs.33,393/- and the assessable value of silver used in the manufacture of such battery is at Rs.2500/- per kg. and cannot take the market value of silver.12. The contract between the MOD and the assessee provided for supply of silver from the mint at a particular rate and had to be supplied by the MOD and in lieu thereof the appellants were allowed to retrieve silver from old used batteries, and their special feature cannot be ignored. Batteries of the nature in question are largely used only by MOD. Hence the view taken by the Tribunal down to adjudicating authority cannot be sustained.13. Hence, we allow this appeal and set aside the order of the Tribunal and thereby the order for differential cannot be enforced. 14.

1[ds]Section 4 of the Central Excise and Salt Act deals with valuation of excisable goods which are chargeable to duty with reference to the value. Valuation is based ordinarily on the price thereof that is at the price at which goods subject to excise duty are sold by manufacturer to a buyer. In exceptional circumstances when the valuation cannot be so more that closest equivalent thereof is determined in the manner prescribed in the valuation Rules. Value for the purpose of the said Rules is value under Section 4 of the Act and is to be determined under Rules 4 and 5. Rule 6 has to be invoked only in situation when assessment of value of goods subject to excise duty cannot be determined under Rules 4 & 5. When the goods are not sold by the manufacturer but are used or consumed in the manufacture of other goods, the value is to be determined upon the value of compatable goods manufactured, and if that cannot be done on the cost of production, if any, which he would have normally earned as the sale of suchsupply of silver by MOD being one of the stipulation in the contract between MOD and the appellant, would constitute a normal practice of the wholesale trade in such goods. As per the first proviso to Section 4(1)(d), where in the accordance with the normal practice of the wholesale trade, goods are sold at different prices to different classes of buyers, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. Therefore, the normal price of battery sold to MOD by the appellants is Rs.33,393/- and the assessable value of silver used in the manufacture of such battery is at Rs.2500/- per kg. and cannot take the market value of silver.12. The contract between the MOD and the assessee provided for supply of silver from the mint at a particular rate and had to be supplied by the MOD and in lieu thereof the appellants were allowed to retrieve silver from old used batteries, and their special feature cannot be ignored. Batteries of the nature in question are largely used only by MOD. Hence the view taken by the Tribunal down to adjudicating authority cannot be sustained.13. Hence, we allow this appeal and set aside the order of the Tribunal and thereby the order for differential cannot be enforced.

### 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: price is not the sole consideration in the transaction with MOD, the money value of the silver flowing from MOD to the appellant, i.e. Rs.2500/- per kg. should be taken into account while determining the assessable value. Appellants contend that the comparable price taken by the silver in determining the value of silver is not correct. Comparable value under Rule 6(b)(ii) could be taken into account when the value of the excisable goods cannot be ascertained under Rule 4 or Rule 5. Reliance is placed on Ashok Leyland Ltd. vs. Collector of Central Excise, Madras, 2002 (146) ELT 503 (SC) , in which it was held that sale of goods to different classes of buyers does not make normal price unascertainable as to attract Section 4(1)(d). It is contended that the normal price of battery is the price at which it is sold to MOD and accordingly the value of silver is to be ascertained. 6. Respondents contend that normal price should be ascertained by reference to the transaction. Since the transaction with MOD is a special arrangement, the contract price cannot be taken into account as such transaction is not done in the ordinary course of business. Therefore, the market value of the silver should be taken into account. It is contended that in order to claim the benefit of the proviso, the appellant should show normal practice of whole sale trade. Since the supply of old life expired batteries to retrieve the silver forms a special arrangement it will not constitute a normal practice. It is contended that even if some raw material is supplied free of cost for the purpose of excise duty, the market value should be taken into account. 7. Section 4 of the Central Excise and Salt Act deals with valuation of excisable goods which are chargeable to duty with reference to the value. Valuation is based ordinarily on the price thereof that is at the price at which goods subject to excise duty are sold by manufacturer to a buyer. In exceptional circumstances when the valuation cannot be so more that closest equivalent thereof is determined in the manner prescribed in the valuation Rules. Value for the purpose of the said Rules is value under Section 4 of the Act and is to be determined under Rules 4 and 5. Rule 6 has to be invoked only in situation when assessment of value of goods subject to excise duty cannot be determined under Rules 4 & 5. When the goods are not sold by the manufacturer but are used or consumed in the manufacture of other goods, the value is to be determined upon the value of compatable goods manufactured, and if that cannot be done on the cost of production, if any, which he would have normally earned as the sale of such goods. 8. This view, we have set out above finds support, from decisions in Ashok Layland vs. CCE Madras, 2002 (146) ELT 503 ; Union Carbide (India) vs. CCE Calcutta, 2003 (158) ELT 15 , Burn Standard Company Ltd. vs. UOI, 1992 (60) 671; CCE vs. Dai Ichi Karkaria Ltd., 1999 (112) ELT 353. 9. The assessable value of the silver should be taken at Rs.2500/- per kg. which is the rate at which MOD used to get the silver from the mint. The price charged by the appellants was in terms of the contract entered into by them with MOD. As per the terms of the contract, MOD was to supply the silver to manufacture the batteries. Since the stock of silver in the mint depleted, MOD supplied the old life expired batteries to retrieve the silver and to use the recovered silver in the manufacture of new batteries. As per terms of the contract, the appellants were to give a rebate to the MOD in the price to be charged per battery and this was the reason for the difference in prices between the batteries supplied to MOD and HAL. 10. The value of the silver supplied to the appellants is determinable. Had the stock of silver in the mint did not deplete, MOD would have supplied silver from the mint. Since the stock depleted, MOD supplied old life expired batteries for the recovery of silver. This will not make the value of silver undeterminable. The value of the silver supplied would be Rs. 2500/- per kg., the price at which MOD would get the silver from the mint. The question of determining the assessable value of silver based on the value of the comparable goods would arise only when the value is undeterminable. The the present case that question does not arise. 11. The supply of silver by MOD being one of the stipulation in the contract between MOD and the appellant, would constitute a normal practice of the wholesale trade in such goods. As per the first proviso to Section 4(1)(d), where in the accordance with the normal practice of the wholesale trade, goods are sold at different prices to different classes of buyers, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. Therefore, the normal price of battery sold to MOD by the appellants is Rs.33,393/- and the assessable value of silver used in the manufacture of such battery is at Rs.2500/- per kg. and cannot take the market value of silver.12. The contract between the MOD and the assessee provided for supply of silver from the mint at a particular rate and had to be supplied by the MOD and in lieu thereof the appellants were allowed to retrieve silver from old used batteries, and their special feature cannot be ignored. Batteries of the nature in question are largely used only by MOD. Hence the view taken by the Tribunal down to adjudicating authority cannot be sustained.13. Hence, we allow this appeal and set aside the order of the Tribunal and thereby the order for differential cannot be enforced. 14. ### Response: 1 ### Explanation: Section 4 of the Central Excise and Salt Act deals with valuation of excisable goods which are chargeable to duty with reference to the value. Valuation is based ordinarily on the price thereof that is at the price at which goods subject to excise duty are sold by manufacturer to a buyer. In exceptional circumstances when the valuation cannot be so more that closest equivalent thereof is determined in the manner prescribed in the valuation Rules. Value for the purpose of the said Rules is value under Section 4 of the Act and is to be determined under Rules 4 and 5. Rule 6 has to be invoked only in situation when assessment of value of goods subject to excise duty cannot be determined under Rules 4 & 5. When the goods are not sold by the manufacturer but are used or consumed in the manufacture of other goods, the value is to be determined upon the value of compatable goods manufactured, and if that cannot be done on the cost of production, if any, which he would have normally earned as the sale of suchsupply of silver by MOD being one of the stipulation in the contract between MOD and the appellant, would constitute a normal practice of the wholesale trade in such goods. As per the first proviso to Section 4(1)(d), where in the accordance with the normal practice of the wholesale trade, goods are sold at different prices to different classes of buyers, each such price shall be deemed to be the normal price of such goods in relation to each such class of buyers. Therefore, the normal price of battery sold to MOD by the appellants is Rs.33,393/- and the assessable value of silver used in the manufacture of such battery is at Rs.2500/- per kg. and cannot take the market value of silver.12. The contract between the MOD and the assessee provided for supply of silver from the mint at a particular rate and had to be supplied by the MOD and in lieu thereof the appellants were allowed to retrieve silver from old used batteries, and their special feature cannot be ignored. Batteries of the nature in question are largely used only by MOD. Hence the view taken by the Tribunal down to adjudicating authority cannot be sustained.13. Hence, we allow this appeal and set aside the order of the Tribunal and thereby the order for differential cannot be enforced.

Anarkali Sarabhai, Shahibag House, Ahmedabad Vs. Commissioner of Income Tax, Ahmedabad

Section 45 of the Income Tax Act.I shall not refer to the various cases that were cited at the bar. In the case of Commissioner of Income Tax, Gujarat v. R.M. Amin, the company went into voluntary liquidation. The assessee as a shareholder received an amount from the liquidator which was in excess o f the amount that he had paid for those shares. It was held that there was no transfer of any capital asset within the mewing of Section 2(47) of the Income Tax. Act. When a shareholder receives money representing totality of rights in the property. In the third case, there may be reduction of the exclusive interest in the totality of the rights of the original owner into a joint or a share interest with others. An exclusive interest in property was a larger interest than a share in that property. To the extent to which the exclusive interest was reduced to share interest, there was a transfer of property. 12. This again, has no bearing on the question whether redemption of preference shares will come within the mischief of Section 2(47) of the Income Tax Act. The Bombay High Court in Sath Gwaldas Mathuradas Mohata Trust v. Commissioner of Income Tax, dealt with the question which has now arisen in this case. There the question was whether the amount received by the assessee on redemption of preference shares was liable to tax under the head "capital gains". After referring to the meaning given to "transfer" by Section 2(47) of the Income Tax Act, the Court held: "Here, a regular "sale" itself has taken place. That is the ordinary concept of transfer. The company paid the price for the redemption of the shares out of its fund to the assessee and the transaction was clearly a purchase. As rightly observed by the Tribunal, if the company had purchased a valuable right, the assessee had sold a valuable right. "Relinquishment" and "extinguishment" which are not in the normal concept of transfer but are included in the definition by the extended meaning attached to the word are also attracted in the transaction. The shares were assets and they were relinquished by the assessee and thus relinquishment of assets did take place. The assessee by virtue of his being a holder of redeemable cumulative preference shares had a right in the profits of the company, if and when made, at a fixed rate of percentage.Quite obviously , this was a valuable right and this right had come to an end by the companys redemption of shares. Thus, the transaction also amounted to "extinguishment" of right. Under the circumstances, viewed from any angle, there is no escape from the conclusion that section 2(47) was attracted and that the amount of Rs.50, 000 received by the assessee was liable to be taxed under the head "Capital gains". 13. The view taken by the Bombay High Court accords with the view taken by the Gujarat High Court in the judgment under appeal. In the judgment under appeal, it was pointed out that the genesis of reduction or redemption of capital both involved a return of capital by the company. The reduction of share capital or redemption of shares is an exception to the rule contained in Section 77(1) that no company limited by shares shall have the power to buy its own shares. When it redeems its preference shares, what in effect and substance, it does is to purchase preference shares. Reliance was placed on the passage from Buckley on the Companies Acts, 14th Edn., Vol. , at p. 181: "Every return of capital, whether to all shareholders or to one, is pro tanto a purchase of the shareholders rights. It is illegal as a reduction of capital, unless it be made under the statutory authority, but in the latter case is perfectly valid." * 14. Reference was also made to Penningtons company Law, 4th Edn., p 192: "The general rule is that a company cannot issue shares on terms that it shall or may redeem them at an agreed future date, because the redemption would amount to a purchase by the company of its own shares, which is illegal." * 15. We are of the view that the High Court has come to a right decision in this case. The redemption of preference shares in the facts of this case will squarely come within the meaning of the phrase "sale, exchange or relinquishment of the asset".We were also referred to a decision of Madras High Court which was a case of reduction of share capital and also the decision in Commissioner of Income Tax, Bombay v. Rasiklal Maneklal (HUF), 177 IIR 198, which again was a case of amalgamation of two companies. In the facts of that case, it was held that there was neither any exchange nor any relinquishment of an asset by t he assessee. Consequently, there was no transfer within the meaning of Section 12B of the Indian Income Tax Act, 1922. 16. The case of Vania Silk Mills P. Ltd. v. Commissioner of Income Tax, is also not of any assistance for the purpose of this case. That was a case where insurance money was paid for loss of machinery. It was held that the amount received in replacement of machinery could not be treated as capital gain because payment of insurance claim was not in consideration for machinery taken over. This was not a case of extinguishment of right in the property on account of destruction or loss of asset. 17. Mr. Ganesh also strenuously argued that this is not a case where the extinguishment of any right in the preference shares had taken place. The preference share itself stood extinguished by redemption. Therefore, clause (ii) of Section 2(47) could not be invoked in the facts of this case to bring the surplus amount received by the assessee to tax as capital gains under Section 45 of the Income Tax Act. 18. In court vies, the

0[ds]We are of the view that the High Court has come to a right decision in this case. The redemption of preference shares in the facts of this case will squarely come within the meaning of the phrase "sale, exchange or relinquishment of the asset".We were also referred to a decision of Madras High Court which was a case of reduction of share capital and also the decision in Commissioner of Income Tax, Bombay v. Rasiklal Maneklal (HUF), 177 IIR 198, which again was a case of amalgamation of two companies. In the facts of that case, it was held that there was neither any exchange nor any relinquishment of an asset by t he assessee. Consequently, there was no transfer within the meaning of Section 12B of the Indian Income Tax Act,case of Vania Silk Mills P. Ltd. v. Commissioner of Income Tax, is also not of any assistance for the purpose of this case. That was a case where insurance money was paid for loss of machinery. It was held that the amount received in replacement of machinery could not be treated as capital gain because payment of insurance claim was not in consideration for machinery taken over. This was not a case of extinguishment of right in the property on account of destruction or loss of asset.The preference share itself stood extinguished by redemption. Therefore, clause (ii) of Section 2(47) could not be invoked in the facts of this case to bring the surplus amount received by the assessee to tax as capital gains under Section 45 of the Income Tax Act.

### 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: Section 45 of the Income Tax Act.I shall not refer to the various cases that were cited at the bar. In the case of Commissioner of Income Tax, Gujarat v. R.M. Amin, the company went into voluntary liquidation. The assessee as a shareholder received an amount from the liquidator which was in excess o f the amount that he had paid for those shares. It was held that there was no transfer of any capital asset within the mewing of Section 2(47) of the Income Tax. Act. When a shareholder receives money representing totality of rights in the property. In the third case, there may be reduction of the exclusive interest in the totality of the rights of the original owner into a joint or a share interest with others. An exclusive interest in property was a larger interest than a share in that property. To the extent to which the exclusive interest was reduced to share interest, there was a transfer of property. 12. This again, has no bearing on the question whether redemption of preference shares will come within the mischief of Section 2(47) of the Income Tax Act. The Bombay High Court in Sath Gwaldas Mathuradas Mohata Trust v. Commissioner of Income Tax, dealt with the question which has now arisen in this case. There the question was whether the amount received by the assessee on redemption of preference shares was liable to tax under the head "capital gains". After referring to the meaning given to "transfer" by Section 2(47) of the Income Tax Act, the Court held: "Here, a regular "sale" itself has taken place. That is the ordinary concept of transfer. The company paid the price for the redemption of the shares out of its fund to the assessee and the transaction was clearly a purchase. As rightly observed by the Tribunal, if the company had purchased a valuable right, the assessee had sold a valuable right. "Relinquishment" and "extinguishment" which are not in the normal concept of transfer but are included in the definition by the extended meaning attached to the word are also attracted in the transaction. The shares were assets and they were relinquished by the assessee and thus relinquishment of assets did take place. The assessee by virtue of his being a holder of redeemable cumulative preference shares had a right in the profits of the company, if and when made, at a fixed rate of percentage.Quite obviously , this was a valuable right and this right had come to an end by the companys redemption of shares. Thus, the transaction also amounted to "extinguishment" of right. Under the circumstances, viewed from any angle, there is no escape from the conclusion that section 2(47) was attracted and that the amount of Rs.50, 000 received by the assessee was liable to be taxed under the head "Capital gains". 13. The view taken by the Bombay High Court accords with the view taken by the Gujarat High Court in the judgment under appeal. In the judgment under appeal, it was pointed out that the genesis of reduction or redemption of capital both involved a return of capital by the company. The reduction of share capital or redemption of shares is an exception to the rule contained in Section 77(1) that no company limited by shares shall have the power to buy its own shares. When it redeems its preference shares, what in effect and substance, it does is to purchase preference shares. Reliance was placed on the passage from Buckley on the Companies Acts, 14th Edn., Vol. , at p. 181: "Every return of capital, whether to all shareholders or to one, is pro tanto a purchase of the shareholders rights. It is illegal as a reduction of capital, unless it be made under the statutory authority, but in the latter case is perfectly valid." * 14. Reference was also made to Penningtons company Law, 4th Edn., p 192: "The general rule is that a company cannot issue shares on terms that it shall or may redeem them at an agreed future date, because the redemption would amount to a purchase by the company of its own shares, which is illegal." * 15. We are of the view that the High Court has come to a right decision in this case. The redemption of preference shares in the facts of this case will squarely come within the meaning of the phrase "sale, exchange or relinquishment of the asset".We were also referred to a decision of Madras High Court which was a case of reduction of share capital and also the decision in Commissioner of Income Tax, Bombay v. Rasiklal Maneklal (HUF), 177 IIR 198, which again was a case of amalgamation of two companies. In the facts of that case, it was held that there was neither any exchange nor any relinquishment of an asset by t he assessee. Consequently, there was no transfer within the meaning of Section 12B of the Indian Income Tax Act, 1922. 16. The case of Vania Silk Mills P. Ltd. v. Commissioner of Income Tax, is also not of any assistance for the purpose of this case. That was a case where insurance money was paid for loss of machinery. It was held that the amount received in replacement of machinery could not be treated as capital gain because payment of insurance claim was not in consideration for machinery taken over. This was not a case of extinguishment of right in the property on account of destruction or loss of asset. 17. Mr. Ganesh also strenuously argued that this is not a case where the extinguishment of any right in the preference shares had taken place. The preference share itself stood extinguished by redemption. Therefore, clause (ii) of Section 2(47) could not be invoked in the facts of this case to bring the surplus amount received by the assessee to tax as capital gains under Section 45 of the Income Tax Act. 18. In court vies, the ### Response: 0 ### Explanation: We are of the view that the High Court has come to a right decision in this case. The redemption of preference shares in the facts of this case will squarely come within the meaning of the phrase "sale, exchange or relinquishment of the asset".We were also referred to a decision of Madras High Court which was a case of reduction of share capital and also the decision in Commissioner of Income Tax, Bombay v. Rasiklal Maneklal (HUF), 177 IIR 198, which again was a case of amalgamation of two companies. In the facts of that case, it was held that there was neither any exchange nor any relinquishment of an asset by t he assessee. Consequently, there was no transfer within the meaning of Section 12B of the Indian Income Tax Act,case of Vania Silk Mills P. Ltd. v. Commissioner of Income Tax, is also not of any assistance for the purpose of this case. That was a case where insurance money was paid for loss of machinery. It was held that the amount received in replacement of machinery could not be treated as capital gain because payment of insurance claim was not in consideration for machinery taken over. This was not a case of extinguishment of right in the property on account of destruction or loss of asset.The preference share itself stood extinguished by redemption. Therefore, clause (ii) of Section 2(47) could not be invoked in the facts of this case to bring the surplus amount received by the assessee to tax as capital gains under Section 45 of the Income Tax Act.

State of Punjab and Others Vs. Ajudhia Nath and Another

the appellants laid stress was rendered by the High Court of Punjab and Haryana in Jage Ram v. State of Haryana (C.W. No. 1376 of 1961 decided on March 12, 1968). The argument is that this decision is based on the earlier decision of the High Court in Bhajan Lal v. State of Punjab (C.W. No. 538 of 1966 decided on February 6, 1967), that the decision in Bhajan Lals case was confirmed in appeal by this Court (C.A. Nos. 1042 and 1043 of 1968 decided on August 21, 1972), that there is no material difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lals case and therefore, the rules and the procedure followed herein must also be struck down for the same reasons. This argument overlooks the significant difference between the rules struck down in Bhajan Lals case and in Jage Rams case and the amended Rules now in force. Under the old Rule 36 (23- A) still-head duty which was admittedly in the nature of excise-duty was payable by the licencee even on quota not lifted by him. The Rule and Condition No. 8 founded on it were therefore struck down in Bhajan Lals case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and not the manufacturer of liquor. Rule 36 was amended on March 31, 1967 in order to meet the Judgment in Bhajan Lals case but the High Court found in Jage Rams case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is now only 0. 64 paise as against Rs. 17.60 per litre which was in force under the old Rules and excise duty as such is no longer payable on unlifted quota. The principle governing the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer". (Emphasis supplied)Special stress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is contended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved nor dissented from but were merely distinguished in Har Shankars ca se, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still-head duty amounted to an excise duty and that condition No. 8 as obtaining in the present case being identical with the corresponding condition in those cases, it must be held that Har Shankars case is an authority for the proposition that the said condition No. 8 seeks to levy nothing but excise duty in the form of still-head duty. A careful perusal of the passage cited (which appears at first sight to lend colour to the contention) leaves no room for doubt, however, that in deciding Har Shankars case this Court was not called upon to adjudicate on the Constitutional propriety of condition No. 8 above extra cted, nor with the question as to the nature of the levy covered by that condition. All that the Court said was that the corresponding condition in Har Shankars case was a very different condition which could in no manner be construed to levy an exc ise duty. Besides, it was pointed out in the passage above quoted that the still- head duty mentioned in the relevant condition in the earlier cases (which was indentical with condition No. 8) was admittedly a duty of excise-a fact to which we hav e already adverted while holding that condition No. 8 does not involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a contract. We may also point out that the respondents are not connected in an y manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, no question at all of levying a duty of excise on their operations which were confined merely to the sale of liquor manufactured by others and which, therefore, commenced only after the process of manufacture was completely over. For all these reasons, we repel the contention under examination.8. Contention (b) is also without substance and need not detain us long. For one thing, it was never raised at any earlier stage and its consideration is bound to work prejudice to the cause of the appellants. Secondly, as already pointed out above, there is no impediment in the way of the demand being regarded as the enforcement of an obligation arising under the contracts which the respondents had entered into and exploited so long as the same worked to their advantage and which were fully permissible under sub-section (3) of section 34 of the Punjab Excise Act. That sub-section states:-"(3) Every licence, permit or pass granted under this Act shall be granted-(a) on payment of such fees, if any,(b) subject to such restrictions and on such conditions,(c) in such form and containing such particulars, (d) for such period,as the Financial Commissioner may direct".9. According to Shri Munjral the payment of licence fees is provided for in the conditions of auction apart from condition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause (b) of the sub-section just above reproduce d. That clause allows the imposition of conditions on the grant of a licence, in addition to the payment of the licence fees which is a matter covered by clause (a). Condition No. 8 is, therefore, fully enforceable and there is no reason why still-head duty should be regarded as a tax of any kind whatsoever.9.

1[ds]The contention is correct. As pointed out in Balbir Singhs case (supra) the judgment of Gurdev Singh, J., in Civil Writ Petition No. 2021 of 1966 had proceeded merely on the ground that the petitioner-firm therein had not been given an opportunity of being heard in relation to the demand notice issued to it for payment of the still-head duty on the entire minimum quantity of liquor which that firm was required to lift under the licence. In differing with the view expressed by Gurdev Singh, J., this Court made a reference to the following observations of Chandrachud, J., (as he then was) in Har Shanker and Others v. The Dy. Excise &Taxation Commissioner and Others which was followed in Shyam Lal v. State ofannouncement of conditions governing the auctions was in the nature of an invitation to an offer to those who were interested in the sale of country liquor. The bids given in the auctions were offers made by prospective vendors to the Government. The Governments acceptance of those bids was the acceptance of willing offers made to it. On such acceptance, the contract between the bidders and the Government became concluded and a binding agreement came into existence between them. The successful bidders were then granted licences evidencing the terms of contract between them and the Government, under which they became entitled to sell liquor. The licensees exploited the respective licences for a portion of the period of their currency, presumably in expectation of a profit. Commercial considerations may have revealed an error of judgment in the initial assessment of profitability of the adventure but that is a normal incident of the trading transactions. Those who contract with open eyes must accept the burdens of the contract along with its benefits. The powers of the Financial Commissioner to grant liquor licences by auction and to collect licence fees through the medium of auctions cannot by writ petitions be questioned by those who, had their venture succeeded, would have relied upon those very powers to found a legal claim. Reciprocal rights and obligations arising out of contract do not depend for t heir enforceability upon whether a contracting party finds it prudent to abide by the terms of the contract. By such a test no contract could ever have a bindingconcluded that the demand for the short-fall in still- head duty was based on the term of a binding contract and that it sought to enforce the liabilities arising out of mutually agreed conditions of auction. Such a demand, in the opinion of this Court, could not be equated with a notice requiring the liquor vendor to show cause why his licence should not be cancelled. In making this distinction this Court further relied upon State of Punjab v. Mulkh Raj and Co. wherein it waswas also held there that a cancellation of the licence under section 36 ofthe Punjab Excise Act, 1914, had to take place quasi-judicially after due service of the notice on the licensee to show cause why it should not be cancelled. Although, the merits of the last mentioned proposition need not be examined by us as it rests on a sound footing, yet, we find it difficult to uphold the order that the demand for a sum of Rs. 36, 636. On account of short-fall should also be quashed on account of non-compliance with rules of natural justice in cancelling the licence in proceedings under section 36 of the Act. We think that the two liabilities were erroneously considered by the High Court t o be inextricably linked up.....................................We do not think that, even if the respondent ought to have been given a hearing before cancelling the licence, this would dispense with his liability to deposit the amount of balance of the licence fee or invalidate the notice of demand forthe proposition is by now well-settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does not come into play when the demand is merely for payment of a sum becoming due under the conditions subject to which the licence was granted, and this proposition fully covers these appeals. The demands for payment of the amount of the still head duty which had become due under the contracts accepted by the respondents and had remained unpaid were demands arising under condition No. 8 above extracted a nd had, therefore, resulted from the terms of those contracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to bethe proposition is by now well-settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does not come into play when the demand is merely for payment of a sum becoming due under the conditions subject to which the licence was granted, and this proposition fully covers these appeals. The demands for payment of the amount of the still head duty which had become due under the contracts accepted by the respondents and had remained unpaid were demands arising under condition No. 8 above extracted a nd had, therefore, resulted from the terms of those contracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to beprinciple governing the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer". (Emphasisstress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is contended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved nor dissented from but were merely distinguished in Har Shankars ca se, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still-head duty amounted to an excise duty and that condition No. 8 as obtaining in the present case being identical with the corresponding condition in those cases, it must be held that Har Shankars case is an authority for the proposition that the said condition No. 8 seeks to levy nothing but excise duty in the form of still-head duty. A careful perusal of the passage cited (which appears at first sight to lend colour to the contention) leaves no room for doubt, however, that in deciding Har Shankars case this Court was not called upon to adjudicate on the Constitutional propriety of condition No. 8 above extra cted, nor with the question as to the nature of the levy covered by that condition. All that the Court said was that the corresponding condition in Har Shankars case was a very different condition which could in no manner be construed to levy an exc ise duty. Besides, it was pointed out in the passage above quoted that the still- head duty mentioned in the relevant condition in the earlier cases (which was indentical with condition No. 8) was admittedly a duty of excise-a fact to which we hav e already adverted while holding that condition No. 8 does not involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a contract. We may also point out that the respondents are not connected in an y manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, no question at all of levying a duty of excise on their operations which were confined merely to the sale of liquor manufactured by others and which, therefore, commenced only after the process of manufacture was completely over. For all these reasons, we repel the contention underto Shri Munjral the payment of licence fees is provided for in the conditions of auction apart from condition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause (b) of the sub-section just above reproduce d. That clause allows the imposition of conditions on the grant of a licence, in addition to the payment of the licence fees which is a matter covered by clause (a). Condition No. 8 is, therefore, fully enforceable and there is no reason why still-head duty should be regarded as a tax of any kind whatsoever.

### 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 appellants laid stress was rendered by the High Court of Punjab and Haryana in Jage Ram v. State of Haryana (C.W. No. 1376 of 1961 decided on March 12, 1968). The argument is that this decision is based on the earlier decision of the High Court in Bhajan Lal v. State of Punjab (C.W. No. 538 of 1966 decided on February 6, 1967), that the decision in Bhajan Lals case was confirmed in appeal by this Court (C.A. Nos. 1042 and 1043 of 1968 decided on August 21, 1972), that there is no material difference between the rules and the procedure adopted in the instant cases and those which were struck down in Bhajan Lals case and therefore, the rules and the procedure followed herein must also be struck down for the same reasons. This argument overlooks the significant difference between the rules struck down in Bhajan Lals case and in Jage Rams case and the amended Rules now in force. Under the old Rule 36 (23- A) still-head duty which was admittedly in the nature of excise-duty was payable by the licencee even on quota not lifted by him. The Rule and Condition No. 8 founded on it were therefore struck down in Bhajan Lals case as being beyond the scope of entry 51 of List II, the taxable event under the impugned Rule being the sale and not the manufacturer of liquor. Rule 36 was amended on March 31, 1967 in order to meet the Judgment in Bhajan Lals case but the High Court found in Jage Rams case that even under the amended Rule, still-head duty which was in the nature of excise duty was payable on unlifted quota of liquor. The position obtaining under the Rules as amended on March 22, 1968 which are relevant for our purposes is in principle different as the still-head duty is now only 0. 64 paise as against Rs. 17.60 per litre which was in force under the old Rules and excise duty as such is no longer payable on unlifted quota. The principle governing the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer". (Emphasis supplied)Special stress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is contended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved nor dissented from but were merely distinguished in Har Shankars ca se, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still-head duty amounted to an excise duty and that condition No. 8 as obtaining in the present case being identical with the corresponding condition in those cases, it must be held that Har Shankars case is an authority for the proposition that the said condition No. 8 seeks to levy nothing but excise duty in the form of still-head duty. A careful perusal of the passage cited (which appears at first sight to lend colour to the contention) leaves no room for doubt, however, that in deciding Har Shankars case this Court was not called upon to adjudicate on the Constitutional propriety of condition No. 8 above extra cted, nor with the question as to the nature of the levy covered by that condition. All that the Court said was that the corresponding condition in Har Shankars case was a very different condition which could in no manner be construed to levy an exc ise duty. Besides, it was pointed out in the passage above quoted that the still- head duty mentioned in the relevant condition in the earlier cases (which was indentical with condition No. 8) was admittedly a duty of excise-a fact to which we hav e already adverted while holding that condition No. 8 does not involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a contract. We may also point out that the respondents are not connected in an y manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, no question at all of levying a duty of excise on their operations which were confined merely to the sale of liquor manufactured by others and which, therefore, commenced only after the process of manufacture was completely over. For all these reasons, we repel the contention under examination.8. Contention (b) is also without substance and need not detain us long. For one thing, it was never raised at any earlier stage and its consideration is bound to work prejudice to the cause of the appellants. Secondly, as already pointed out above, there is no impediment in the way of the demand being regarded as the enforcement of an obligation arising under the contracts which the respondents had entered into and exploited so long as the same worked to their advantage and which were fully permissible under sub-section (3) of section 34 of the Punjab Excise Act. That sub-section states:-"(3) Every licence, permit or pass granted under this Act shall be granted-(a) on payment of such fees, if any,(b) subject to such restrictions and on such conditions,(c) in such form and containing such particulars, (d) for such period,as the Financial Commissioner may direct".9. According to Shri Munjral the payment of licence fees is provided for in the conditions of auction apart from condition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause (b) of the sub-section just above reproduce d. That clause allows the imposition of conditions on the grant of a licence, in addition to the payment of the licence fees which is a matter covered by clause (a). Condition No. 8 is, therefore, fully enforceable and there is no reason why still-head duty should be regarded as a tax of any kind whatsoever.9. ### Response: 1 ### Explanation: demand, in the opinion of this Court, could not be equated with a notice requiring the liquor vendor to show cause why his licence should not be cancelled. In making this distinction this Court further relied upon State of Punjab v. Mulkh Raj and Co. wherein it waswas also held there that a cancellation of the licence under section 36 ofthe Punjab Excise Act, 1914, had to take place quasi-judicially after due service of the notice on the licensee to show cause why it should not be cancelled. Although, the merits of the last mentioned proposition need not be examined by us as it rests on a sound footing, yet, we find it difficult to uphold the order that the demand for a sum of Rs. 36, 636. On account of short-fall should also be quashed on account of non-compliance with rules of natural justice in cancelling the licence in proceedings under section 36 of the Act. We think that the two liabilities were erroneously considered by the High Court t o be inextricably linked up.....................................We do not think that, even if the respondent ought to have been given a hearing before cancelling the licence, this would dispense with his liability to deposit the amount of balance of the licence fee or invalidate the notice of demand forthe proposition is by now well-settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does not come into play when the demand is merely for payment of a sum becoming due under the conditions subject to which the licence was granted, and this proposition fully covers these appeals. The demands for payment of the amount of the still head duty which had become due under the contracts accepted by the respondents and had remained unpaid were demands arising under condition No. 8 above extracted a nd had, therefore, resulted from the terms of those contracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to bethe proposition is by now well-settled that although an opportunity of being heard has to be given to a liquor vendor when his licence is sought to be cancelled, the same principle of natural justice does not come into play when the demand is merely for payment of a sum becoming due under the conditions subject to which the licence was granted, and this proposition fully covers these appeals. The demands for payment of the amount of the still head duty which had become due under the contracts accepted by the respondents and had remained unpaid were demands arising under condition No. 8 above extracted a nd had, therefore, resulted from the terms of those contracts. No question of affording to the respondents any opportunity of being heard thus arises and the impugned judgment, is, therefore, liable to beprinciple governing the decisions in Bhajan Lals case and Jage Rams case cannot, therefore, apply any longer". (Emphasisstress has been laid by Shri Munjral on the underlined portion of the passage above extracted and it is contended by him that the judgments in the cases of Jage Ram and Bhajan Lal were neither disapproved nor dissented from but were merely distinguished in Har Shankars ca se, that while pointing out the distinction this Court took it for granted that in those earlier cases the charge of still-head duty amounted to an excise duty and that condition No. 8 as obtaining in the present case being identical with the corresponding condition in those cases, it must be held that Har Shankars case is an authority for the proposition that the said condition No. 8 seeks to levy nothing but excise duty in the form of still-head duty. A careful perusal of the passage cited (which appears at first sight to lend colour to the contention) leaves no room for doubt, however, that in deciding Har Shankars case this Court was not called upon to adjudicate on the Constitutional propriety of condition No. 8 above extra cted, nor with the question as to the nature of the levy covered by that condition. All that the Court said was that the corresponding condition in Har Shankars case was a very different condition which could in no manner be construed to levy an exc ise duty. Besides, it was pointed out in the passage above quoted that the still- head duty mentioned in the relevant condition in the earlier cases (which was indentical with condition No. 8) was admittedly a duty of excise-a fact to which we hav e already adverted while holding that condition No. 8 does not involve the imposition of a duty of exercise but makes provision only for recovery of sums becoming due under a contract. We may also point out that the respondents are not connected in an y manner whatsoever with the manufacture of alcoholic liquor and there was, therefore, no question at all of levying a duty of excise on their operations which were confined merely to the sale of liquor manufactured by others and which, therefore, commenced only after the process of manufacture was completely over. For all these reasons, we repel the contention underto Shri Munjral the payment of licence fees is provided for in the conditions of auction apart from condition No. 8 and, therefore, the latter cannot be regarded as providing for anything but the levy of a duty of excise or of some other kind. The argument is fallacious in view of the language of clause (b) of the sub-section just above reproduce d. That clause allows the imposition of conditions on the grant of a licence, in addition to the payment of the licence fees which is a matter covered by clause (a). Condition No. 8 is, therefore, fully enforceable and there is no reason why still-head duty should be regarded as a tax of any kind whatsoever.

Raghuvanshi Mills Ltd Vs. Commissioner Of Income-Tax,Bombay City

profits which would have been made had the Mills been working in its norma1 way.6. We turn next to the Income-tax Act. Under S. 3 the "total income of the previous year" is liable to tax subject to the provisions of the Act. Section 4 defines the total income to include "all income, profits and gains from whatever source derived." There are certain qualifications but they do not concern us here.It will be seen that the taxable commodity, "total income", embraces three elements, "income" "profits" and "gains". Now though these may overlap in many cases, they are nevertheless separate and severable, and the simple question is whether the Rs. 14 lacs falls under any one or more of those heads. In our opinion, it is "income" and so is taxable.7. It was argued on behalf of the assessee that it cannot be called profits because the money is only payable if and when there is a loss or partial loss and that something received from an outside source in circumstances like these is not money which is earned in the business and if there are no earnings and no profits there cannot be any income. But that only concentrates on the word "profits". This may not be a "profit" but it is something which represents the profits and was intended to take the place of them and is therefore just as much income as profits or gains received in the ordinary way. Section 4 is so widely worded that everything which is received by a man and goes to swell the credit side of his total amount is either an income or a profit or a gain.8. No attempt has been made in the Act to define "income" except to say in S. 2 (6C) that it includes certain things which would possibly not have been regarded as income but for the special definition. That however does not limit the generality of its natural meaning except as qualified in the Section itself. The words which follow, namely, "from-whatever source derived", show how wide the net is spread. So also in S.6. After setting out the various heads of taxable income it brings in the all-embracing phrase "income from other sources".9. There is, however, a distinction between "income" and "taxable income". The Act does not purport to subject all sources of income to tax, for the liability is expressly made subject to the provisions of the Act and amoung the provisions are a series of exception and limitations. Most of them are set out in S.4 itself but none of them apply here. The nearest approach for present purposes is S. 4(3) (vii):"Any receipts ............... not being receipts arising from business ...............which are of causal and nonrecurring nature."But the sting, so far as the assessee is concealed, lies in the words "not being receipts arising from business."10. The assesses is a business company. Its aim is to make profits and to insure against loss. In the ordinary way it does this by buying raw material, manufacturing goods out of them and selling them so that on balance there is a profit or gain to itself. But it also has other ways of acquiring gain, as do all prudent businesses, namely by insuring against loss of profits. It is indubitable that the money paid in such circumstances is a receipt and in so far as it represents loss of profits, as opposed to loss of capital and so forth, it is an item of income in any normal sense of the term. It is equally clear that the receipt is inseparably connected with the ownership and conduct of the business and arises from it. Accordingly, it is not exempt.11. This question was considered by the Supreme Court of Canada which decided that a receipt of this nature is not a "profit" and so is not taxable. B. C. Fir and Cedar Lumber Co. v. The King, 1931 Canada L. R. 435. But the Court did not examine the wider position whether it is "income" and in any event the decision was reversed on an appeal to the Privy Council. Their Lordships held, it is "income". This was followed later by the Court of Appeal in England and endorsed by the House of Lords in Commissioners of Inland Revenue v. Williams Executors, 26 Tax Cases28. In so far as these decisions do not turn on the special wording of the Acts with which they are respectively concerned and deal with the more general meaning of the word "income", we prefer the view taken in England.12. It is true the Judicial Committee attempted a narrower definition in Commissioner of Income tax v. Shaw Wallace and CO., 59 I. A. 206, by limiting income to "a periodical monetary return coming in with some sort of regularity, or expected regularity, from definite sources" but, in our opinion, those remarks must be read with reference to the particular facts of that case. The non-recurring aspect of this kind of receipt was considered by the Privy Council Co., The King v. B. C. Fir and Cedar Lumbar and Co., 1932 A. C. 441 at p. 448 and we do not think their Lordships had in mind a case of this nature when they decided Shaw Wallace and Companys case, 59 I. A. 206.13. The learned Solicitor-General relies Strongly on a clause which appears in three of the four policies with which we are concerned. That is a clause which states that the insured must do all he can to minimise the loss in profits and until he makes an endeavour to restart the business the moneys will not be paid. This, he argued, shows that the money was paid as an indemnity against the loss of profits and was neither Income nor profits, nor was it again within the meaning of the section. We are unable so see how these receipts cease to be income simply because certain things must be done before the moneys can be claimed.1

0[ds]This contention is new and involes question of fact and travels beyond the scope of the question referred. We are consequently not able to entertain it. It has been assumed throughout the proceedings, right up to this Court, that the whole of the Rs. 14,00,000 was assignable to loss of profits. There is nothing on the record to show that it was ever split up among the other heads or that it was ever treated as having been split up either by the insurance companies or by the assessee, nor is there any material on which we would be able to apportion it. Our decision therefore proceeds on the assumption that the whole sum is assignable to loss of profits and we make it clear that we decide, nothing about other moneys which may be distributable among otherS. 3 the "total income of the previous year" is liable to tax subject to the provisions of the Act. Section 4 defines the total income to include "all income, profits and gains from whatever source derived." There are certain qualifications but they do not concern us here.It will be seen that the taxable commodity, "total income", embraces three elements, "income" "profits" and "gains". Now though these may overlap in many cases, they are nevertheless separate and severable, and the simple question is whether the Rs. 14 lacs falls under any one or more of those heads. In our opinion, it is "income" and so is taxable.In so far as these decisions do not turn on the special wording of the Acts with which they are respectively concerned and deal with the more general meaning of the word "income", we prefer the view taken in England.It is true the Judicial Committee attempted a narrower definition in Commissionerof Income tax v. Shaw Wallace and CO., 59 I. A.206, by limiting income to "a periodical monetary return coming in with some sort of regularity, or expected regularity, from definite sources" but, in our opinion, those remarks must be read with reference to the particular facts of that case. The non-recurring aspect of this kind of receipt was considered by the Privy Council Co., TheKing v. B. C. Fir and Cedar Lumbar and Co., 1932 A. C. 441 at p.448 and we do not think their Lordships had in mind a case of this nature when they decided Shaw Wallace and Companys case, 59 I. A. 206.The learned Solicitor-General relies Strongly on a clause which appears in three of the four policies with which we are concerned. That is a clause which states that the insured must do all he can to minimise the loss in profits and until he makes an endeavour to restart the business the moneys will not be paid.This, he argued, shows that the money was paid as an indemnity against the loss of profits and was neither Income nor profits, nor was it again within the meaning of the section. We are unable so see how these receipts cease to be income simply because certain things must be done before the moneys can be claimed.

### 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: profits which would have been made had the Mills been working in its norma1 way.6. We turn next to the Income-tax Act. Under S. 3 the "total income of the previous year" is liable to tax subject to the provisions of the Act. Section 4 defines the total income to include "all income, profits and gains from whatever source derived." There are certain qualifications but they do not concern us here.It will be seen that the taxable commodity, "total income", embraces three elements, "income" "profits" and "gains". Now though these may overlap in many cases, they are nevertheless separate and severable, and the simple question is whether the Rs. 14 lacs falls under any one or more of those heads. In our opinion, it is "income" and so is taxable.7. It was argued on behalf of the assessee that it cannot be called profits because the money is only payable if and when there is a loss or partial loss and that something received from an outside source in circumstances like these is not money which is earned in the business and if there are no earnings and no profits there cannot be any income. But that only concentrates on the word "profits". This may not be a "profit" but it is something which represents the profits and was intended to take the place of them and is therefore just as much income as profits or gains received in the ordinary way. Section 4 is so widely worded that everything which is received by a man and goes to swell the credit side of his total amount is either an income or a profit or a gain.8. No attempt has been made in the Act to define "income" except to say in S. 2 (6C) that it includes certain things which would possibly not have been regarded as income but for the special definition. That however does not limit the generality of its natural meaning except as qualified in the Section itself. The words which follow, namely, "from-whatever source derived", show how wide the net is spread. So also in S.6. After setting out the various heads of taxable income it brings in the all-embracing phrase "income from other sources".9. There is, however, a distinction between "income" and "taxable income". The Act does not purport to subject all sources of income to tax, for the liability is expressly made subject to the provisions of the Act and amoung the provisions are a series of exception and limitations. Most of them are set out in S.4 itself but none of them apply here. The nearest approach for present purposes is S. 4(3) (vii):"Any receipts ............... not being receipts arising from business ...............which are of causal and nonrecurring nature."But the sting, so far as the assessee is concealed, lies in the words "not being receipts arising from business."10. The assesses is a business company. Its aim is to make profits and to insure against loss. In the ordinary way it does this by buying raw material, manufacturing goods out of them and selling them so that on balance there is a profit or gain to itself. But it also has other ways of acquiring gain, as do all prudent businesses, namely by insuring against loss of profits. It is indubitable that the money paid in such circumstances is a receipt and in so far as it represents loss of profits, as opposed to loss of capital and so forth, it is an item of income in any normal sense of the term. It is equally clear that the receipt is inseparably connected with the ownership and conduct of the business and arises from it. Accordingly, it is not exempt.11. This question was considered by the Supreme Court of Canada which decided that a receipt of this nature is not a "profit" and so is not taxable. B. C. Fir and Cedar Lumber Co. v. The King, 1931 Canada L. R. 435. But the Court did not examine the wider position whether it is "income" and in any event the decision was reversed on an appeal to the Privy Council. Their Lordships held, it is "income". This was followed later by the Court of Appeal in England and endorsed by the House of Lords in Commissioners of Inland Revenue v. Williams Executors, 26 Tax Cases28. In so far as these decisions do not turn on the special wording of the Acts with which they are respectively concerned and deal with the more general meaning of the word "income", we prefer the view taken in England.12. It is true the Judicial Committee attempted a narrower definition in Commissioner of Income tax v. Shaw Wallace and CO., 59 I. A. 206, by limiting income to "a periodical monetary return coming in with some sort of regularity, or expected regularity, from definite sources" but, in our opinion, those remarks must be read with reference to the particular facts of that case. The non-recurring aspect of this kind of receipt was considered by the Privy Council Co., The King v. B. C. Fir and Cedar Lumbar and Co., 1932 A. C. 441 at p. 448 and we do not think their Lordships had in mind a case of this nature when they decided Shaw Wallace and Companys case, 59 I. A. 206.13. The learned Solicitor-General relies Strongly on a clause which appears in three of the four policies with which we are concerned. That is a clause which states that the insured must do all he can to minimise the loss in profits and until he makes an endeavour to restart the business the moneys will not be paid. This, he argued, shows that the money was paid as an indemnity against the loss of profits and was neither Income nor profits, nor was it again within the meaning of the section. We are unable so see how these receipts cease to be income simply because certain things must be done before the moneys can be claimed.1 ### Response: 0 ### Explanation: This contention is new and involes question of fact and travels beyond the scope of the question referred. We are consequently not able to entertain it. It has been assumed throughout the proceedings, right up to this Court, that the whole of the Rs. 14,00,000 was assignable to loss of profits. There is nothing on the record to show that it was ever split up among the other heads or that it was ever treated as having been split up either by the insurance companies or by the assessee, nor is there any material on which we would be able to apportion it. Our decision therefore proceeds on the assumption that the whole sum is assignable to loss of profits and we make it clear that we decide, nothing about other moneys which may be distributable among otherS. 3 the "total income of the previous year" is liable to tax subject to the provisions of the Act. Section 4 defines the total income to include "all income, profits and gains from whatever source derived." There are certain qualifications but they do not concern us here.It will be seen that the taxable commodity, "total income", embraces three elements, "income" "profits" and "gains". Now though these may overlap in many cases, they are nevertheless separate and severable, and the simple question is whether the Rs. 14 lacs falls under any one or more of those heads. In our opinion, it is "income" and so is taxable.In so far as these decisions do not turn on the special wording of the Acts with which they are respectively concerned and deal with the more general meaning of the word "income", we prefer the view taken in England.It is true the Judicial Committee attempted a narrower definition in Commissionerof Income tax v. Shaw Wallace and CO., 59 I. A.206, by limiting income to "a periodical monetary return coming in with some sort of regularity, or expected regularity, from definite sources" but, in our opinion, those remarks must be read with reference to the particular facts of that case. The non-recurring aspect of this kind of receipt was considered by the Privy Council Co., TheKing v. B. C. Fir and Cedar Lumbar and Co., 1932 A. C. 441 at p.448 and we do not think their Lordships had in mind a case of this nature when they decided Shaw Wallace and Companys case, 59 I. A. 206.The learned Solicitor-General relies Strongly on a clause which appears in three of the four policies with which we are concerned. That is a clause which states that the insured must do all he can to minimise the loss in profits and until he makes an endeavour to restart the business the moneys will not be paid.This, he argued, shows that the money was paid as an indemnity against the loss of profits and was neither Income nor profits, nor was it again within the meaning of the section. We are unable so see how these receipts cease to be income simply because certain things must be done before the moneys can be claimed.

Badri Narain Jha And Others Vs. Rameshwar Dayal Singh And Others

appeal it was contended by the learned counsel for the applts. that the H. C. had erroneously held that the two partitions set up by the pltfs. in paras. 5 and 8 had not been proved. It was argued that the evidence on the record both documentary and oral, fully established the fact of the two partitions and that in view of these partitions it should have been held that Bisheshwar Dayal Singh became separate owner of eight anna lakhraj interest and in that interest his mokarrari interest of eight annas merged, and that under the certificate sale the whole of this interest passed on to the purchaser in execution and that being so, the defts. first party could only maintain a suit for recovery of rent from the raiyats to the extent of their six anna mokarrari interest.9. In our opinion, this appeal can be disposed on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two Cts. below. The pltfs. case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent. It however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the pltfs. in their plaint. If the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both and landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. It was the pltfs. case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessees interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold. He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917.By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein. There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest.10. Mere purchase by Bisheshwar Dayal Singh of portions of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter separtition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety. In the words of Lord Halsbury in White v. Tyndall,(1888) 13 A. C. 263, the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent. There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land. In law, therefore, an inter separtition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another contract of lease. Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. In the present ease, there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord. Similarly, the allegation of partition inter seamong the several owners of the lakhraj holding subject to mokarrari interest could not in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding it the different owners in the mokarrari interest. The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings. All owners of the lakhraj interest are jointly responsible for payment of the cess to Govt. and it was because of their default in payment of the cess that the whole lakhrai interest was sold in the certificate sale. In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allegations made in the plaint. On the pltfs. own case the lease is still a live one in respect of the six anna interest of the defts. first part and in these circumstances it is not possible to hold that it has become extinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties. The leasehold has not in any way been drowned in the reversion and both lakhraj and mokarrari interest are still intact.1

0[ds]9. In our opinion, this appeal can be disposed on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two Cts. below. The pltfs. case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent. It however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the pltfs. in their plaint. If the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both and landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. It was the pltfs. case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessees interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold. He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917.By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein. There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest.Mere purchase by Bisheshwar Dayal Singh of portions of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter separtition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety. In the words of Lord Halsbury in White v. Tyndall,(1888) 13 A. C. 263, the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent. There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land. In law, therefore, an inter separtition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another contract of lease. Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. In the present ease, there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord. Similarly, the allegation of partition inter seamong the several owners of the lakhraj holding subject to mokarrari interest could not in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding it the different owners in the mokarrari interest. The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings. All owners of the lakhraj interest are jointly responsible for payment of the cess to Govt. and it was because of their default in payment of the cess that the whole lakhrai interest was sold in the certificate sale. In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allegations made in the plaint. On the pltfs. own case the lease is still a live one in respect of the six anna interest of the defts. first part and in these circumstances it is not possible to hold that it has become extinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties. The leasehold has not in any way been drowned in the reversion and both lakhraj and mokarrari interest are still intact.

### 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: appeal it was contended by the learned counsel for the applts. that the H. C. had erroneously held that the two partitions set up by the pltfs. in paras. 5 and 8 had not been proved. It was argued that the evidence on the record both documentary and oral, fully established the fact of the two partitions and that in view of these partitions it should have been held that Bisheshwar Dayal Singh became separate owner of eight anna lakhraj interest and in that interest his mokarrari interest of eight annas merged, and that under the certificate sale the whole of this interest passed on to the purchaser in execution and that being so, the defts. first party could only maintain a suit for recovery of rent from the raiyats to the extent of their six anna mokarrari interest.9. In our opinion, this appeal can be disposed on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two Cts. below. The pltfs. case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent. It however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the pltfs. in their plaint. If the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both and landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. It was the pltfs. case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessees interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold. He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917.By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein. There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest.10. Mere purchase by Bisheshwar Dayal Singh of portions of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter separtition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety. In the words of Lord Halsbury in White v. Tyndall,(1888) 13 A. C. 263, the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent. There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land. In law, therefore, an inter separtition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another contract of lease. Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. In the present ease, there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord. Similarly, the allegation of partition inter seamong the several owners of the lakhraj holding subject to mokarrari interest could not in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding it the different owners in the mokarrari interest. The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings. All owners of the lakhraj interest are jointly responsible for payment of the cess to Govt. and it was because of their default in payment of the cess that the whole lakhrai interest was sold in the certificate sale. In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allegations made in the plaint. On the pltfs. own case the lease is still a live one in respect of the six anna interest of the defts. first part and in these circumstances it is not possible to hold that it has become extinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties. The leasehold has not in any way been drowned in the reversion and both lakhraj and mokarrari interest are still intact.1 ### Response: 0 ### Explanation: 9. In our opinion, this appeal can be disposed on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two Cts. below. The pltfs. case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent. It however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the pltfs. in their plaint. If the lessor purchases the lessees interest, the lease no doubt is extinguished as the same man cannot at the same time be both and landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessors interest. In such a case the leasehold and the reversion cannot be said to coincide. It was the pltfs. case that mauza Darha was originally granted in mokarrari under a single contract of lease and it was by inheritance that the lessees interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold. He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917.By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety. He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein. There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhraj interest.Mere purchase by Bisheshwar Dayal Singh of portions of the lakhraj interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest. An inter separtition of the mokarrari interest amongst the mokarraridars as alleged by the pltfs. could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety. In the words of Lord Halsbury in White v. Tyndall,(1888) 13 A. C. 263, the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent. There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land. In law, therefore, an inter separtition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another contract of lease. Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integrity of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy. In the present ease, there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord. Similarly, the allegation of partition inter seamong the several owners of the lakhraj holding subject to mokarrari interest could not in any way affect the integrity of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding it the different owners in the mokarrari interest. The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings. All owners of the lakhraj interest are jointly responsible for payment of the cess to Govt. and it was because of their default in payment of the cess that the whole lakhrai interest was sold in the certificate sale. In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allegations made in the plaint. On the pltfs. own case the lease is still a live one in respect of the six anna interest of the defts. first part and in these circumstances it is not possible to hold that it has become extinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties. The leasehold has not in any way been drowned in the reversion and both lakhraj and mokarrari interest are still intact.

M/S MODEL ECONOMIC TEWNSHIP LTD Vs. LAND ACQUISITION COLLECTOR

office of the Land Acquisition Collector, Urban Estate, Haryana for hearing with regard to land acquisition pertaining to Village Sihi Hadbast no. 108, Tehsil Manesar, District Gurgaon/Rewari. This land acquisition arose out of a notification under sec. 4 dated 07.08.2013 and notification under sec. 6 dated 05.08.2014. This hearing was scheduled to be held on 03.08.2016.It was during this hearing on 03.08.2016 that the representative of the Petitioner, Shri Satyawan, came to know about the decision of the Hon?ble High Court dated 24.05.2016 in Moti Sagar & Ors. v. State of Haryana and Anr. (RFA no. 1580 of 2012) filed by the other landowners. It is pertinent to note that the petitioner?s application under section 28A and the hearing held on 03.08.2016 pertaining to Nemita Commercial Private Limited was heard in the same office of the Land Acquisition Collector.Thereafter, the Petitioner contacted Shri Shailendra Jain, Sr. Adv. who had also argued on behalf of the writ petitioners in Moti Sagar and engaged him to argue the writ petition bearing C.W.P. No. 23688 of 2016 (O&M) challenging the order dated 06.03.2014 whereby the application under section 28A filed by the petitioner was disposed off. English translation and true copy of the notice dated 04.07.2016 are being annexed herewith and marked as ANNEXURE ‘B? (pages 11 to 13). In support, the affidavit of the aforesaid representative of the Petitioner, Shri Satyawan is also filed along with the present affidavit.(d)When was the writ petition filed in the High Court? Response:The petitioner had filed its writ petition on 15.11.2016.?7. Relying on the decision of this Court in Bharatsing s/o. Gulabsingh Jakhad and Ors. Vs. State of Maharashtra and Ors. (2018) 11 SCC 92 it is contended by the petitioner that the Collector ought to have kept the application under Section 28A of the Act pending till the appeals were decided and that for the failure of the Collector on that count, the petitioner ought not to be put to prejudice. It is, therefore, submitted that the order dated 06.03.2014 be set aside; the entire exercise under Section 28A be undertaken de novo keeping in mind the compensation as awarded by the High Court (as scaled by this Court later).8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution.

0[ds]8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: office of the Land Acquisition Collector, Urban Estate, Haryana for hearing with regard to land acquisition pertaining to Village Sihi Hadbast no. 108, Tehsil Manesar, District Gurgaon/Rewari. This land acquisition arose out of a notification under sec. 4 dated 07.08.2013 and notification under sec. 6 dated 05.08.2014. This hearing was scheduled to be held on 03.08.2016.It was during this hearing on 03.08.2016 that the representative of the Petitioner, Shri Satyawan, came to know about the decision of the Hon?ble High Court dated 24.05.2016 in Moti Sagar & Ors. v. State of Haryana and Anr. (RFA no. 1580 of 2012) filed by the other landowners. It is pertinent to note that the petitioner?s application under section 28A and the hearing held on 03.08.2016 pertaining to Nemita Commercial Private Limited was heard in the same office of the Land Acquisition Collector.Thereafter, the Petitioner contacted Shri Shailendra Jain, Sr. Adv. who had also argued on behalf of the writ petitioners in Moti Sagar and engaged him to argue the writ petition bearing C.W.P. No. 23688 of 2016 (O&M) challenging the order dated 06.03.2014 whereby the application under section 28A filed by the petitioner was disposed off. English translation and true copy of the notice dated 04.07.2016 are being annexed herewith and marked as ANNEXURE ‘B? (pages 11 to 13). In support, the affidavit of the aforesaid representative of the Petitioner, Shri Satyawan is also filed along with the present affidavit.(d)When was the writ petition filed in the High Court? Response:The petitioner had filed its writ petition on 15.11.2016.?7. Relying on the decision of this Court in Bharatsing s/o. Gulabsingh Jakhad and Ors. Vs. State of Maharashtra and Ors. (2018) 11 SCC 92 it is contended by the petitioner that the Collector ought to have kept the application under Section 28A of the Act pending till the appeals were decided and that for the failure of the Collector on that count, the petitioner ought not to be put to prejudice. It is, therefore, submitted that the order dated 06.03.2014 be set aside; the entire exercise under Section 28A be undertaken de novo keeping in mind the compensation as awarded by the High Court (as scaled by this Court later).8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution. ### Response: 0 ### Explanation: 8. In Bharatsing 1 the award was passed on 04.06.1977. The Reference Court allowed enhancement vide decision dated 01.10.1992, whereafter application under Section 28A of the Act was preferred on 31.12.1992. Said application was decided on 25.10.2000 that is almost eight years after the application was preferred. Around this time, cross appeals preferred by the landholders as well as the State against the decision of the Reference Court were pending in the High Court. These appeals were disposed of by the High Court on 23.03.2009 granting compensation at an enhanced rate of Rs.18000 per acre. Soon thereafter, second application under Section 28A of the Act was preferred on 27.05.2009 seeking benefit under the judgment of the High Court dated 23.03.2009. This second application came to be dismissed by the High Court. This Court affirmed the view that second application under Section 28A could not be preferred but found that the disposal of the first application under Section 28A on 25.10.2000 was not in conformity with the law laid down by this Court in Babua Ram vs. State of U.P . (1995) 2 SCC 689 and other M/S. Model Economic Township Ltd. Vs. Land Acquisition Collector 9 subsequent cases. In the facts of the case, this Court, therefore directed that the original application preferred on 31.12.1992 be considered afresh.9. During the pendency of the present matter, this Court had summoned the original record to apprise itself as to the circumstances in which the application under Section 28A of the Act was taken up for consideration by the Collector. The record indicates that the Collector was given to understand that no appeal or further challenge was pending consideration before any superior court and that the matter had attained finality.10. It is neither the case of the petitioner nor it is even remotely contended that despite being aware of such pending challenge, the Collector had proceeded with the matter and decided the application under Section 28A. It is also not the case that the petitioner had made the Collector aware or brought it to the notice of the office about pendency of such matter/further challenge. The petitioner approached the High Court on 15.11.2016 only after the compensation was enhanced by the High Court to the level of Rs.2,80,00,000/- per acre in respect of comparable lands vide judgment dated 24.5.2016. Again, there is nothing in the petition as to why the petitioner took so much time to realise that the course undertaken by the Collector was not in keeping with the principles laid down by this Court. Looking to the profile of the petitioner which is a limited company, it can certainly be said to be having resources to equip itself with adequate knowledge on the front. The explanation offered by the petitioner in the affidavit pursuant to the direction issued on 06.02.2019, in our view, is not satisfactory. The explanation that the petitioner became aware for the first time on 03.08.2016 does not appear to be correct and reliable. Again, if Shri Satyawan who swore the affidavit as whole- time Director of the petitioner-company, was aware on 03.08.2016 that the compensation stood enhanced by the High Court vide judgment and order dated 24.05.2016, there is no reason why the filing of the writ petition was delayed till 15.11.2016. For an entity who held more than 10% of the land under acquisition the way it conducted itself does not inspire any confidence. The idea under Section 28A is certainly to extend benefit of equal compensation to landholders who, for some reasons had not preferred appropriate applications for Reference in time but for a company having profile such as the petitioner, inaction on the front followed by delay in filing petition in the High Court, in our view, disentitles the petitioner from claiming any relief under Article 226 of the Constitution.

Harihar Nath Vs. State Bank Of India

when leave is granted, proceed with the suit. If the leave is refused, the suit may be transferred to the company court for being tried and disposed of under section 446(2)(a) of the Act. The plaintiff may also file an application for transfer of the suit to the Company Court for disposal under Section 446(2)(a). Alternatively, the plaintiff may get the suit dismissed with liberty to make a claim under section 446(2)(b) of the Act. Even if the suit is proceeded with, without obtaining leave of the Company Court, either not being aware of the order of winding up or ignoring the provisions of section 446(1), the resultant decree will not be void, but only be voidable at the instance and option of the official liquidator of the company. It is also possible that the court passing the winding up order may at any time, on the application either of the liquidator or of any creditor or contributory, make an order staying the winding up either altogether or for a limited time on such terms and conditions as the court deems fit, under section 466 of the Act. When the winding up is so stayed, a suit against the company (filed before the winding up order) which stood stayed under section 446(1) could be proceeded with, even though leave had not been obtained to proceed with the suit. We have referred to these alternative possibilities to show that having regard to the nature of an application under Section 446(1) of the Act, it does not attract Article 137. 19. We may next examine the position by even assuming that Article 137 applied to an application under section 446(1) for leave to proceed with a pending suit. Article 137 is a residuary provision applicable to all applications and petitions filed in a court, for which no period of limitation is prescribed. It prescribes a limitation of three years and the period of limitation begins to run when the right to apply accures". To understand the meaning of the words "right to apply accrues", we may refer to the wording of Article 137 and a few other Articles in the Schedule to the Limitation Act: ArticleDescription of suitPeriod ofTime from which period begins No.Limitationto run 137Any other application for which no3 yearsWhen the right to period of limitation is providedapply accrues. elsewhere in this division. 113Any suit for which no period of3 yearsWhen the right to limitation is provided elsewhere insue accrues. this Schedule. 58To obtain any other declaration.3 yearsWhen the right to sue first accrues. 104To establish a periodically recurring3 yearsWhen the plaintiff right.is first refused the enjoyment of the right. Article 58 provides that the time will begin to run when the "right to sue first accrues". Article 104 provides that time will begin to run when "the plaintiff" is first refused" the enjoyment of the right. On the other hand, Article 137 uses the words when the "right to apply accrues" and is similar to Article 113. A suit, which is filed prior to the order of winding up and pending on the date of winding up, gets stayed when an order of winding up is passed. An order of winding up does not create any right to file an application under Section 446(1) of the Act. Nor does any right accrue to a plaintiff/petitioner in a suit/proceeding to file an application under Section 446(1), when an order of winding up is passed. On the other hand, passing of an order of winding up casts a duty or obligation on the person who has sued the company to obtain the leave to the court to proceed with is suit for proceeding. The right to apply for leave accrues, not because of the order of winding up, but because the suit/ proceeding is stayed. The right to apply for grant of leave under Section 446(1) accrues every moment the suit remains stayed. Consequently, it follows that as long as the suit/ proceeding (filed before the order of winding up) remains stayed, an application for leave can be filed. Therefore, the application filed on 11.8.1995 was in time and not barred by limitation, even if Article 137 is applied. Re: Contention (ii) 20. Learned counsel for the appellant submitted that there was no justification for the court to direct the decretal amount should be recovered from the guarantors first and only if there was any deficit, it should be recovered from the company in liquidation. Learned counsel for the Bank and the Official Liquidator fairly conceded that there was no reason or justification for imposing such a condition, having regard to the legal position that the liability of the principal-debtor and guarantors is joint or several. There is no question of directing the amount to be first recovered from the guarantors. The creditor has the option of recovering the amount in the manner he deems fit. Though the company court has the power while granting leave, to impose conditions, such conditions can be imposed only for good and valid reasons. The terms imposed cannot affect the rights of third parties nor impose an obligation contrary to law. Therefore, the condition imposed while granting leave is deleted. Conclusion 21. In the present case, the suit was against the company as well as its Directors being guarantors in their personal capacity. The suit could have in any case proceeded against the guarantors. It was stayed by the trial court apparently under Section 446(1) even though there was no such prayer to that effect. The only prayer before the Court at the instance of first defendant in the suit for stay of suit under Section 22 of SIC Act which was not granted. The object of appellants in filing an application for stay was to drag on the suit. They have succeeded in their effort to stall the suit for more than 16 years on a virtually non-existent ground. The trial court will, therefore, have to proceed with the suit with all expedition. 22.

1[ds]In the present case, the suit was against the company as well as its Directors being guarantors in their personal capacity. The suit could have in any case proceeded against the guarantors. It was stayed by the trial court apparently under Section 446(1) even though there was no such prayer to that effect. The only prayer before the Court at the instance of first defendant in the suit for stay of suit under Section 22 of SIC Act which was not granted. The object of appellants in filing an application for stay was to drag on the suit. They have succeeded in their effort to stall the suit for more than 16 years on a virtually non-existent ground. The trial court will, therefore, have to proceed with the suit with all expedition

### 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: when leave is granted, proceed with the suit. If the leave is refused, the suit may be transferred to the company court for being tried and disposed of under section 446(2)(a) of the Act. The plaintiff may also file an application for transfer of the suit to the Company Court for disposal under Section 446(2)(a). Alternatively, the plaintiff may get the suit dismissed with liberty to make a claim under section 446(2)(b) of the Act. Even if the suit is proceeded with, without obtaining leave of the Company Court, either not being aware of the order of winding up or ignoring the provisions of section 446(1), the resultant decree will not be void, but only be voidable at the instance and option of the official liquidator of the company. It is also possible that the court passing the winding up order may at any time, on the application either of the liquidator or of any creditor or contributory, make an order staying the winding up either altogether or for a limited time on such terms and conditions as the court deems fit, under section 466 of the Act. When the winding up is so stayed, a suit against the company (filed before the winding up order) which stood stayed under section 446(1) could be proceeded with, even though leave had not been obtained to proceed with the suit. We have referred to these alternative possibilities to show that having regard to the nature of an application under Section 446(1) of the Act, it does not attract Article 137. 19. We may next examine the position by even assuming that Article 137 applied to an application under section 446(1) for leave to proceed with a pending suit. Article 137 is a residuary provision applicable to all applications and petitions filed in a court, for which no period of limitation is prescribed. It prescribes a limitation of three years and the period of limitation begins to run when the right to apply accures". To understand the meaning of the words "right to apply accrues", we may refer to the wording of Article 137 and a few other Articles in the Schedule to the Limitation Act: ArticleDescription of suitPeriod ofTime from which period begins No.Limitationto run 137Any other application for which no3 yearsWhen the right to period of limitation is providedapply accrues. elsewhere in this division. 113Any suit for which no period of3 yearsWhen the right to limitation is provided elsewhere insue accrues. this Schedule. 58To obtain any other declaration.3 yearsWhen the right to sue first accrues. 104To establish a periodically recurring3 yearsWhen the plaintiff right.is first refused the enjoyment of the right. Article 58 provides that the time will begin to run when the "right to sue first accrues". Article 104 provides that time will begin to run when "the plaintiff" is first refused" the enjoyment of the right. On the other hand, Article 137 uses the words when the "right to apply accrues" and is similar to Article 113. A suit, which is filed prior to the order of winding up and pending on the date of winding up, gets stayed when an order of winding up is passed. An order of winding up does not create any right to file an application under Section 446(1) of the Act. Nor does any right accrue to a plaintiff/petitioner in a suit/proceeding to file an application under Section 446(1), when an order of winding up is passed. On the other hand, passing of an order of winding up casts a duty or obligation on the person who has sued the company to obtain the leave to the court to proceed with is suit for proceeding. The right to apply for leave accrues, not because of the order of winding up, but because the suit/ proceeding is stayed. The right to apply for grant of leave under Section 446(1) accrues every moment the suit remains stayed. Consequently, it follows that as long as the suit/ proceeding (filed before the order of winding up) remains stayed, an application for leave can be filed. Therefore, the application filed on 11.8.1995 was in time and not barred by limitation, even if Article 137 is applied. Re: Contention (ii) 20. Learned counsel for the appellant submitted that there was no justification for the court to direct the decretal amount should be recovered from the guarantors first and only if there was any deficit, it should be recovered from the company in liquidation. Learned counsel for the Bank and the Official Liquidator fairly conceded that there was no reason or justification for imposing such a condition, having regard to the legal position that the liability of the principal-debtor and guarantors is joint or several. There is no question of directing the amount to be first recovered from the guarantors. The creditor has the option of recovering the amount in the manner he deems fit. Though the company court has the power while granting leave, to impose conditions, such conditions can be imposed only for good and valid reasons. The terms imposed cannot affect the rights of third parties nor impose an obligation contrary to law. Therefore, the condition imposed while granting leave is deleted. Conclusion 21. In the present case, the suit was against the company as well as its Directors being guarantors in their personal capacity. The suit could have in any case proceeded against the guarantors. It was stayed by the trial court apparently under Section 446(1) even though there was no such prayer to that effect. The only prayer before the Court at the instance of first defendant in the suit for stay of suit under Section 22 of SIC Act which was not granted. The object of appellants in filing an application for stay was to drag on the suit. They have succeeded in their effort to stall the suit for more than 16 years on a virtually non-existent ground. The trial court will, therefore, have to proceed with the suit with all expedition. 22. ### Response: 1 ### Explanation: In the present case, the suit was against the company as well as its Directors being guarantors in their personal capacity. The suit could have in any case proceeded against the guarantors. It was stayed by the trial court apparently under Section 446(1) even though there was no such prayer to that effect. The only prayer before the Court at the instance of first defendant in the suit for stay of suit under Section 22 of SIC Act which was not granted. The object of appellants in filing an application for stay was to drag on the suit. They have succeeded in their effort to stall the suit for more than 16 years on a virtually non-existent ground. The trial court will, therefore, have to proceed with the suit with all expedition

Jugal Kishore Patnaik Vs. Ratnakar Mohanty

be permissible for the appellant to take an inconsistent stand in appeal and urge that those objections had been filed in collusion with the. respondent. Apart from that, we find that according to section 100 (1 ) (e) of the Act, if the High Court is of the opinion that any nomination has been improperly rejected, it shall declare the election of the returned candidate to be void. In view of the imperative nature of the provision, it is open to question as to whether the courts cam in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections resulting in the improper rejection of the nomination, were collusive. Whether the legislature would do something in the matter is essentially for the legislature to decide. We need not, however, dilate upon this aspect of this case in the face of our finding that the appellant has clearly admitted in the written statement that the objections which were filed about the validity of the nomination papers of the respondent were not collusive but were genuine.13. Lastly, Mr. Singh has assailed the finding of the High Court on issue No. (3). Although during the course of the trial of the election petition the appellant relied upon 15 items to show that the respondent had entered into works contracts with the State Government, in this Court Mr. Singh has , confined his argument to only two items, namely, item No. (1) and item No. (8). Item No. (1) relates to an advance of Rs. 100 for repair of Erein School. The case of the respondent is that the above amount was received by him as Sarpanch of Gram Panchayat Rahanj and that the said work had to be executed by that Gram Panchayat and not by the respondent personally. The High Court accepted the stand of the respondent, and we find no cogent ground to take a different view. Ex. 43 is letter dated December 3, 1968 signed by the Sub-Divisio nal Officer Bhadrak to the Certificate Officer for recovery of Rs. 7, 017/-. This letter shows that the aggregate sum of Rs. 7, 017, of which Rs. 100 was a part, constituted the fund of the Gram Panchayat.. Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100 were paid had to be executed through the agency of Rahani Gram Panchayat. To similar effect is the statement of PW 9 Khageswar Roy. Block Development Officer. The evidence of this witness shows that the amount in question was given to the Gram Panchayat for repair work. The above material, in our opinion, , clearly shows that the contract for the execution of the repair work, which is the subject matter of item No. (1 ), was not entered into with the respondent in his personal capacity and that the said work had to be. executed by the Gram Panchayat. 14. So far as item No. (8) is concerned, the same relates to work of wooden culvert No. 9 on Jamujhari Khirkona road. Ex. 55 is the written agreement relating to this contract. Perusal of the agreement makes it clear that the tender in respect of this work was accepted on behalf of the Modern Labour Co-operative Contract Society, of which the respondent was the President. The document thus shows that it was not the respondent but the society which entered into contract to the execution of the above work, and the respondent signed the document in his capacity as the President of that Society. 15. Apart from the above, we agree with the High Court that the above contract was not subsisting on the date of the filing of the nomination paper. The agreement for the execution of the above work was dated May 8, 1964. On November 24., 1966 an order was made by the Block Development Officer that the construction work of the culvert had been completed since long and final measurements too had already been made. The total work was found to be worth Rs. 4, 253.7 0. It was further observed in the order that Rs. 722 should be paid on account of the above work after deducting the previous advances and cost of the material. The contractor was directed to return the material used in the tubewell. The above order of the Block Development Officer shows that the cost of the material and the amounts advanced to tile respondent were deducted before direction was given for payment of Rs. 722 to the contractor. Mr. Singh has laid particular stress upon the direction in the order of the Block Development Officer that the contractor should return the material used in the tubewell. In respect of the material used in the tubewell, it appears to us that the said material was also returned by the contractor the same day the order was made. According to the testimony of RW 11 J.K. Satpathy Block Development Officer, if the material required to be returned as per that last order was not returned, the final bill amount in respect of that work could not have been paid. Rs. 722 were, however, admittedly paid on November 24, 1966. The factum of that payment clearly points to the conclusion that the contractor returned the material used in the tubewell before the payment of Rs. 722 was made to him. There is also nothing to show that any demand was mad e to the contractor subsequent to 1966 for return of the material used in the tubewell. The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no, material used in the, tubewell remained with the contractor. It cannot, therefore be said that the said contract was subsisting on the date the respondent filed his nomination paper. We consequently uphold the finding of the High Court on items (1) and (8) under issue No. (3).

0[ds]8. There are, in our opinion, some broad facts of the case which lend support to the finding of the High Court on issue No. (1 ) that the election petition was accompanied by an attested copy signed by the respondent. Endorsement dated April 15, 1974 made by an officer of the High Court shows that a copy of the election petition had been flied. We find no cogent reason as to why an officer of the High Court should make a false endorsement on the petition if, , in fact, no such copy had been filed. As regards the factum of the, attestation of the copy by the respondent under his own signature we find that the appellant cannot in the very nature of things assert positively that the copy had not been attested by the respondent as, according to. him, he did not see that copy. The copy was also not available on the record as the same had been affixed at the residence of the appellant when he, according to the report of the process server, declined to accept the summons. Before summons were issued to the appellant, the following endorsement was made by an officer of the High Court in respect of t he election petition flied by the respondent:t Nil.e see no cogent ground to question the correctness of this endorsement which clearly lends support to the inference that the copy filed with the petition had been attested by the respondent and that the petition did not suffer from lack of compliance with the: procedural requirement.It is, in our opinion not necessary to express opinion about three of the nomination papers as we find that one of the, nomination papers in. any case did not suffer from any such alleged infirmity. This nomination paper of the respondent was signed by Lakshmikant Mahapotra (PW 3 ) as proposer. Evidence of this witness dearly shows that he signed, the nomination paper as proposer of the respondent after the various columns in that paper had been filled in. Nothing has been brought to our notice as to why the statement of the witness in this respect be not accepted. As at least one of the nomination papers filed by the respondent was in compliance with the legal requirement, . the High Court, in our opinion, correctly decided issue No. (2). In view of the above finding, it is not necessary to express opinion on the point as to whether a nomination paper should be hold to be invalid in case the signature of the proposer is obtained before filling in the columns of the nomination paper.This submission too is bereft of force. According to section 82 of the Act, a petitioner shall join as respondents to his petition where the petitioner, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claims a further declaration that he himself or any other candidates has, been duly elected, all the contesting candidates other than the petitioner, and where no such further declaration is claimed, all the returned candidates. It is further provided that if allegations of any corrupt practice are made in the petition against any other candidate, he too shall be joined as a respondent. In the present case, there was no prayer made by the respondent in the election petition that he or any other person should be declared to have been duly elected. There was also no allegation of corrupt practice against any candidate. In the circumstances, the requirements of law should be held to be fully satisfied when the respondent impleaded the successful candidate, namely, the appellant, as a respondent in the petition.The appellant, who has been duly elected, , should not, according to the contention, suffer because of any order made on such collusive objections. In this respect we find that .there is no factual basis for the assertion that the objections which were raised by Balaram Sahu about the validity of the nomination papers of the respondent were of collusive character. On the contrary, the appellant in the course of his written statement stated in respect of the objections as under:At the time of the scrutiny valid and genuine objections were filed against the petitioner on the ground that there was subsisting contract between the petitioner and the Government of Orissa and as such he was disqualified to be a candidate12. In view of the unequivocal assertion of the appellant in the written statement that the objections were valid and genuine, it would not be permissible for the appellant to take an inconsistent stand in appeal and urge that those objections had been filed in collusion with the. respondent. Apart from that, we find that according to section 100 (1 ) (e) of the Act, if the High Court is of the opinion that any nomination has been improperly rejected, it shall declare the election of the returned candidate to be void. In view of the imperative nature of the provision, it is open to question as to whether the courts cam in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections resulting in the improper rejection of the nomination, were collusive. Whether the legislature would do something in the matter is essentially for the legislature to decide. We need not, however, dilate upon this aspect of this case in the face of our finding that the appellant has clearly admitted in the written statement that the objections which were filed about the validity of the nomination papers of the respondent were not collusive but were genuine.The High Court accepted the stand of the respondent, and we find no cogent ground to take a different view. Ex. 43 is letter dated December 3, 1968 signed by the Sub-Divisio nal Officer Bhadrak to the Certificate Officer for recovery of Rs. 7, 017/-. This letter shows that the aggregate sum of Rs. 7, 017, of which Rs. 100 was a part, constituted the fund of the Gram Panchayat.. Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100 were paid had to be executed through the agency of Rahani Gram Panchayat. To similar effect is the statement of PW 9 Khageswar Roy. Block Development Officer. The evidence of this witness shows that the amount in question was given to the Gram Panchayat for repair work. The above material, in our opinion, , clearly shows that the contract for the execution of the repair work, which is the subject matter of item No. (1 ), was not entered into with the respondent in his personal capacity and that the said work had to be. executed by the Gram Panchayat.14. So far as item No. (8) is concerned, the same relates to work of wooden culvert No. 9 on Jamujhari Khirkona road. Ex. 55 is the written agreement relating to this contract. Perusal of the agreement makes it clear that the tender in respect of this work was accepted on behalf of the Modern Labour Co-operative Contract Society, of which the respondent was the President. The document thus shows that it was not the respondent but the society which entered into contract to the execution of the above work, and the respondent signed the document in his capacity as the President of that Society15. Apart from the above, we agree with the High Court that the above contract was not subsisting on the date of the filing of the nomination paper. The agreement for the execution of the above work was dated May 8, 1964. On November 24., 1966 an order was made by the Block Development Officer that the construction work of the culvert had been completed since long and final measurements too had already been made. The total work was found to be worth Rs. 4, 253.7 0. It was further observed in the order that Rs. 722 should be paid on account of the above work after deducting the previous advances and cost of the material. The contractor was directed to return the material used in the tubewell. The above order of the Block Development Officer shows that the cost of the material and the amounts advanced to tile respondent were deducted before direction was given for payment of Rs. 722 to the contractor. Mr. Singh has laid particular stress upon the direction in the order of the Block Development Officer that the contractor should return the material used in the tubewell. In respect of the material used in the tubewell, it appears to us that the said material was also returned by the contractor the same day the order was made. According to the testimony of RW 11 J.K. Satpathy Block Development Officer, if the material required to be returned as per that last order was not returned, the final bill amount in respect of that work could not have been paid. Rs. 722 were, however, admittedly paid on November 24, 1966. The factum of that payment clearly points to the conclusion that the contractor returned the material used in the tubewell before the payment of Rs. 722 was made to him. There is also nothing to show that any demand was mad e to the contractor subsequent to 1966 for return of the material used in the tubewell. The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no, material used in the, tubewell remained with the contractor. It cannot, therefore be said that the said contract was subsisting on the date the respondent filed his nomination paper. We consequently uphold the finding of the High Court on items (1) and (8) under issue No. (3).

### 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: be permissible for the appellant to take an inconsistent stand in appeal and urge that those objections had been filed in collusion with the. respondent. Apart from that, we find that according to section 100 (1 ) (e) of the Act, if the High Court is of the opinion that any nomination has been improperly rejected, it shall declare the election of the returned candidate to be void. In view of the imperative nature of the provision, it is open to question as to whether the courts cam in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections resulting in the improper rejection of the nomination, were collusive. Whether the legislature would do something in the matter is essentially for the legislature to decide. We need not, however, dilate upon this aspect of this case in the face of our finding that the appellant has clearly admitted in the written statement that the objections which were filed about the validity of the nomination papers of the respondent were not collusive but were genuine.13. Lastly, Mr. Singh has assailed the finding of the High Court on issue No. (3). Although during the course of the trial of the election petition the appellant relied upon 15 items to show that the respondent had entered into works contracts with the State Government, in this Court Mr. Singh has , confined his argument to only two items, namely, item No. (1) and item No. (8). Item No. (1) relates to an advance of Rs. 100 for repair of Erein School. The case of the respondent is that the above amount was received by him as Sarpanch of Gram Panchayat Rahanj and that the said work had to be executed by that Gram Panchayat and not by the respondent personally. The High Court accepted the stand of the respondent, and we find no cogent ground to take a different view. Ex. 43 is letter dated December 3, 1968 signed by the Sub-Divisio nal Officer Bhadrak to the Certificate Officer for recovery of Rs. 7, 017/-. This letter shows that the aggregate sum of Rs. 7, 017, of which Rs. 100 was a part, constituted the fund of the Gram Panchayat.. Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100 were paid had to be executed through the agency of Rahani Gram Panchayat. To similar effect is the statement of PW 9 Khageswar Roy. Block Development Officer. The evidence of this witness shows that the amount in question was given to the Gram Panchayat for repair work. The above material, in our opinion, , clearly shows that the contract for the execution of the repair work, which is the subject matter of item No. (1 ), was not entered into with the respondent in his personal capacity and that the said work had to be. executed by the Gram Panchayat. 14. So far as item No. (8) is concerned, the same relates to work of wooden culvert No. 9 on Jamujhari Khirkona road. Ex. 55 is the written agreement relating to this contract. Perusal of the agreement makes it clear that the tender in respect of this work was accepted on behalf of the Modern Labour Co-operative Contract Society, of which the respondent was the President. The document thus shows that it was not the respondent but the society which entered into contract to the execution of the above work, and the respondent signed the document in his capacity as the President of that Society. 15. Apart from the above, we agree with the High Court that the above contract was not subsisting on the date of the filing of the nomination paper. The agreement for the execution of the above work was dated May 8, 1964. On November 24., 1966 an order was made by the Block Development Officer that the construction work of the culvert had been completed since long and final measurements too had already been made. The total work was found to be worth Rs. 4, 253.7 0. It was further observed in the order that Rs. 722 should be paid on account of the above work after deducting the previous advances and cost of the material. The contractor was directed to return the material used in the tubewell. The above order of the Block Development Officer shows that the cost of the material and the amounts advanced to tile respondent were deducted before direction was given for payment of Rs. 722 to the contractor. Mr. Singh has laid particular stress upon the direction in the order of the Block Development Officer that the contractor should return the material used in the tubewell. In respect of the material used in the tubewell, it appears to us that the said material was also returned by the contractor the same day the order was made. According to the testimony of RW 11 J.K. Satpathy Block Development Officer, if the material required to be returned as per that last order was not returned, the final bill amount in respect of that work could not have been paid. Rs. 722 were, however, admittedly paid on November 24, 1966. The factum of that payment clearly points to the conclusion that the contractor returned the material used in the tubewell before the payment of Rs. 722 was made to him. There is also nothing to show that any demand was mad e to the contractor subsequent to 1966 for return of the material used in the tubewell. The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no, material used in the, tubewell remained with the contractor. It cannot, therefore be said that the said contract was subsisting on the date the respondent filed his nomination paper. We consequently uphold the finding of the High Court on items (1) and (8) under issue No. (3). ### Response: 0 ### Explanation: made on such collusive objections. In this respect we find that .there is no factual basis for the assertion that the objections which were raised by Balaram Sahu about the validity of the nomination papers of the respondent were of collusive character. On the contrary, the appellant in the course of his written statement stated in respect of the objections as under:At the time of the scrutiny valid and genuine objections were filed against the petitioner on the ground that there was subsisting contract between the petitioner and the Government of Orissa and as such he was disqualified to be a candidate12. In view of the unequivocal assertion of the appellant in the written statement that the objections were valid and genuine, it would not be permissible for the appellant to take an inconsistent stand in appeal and urge that those objections had been filed in collusion with the. respondent. Apart from that, we find that according to section 100 (1 ) (e) of the Act, if the High Court is of the opinion that any nomination has been improperly rejected, it shall declare the election of the returned candidate to be void. In view of the imperative nature of the provision, it is open to question as to whether the courts cam in the event of an improper rejection of nomination, afford relief to the successful candidate on the score that the objections resulting in the improper rejection of the nomination, were collusive. Whether the legislature would do something in the matter is essentially for the legislature to decide. We need not, however, dilate upon this aspect of this case in the face of our finding that the appellant has clearly admitted in the written statement that the objections which were filed about the validity of the nomination papers of the respondent were not collusive but were genuine.The High Court accepted the stand of the respondent, and we find no cogent ground to take a different view. Ex. 43 is letter dated December 3, 1968 signed by the Sub-Divisio nal Officer Bhadrak to the Certificate Officer for recovery of Rs. 7, 017/-. This letter shows that the aggregate sum of Rs. 7, 017, of which Rs. 100 was a part, constituted the fund of the Gram Panchayat.. Order dated May 25, 1965 of the Block Development Officer also shows that the work on account of which Rs. 100 were paid had to be executed through the agency of Rahani Gram Panchayat. To similar effect is the statement of PW 9 Khageswar Roy. Block Development Officer. The evidence of this witness shows that the amount in question was given to the Gram Panchayat for repair work. The above material, in our opinion, , clearly shows that the contract for the execution of the repair work, which is the subject matter of item No. (1 ), was not entered into with the respondent in his personal capacity and that the said work had to be. executed by the Gram Panchayat.14. So far as item No. (8) is concerned, the same relates to work of wooden culvert No. 9 on Jamujhari Khirkona road. Ex. 55 is the written agreement relating to this contract. Perusal of the agreement makes it clear that the tender in respect of this work was accepted on behalf of the Modern Labour Co-operative Contract Society, of which the respondent was the President. The document thus shows that it was not the respondent but the society which entered into contract to the execution of the above work, and the respondent signed the document in his capacity as the President of that Society15. Apart from the above, we agree with the High Court that the above contract was not subsisting on the date of the filing of the nomination paper. The agreement for the execution of the above work was dated May 8, 1964. On November 24., 1966 an order was made by the Block Development Officer that the construction work of the culvert had been completed since long and final measurements too had already been made. The total work was found to be worth Rs. 4, 253.7 0. It was further observed in the order that Rs. 722 should be paid on account of the above work after deducting the previous advances and cost of the material. The contractor was directed to return the material used in the tubewell. The above order of the Block Development Officer shows that the cost of the material and the amounts advanced to tile respondent were deducted before direction was given for payment of Rs. 722 to the contractor. Mr. Singh has laid particular stress upon the direction in the order of the Block Development Officer that the contractor should return the material used in the tubewell. In respect of the material used in the tubewell, it appears to us that the said material was also returned by the contractor the same day the order was made. According to the testimony of RW 11 J.K. Satpathy Block Development Officer, if the material required to be returned as per that last order was not returned, the final bill amount in respect of that work could not have been paid. Rs. 722 were, however, admittedly paid on November 24, 1966. The factum of that payment clearly points to the conclusion that the contractor returned the material used in the tubewell before the payment of Rs. 722 was made to him. There is also nothing to show that any demand was mad e to the contractor subsequent to 1966 for return of the material used in the tubewell. The absence of any such demand, even though a long period has elapsed since 1966, clearly goes to show that no, material used in the, tubewell remained with the contractor. It cannot, therefore be said that the said contract was subsisting on the date the respondent filed his nomination paper. We consequently uphold the finding of the High Court on items (1) and (8) under issue No. (3).

Chandran Ratnaswami Vs. K.C. Palanisamy

Rs. 300 crores in Joint Venture Company. The petition filed in the High Court seeking direction to EOW to take action on the complaint was, however, withdrawn. Respondent No.1 then filed a second complaint before the Judicial Magistrate, Perundurai which was dismissed after examining respondent No.1 and his two witnesses. The respondent then filed another complaint before the Judicial Magistrate, Kangeyam without disclosing the dismissal of the earlier complaint filed before the Judicial Magistrate, Perundurai. The said complaint finally came to be registered as FIR No.7 of 2007. The appellant moved the High Court for quashing the said FIR. In the said petition, the High Court, after noticing the similar complaint filed earlier by respondent No.1 in the court of Judicial Magistrate, Perundurai, finally observed that the second criminal proceeding initiated by respondent No.1 has no merit. The court further passed a stringent remark against the conduct of respondent No.1 for filing cases on the same issue. 48. Respondent No.1 then moved this Court by filing SLP(Crl.) No.9853 of 2010 alleging the pendency of the protest petition and non-closure of the criminal case. This Court refused to interfere with the order but observed that if any protest petition is pending the same shall be disposed of in accordance with law. 49. Curiously enough, on the report of Superintendent of Police, Tiruppur, the criminal case in FIR No.7 of 2007 was directed to be reopened for re-investigation. On this FIR, the Magistrate before whom the criminal case was pending passed various orders which were time to time challenged by the aggrieved party before the High Court and before this Court. Simultaneously, the appellant also filed counter criminal cases against the respondent which were also proceeded and are pending in those criminal courts. 50. In a nutshell, the dispute arising out of Joint Venture Agreement has been fully and finally settled by the Company Law Board and also the High Court and several directions were issued for compliance including the return of the amount by respondent No.1 to the appellant and to become the sole owner of those companies. 51. It is pertinent to mention here that in course of arguments the action of Superintendent of Police was challenged by the learned counsel appearing for the appellant. In order to justify the action of the Superintendent of Police in directing the investigation, Mr. P.S. Narsimhan, learned senior counsel submitted that on the instruction of Inspector General of Police such reinvestigation was directed by the Superintendent of Police. However, no such letter of instruction has been produced before us by the learned counsel. At this juncture, we reiterate that the power of Police Officers in the field of investigation of a cognizable offence is not unlimited. Hence, the power during the investigation must be exercised strictly within the limitation prescribed in the Code of Criminal Procedure and such power may not result in destroying the personal freedom of a citizen. 52. As noticed above, after the dispute was finally settled by the Company Law Board and the Madras High Court in appeal, the respondent approached the Economic Offences Wing, who refused to entertain the complaint. The respondent then moved the complaint before the Judicial Magistrate, Perundurai for initiating criminal action against the appellant for breach of contract, which was dismissed by the Magistrate holding the same as nothing but to take vengeance. The Magistrate further held that if the conditions of the agreement are violated the respondent has to seek remedy under the Contract Act or the Company Law instead of filing criminal case. Suppressing the said complaint and the order passed by the Magistrate, the respondent tried again by filing a complaint before the Judicial Magistrate, Kangayam for initiating criminal action against the appellants for the breach of contract and conspiracy. Although the FIR was registered, but a closure report as a mistake of fact was prepared. The High Court while passing the order observed that the Court would frown upon the conduct of the complainant in indulging in repeated harassment of the petitioners-appellants. Irrespective of the dispute with regard to the closure of the case, a fresh life was given to the criminal case at the instance of Superintendent of Police, who directed re-investigation and in course of the said criminal proceeding irrespective of FIR No.7/2007 the appellants were harassed and on technicalities various orders for surrender, arrest and their detention had been passed. As noticed above, in the three writ petitions filed by respondent No.1, though not against the appellant but against the C.B.I. in respect of different transactions, the High Court dismissing all those writ petitions observed that the modus operandi of the writ petitioner (respondent No.1) was to defraud the person or entity and thereafter approach the Courts with multiple proceedings in order to distract attention from his own misdeeds. 53. Neither the High Court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of criminal proceedings in respect of the disputes, which are civil in nature and finally adjudicated by the competent authority i.e. the Company Law Board and the High Court in appeal. 54. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law. 55.

1[ds]We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law.

### 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: Rs. 300 crores in Joint Venture Company. The petition filed in the High Court seeking direction to EOW to take action on the complaint was, however, withdrawn. Respondent No.1 then filed a second complaint before the Judicial Magistrate, Perundurai which was dismissed after examining respondent No.1 and his two witnesses. The respondent then filed another complaint before the Judicial Magistrate, Kangeyam without disclosing the dismissal of the earlier complaint filed before the Judicial Magistrate, Perundurai. The said complaint finally came to be registered as FIR No.7 of 2007. The appellant moved the High Court for quashing the said FIR. In the said petition, the High Court, after noticing the similar complaint filed earlier by respondent No.1 in the court of Judicial Magistrate, Perundurai, finally observed that the second criminal proceeding initiated by respondent No.1 has no merit. The court further passed a stringent remark against the conduct of respondent No.1 for filing cases on the same issue. 48. Respondent No.1 then moved this Court by filing SLP(Crl.) No.9853 of 2010 alleging the pendency of the protest petition and non-closure of the criminal case. This Court refused to interfere with the order but observed that if any protest petition is pending the same shall be disposed of in accordance with law. 49. Curiously enough, on the report of Superintendent of Police, Tiruppur, the criminal case in FIR No.7 of 2007 was directed to be reopened for re-investigation. On this FIR, the Magistrate before whom the criminal case was pending passed various orders which were time to time challenged by the aggrieved party before the High Court and before this Court. Simultaneously, the appellant also filed counter criminal cases against the respondent which were also proceeded and are pending in those criminal courts. 50. In a nutshell, the dispute arising out of Joint Venture Agreement has been fully and finally settled by the Company Law Board and also the High Court and several directions were issued for compliance including the return of the amount by respondent No.1 to the appellant and to become the sole owner of those companies. 51. It is pertinent to mention here that in course of arguments the action of Superintendent of Police was challenged by the learned counsel appearing for the appellant. In order to justify the action of the Superintendent of Police in directing the investigation, Mr. P.S. Narsimhan, learned senior counsel submitted that on the instruction of Inspector General of Police such reinvestigation was directed by the Superintendent of Police. However, no such letter of instruction has been produced before us by the learned counsel. At this juncture, we reiterate that the power of Police Officers in the field of investigation of a cognizable offence is not unlimited. Hence, the power during the investigation must be exercised strictly within the limitation prescribed in the Code of Criminal Procedure and such power may not result in destroying the personal freedom of a citizen. 52. As noticed above, after the dispute was finally settled by the Company Law Board and the Madras High Court in appeal, the respondent approached the Economic Offences Wing, who refused to entertain the complaint. The respondent then moved the complaint before the Judicial Magistrate, Perundurai for initiating criminal action against the appellant for breach of contract, which was dismissed by the Magistrate holding the same as nothing but to take vengeance. The Magistrate further held that if the conditions of the agreement are violated the respondent has to seek remedy under the Contract Act or the Company Law instead of filing criminal case. Suppressing the said complaint and the order passed by the Magistrate, the respondent tried again by filing a complaint before the Judicial Magistrate, Kangayam for initiating criminal action against the appellants for the breach of contract and conspiracy. Although the FIR was registered, but a closure report as a mistake of fact was prepared. The High Court while passing the order observed that the Court would frown upon the conduct of the complainant in indulging in repeated harassment of the petitioners-appellants. Irrespective of the dispute with regard to the closure of the case, a fresh life was given to the criminal case at the instance of Superintendent of Police, who directed re-investigation and in course of the said criminal proceeding irrespective of FIR No.7/2007 the appellants were harassed and on technicalities various orders for surrender, arrest and their detention had been passed. As noticed above, in the three writ petitions filed by respondent No.1, though not against the appellant but against the C.B.I. in respect of different transactions, the High Court dismissing all those writ petitions observed that the modus operandi of the writ petitioner (respondent No.1) was to defraud the person or entity and thereafter approach the Courts with multiple proceedings in order to distract attention from his own misdeeds. 53. Neither the High Court nor the Magisterial Court have ever applied their mind and considered the conduct of the respondent and continuance of criminal proceedings in respect of the disputes, which are civil in nature and finally adjudicated by the competent authority i.e. the Company Law Board and the High Court in appeal. 54. We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law. 55. ### Response: 1 ### Explanation: We are of the definite opinion that the complainant has manipulated and misused the process of Court so as to deprive the appellants from their basic right to move free anywhere inside or outside the country. Moreover, it would be unfair if the appellants are to be tried in such criminal proceedings arising out of alleged breach of a Joint Venture Agreement specially when such disputes have been finally resolved by the Court of competent jurisdiction. Hence, allowing the criminal proceedings arising out of FIR No.7 of 2007 to continue would be an abuse of the process of the Court and, therefore, for the ends of justice such proceedings ought to be quashed. Since the High Court failed to look into this aspect of the matter while passing the impugned order, in our opinion, the same could not be sustained in law.

Isha Valimohamad & Anr Vs. Haji Gulam Mohamad & Haji Dada Trust

should survive the repeal."A privilegium, in short, is a special act affecting special persons with an anomalous advantage, or with an anomalous burthen. It is derived from privatum, which, as opposed to publicum, signified anything which regards persons considered individually: publi-cum being anything which regards persons considered collectively, and as forming a society".(see Austins Jurisprudence, Vol.II, 5th ed. (1911) p.519)The meaning of that word in jurisprudence has undergone considerable change after Austin wrote. According to Hohfeld:"....a privilege is the opposite of a duty, and the correlative of a no right." For instance, where "X has a right or claim that Y....should stay off the land (of X), he himself has the privilege of entering on the land or in equivalent words, X does not have a duty to stay off".(see Fundamental Legal Conceptions, (1923), pp. 38-39)Arthur L. Corbin writes:"We say that B had a right that A should not intrude and that A had a duty to stay out. But if B had invited A to enter, we know that those results would not occur. In such case we say that B had no right that A should stay out and that A had the privilege of entering".(see "Legal Analysis and Terminology", 29 Yale Law Journal 163)According to Kocourek:"Privilege and inability are correlatives. Where there is a privilege there must be Inability. The terms are correlatives. The dominus of a Privilege may prevent the servus of the Inability from exacting an act from the dominus"(see "Jural Relations", 2nd ed., p.24)Paton says:"The Restatement of the law of Property defines a privilege as a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a certain act".(see Jurisprudence, 3rd ed. (1964), p.256)15. We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or not. The appellants had no right or claim that the respondent should not terminate the tenancy and the respondent had, therefore, the privilege of terminating it on the ground that appellants had sub-let the premises. This privilege would survive the repeal. But the problem would still remain whether the respondent had an accrued right or privilege to recover possession of the premises under S.13 (1) of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does not mean that the landlord had an accrued right or privilege to recover possession under S.13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.16. Be that as it may, we do not, however, think that the High Court was right in its assumption that a notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sub-let the premises; or, for that matter, the landlord could legally have terminated the tenancy by giving a notice, unless the contract of tenancy prohibited the tenant from sub-letting the premises.17. Under the Transfer of Property Act, mere sub-letting by a tenant, unless the contract of tenancy so provides, is no ground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-landlord therefore could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the contract of tenancy did not prohibit sub-letting by the tenant. To put it, differently, under the Transfer of Property Act, it is only if the contract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sublet the premises and recover possession of the same after issuing a notice. Section 111 of the Transfer of Property Act provides that a lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which entails a forfeiture of the tenancy. If sub-letting is not prohibited under the contract of tenancy, sub-letting would not be a breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a notice. If that be so, there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sub-let the premises. It is only under Section13 (1) (e) of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sub-let the premises; and, that is because, Section 15 of that Act unconditionally prohibited a tenant from sub-letting. The Saurashtra Act nowhere insists that the landlord should issue a notice and terminate the tenancy before instituting a suit for recovery of possession under S.13 (1) (e) on the ground that the tenant had sub-let the premises. The position, therefore, was that the landlord was entitled to recovery possession of the premises under Section 13(1) of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that a right accrued to the landlord to recover possession under Section 13(1) of the Saurashtra Act when the tenant sub-let the premises during the currency of that Act and the right survived the repeal of that Act under proviso (2) to Section 51 of the Bombay Act and, therefore, the suit for recovery of possession of the premises under S.13(1) read with clause (e) of the Saurashtra Act after the repeal of that Act on the basis of the sub-letting during the currency of the Saurashtra Act was maintainable. In this view, we think that the judgment of the High Court must be upheld and we do so.

0[ds]10. If a notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting, we do not think that the High Court was right in its view that a right accrued to the landlord to recover possession of the premises under Section 13(1)(e) of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by Section 15 of that Act.In other words, if the assumption of the High Court that a notice terminating the tenancy on the ground of sub-letting was necessary for filling a suit under Section 13(1) (e) of the Saurashtra Act was correct, then we do not think that the respondent-landlord had an accrued right which would survive the repeal of that Act unless the notice was issued determining the tenancy during the currency of that Act. We do not think that the right of a landlord to recover possession on the ground that the tenant has sub-let the premises is an accrued right before the issue of a notice, if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of sub-letting.We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or not. The appellants had no right or claim that the respondent should not terminate the tenancy and the respondent had, therefore, the privilege of terminating it on the ground that appellants had sub-let the premises. This privilege would survive the repeal. But the problem would still remain whether the respondent had an accrued right or privilege to recover possession of the premises under S.13 (1) of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does not mean that the landlord had an accrued right or privilege to recover possession under S.13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.16. Be that as it may, we do not, however, think that the High Court was right in its assumption that a notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sub-let the premises; or, for that matter, the landlord could legally have terminated the tenancy by giving a notice, unless the contract of tenancy prohibited the tenant from sub-letting the premises.17. Under the Transfer of Property Act, mere sub-letting by a tenant, unless the contract of tenancy so provides, is no ground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-landlord therefore could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the contract of tenancy did not prohibit sub-letting by the tenant. To put it, differently, under the Transfer of Property Act, it is only if the contract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sublet the premises and recover possession of the same after issuing a notice. Section 111 of the Transfer of Property Act provides that a lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which entails a forfeiture of the tenancy. If sub-letting is not prohibited under the contract of tenancy, sub-letting would not be a breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a notice. If that be so, there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sub-let the premises. It is only under Section13 (1) (e) of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sub-let the premises; and, that is because, Section 15 of that Act unconditionally prohibited a tenant from sub-letting. The Saurashtra Act nowhere insists that the landlord should issue a notice and terminate the tenancy before instituting a suit for recovery of possession under S.13 (1) (e) on the ground that the tenant had sub-let the premises. The position, therefore, was that the landlord was entitled to recovery possession of the premises under Section 13(1) of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that a right accrued to the landlord to recover possession under Section 13(1) of the Saurashtra Act when the tenant sub-let the premises during the currency of that Act and the right survived the repeal of that Act under proviso (2) to Section 51 of the Bombay Act and, therefore, the suit for recovery of possession of the premises under S.13(1) read with clause (e) of the Saurashtra Act after the repeal of that Act on the basis of the sub-letting during the currency of the Saurashtra Act was maintainable. In this view, we think that the judgment of the High Court must be upheld and we dothere can be no doubt that the respondent could have filed a suit to recover possession under S.13(1) of the Saurashtra Act on the ground that the appellants hadsublet the premiseswhile that Act was indo not, however, think that the right of the landlord to terminate the tenancy by giving a notice on the ground that the tenant hassublet the premiseswas an accrued right within the meaning of Section 51 of the Bombay Act which would survive the repeal of the Saurashtra 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: should survive the repeal."A privilegium, in short, is a special act affecting special persons with an anomalous advantage, or with an anomalous burthen. It is derived from privatum, which, as opposed to publicum, signified anything which regards persons considered individually: publi-cum being anything which regards persons considered collectively, and as forming a society".(see Austins Jurisprudence, Vol.II, 5th ed. (1911) p.519)The meaning of that word in jurisprudence has undergone considerable change after Austin wrote. According to Hohfeld:"....a privilege is the opposite of a duty, and the correlative of a no right." For instance, where "X has a right or claim that Y....should stay off the land (of X), he himself has the privilege of entering on the land or in equivalent words, X does not have a duty to stay off".(see Fundamental Legal Conceptions, (1923), pp. 38-39)Arthur L. Corbin writes:"We say that B had a right that A should not intrude and that A had a duty to stay out. But if B had invited A to enter, we know that those results would not occur. In such case we say that B had no right that A should stay out and that A had the privilege of entering".(see "Legal Analysis and Terminology", 29 Yale Law Journal 163)According to Kocourek:"Privilege and inability are correlatives. Where there is a privilege there must be Inability. The terms are correlatives. The dominus of a Privilege may prevent the servus of the Inability from exacting an act from the dominus"(see "Jural Relations", 2nd ed., p.24)Paton says:"The Restatement of the law of Property defines a privilege as a legal freedom on the part of one person as against another to do a given act or a legal freedom not to do a certain act".(see Jurisprudence, 3rd ed. (1964), p.256)15. We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or not. The appellants had no right or claim that the respondent should not terminate the tenancy and the respondent had, therefore, the privilege of terminating it on the ground that appellants had sub-let the premises. This privilege would survive the repeal. But the problem would still remain whether the respondent had an accrued right or privilege to recover possession of the premises under S.13 (1) of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does not mean that the landlord had an accrued right or privilege to recover possession under S.13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.16. Be that as it may, we do not, however, think that the High Court was right in its assumption that a notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sub-let the premises; or, for that matter, the landlord could legally have terminated the tenancy by giving a notice, unless the contract of tenancy prohibited the tenant from sub-letting the premises.17. Under the Transfer of Property Act, mere sub-letting by a tenant, unless the contract of tenancy so provides, is no ground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-landlord therefore could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the contract of tenancy did not prohibit sub-letting by the tenant. To put it, differently, under the Transfer of Property Act, it is only if the contract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sublet the premises and recover possession of the same after issuing a notice. Section 111 of the Transfer of Property Act provides that a lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which entails a forfeiture of the tenancy. If sub-letting is not prohibited under the contract of tenancy, sub-letting would not be a breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a notice. If that be so, there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sub-let the premises. It is only under Section13 (1) (e) of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sub-let the premises; and, that is because, Section 15 of that Act unconditionally prohibited a tenant from sub-letting. The Saurashtra Act nowhere insists that the landlord should issue a notice and terminate the tenancy before instituting a suit for recovery of possession under S.13 (1) (e) on the ground that the tenant had sub-let the premises. The position, therefore, was that the landlord was entitled to recovery possession of the premises under Section 13(1) of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that a right accrued to the landlord to recover possession under Section 13(1) of the Saurashtra Act when the tenant sub-let the premises during the currency of that Act and the right survived the repeal of that Act under proviso (2) to Section 51 of the Bombay Act and, therefore, the suit for recovery of possession of the premises under S.13(1) read with clause (e) of the Saurashtra Act after the repeal of that Act on the basis of the sub-letting during the currency of the Saurashtra Act was maintainable. In this view, we think that the judgment of the High Court must be upheld and we do so. ### Response: 0 ### Explanation: 10. If a notice under the provisions of the Transfer of Property Act was necessary to determine the tenancy on the ground of sub-letting, we do not think that the High Court was right in its view that a right accrued to the landlord to recover possession of the premises under Section 13(1)(e) of the Saurashtra Act merely because the tenant sub-let the premises and that was prohibited by Section 15 of that Act.In other words, if the assumption of the High Court that a notice terminating the tenancy on the ground of sub-letting was necessary for filling a suit under Section 13(1) (e) of the Saurashtra Act was correct, then we do not think that the respondent-landlord had an accrued right which would survive the repeal of that Act unless the notice was issued determining the tenancy during the currency of that Act. We do not think that the right of a landlord to recover possession on the ground that the tenant has sub-let the premises is an accrued right before the issue of a notice, if under any law it was necessary for the landlord to issue the notice to determine the tenancy on the ground of sub-letting.We think that the respondent-landlord had the legal freedom as against the appellants to terminate the tenancy or not. The appellants had no right or claim that the respondent should not terminate the tenancy and the respondent had, therefore, the privilege of terminating it on the ground that appellants had sub-let the premises. This privilege would survive the repeal. But the problem would still remain whether the respondent had an accrued right or privilege to recover possession of the premises under S.13 (1) of the Saurashtra Act on the ground of the sub-letting before the repeal of that Act. The fact that the privilege to terminate the tenancy on the ground of sub-letting survived the repeal does not mean that the landlord had an accrued right or privilege to recover possession under S.13(1) of that Act as that right or privilege could arise only if the tenancy had been validly terminated before the repeal of the Saurashtra Act.16. Be that as it may, we do not, however, think that the High Court was right in its assumption that a notice under the Transfer of Property Act was necessary to terminate the tenancy on the ground that the appellants had sub-let the premises; or, for that matter, the landlord could legally have terminated the tenancy by giving a notice, unless the contract of tenancy prohibited the tenant from sub-letting the premises.17. Under the Transfer of Property Act, mere sub-letting by a tenant, unless the contract of tenancy so provides, is no ground for terminating the tenancy. Under that Act a landlord cannot terminate a tenancy on the ground that the tenant had sub-let the premises unless the contract of tenancy prohibits him from doing so. The respondent-landlord therefore could not have issued a notice under any of the provisions of the Transfer of Property Act to determine the tenancy, as the contract of tenancy did not prohibit sub-letting by the tenant. To put it, differently, under the Transfer of Property Act, it is only if the contract of tenancy prohibits sub-letting by tenant that a landlord can forfeit the tenancy on the ground that the tenant has sublet the premises and recover possession of the same after issuing a notice. Section 111 of the Transfer of Property Act provides that a lease may be determined by forfeiture if the tenant commits breach of any of the conditions of the contract of tenancy which entails a forfeiture of the tenancy. If sub-letting is not prohibited under the contract of tenancy, sub-letting would not be a breach of any condition in the contract of tenancy which would enable the landlord to forfeit the tenancy on that score by issuing a notice. If that be so, there was no question of the respondent landlord terminating the tenancy under the Transfer of Property Act on the ground that the tenant had sub-let the premises. It is only under Section13 (1) (e) of the Saurashtra Act that a landlord was entitled to recover possession of the property on the basis that the tenant had sub-let the premises; and, that is because, Section 15 of that Act unconditionally prohibited a tenant from sub-letting. The Saurashtra Act nowhere insists that the landlord should issue a notice and terminate the tenancy before instituting a suit for recovery of possession under S.13 (1) (e) on the ground that the tenant had sub-let the premises. The position, therefore, was that the landlord was entitled to recovery possession of the premises under Section 13(1) of the Saurashtra Act on the ground that the tenant sub-let the premises. It would follow that a right accrued to the landlord to recover possession under Section 13(1) of the Saurashtra Act when the tenant sub-let the premises during the currency of that Act and the right survived the repeal of that Act under proviso (2) to Section 51 of the Bombay Act and, therefore, the suit for recovery of possession of the premises under S.13(1) read with clause (e) of the Saurashtra Act after the repeal of that Act on the basis of the sub-letting during the currency of the Saurashtra Act was maintainable. In this view, we think that the judgment of the High Court must be upheld and we dothere can be no doubt that the respondent could have filed a suit to recover possession under S.13(1) of the Saurashtra Act on the ground that the appellants hadsublet the premiseswhile that Act was indo not, however, think that the right of the landlord to terminate the tenancy by giving a notice on the ground that the tenant hassublet the premiseswas an accrued right within the meaning of Section 51 of the Bombay Act which would survive the repeal of the Saurashtra Act.

Deonarayan Mondal Alias Debu Vs. State of West Bengal

Chandrachud, J. 1. By this petition under Article 32 of the Constitution, the petitioner challenges an order of detention dated 29th October, 1971 passed by the District Magistrate, 24-Parganas, West Bengal, under this Maintenance of Internal Security Act, 1971 (Act 26 of 1971). 2. The order of detention is expressed to have been passed with a view to preventing the petitioner "from acting in any manner prejudicial to the maintenance of public order........." The petitioner was arrested in pursuance of the detention order on 1st November 1971 and on the same date the grounds on which the order was passed were served on him. Stated briefly, the first ground says that on 11-10-1971 the petitioner and his associates formed an unlawful assembly, that they were armed with pipe guns, bombs and other lethal weapons, that they attempted to commit the murder of one Pravash Chandra Kundu, that the petitioner fired one round from his pipe gun and that these acts created terror in the particular locality and disturbed the public order. The second ground says that on 13th October l971, the petitioner and his associates, being armed with bombs and other lethal weapons, attempted to commit the murder of one Ramdhari Show for the reason that he did not subscribe to their views. The petitioner and his associates exploded bombs which caused severe injuries to Ramdhari, causing a panic and scare in the particular locality whereby public order was disturbed. 3. Learned counsel for the petitioner challenges the detention order on the ground, firstly, that there was an abnormal delay on the part of the State Government in considering the representation made by the petitioner against the order of detention. The representation was received by the Government on 7th December 1971 end it was considered by it after a delay of 27 days on 3rd January 1972. Apparently, the representation was not considered with promptitude, but the affidavit filed by the Assistant Secretary Home (Special) Department, Government of West Bengal, shows that there were adequate reasons why it could not be considered earlier. The war with Pakistan, the influx of refugees and the unprecedented problems which faced this country in December 1971, led to delay in considering the representation of the petitioner. As the delay has been satisfactorily explained, the order of detention cannot be set aside on this particular ground. 4. It is then contended that Section 10 of the Maintenance of Internal Security Act, has not been complied with by the Government in that the representation made by the petitioner was not placed before the Advisory Board within 30 days of the detention order. This submission proceeds from a misreading of S. 10 because what it provides is that the representation made by the detenu should be placed before the Advisory Board "within 30 days from the date of detention under the order" and not within 30 days from the date on which the detention order was passed. The words "the date of detention under the order" mean the date on which the detenu was arrested under the order of detention. The petitioner was arrested on 1st November 1971 and his case was placed before the Board on 30th November. 5. Counsel finally contended that the affidavit dated 30th August 1972, filed by the District Magistrate should not be given any credence because it is couched in vague term. We cannot accept this contention as the material part of the affidavit does not suffer from any vagueness. We must, however, state that since the affidavit has been made by the very officer who passed the order of detention, it should not have contained loose expressions like "it appears", which occur in paragraph 7 thereof. The order of detention specifically alleges that the two incidents which led to the detention took piece on the 11th and the 13th October 1971, respectively. The District Magistrate should therefore not have stated in his affidavit that "it appears" that the incidents took place on the two particular dates. The dates were a matter of his personal knowledge. But this error will not vitiate the order of detention.

0[ds]3. Learned counsel for the petitioner challenges the detention order on the ground, firstly, that there was an abnormal delay on the part of the State Government in considering the representation made by the petitioner against the order ofdetention. Therepresentation was received by the Government on 7th December 1971 end it was considered by it after a delay of 27 days on 3rd January 1972. Apparently, the representation was not considered with promptitude, but the affidavit filed by the Assistant Secretary Home (Special) Department, Government of West Bengal, shows that there were adequate reasons why it could not be considered earlier. The war with Pakistan, the influx of refugees and the unprecedented problems which faced this country in December 1971, led to delay in considering the representation of the petitioner. As the delay has been satisfactorily explained, the order of detention cannot be set aside on this particular ground4. It is then contended that Section 10 of the Maintenance of Internal Security Act, has not been complied with by the Government in that the representation made by the petitioner was not placed before the Advisory Board within 30 days of the detentionorder.This submission proceeds from a misreading of S. 10 because what it provides is that the representation made by the detenu should be placed before the Advisory Board "within 30 days from the date of detention under the order" and not within 30 days from the date on which the detention order was passed. The words "the date of detention under the order" mean the date on which the detenu was arrested under the order ofdetention. Thepetitioner was arrested on 1st November 1971 and his case was placed before the Board on 30th November5. Counsel finally contended that the affidavit dated 30th August 1972, filed by the District Magistrate should not be given any credence because it is couched in vague term.We cannot accept this contention as the material part of the affidavit does not suffer from any vagueness. We must, however, state that since the affidavit has been made by the very officer who passed the order of detention, it should not have contained loose expressions like "it appears", which occur in paragraph 7 thereof. The order of detention specifically alleges that the two incidents which led to the detention took piece on the 11th and the 13th October 1971, respectively. The District Magistrate should therefore not have stated in his affidavit that "it appears" that the incidents took place on the two particular dates. The dates were a matter of his personal knowledge. But this error will not vitiate the order of detention.

### 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: Chandrachud, J. 1. By this petition under Article 32 of the Constitution, the petitioner challenges an order of detention dated 29th October, 1971 passed by the District Magistrate, 24-Parganas, West Bengal, under this Maintenance of Internal Security Act, 1971 (Act 26 of 1971). 2. The order of detention is expressed to have been passed with a view to preventing the petitioner "from acting in any manner prejudicial to the maintenance of public order........." The petitioner was arrested in pursuance of the detention order on 1st November 1971 and on the same date the grounds on which the order was passed were served on him. Stated briefly, the first ground says that on 11-10-1971 the petitioner and his associates formed an unlawful assembly, that they were armed with pipe guns, bombs and other lethal weapons, that they attempted to commit the murder of one Pravash Chandra Kundu, that the petitioner fired one round from his pipe gun and that these acts created terror in the particular locality and disturbed the public order. The second ground says that on 13th October l971, the petitioner and his associates, being armed with bombs and other lethal weapons, attempted to commit the murder of one Ramdhari Show for the reason that he did not subscribe to their views. The petitioner and his associates exploded bombs which caused severe injuries to Ramdhari, causing a panic and scare in the particular locality whereby public order was disturbed. 3. Learned counsel for the petitioner challenges the detention order on the ground, firstly, that there was an abnormal delay on the part of the State Government in considering the representation made by the petitioner against the order of detention. The representation was received by the Government on 7th December 1971 end it was considered by it after a delay of 27 days on 3rd January 1972. Apparently, the representation was not considered with promptitude, but the affidavit filed by the Assistant Secretary Home (Special) Department, Government of West Bengal, shows that there were adequate reasons why it could not be considered earlier. The war with Pakistan, the influx of refugees and the unprecedented problems which faced this country in December 1971, led to delay in considering the representation of the petitioner. As the delay has been satisfactorily explained, the order of detention cannot be set aside on this particular ground. 4. It is then contended that Section 10 of the Maintenance of Internal Security Act, has not been complied with by the Government in that the representation made by the petitioner was not placed before the Advisory Board within 30 days of the detention order. This submission proceeds from a misreading of S. 10 because what it provides is that the representation made by the detenu should be placed before the Advisory Board "within 30 days from the date of detention under the order" and not within 30 days from the date on which the detention order was passed. The words "the date of detention under the order" mean the date on which the detenu was arrested under the order of detention. The petitioner was arrested on 1st November 1971 and his case was placed before the Board on 30th November. 5. Counsel finally contended that the affidavit dated 30th August 1972, filed by the District Magistrate should not be given any credence because it is couched in vague term. We cannot accept this contention as the material part of the affidavit does not suffer from any vagueness. We must, however, state that since the affidavit has been made by the very officer who passed the order of detention, it should not have contained loose expressions like "it appears", which occur in paragraph 7 thereof. The order of detention specifically alleges that the two incidents which led to the detention took piece on the 11th and the 13th October 1971, respectively. The District Magistrate should therefore not have stated in his affidavit that "it appears" that the incidents took place on the two particular dates. The dates were a matter of his personal knowledge. But this error will not vitiate the order of detention. ### Response: 0 ### Explanation: 3. Learned counsel for the petitioner challenges the detention order on the ground, firstly, that there was an abnormal delay on the part of the State Government in considering the representation made by the petitioner against the order ofdetention. Therepresentation was received by the Government on 7th December 1971 end it was considered by it after a delay of 27 days on 3rd January 1972. Apparently, the representation was not considered with promptitude, but the affidavit filed by the Assistant Secretary Home (Special) Department, Government of West Bengal, shows that there were adequate reasons why it could not be considered earlier. The war with Pakistan, the influx of refugees and the unprecedented problems which faced this country in December 1971, led to delay in considering the representation of the petitioner. As the delay has been satisfactorily explained, the order of detention cannot be set aside on this particular ground4. It is then contended that Section 10 of the Maintenance of Internal Security Act, has not been complied with by the Government in that the representation made by the petitioner was not placed before the Advisory Board within 30 days of the detentionorder.This submission proceeds from a misreading of S. 10 because what it provides is that the representation made by the detenu should be placed before the Advisory Board "within 30 days from the date of detention under the order" and not within 30 days from the date on which the detention order was passed. The words "the date of detention under the order" mean the date on which the detenu was arrested under the order ofdetention. Thepetitioner was arrested on 1st November 1971 and his case was placed before the Board on 30th November5. Counsel finally contended that the affidavit dated 30th August 1972, filed by the District Magistrate should not be given any credence because it is couched in vague term.We cannot accept this contention as the material part of the affidavit does not suffer from any vagueness. We must, however, state that since the affidavit has been made by the very officer who passed the order of detention, it should not have contained loose expressions like "it appears", which occur in paragraph 7 thereof. The order of detention specifically alleges that the two incidents which led to the detention took piece on the 11th and the 13th October 1971, respectively. The District Magistrate should therefore not have stated in his affidavit that "it appears" that the incidents took place on the two particular dates. The dates were a matter of his personal knowledge. But this error will not vitiate the order of detention.

State Of Gujarat Vs. Musamiyan Imam Haider Bux Razvi And Anr. Etc. Etc

leave of the Court so as to include a challenge to the validity of the fresh notification under section 6 of the Act. The petitioner in the aforesaid Special Civil Application No. 1100 of 1963 did not amend his application but filed a fresh petition under Article 226 of the Constitution being Special Civil Application No. 218 of 1968 challenging the fresh notification under section 6 of the Act. Yet another petit ion under Article 226 of the Constitution being Special Civil Application No. 1441 of 1966 was filed in the High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of 1970 challenging the validity of the fresh notification dated June 6, 1966 issued under section 5 of the Act. All these petitions were heard together. While the High Court by common judgment dated April 25, 1969 dismissed petition No. 1100 of 1963 as infructuous in view of the fresh notification under section 6 of the Act, it allowed the other three aforesaid petitions following its earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and quashed the fresh notification dated June 6, 1966 issued by the Government of Gujarat under section 6 of the Act holding inter alia that the cancellation of the first section 6 notification would, in any event, tantamount to withdrawal from acquisition and no subsequent notification under section 6 of the Act could, thereafter be issued without a fresh notification under section 4 of the Act. The appellants thereupon applied for and obtained certificate referred to above. It is how these appeals are before us.Although two important points were raised in the aforesaid writ petitions viz. (1) whether the acquisition of land for Co-operative Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under section 6 of t he Act and issue a fresh notification dated April 28, 1966 under the said section of the Act, the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankerbhai &Ors. v. St ate of Gujarat &Ors.(1) Pandit Jhandu Lal &Ors. v. The State of Punjab(2) and Ram Swarup v. The District Land Acquisition Officer, Aligarh &Ors.(1) In these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in question is a public purpose or not; it cannot be contended that a housing scheme for a limited number of persons cannot be considered as a public purpose; and the need of a section of the public may be a public purpose.3. The second contention raised on behalf of the contesting respondents that the cancellation of the first section 6 notification amounts to withdrawal from acquisition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdharilal Amratlal Shodan and Ors. v. State of Gujarat and Ors.(2) w here it was categorically held that when a notification under section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the A ct precludes the Government from doing so and that the cancellation of the earlier notification is only a recognition of the invalidity of that notification. The following observations made therein are apposite:Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 (under section 6), the power of the State Government to issue a notification under section 6 was exhausted and the Government could not issue a fresh notification under section 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under section 6. In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964. 4. No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(3) which turned on another point. In that case after the issue of the notification under section 4(1) of the Act, a number notifications in respect of different items of land included in the locality specified in the notification under section 4(1) of the Act were issued under section 6. The following observations made in that case are pertinent:- But as we read these sections (viz. sections 4, 5A and 6) together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs. This is followed by a declaration under section 6 specifying the particular land needed and that in our opinion completes the process....... At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised ........ The sequence of events from a notification of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification under section 4(1) is issued, the remaining non-particularised area stands automatically released. Thus in view of the decision of this Court in Girdharilal Amartlal Shodans case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand.

1[ds]There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under section 6. In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(3) which turned on another point. In that case after the issue of the notification under section 4(1) of the Act, a number notifications in respect of different items of land included in the locality specified in the notification under section 4(1) of the Act were issued under section 6. The following observations made in that case are pertinent:-But as we read these sections (viz. sections 4, 5A and 6) together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs. This is followed by a declaration under section 6 specifying the particular land needed and that in our opinion completes the process....... At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised ........ The sequence of events from a notification of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification under section 4(1) is issued, the remaining non-particularised area stands automatically released.Thus in view of the decision of this Court in Girdharilal Amartlal Shodans case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand.

### 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: leave of the Court so as to include a challenge to the validity of the fresh notification under section 6 of the Act. The petitioner in the aforesaid Special Civil Application No. 1100 of 1963 did not amend his application but filed a fresh petition under Article 226 of the Constitution being Special Civil Application No. 218 of 1968 challenging the fresh notification under section 6 of the Act. Yet another petit ion under Article 226 of the Constitution being Special Civil Application No. 1441 of 1966 was filed in the High Court on November 20, 1966 by respondent No. 1 in Civil Appeal No. 1871 of 1970 challenging the validity of the fresh notification dated June 6, 1966 issued under section 5 of the Act. All these petitions were heard together. While the High Court by common judgment dated April 25, 1969 dismissed petition No. 1100 of 1963 as infructuous in view of the fresh notification under section 6 of the Act, it allowed the other three aforesaid petitions following its earlier decision in Special Civil Application Nos. 316, 625 and 811 of 1965 and quashed the fresh notification dated June 6, 1966 issued by the Government of Gujarat under section 6 of the Act holding inter alia that the cancellation of the first section 6 notification would, in any event, tantamount to withdrawal from acquisition and no subsequent notification under section 6 of the Act could, thereafter be issued without a fresh notification under section 4 of the Act. The appellants thereupon applied for and obtained certificate referred to above. It is how these appeals are before us.Although two important points were raised in the aforesaid writ petitions viz. (1) whether the acquisition of land for Co-operative Housing Society is a public purpose and (2) whether the Government could cancel the notification dated April 29, 1963 issued by it under section 6 of t he Act and issue a fresh notification dated April 28, 1966 under the said section of the Act, the first point does not survive and has rightly not been canvassed before us in view of the decisions of this Court in Ratilal Shankerbhai &Ors. v. St ate of Gujarat &Ors.(1) Pandit Jhandu Lal &Ors. v. The State of Punjab(2) and Ram Swarup v. The District Land Acquisition Officer, Aligarh &Ors.(1) In these cases, it has been made clear that ordinarily the Government is the best authority to determine whether the purpose in question is a public purpose or not; it cannot be contended that a housing scheme for a limited number of persons cannot be considered as a public purpose; and the need of a section of the public may be a public purpose.3. The second contention raised on behalf of the contesting respondents that the cancellation of the first section 6 notification amounts to withdrawal from acquisition and no subsequent notification under section 6 of the Act can thereafter be issued without a fresh notification under section 4 of the Act cannot be countenanced in view of the decision of this Court in Girdharilal Amratlal Shodan and Ors. v. State of Gujarat and Ors.(2) w here it was categorically held that when a notification under section 6 of the Act is invalid, the Government may treat it as ineffective and issue in its place a fresh notification under section 6 and that nothing in section 48 of the A ct precludes the Government from doing so and that the cancellation of the earlier notification is only a recognition of the invalidity of that notification. The following observations made therein are apposite:Counsel for the appellants next submitted that on issuing the notification dated July 18, 1961 (under section 6), the power of the State Government to issue a notification under section 6 was exhausted and the Government could not issue a fresh notification under section 6. There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under section 6. In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964. 4. No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(3) which turned on another point. In that case after the issue of the notification under section 4(1) of the Act, a number notifications in respect of different items of land included in the locality specified in the notification under section 4(1) of the Act were issued under section 6. The following observations made in that case are pertinent:- But as we read these sections (viz. sections 4, 5A and 6) together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs. This is followed by a declaration under section 6 specifying the particular land needed and that in our opinion completes the process....... At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised ........ The sequence of events from a notification of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification under section 4(1) is issued, the remaining non-particularised area stands automatically released. Thus in view of the decision of this Court in Girdharilal Amartlal Shodans case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand. ### Response: 1 ### Explanation: There is no substance in this contention. The notification dated July 18, 1961 was invalid. By the issue of this notification, the Government had not effectively exercised its power under section 6. In the circumstances, the Government could well issue the fresh notification under section 6 dated August 14, 1964No help can be derived by the contesting respondents from the decision of this Court in State of Madhya Pradesh and Ors. v. Vishnu Prasad Sharma and Ors.(3) which turned on another point. In that case after the issue of the notification under section 4(1) of the Act, a number notifications in respect of different items of land included in the locality specified in the notification under section 4(1) of the Act were issued under section 6. The following observations made in that case are pertinent:-But as we read these sections (viz. sections 4, 5A and 6) together we can only find that the scheme is that section 4 specifies the locality, then there may be survey and drawing of maps of the land and the consideration whether the land is adapted for the purpose for which it has to be acquired, followed by objections and making up of its mind by the Government that what particular land out of that locality it needs. This is followed by a declaration under section 6 specifying the particular land needed and that in our opinion completes the process....... At the stage of section 4 the land is not particularised but only the locality is mentioned at the stage of section 6 the land in the locality is particularised ........ The sequence of events from a notification of the intention to acquire [section 4(1)] to the declaration under section 6 unmistakably leads one to the reasonable conclusion that when once a declaration under section 6 particularising the area out of the area in the locality specified in the notification under section 4(1) is issued, the remaining non-particularised area stands automatically released.Thus in view of the decision of this Court in Girdharilal Amartlal Shodans case (supra), the impugned judgment of the Gujarat High Court cannot be allowed to stand.

Shanti Fragrances Vs. Union of India (UOI) and Ors

Salmon disagreed on the law, and held that his claim was barred. Lord Pearson was stated to be the odd man out. He held that time did not run against Dodd, since Dodd did not appreciate that the Appellants were at fault and that his injuries were attributable to their fault. On that ground, he agreed with Lord Reid and Lord Morris, as a result of which Dodd succeeded. However, he went on to say that he agreed with the opinion of the minority as to the proper construction of the statute in law. Faced with this, Lord Denning M.R. set out four interesting propositions on how a ratio is to be discovered and or read in a judgment. He stated: How then do we stand on the law? We have listened to a most helpful discussion by counsel for the proposed Plaintiffs on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority based their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House. (at page 446) He then went on to state as follows: Applying the propositions to the decision in Central Asbestos Co. Ltd. v. Dodd the position stands thus. (1) The actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two-Lord Simon of Glaisdale and Lord Salmon-on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct, because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct. In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted. (at page 446) Stephenson LJ. concurred. The learned Lord stated: I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave. (at page 447)

1[ds]This is obviously a case of legislation by incorporation as a result of which the only thing that is to be looked at is tobacco contained in this Schedule and not subsequent amendments that have been made after the introduction of the Central Excise (Tariff) Act, 1985 w.e.f. February, 1986.7. It is well settled that in the area of taxation, the question of going to the measure of a tax would arise only if it is found that the charge of tax is attracted. [See Tata Sky Limited v. State of Madhya Pradesh and Ors. (2013) 4 SCC 656 at para 29] Also, in a recent Constitution Bench judgment delivered by this Court in Commissioner of Income Tax (Central)-I, New Delhi v. Vatika Township Private Limited, (2015) 1 SCC 1 , after referring to an earlier judgment of this Court, this Court stated that the components which enter into the concept of taxability are well known and distinct. The first is the imposition of tax which prescribes the taxable event attracting the levy. The second is an indication of the taxable person i.e. the person on whom the levy is imposed and who is obliged to pay the tax. The third is the rate at which tax is imposed. The fourth is the measure or value to which the levy will be applied for computing tax liability.10. It does appear that there is a direct conflict between Kothari Products (supra), Radheshyam Gudakhu Factory (supra) and Reliance Trading Company (supra) judgments on the one hand, and Agra Belting Works (supra), which was also followed by two other judgments, on the other. We may hasten to add that there are three Judge Bench decisions on both sides. Interestingly enough, in Agra Belting Works (supra), this Court held by a majority of two to one as follows:6. As has been pointed out above, Section 3 is the charging provision; Section 3-A authorises variation of the rate of tax and Section 4 provides for exemption from tax. All the three Sections are parts of the taxing scheme incorporated in the Act and the power both Under Section 3-A as also Under Section 4 is exercisable by the State Government only. When after a notification Under Section 4 granting exemption from liability, a subsequent notification Under Section 3-A prescribes the rate of tax, it is beyond doubt that the intention is to withdraw the exemption and make the sale liable to tax at the rate prescribed in the notification. As the power both for the grant of exemption and the variation of the rate of tax vests in the State Government and it is not the requirement of the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification Under Section 3-A, we see no force in the contention of the Assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification-both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State and the intention to levy the tax is clear we see no justification for not giving effect to the second notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified Under Section 3-A of the Act.B.C. Ray, J. dissented from this view and followed the view of the Allahabad High Court, which accords the view of this Court in the Kothari Products (supra) and Reliance Trading Company (supra) judgments. One other interesting feature of this case is whether, after Union of India v. Raghubir Singh, 1989 (3) SCR 316 at 335-337, it can be stated that Judges of this Court do not sit in 2s and 3s for mere convenience, but that a Bench which is numerically superior will prevail over a Bench of lesser strength. If the doctrine of precedent, as applied by this Court, is to be a matter of numbers, then, interestingly enough, as has been held by Beaumont C.J. in Ningappa Ramappa Kurbar and Anr. v. Emperor AIR 1941 Bombay 408 at 409, the position in law could be as under:... The Court in that case consisted of five Judges, one of whom, Shah J., dissented from that proposition. The authority of the case may be open to question, since there had been a previous decision of a Full Bench of this Court of four Judges in Queen-Empress v. Mugappa, (1894) 18 Bom 377 (FB), which had reached a different conclusion. Apparently it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority on the powers and constitution of a Full Bench.There can be no doubt that a Full Bench can overrule a Division Bench, and that a Full Bench must consist of three or more Judges; but it would seem anomalous to hold that a later Full Bench can overrule an earlier Full Bench, merely because the later bench consists of more Judges than the earlier. If that were the rule, it would mean that a bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a bench of six Judges, though all the Judges were of co-ordinate jurisdiction. In Enatullah v. Kowsher Ali,(1926) 54 Cal 266, Sanderson C.J., stating the practice in Calcutta, seems to have been of opinion that a decision of a Full Bench could only be reversed by the Privy Council or by a bench specially constituted by the Chief Justice. Even if this be the true rule, there is nothing to show that the Chief Justice acted upon it in Emperor v. Purshottam Ishwar (1921) 45 Bom 834. I do not recollect myself ever to have constituted a Special Bench to consider the ruling of a Full Bench, though I have constituted many Full Benches to consider rulings of Division Benches. However, I need not pursue this subject further, since, for the purpose of the present appeal, I am prepared to assume that an alternative charge of perjury lies, and that it was a charge of that nature which the learned Additional Sessions Judge contemplated. The question then is whether it is expedient in the interests of justice that such a charge should be made.12. It may be pointed out that in the present case, if numbers are toted up, the Kothari Products (supra) line, as followed in Radheshyam Gudakhu Factory (supra) and Reliance Trading Company (supra), will go to a Bench strength, numerically speaking, of eight learned Judges, as against the Agra Belting Works (supra) line, which goes up to a numerical strength of six learned Judges. If the dissenting judgment of B.C. Ray, J. is to be added to the Kothari Products (supra) line, then we have a numerical strength of 9:6. The question of numerical strength gains poignancy when one judgment is overruled by another, as has been pointed by Beaumont C.J. in Ningappa Ramappa Kurbar (supra), and by Lokur, J. in Supreme Court Advocates-on-Record (supra).13. Let us consider a hypothetical example, where a 2 Judge Bench has laid down the law in a particular way. If nine other 2 Judge Benches have followed the first 2 Judge Bench decision, is it open for three learned Judges to overrule all of the 2 Judge Benches i.e. twenty learned Judges? The obvious answer would be yes, because the 3 Judge Bench is really overruling the first 2 Judge Bench decision, which was merely followed by nine other 2 Judge Benches. As against this, however, if a unanimous 5 Judge Bench decision is overruled by a 7 Judge Bench, with four learned Judges speaking for the majority, and three learned Judges speaking for the minority, can it be said that the 5 Judge Bench has been overruled? Under the present practice, it is clear that the view of four learned Judges speaking for the majority in a 7 Judge Bench will prevail over a unanimous 5 Judge Bench decision, because they happen to speak for a 7 Judge Bench. Has the time come to tear the judicial veil and hold that in reality a view of five learned Judges cannot be overruled by a view of four learned Judges speaking for a Bench of 7 learned Judges? This is a question which also needs to be addressed and answered.In Harper and Ors. v. National Coal Board [1974] 2 All ER 441, the Court of Appeal was faced with a judgment of the House of Lords in Central Asbestos Co. Ltd. v. Dodd [1972] 2 All ER 1135 by five learned Judges. Whereas Lord Reid and Lord Morris took a particular view of the law in favour of Dodd, stating that his claim was not barred, two other learned Judges namely, Lord Simon and Lord Salmon disagreed on the law, and held that his claim was barred. Lord Pearson was stated to be the odd man out. He held that time did not run against Dodd, since Dodd did not appreciate that the Appellants were at fault and that his injuries were attributable to their fault. On that ground, he agreed with Lord Reid and Lord Morris, as a result of which Dodd succeeded. However, he went on to say that he agreed with the opinion of the minority as to the proper construction of the statute in law. Faced with this, Lord Denning M.R. set out four interesting propositions on how a ratio is to be discovered and or read in a judgment. He stated:How then do we stand on the law? We have listened to a most helpful discussion by counsel for the proposed Plaintiffs on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority based their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House.(at page 446)He then went on to state as follows:Applying the propositions to the decision in Central Asbestos Co. Ltd. v. Dodd the position stands thus. (1) The actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two-Lord Simon of Glaisdale and Lord Salmon-on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct, because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct.In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted.(at page 446)Stephenson LJ. concurred. The learned Lord stated:I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave.(at page 447)5. The impugned judgment of the Delhi High Court dated 05.11.2004 has held, on a reading of the aforesaid provisions, that a notification dated 31.03.2000, which introduced as Item 46 in the First Schedule Pan Masala and Gutka w.e.f. 01.04.2000, would have to be read as eating into the exemption for tobacco generally, and that therefore, on and from this date, Pan Masala which includes tobacco would become exigible to sales tax.This was done on two bases; first, that, as was held by the Kerala High Court in Reliance Trading Company v. State of Kerala, (2000) 119 STC 321 (Ker.) , if there are two entries, one general and Anr. specific, the general entry must give way to the specific entry. The exemption entry being general in nature, therefore, must give way to the specific entry contained in the First Schedule, and that therefore, sales tax became payable on Pan Masala which includes tobacco. The other basis of the judgment is that there is a dichotomy between two lines of Supreme Court judgments. The first line is contained in Kothari Products Ltd. v. Government of A.P., (2000) 9 SCC 263 and State of Orissa v. Radheshyam Gudakhu Factory, (1987) 68 STC 92; the second line of decisions being Commissioner, Sales Tax U.P. v. M/s. Agra Belting Works, Agra (1987) 3 SCC 140 as followed in Sales Tax Officer, Section IX, Kanpur v. Dealing Dairy Products and Anr. 1994 Supp. (2) SCC 639 and State of Bihar and Ors. v. Krishna Kumar Kabra and Anr. (1998) 108 STC 1. Whereas the Kothari Products (supra) line of judgments had held that an entry under a sales tax statute which only specifies rate cannot be used to eat into an exemption entry, the Agra Belting Works (supra) line of judgments states the exact opposite, which is that the charging section, the rate of tax section, and the exemption Section all form part of one scheme, and when a notification is issued under a rate of tax section, which is subsequent to a notification exempting certain goods, the intention of the legislature is that such exemption then gets withdrawn and makes the sale of such goods liable to tax. The High Court preferred to follow the Agra Belting Works (supra) line, and therefore, dismissed the writ petition of the Assessees.6. To similar effect are the impugned judgments from the Allahabad and Madras High Courts which are contained in C.A. No. 8617/2014 and C.A. No. 8502/2011.It may only be noted that in the Madras High Court judgment, though this point was squarely raised and argued, the Madras High Court has preferred to rest its decision on only one point, which is that even though additional duty of excise may be levied on Pan Masala containing tobacco, the legislative competence of the State to enact a State sales tax levying sales tax on the same goods is not taken away.

### 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: Salmon disagreed on the law, and held that his claim was barred. Lord Pearson was stated to be the odd man out. He held that time did not run against Dodd, since Dodd did not appreciate that the Appellants were at fault and that his injuries were attributable to their fault. On that ground, he agreed with Lord Reid and Lord Morris, as a result of which Dodd succeeded. However, he went on to say that he agreed with the opinion of the minority as to the proper construction of the statute in law. Faced with this, Lord Denning M.R. set out four interesting propositions on how a ratio is to be discovered and or read in a judgment. He stated: How then do we stand on the law? We have listened to a most helpful discussion by counsel for the proposed Plaintiffs on the doctrine of precedent. One thing is clear. We can only accept a line of reasoning which supports the actual decision of the House of Lords. By no possibility can we accept any reasoning which would show the decision itself to be wrong. The second proposition is that, if we can discover the reasoning on which the majority based their decision, then we should accept that as binding on us. The third proposition is that, if we can discover the reasoning on which the minority based their decision, we should reject it. It must be wrong because it led them to the wrong result. The fourth proposition is that if we cannot discover the reasoning on which the majority based their decision we are not bound by it. We are free to adopt any reasoning which appears to us to be correct, so long as it supports the actual decision of the House. (at page 446) He then went on to state as follows: Applying the propositions to the decision in Central Asbestos Co. Ltd. v. Dodd the position stands thus. (1) The actual decision of the House in favour of Dodd must be accepted as correct. We cannot accept any line of reasoning which would show it to be wrong. We cannot therefore accept the reasoning of a minority of two-Lord Simon of Glaisdale and Lord Salmon-on the law. It must be wrong because it led them to the wrong result. (2) We ought to accept the reasoning of the three in the majority if we can discover it. But it is not discoverable. The three were divided. Lord Reid and Lord Morris of Borth-y-Gest took one view of the law. Lord Pearson took another. We cannot say that Lord Reid and Lord Morris of Borth-y-Gest were correct, because we know that their reasoning on the law was in conflict with the reasoning of the other three. We cannot say that Lord Pearson was correct because we know that the reasoning which he accepted on the law led the other two (Lord Simon of Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct. In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted. (at page 446) Stephenson LJ. concurred. The learned Lord stated: I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave. (at page 447) ### Response: 1 ### Explanation: Glaisdale and Lord Salmon) to a wrong conclusion. So we cannot say that any of the three in the majority was correct. (3) The result is that there is no discernible ratio among the majority of the House of Lords. In these circumstances I think we are at liberty to adopt the reasoning which appears to us to be correct.In my opinion we should adopt the reasoning which was accepted in this Court in the long line of cases before the decision of the House of Lords. None of these was overruled. They may therefore be said to be binding on us. But in any case we should follow their reasoning, especially as it was accepted by two of their Lordships who were in the majority and was expressed convincingly by Lord Morris of Borth-y-Gest in the passage I have quoted.(at page 446)Stephenson LJ. concurred. The learned Lord stated:I agree. I cannot find any discernible ratio decidendi common to the majority of the House of Lords in deciding Dodds case. Their Lordships were divided three to two in the decision to affirm the judgment of the Court of Appeal; but in the reasons for their decision they appeared to be divided two to two, Lord Pearson taking a third view which perhaps came closer to the view of the minority. In those circumstances I do not think that we can treat the reasoning of the majority of the majority-Lord Reid and Lord Morris of Borth-y-Gest-as the ratio decidendi of the house. It is the ratio given by only two out of five. Still less can we treat the ratio decidendi appearing from the speeches of the minority-Lord Simon of Glaisdale and Lord Salmon-as binding if added to Lord Pearsons. That seems to have been the view of Thesiger J; but having had the advantage denied to him of counsels argument, I respectfully disagree with him. We are therefore bound by the decision of the House of Lords affirming the decision of this Court, but not by the reasoning in the speeches of their Lordships. That, in my judgment, sends us back to the decision of this Court [1971] 3 All ER 204, [1972] 1 QB 244 and the ratio of its decision. If there is in the Court of Appeal a discernible reason for their decision common to the majority, it stands and binds us. I think that there is. I agree that we should take the same view of the 1963 Act as was taken by the Court of Appeal in Dodds case, confirmed as it is most persuasively by the approval of Lord Reid and Lord Morris of Borth-y-Gest in the House of Lords. Applying that construction of the Act to the circumstances of this case, I agree with Lord Denning MR that they are stronger on the facts, as we have them on affidavit only, than those which enabled Dodd to bring himself, not without difficulty, within the Act. I therefore concur in allowing this appeal and giving the Appellants leave.(at page 447)5. The impugned judgment of the Delhi High Court dated 05.11.2004 has held, on a reading of the aforesaid provisions, that a notification dated 31.03.2000, which introduced as Item 46 in the First Schedule Pan Masala and Gutka w.e.f. 01.04.2000, would have to be read as eating into the exemption for tobacco generally, and that therefore, on and from this date, Pan Masala which includes tobacco would become exigible to sales tax.This was done on two bases; first, that, as was held by the Kerala High Court in Reliance Trading Company v. State of Kerala, (2000) 119 STC 321 (Ker.) , if there are two entries, one general and Anr. specific, the general entry must give way to the specific entry. The exemption entry being general in nature, therefore, must give way to the specific entry contained in the First Schedule, and that therefore, sales tax became payable on Pan Masala which includes tobacco. The other basis of the judgment is that there is a dichotomy between two lines of Supreme Court judgments. The first line is contained in Kothari Products Ltd. v. Government of A.P., (2000) 9 SCC 263 and State of Orissa v. Radheshyam Gudakhu Factory, (1987) 68 STC 92; the second line of decisions being Commissioner, Sales Tax U.P. v. M/s. Agra Belting Works, Agra (1987) 3 SCC 140 as followed in Sales Tax Officer, Section IX, Kanpur v. Dealing Dairy Products and Anr. 1994 Supp. (2) SCC 639 and State of Bihar and Ors. v. Krishna Kumar Kabra and Anr. (1998) 108 STC 1. Whereas the Kothari Products (supra) line of judgments had held that an entry under a sales tax statute which only specifies rate cannot be used to eat into an exemption entry, the Agra Belting Works (supra) line of judgments states the exact opposite, which is that the charging section, the rate of tax section, and the exemption Section all form part of one scheme, and when a notification is issued under a rate of tax section, which is subsequent to a notification exempting certain goods, the intention of the legislature is that such exemption then gets withdrawn and makes the sale of such goods liable to tax. The High Court preferred to follow the Agra Belting Works (supra) line, and therefore, dismissed the writ petition of the Assessees.6. To similar effect are the impugned judgments from the Allahabad and Madras High Courts which are contained in C.A. No. 8617/2014 and C.A. No. 8502/2011.It may only be noted that in the Madras High Court judgment, though this point was squarely raised and argued, the Madras High Court has preferred to rest its decision on only one point, which is that even though additional duty of excise may be levied on Pan Masala containing tobacco, the legislative competence of the State to enact a State sales tax levying sales tax on the same goods is not taken away.

Narendra Kumar And Others Vs. The Union Of India And Others

control to keep middlemens activities to the minimum and to replace them largely by co-operative sale societies of producers and co-operative purchase societies of the consumers. While it is clear that the middleman does perform important services, it is equally clear that the interests of the public would be best secured interests of the public would be best secured if these services could be obtained at a price lower than what the middleman would ordinarily charge. If the middleman ceases to function because of the fixation of price at landed cost plus 31/2 p.c., the manufactures who require copper as their raw material will have to establish contacts with importers. This will mean some trouble and inconvenience to them, but it is reasonable to think that saving in the cost of obtaining the raw material would more than compensate them for this. The lower cost of the raw material is also likely to be reflected - in a competitive market - in the lower price of the consumers goods. of which copper is raw material, and thus redound to the benefit of the general public. 23. It must therefore be held that Cl. 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read with the principles specified must also be held for the same reason to be a reasonable restriction. 24. It was next urged that these principles are discriminatory as between manufactures and dealers and so violate Art. 14 of the Constitution. Quite clearly the dealers and manufactures are by these principles placed in different classes and while some manufactures are eligible for permits dealers are not. It is equally clear however from what has already been said above that the differentia which distinguish dealers as a class from manufactures placed in the other class have a reasonable connection with the object of the legislation. There is therefore no substance in the contention that the specification of the principles violates Art. 14 of the Constitution. 25. While however Cl. 3 of the Order is clearly within the Act the question whether Cl. 4 read with the principles is within the Act or not is not free from difficulty. If the principles had been specified in the Order itself and/or had been notified in the Official Gazette and laid before both the Houses of Parliament in the manner indicated in sub-ss. (5) and (6) of S. 3 of the Act the regulation by Cl. 4 would have been within the Act. These principles were not however mentioned in the Order nor were they notified or laid before both Houses of Parliament in the manner laid down in sub-ss. (5) and (6) of S. 3. The regulation in so far as it is by these principles is therefore not a regulation by an order under S. 3 of the Act but wholly outside it and so would not come within the protection of the saving provisions of Cls. 5 and 6 of Art. 19 of the Constitution. 26. But without the principles, Cl. 4 of the Order is not effective. The system of permits which this clause is designed to introduce can come into existence only if the permits can be issued; but permits issued only in accordance with the principles laid down by the Central Government. It is not possible to build on the use of the words "may specify" in Cl. 4 an argument that so long as no principles are specified the Controller would have authority to issue permits by exercise of his own judgment and discretion. The words used in Cl. 4 do not permit such a construction and compel the conclusion that so long as the principles are not specified by the Central Government no permit can be issued by the Controller. Enforcement of the provision that no person shall acquire or agree to acquire except under a permit, would thus, so long as the principles are not specified in a legal manner as required by sub-ss. (5) and (6) of S. 3 of the Essential Commodities Act, would mean a total stoppage of the copper trade - not only of the transactions of dealers but of any transaction whatever in imported copper. On the face of it this could not be a reasonable restriction in the interest of the general public.There is no escape therefore from the conclusion that so long as principles are not specified by the Central Government by an Order notified in accordance with subs-s. (5) and laid before both Houses of Parliament in accordance with sub-s. (6) of S. 3, the regulation by Cl.4 as it is now worded is not within the saving provisions of Arts. 19(5) and 19(6) of the Constitution, and is void as taking away the rights conferred by Arts. 19(1)(f) and 19(1)(g). 27. All that is necessary to make Cl. 4 effective is that some principles should be specified, and these notified in the Gazette, and laid before the Houses of Parliament. It my be necessary from time to time to specify new principles in view of the changed circumstances; these have again to be notified in the Gazette and laid before the Houses of Parliament, in order to be effective. So long as new principles do not come into operation, by being specified by Government, and thereafter notified in the Gazette, and laid before Houses of Parliament, the previous principles last specified, notified in the Gazette and laid before Houses of Parliament, will remain effective. As, however, the principles specified in the letter of the 18th April have not been notified in the Gazette, nor laid before Houses of Parliament, and no principles appear to have been specified before or after that date, Cl. 4 of the order, as now stands, must be struck down as void. 28. The petitioners are therefore entitled to relief only in respect of Cl. 4 of the order.

1[ds]Mala fides have not been suggested and we are proceeding on the assumption that the Central Government was honestly of opinion that it was necessary and expedient to make an order providing for regulation and prohibition of the supply and distribution of imported copper and trade and commerce therein. So long as the Order does not go beyond such provisions, the Order, it is urged, must be held to be good and the consideration of any question of infringement of fundamental rights under the Constitution is wholly beside the point. Such an extravagant argument has merely to be mentioned to deserve rejection. If there was any reason to think that S. 3 of the Act confers on the Central Government power to do anything which is in conflict with the Constitution - anything which violates any of the fundamental rights conferred by the Constitution, that fact alone would be sufficient and unassailable ground for holding that the section itself is void being ultra vires the Constitution. When, as in this case, no challenge is made that S. 3 of the Act is ultra vires the Constitution, it is on the assumption that the powers granted thereby do not violate the Constitution and do not empower the Central Government to do anything which the Constitution prohibits. It is fair and proper to presume that in passing this Act the Parliament could not possibly have intended the words used by it, viz., "may by order provide for regulating or prohibiting the production, supply and distribution thereof, and trade and commerce in," to include a power to make such provisions even though they may be in contravention of the Constitution.The fact that the words "in accordance with the provisions of the articles of the Constitution" are not used in the section is of no consequence. Such words have to be read by necessary implication in every provision and every law made by the Parliament on any day after the Constitution came into force. It is clear therefore that when S. 3 confers power to provide for regulation or prohibition of the production, supply and distribution of any essential commodity it gives such power to make any regulation or prohibition in so far as such regulation and prohibition do not violate any fundamental rights granted by the Constitution of IndiaIt is clear that in these three cases, viz., Chintaman Raos Case, 1950 SCR 759 : (AIR 1951 SC 118 ), Cooverjees Case, 1954 SCR 873 : (AIR 1954 SC 220 ) and M. B. Cotton Association Ltd. Case, AIR 1954 SC 634 (supra) the Court considered the real question to be whether the interference with the fundamental right was "reasonable" or not in the interests of the general public and that if the answer to the question was in the affirmative, the law would be valid and it would be invalid if the test of reasonableness was not passed. Prohibition was in all these cases treated as only a kind of "restriction". Any other view would, in our opinion, defeat the intention of the Constitution17. After Art. 19(1) has conferred on the citizen the several rights set out in its seven sub-clauses, action is at once taken by the Constitution in Cls. 2 to 6 to keep the way of social control free from unreasonable impediment. The raison detre of a State being the welfare of the members of the State by suitable legislation and appropriate administration, the whole purpose of the creation of the State would be frustrated if the conferment of these seven rights would result in cessation of legislation in the extensive fields where these seven rights operate. But without the saving provisions that would be the exact result of Art. 13 of the Constitution. It was to guard against this position that the Constitution provided in its Cls. 2 to 6 that even in the fields of these rights new laws might be made and old laws would operate where this was necessary for general welfare. Laws imposing reasonable restriction on the exercise of the rights are saved by Cl. 2 in respect of rights under sub-cl. (a) where the restrictions are "in the interests of the security of the State;" and of other matters mentioned therein; by Cl. 3 in respect of the rights conferred by sub-cl. (b) where the restrictions are "in the interests of the public order;" by Cls. 4, 5 and 6 in respect of the rights conferred by sub-cls. (c), (d), (e), (f) and (g) the restrictions are "in the interests of the general public" -in Cl. 5 which is in respect of rights conferred by sub-cls. (d), (e) and (f) also where the restrictions are "for the protection of the interests of any scheduled tribe". But for these saving provisions such laws would have been void because of Art. 13, which is in these words :"All laws in force, in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency be void; (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.."18. As it was to remedy the harm that would otherwise be caused by the provisions of Art. 13, that these saving provisions were made, it is proper to remember the words of Art. 13 in interpreting the words "reasonable restrictions" on the exercise of the right as used in Cl. (2).It is reasonable to think that the makers of the Constitution considered the word "restriction" to be sufficiently wide to save laws "inconsistent" with Art. 19 (1), or "taking away the rights" conferred by the Article, provided this inconsistency or taking away was reasonable in the interests of the different matters mentioned in the clause. There can be no doubt therefore that they intended the word "restriction" to include cases of "prohibition" also. The contention that a law prohibiting the exercise of a fundamental right is in no case saved, cannot therefore be accepted. It is undoubtedly correct, however, that when, as in the present case, the restriction reaches the stage of prohibition special care has to be taken by the Court to see that the test of reasonableness is satisfied. The greater the restriction, the more the need for strict scrutiny by the CourtIn applying the test of reasonableness, the Court has to consider the question in the background of the facts and circumstances under which the order was made, taking into account the nature of the evil that was sought to be remedied by such law, the ratio of the harm caused to individual citizens by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It will also be necessary to consider in that connection whether the restraint caused by the law is more than was necessary in the interests of the general publicClause 3 of the Order fixes a price while Cl. 4 introduces a system of permits for the acquisition of the material. Some fixation of price, being essential to keep prices within reasonable limits, must therefore be held to be a reasonable restriction in the interests of the general public. Was it necessary, however, that the prices should be fixed in such a manner as to eliminate the dealer completely, as has been done in the instant case? The introduction of a system of permits was also clearly necessary in the interests of the general public. Was it necessary however to specify the principles that would drive the dealer out of business? These questions require careful consideration, for the injury inflicted on the dealer by such elimination is very great and in spite of the presumption of constitutionality that attaches to every law the Court ought to examine with special care laws which result, as in the present case, in total restraint of rights conferred by the ConstitutionIt is entirely wrong to think that the middleman gets his profits for nothing and one has to remember that the middleman by forming the distribution channel between the producers and consumers relieves the producers of the burden of storing goods for a length of time and the risk attendant thereto and relieves the consumers of the trouble and expense of going to the producer who may be and often is a long distance away. It is however in the very nature of things that the middleman has to charge not only as regards the interest on the capital invested by him, and a reasonable remuneration for management but also in respect of the risks undertaken by him what the economists call the "entrepreneurs risk". These charges often add to a considerable sum. It has therefore been the endeavour at least in modern times for those responsible for social control to keep middlemens activities to the minimum and to replace them largely by co-operative sale societies of producers and co-operative purchase societies of the consumers. While it is clear that the middleman does perform important services, it is equally clear that the interests of the public would be best secured interests of the public would be best secured if these services could be obtained at a price lower than what the middleman would ordinarily charge. If the middleman ceases to function because of the fixation of price at landed cost plus 31/2 p.c., the manufactures who require copper as their raw material will have to establish contacts with importers. This will mean some trouble and inconvenience to them, but it is reasonable to think that saving in the cost of obtaining the raw material would more than compensate them for this. The lower cost of the raw material is also likely to be reflected - in a competitive market - in the lower price of the consumers goods. of which copper is raw material, and thus redound to the benefit of the general public23. It must therefore be held that Cl. 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read with the principles specified must also be held for the same reason to be a reasonable restrictionThe first evil sought to be remedied by the law being thus the rise in price - which was bound to be reflected in the higher price of the consumers goods in the production of which copper formed a major ingredient - an Order controlling the price would of courses be the first obvious step for fighting this evil. Experience has shown however that if nothing else is done it is practically impossible to make the control of price effective. The essential subsidiary step therefore was to introduce a system of permits so that the persons acquiring copper could be known23. It must therefore be held that Cl. 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read with the principles specified must also be held for the same reason to be a reasonable restrictionQuite clearly the dealers and manufactures are by these principles placed in different classes and while some manufactures are eligible for permits dealers are not. It is equally clear however from what has already been said above that the differentia which distinguish dealers as a class from manufactures placed in the other class have a reasonable connection with the object of the legislation. There is therefore no substance in the contention that the specification of the principles violates Art. 14 of the Constitution26. But without the principles, Cl. 4 of the Order is not effective. The system of permits which this clause is designed to introduce can come into existence only if the permits can be issued; but permits issued only in accordance with the principles laid down by the Central Government. It is not possible to build on the use of the words "may specify" in Cl. 4 an argument that so long as no principles are specified the Controller would have authority to issue permits by exercise of his own judgment and discretion. The words used in Cl. 4 do not permit such a construction and compel the conclusion that so long as the principles are not specified by the Central Government no permit can be issued by the ControllerAll that is necessary to make Cl. 4 effective is that some principles should be specified, and these notified in the Gazette, and laid before the Houses of Parliament. It my be necessary from time to time to specify new principles in view of the changed circumstances; these have again to be notified in the Gazette and laid before the Houses of Parliament, in order to be effective. So long as new principles do not come into operation, by being specified by Government, and thereafter notified in the Gazette, and laid before Houses of Parliament, the previous principles last specified, notified in the Gazette and laid before Houses of Parliament, will remain effective. As, however, the principles specified in the letter of the 18th April have not been notified in the Gazette, nor laid before Houses of Parliament, and no principles appear to have been specified before or after that date, Cl. 4 of the order, as now stands, must be struck down as void28. The petitioners are therefore entitled to relief only in respect of Cl. 4 of the order.

### 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: control to keep middlemens activities to the minimum and to replace them largely by co-operative sale societies of producers and co-operative purchase societies of the consumers. While it is clear that the middleman does perform important services, it is equally clear that the interests of the public would be best secured interests of the public would be best secured if these services could be obtained at a price lower than what the middleman would ordinarily charge. If the middleman ceases to function because of the fixation of price at landed cost plus 31/2 p.c., the manufactures who require copper as their raw material will have to establish contacts with importers. This will mean some trouble and inconvenience to them, but it is reasonable to think that saving in the cost of obtaining the raw material would more than compensate them for this. The lower cost of the raw material is also likely to be reflected - in a competitive market - in the lower price of the consumers goods. of which copper is raw material, and thus redound to the benefit of the general public. 23. It must therefore be held that Cl. 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read with the principles specified must also be held for the same reason to be a reasonable restriction. 24. It was next urged that these principles are discriminatory as between manufactures and dealers and so violate Art. 14 of the Constitution. Quite clearly the dealers and manufactures are by these principles placed in different classes and while some manufactures are eligible for permits dealers are not. It is equally clear however from what has already been said above that the differentia which distinguish dealers as a class from manufactures placed in the other class have a reasonable connection with the object of the legislation. There is therefore no substance in the contention that the specification of the principles violates Art. 14 of the Constitution. 25. While however Cl. 3 of the Order is clearly within the Act the question whether Cl. 4 read with the principles is within the Act or not is not free from difficulty. If the principles had been specified in the Order itself and/or had been notified in the Official Gazette and laid before both the Houses of Parliament in the manner indicated in sub-ss. (5) and (6) of S. 3 of the Act the regulation by Cl. 4 would have been within the Act. These principles were not however mentioned in the Order nor were they notified or laid before both Houses of Parliament in the manner laid down in sub-ss. (5) and (6) of S. 3. The regulation in so far as it is by these principles is therefore not a regulation by an order under S. 3 of the Act but wholly outside it and so would not come within the protection of the saving provisions of Cls. 5 and 6 of Art. 19 of the Constitution. 26. But without the principles, Cl. 4 of the Order is not effective. The system of permits which this clause is designed to introduce can come into existence only if the permits can be issued; but permits issued only in accordance with the principles laid down by the Central Government. It is not possible to build on the use of the words "may specify" in Cl. 4 an argument that so long as no principles are specified the Controller would have authority to issue permits by exercise of his own judgment and discretion. The words used in Cl. 4 do not permit such a construction and compel the conclusion that so long as the principles are not specified by the Central Government no permit can be issued by the Controller. Enforcement of the provision that no person shall acquire or agree to acquire except under a permit, would thus, so long as the principles are not specified in a legal manner as required by sub-ss. (5) and (6) of S. 3 of the Essential Commodities Act, would mean a total stoppage of the copper trade - not only of the transactions of dealers but of any transaction whatever in imported copper. On the face of it this could not be a reasonable restriction in the interest of the general public.There is no escape therefore from the conclusion that so long as principles are not specified by the Central Government by an Order notified in accordance with subs-s. (5) and laid before both Houses of Parliament in accordance with sub-s. (6) of S. 3, the regulation by Cl.4 as it is now worded is not within the saving provisions of Arts. 19(5) and 19(6) of the Constitution, and is void as taking away the rights conferred by Arts. 19(1)(f) and 19(1)(g). 27. All that is necessary to make Cl. 4 effective is that some principles should be specified, and these notified in the Gazette, and laid before the Houses of Parliament. It my be necessary from time to time to specify new principles in view of the changed circumstances; these have again to be notified in the Gazette and laid before the Houses of Parliament, in order to be effective. So long as new principles do not come into operation, by being specified by Government, and thereafter notified in the Gazette, and laid before Houses of Parliament, the previous principles last specified, notified in the Gazette and laid before Houses of Parliament, will remain effective. As, however, the principles specified in the letter of the 18th April have not been notified in the Gazette, nor laid before Houses of Parliament, and no principles appear to have been specified before or after that date, Cl. 4 of the order, as now stands, must be struck down as void. 28. The petitioners are therefore entitled to relief only in respect of Cl. 4 of the order. ### Response: 1 ### Explanation: the principles that would drive the dealer out of business? These questions require careful consideration, for the injury inflicted on the dealer by such elimination is very great and in spite of the presumption of constitutionality that attaches to every law the Court ought to examine with special care laws which result, as in the present case, in total restraint of rights conferred by the ConstitutionIt is entirely wrong to think that the middleman gets his profits for nothing and one has to remember that the middleman by forming the distribution channel between the producers and consumers relieves the producers of the burden of storing goods for a length of time and the risk attendant thereto and relieves the consumers of the trouble and expense of going to the producer who may be and often is a long distance away. It is however in the very nature of things that the middleman has to charge not only as regards the interest on the capital invested by him, and a reasonable remuneration for management but also in respect of the risks undertaken by him what the economists call the "entrepreneurs risk". These charges often add to a considerable sum. It has therefore been the endeavour at least in modern times for those responsible for social control to keep middlemens activities to the minimum and to replace them largely by co-operative sale societies of producers and co-operative purchase societies of the consumers. While it is clear that the middleman does perform important services, it is equally clear that the interests of the public would be best secured interests of the public would be best secured if these services could be obtained at a price lower than what the middleman would ordinarily charge. If the middleman ceases to function because of the fixation of price at landed cost plus 31/2 p.c., the manufactures who require copper as their raw material will have to establish contacts with importers. This will mean some trouble and inconvenience to them, but it is reasonable to think that saving in the cost of obtaining the raw material would more than compensate them for this. The lower cost of the raw material is also likely to be reflected - in a competitive market - in the lower price of the consumers goods. of which copper is raw material, and thus redound to the benefit of the general public23. It must therefore be held that Cl. 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read with the principles specified must also be held for the same reason to be a reasonable restrictionThe first evil sought to be remedied by the law being thus the rise in price - which was bound to be reflected in the higher price of the consumers goods in the production of which copper formed a major ingredient - an Order controlling the price would of courses be the first obvious step for fighting this evil. Experience has shown however that if nothing else is done it is practically impossible to make the control of price effective. The essential subsidiary step therefore was to introduce a system of permits so that the persons acquiring copper could be known23. It must therefore be held that Cl. 3 of the Order even though it results in the elimination of the dealer from the trade is a reasonable restriction in the interests of the general public. Clause 4 read with the principles specified must also be held for the same reason to be a reasonable restrictionQuite clearly the dealers and manufactures are by these principles placed in different classes and while some manufactures are eligible for permits dealers are not. It is equally clear however from what has already been said above that the differentia which distinguish dealers as a class from manufactures placed in the other class have a reasonable connection with the object of the legislation. There is therefore no substance in the contention that the specification of the principles violates Art. 14 of the Constitution26. But without the principles, Cl. 4 of the Order is not effective. The system of permits which this clause is designed to introduce can come into existence only if the permits can be issued; but permits issued only in accordance with the principles laid down by the Central Government. It is not possible to build on the use of the words "may specify" in Cl. 4 an argument that so long as no principles are specified the Controller would have authority to issue permits by exercise of his own judgment and discretion. The words used in Cl. 4 do not permit such a construction and compel the conclusion that so long as the principles are not specified by the Central Government no permit can be issued by the ControllerAll that is necessary to make Cl. 4 effective is that some principles should be specified, and these notified in the Gazette, and laid before the Houses of Parliament. It my be necessary from time to time to specify new principles in view of the changed circumstances; these have again to be notified in the Gazette and laid before the Houses of Parliament, in order to be effective. So long as new principles do not come into operation, by being specified by Government, and thereafter notified in the Gazette, and laid before Houses of Parliament, the previous principles last specified, notified in the Gazette and laid before Houses of Parliament, will remain effective. As, however, the principles specified in the letter of the 18th April have not been notified in the Gazette, nor laid before Houses of Parliament, and no principles appear to have been specified before or after that date, Cl. 4 of the order, as now stands, must be struck down as void28. The petitioners are therefore entitled to relief only in respect of Cl. 4 of the order.

Corporation Bank Vs. Navin J. Shah

shall be deposited by the buyer in the local currency with a correspondent bank in the buyers country on the date indicated against that column and proceeds are awaiting transfer to India. The claim was to the extent of 90% of the value of exports. While it is the contention of the appellants that the exporter had entrusted the bank to negotiate certain documents through a certain bank mentioned therein when in fact that bank had failed to collect the money in foreign exchange but collected only in local currency in the foreign country and not in the currency indicated in the documents and thus there was no liability at all on the part of the appellants, the respondent would submit that the appellants having purchased the documents in question were in fact collecting the monies for their own benefit and not for the benefit of the respondent when the documents had clearly indicated the manner in which the consignee get the goods except after payment of cash no delivery could have been made, the appellant bank had acted with negligence and, therefore, is liable to make good the loss suffered by it. We have adverted to the agreement between the parties. The consignee and the consignor have clearly indicated that the documents had to be negotiated through the foreign bank and the mode of payment was through the foreign bank. If that is so, the appellants were acting for and on behalf of the respondent when they sent the documents to the named bank for negotiations and collection of the money due under the agreement the appellants could not have sent the documents to any other agent inasmuch as payments had to be made only through that foreign bank and that foreign bank as was the usual practice realise (release ?) the documents against payment in local currency which was hitherto convertible in foreign exchange in U.S. Dollars could not be done on account of policy of the Sudan Government. If that is so, it is very difficult to perceive of a situation regarding the deficiency in the service rendered by the appellant bank. The appellant bank negotiated the documents as provided under the agreement; so did the foreign bank but the conversion of the local currency to U.S. Dollars became difficult on account of policy of the Sudan Government. When the realisation of the money in U.S. Dollars was frustrated by reason of the governmental action, we fail to understand as to how the appellants could be held to be responsible for the same. The Commission totally failed to appreciate this aspect. Whatever may be the position with regard to the collection procedure that by discount or purchase of the bills or otherwise, one thing is clear that all that was required to be done under the terms of the agreement and under the contract had been done by the two banks. Therefore, we do not think that the Commission was justified in having reached the conclusion the appellants services were deficient so as to attract the provisions of the Consumer Protection Act. 12. We may further notice that there is another strong reason as to why the claim made by the respondent should not have been granted. The transactions in question took place in the years 1979 and 1981. The difficulties in realisation of the amounts due from the consignee also became clear at the time when the claim was made before the Corporation and the claim had been made as early as on December 19, 1982. The petition before the Commission was filed on September 25, 1992 that is clearly a decade after a claim had been made before the Corporation. A claim could not have been filed by the respondent at this instance of time. Indeed at the relevant time there was no period of limitation under the Consumer Protection Act to prefer a claim before the Commission but that does not mean that the claim could be made even after unreasonably long delay. The Commission has rejected this contention by a wholly wrong approach in taking into consideration that foreign exchange payable to Reserve Bank of India was still due and, therefore, the claim is alive. The claim of the respondent is from the bank. At any rate, as stated earlier, when the claim was made for indemnifying the losses suffered from the Corporation, it was clear to the parties about the futility of awaiting any longer for collecting such amounts from the foreign bank. In those circumstances, the claim, if at all was to be made, ought to have been made within a reasonable time thereafter. What is reasonable time to lay a claim depends upon facts of each case. In the legislative wisdom, three years period has been prescribed as the reasonable time under the Limitation Act to lay a claim for money. We think, that period should be the appropriate standard adopted for computing reasonable time to raise a claim in a matter of this nature. For this reason also we find the claim made by the respondent ought to have been rejected by the Commission. 13. Further we also find that the contention raised by the appellants as to the locus standi of the respondent in laying the claim has not been dealt with by the Commission at all. In the cause title, the respondent is shown to be an individual whereas in the statement of facts, the respondent is described as a company which is registered as a partnership firm engaged in business of exports and in the petition reference is made to the firm or the company and not to the individual. As to how a single individual person could have laid a claim on behalf of a firm is not clear to us at all. Whether he was a partner of the firm or he had the authority of the firm to lay the claim is not clear to us as these facts have not been pleaded.

0[ds]10. When a bank, after purchasing or discounting an instrument from a customer, credits the customer with the amount of the instrument and allows the customer to draw against the amount as credited before the bill or instrument is cleared, then the bank would be collecting the money not for the customer but chiefly for itself. If the bills and the relevant documents presented by its drawer are accepted by a banker with endorsement in its favour and the same are immediately discounted by the banker without waiting for its collection, by giving full credit for the entire amount of the document, so presented, the banker itself becomes a purchaser and the holder thereof for full value. A banker discounts a bill as opposed to taking it for collection or as security for advances, when he takes it definitely and at once as transferee for value and that it does not matter that the amount of the bill, less discount, is carried to current account as in the case of a customer that is the usual course and where the transaction is really one of discounting, the banker is of course at liberty to deal with the bill as he pleases rediscounting or transferring it. Â37Â3
 Å11. In the claim form filed with the Corporation, it was stated that the respondent had suffered a loss under the policy owing to a delay in transfer of the payment in respect of shipments in question. The said form was signed both by the consignor and the appellant bank. It has been declared therein that the amount shall be deposited by the buyer in the local currency with a correspondent bank in the buyers country on the date indicated against that column and proceeds are awaiting transfer to India. The claim was to the extent of 90% of the value of exports. While it is the contention of the appellants that the exporter had entrusted the bank to negotiate certain documents through a certain bank mentioned therein when in fact that bank had failed to collect the money in foreign exchange but collected only in local currency in the foreign country and not in the currency indicated in the documents and thus there was no liability at all on the part of the appellants, the respondent would submit that the appellants having purchased the documents in question were in fact collecting the monies for their own benefit and not for the benefit of the respondent when the documents had clearly indicated the manner in which the consignee get the goods except after payment of cash no delivery could have been made, the appellant bank had acted with negligence and, therefore, is liable to make good the loss suffered by it. We have adverted to the agreement between the parties. The consignee and the consignor have clearly indicated that the documents had to be negotiated through the foreign bank and the mode of payment was through the foreign bank. If that is so, the appellants were acting for and on behalf of the respondent when they sent the documents to the named bank for negotiations and collection of the money due under the agreement the appellants could not have sent the documents to any other agent inasmuch as payments had to be made only through that foreign bank and that foreign bank as was the usual practice realise (release ?) the documents against payment in local currency which was hitherto convertible in foreign exchange in U.S. Dollars could not be done on account of policy of the Sudan Government. If that is so, it is very difficult to perceive of a situation regarding the deficiency in the service rendered by the appellant bank. The appellant bank negotiated the documents as provided under the agreement; so did the foreign bank but the conversion of the local currency to U.S. Dollars became difficult on account of policy of the Sudan Government. When the realisation of the money in U.S. Dollars was frustrated by reason of the governmental action, we fail to understand as to how the appellants could be held to be responsible for the same. The Commission totally failed to appreciate this aspect. Whatever may be the position with regard to the collection procedure that by discount or purchase of the bills or otherwise, one thing is clear that all that was required to be done under the terms of the agreement and under the contract had been done by the two banks. Therefore, we do not think that the Commission was justified in having reached the conclusion the appellants services were deficient so as to attract the provisions of the Consumer Protection 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: shall be deposited by the buyer in the local currency with a correspondent bank in the buyers country on the date indicated against that column and proceeds are awaiting transfer to India. The claim was to the extent of 90% of the value of exports. While it is the contention of the appellants that the exporter had entrusted the bank to negotiate certain documents through a certain bank mentioned therein when in fact that bank had failed to collect the money in foreign exchange but collected only in local currency in the foreign country and not in the currency indicated in the documents and thus there was no liability at all on the part of the appellants, the respondent would submit that the appellants having purchased the documents in question were in fact collecting the monies for their own benefit and not for the benefit of the respondent when the documents had clearly indicated the manner in which the consignee get the goods except after payment of cash no delivery could have been made, the appellant bank had acted with negligence and, therefore, is liable to make good the loss suffered by it. We have adverted to the agreement between the parties. The consignee and the consignor have clearly indicated that the documents had to be negotiated through the foreign bank and the mode of payment was through the foreign bank. If that is so, the appellants were acting for and on behalf of the respondent when they sent the documents to the named bank for negotiations and collection of the money due under the agreement the appellants could not have sent the documents to any other agent inasmuch as payments had to be made only through that foreign bank and that foreign bank as was the usual practice realise (release ?) the documents against payment in local currency which was hitherto convertible in foreign exchange in U.S. Dollars could not be done on account of policy of the Sudan Government. If that is so, it is very difficult to perceive of a situation regarding the deficiency in the service rendered by the appellant bank. The appellant bank negotiated the documents as provided under the agreement; so did the foreign bank but the conversion of the local currency to U.S. Dollars became difficult on account of policy of the Sudan Government. When the realisation of the money in U.S. Dollars was frustrated by reason of the governmental action, we fail to understand as to how the appellants could be held to be responsible for the same. The Commission totally failed to appreciate this aspect. Whatever may be the position with regard to the collection procedure that by discount or purchase of the bills or otherwise, one thing is clear that all that was required to be done under the terms of the agreement and under the contract had been done by the two banks. Therefore, we do not think that the Commission was justified in having reached the conclusion the appellants services were deficient so as to attract the provisions of the Consumer Protection Act. 12. We may further notice that there is another strong reason as to why the claim made by the respondent should not have been granted. The transactions in question took place in the years 1979 and 1981. The difficulties in realisation of the amounts due from the consignee also became clear at the time when the claim was made before the Corporation and the claim had been made as early as on December 19, 1982. The petition before the Commission was filed on September 25, 1992 that is clearly a decade after a claim had been made before the Corporation. A claim could not have been filed by the respondent at this instance of time. Indeed at the relevant time there was no period of limitation under the Consumer Protection Act to prefer a claim before the Commission but that does not mean that the claim could be made even after unreasonably long delay. The Commission has rejected this contention by a wholly wrong approach in taking into consideration that foreign exchange payable to Reserve Bank of India was still due and, therefore, the claim is alive. The claim of the respondent is from the bank. At any rate, as stated earlier, when the claim was made for indemnifying the losses suffered from the Corporation, it was clear to the parties about the futility of awaiting any longer for collecting such amounts from the foreign bank. In those circumstances, the claim, if at all was to be made, ought to have been made within a reasonable time thereafter. What is reasonable time to lay a claim depends upon facts of each case. In the legislative wisdom, three years period has been prescribed as the reasonable time under the Limitation Act to lay a claim for money. We think, that period should be the appropriate standard adopted for computing reasonable time to raise a claim in a matter of this nature. For this reason also we find the claim made by the respondent ought to have been rejected by the Commission. 13. Further we also find that the contention raised by the appellants as to the locus standi of the respondent in laying the claim has not been dealt with by the Commission at all. In the cause title, the respondent is shown to be an individual whereas in the statement of facts, the respondent is described as a company which is registered as a partnership firm engaged in business of exports and in the petition reference is made to the firm or the company and not to the individual. As to how a single individual person could have laid a claim on behalf of a firm is not clear to us at all. Whether he was a partner of the firm or he had the authority of the firm to lay the claim is not clear to us as these facts have not been pleaded. ### Response: 0 ### Explanation: 10. When a bank, after purchasing or discounting an instrument from a customer, credits the customer with the amount of the instrument and allows the customer to draw against the amount as credited before the bill or instrument is cleared, then the bank would be collecting the money not for the customer but chiefly for itself. If the bills and the relevant documents presented by its drawer are accepted by a banker with endorsement in its favour and the same are immediately discounted by the banker without waiting for its collection, by giving full credit for the entire amount of the document, so presented, the banker itself becomes a purchaser and the holder thereof for full value. A banker discounts a bill as opposed to taking it for collection or as security for advances, when he takes it definitely and at once as transferee for value and that it does not matter that the amount of the bill, less discount, is carried to current account as in the case of a customer that is the usual course and where the transaction is really one of discounting, the banker is of course at liberty to deal with the bill as he pleases rediscounting or transferring it. Â37Â3
 Å11. In the claim form filed with the Corporation, it was stated that the respondent had suffered a loss under the policy owing to a delay in transfer of the payment in respect of shipments in question. The said form was signed both by the consignor and the appellant bank. It has been declared therein that the amount shall be deposited by the buyer in the local currency with a correspondent bank in the buyers country on the date indicated against that column and proceeds are awaiting transfer to India. The claim was to the extent of 90% of the value of exports. While it is the contention of the appellants that the exporter had entrusted the bank to negotiate certain documents through a certain bank mentioned therein when in fact that bank had failed to collect the money in foreign exchange but collected only in local currency in the foreign country and not in the currency indicated in the documents and thus there was no liability at all on the part of the appellants, the respondent would submit that the appellants having purchased the documents in question were in fact collecting the monies for their own benefit and not for the benefit of the respondent when the documents had clearly indicated the manner in which the consignee get the goods except after payment of cash no delivery could have been made, the appellant bank had acted with negligence and, therefore, is liable to make good the loss suffered by it. We have adverted to the agreement between the parties. The consignee and the consignor have clearly indicated that the documents had to be negotiated through the foreign bank and the mode of payment was through the foreign bank. If that is so, the appellants were acting for and on behalf of the respondent when they sent the documents to the named bank for negotiations and collection of the money due under the agreement the appellants could not have sent the documents to any other agent inasmuch as payments had to be made only through that foreign bank and that foreign bank as was the usual practice realise (release ?) the documents against payment in local currency which was hitherto convertible in foreign exchange in U.S. Dollars could not be done on account of policy of the Sudan Government. If that is so, it is very difficult to perceive of a situation regarding the deficiency in the service rendered by the appellant bank. The appellant bank negotiated the documents as provided under the agreement; so did the foreign bank but the conversion of the local currency to U.S. Dollars became difficult on account of policy of the Sudan Government. When the realisation of the money in U.S. Dollars was frustrated by reason of the governmental action, we fail to understand as to how the appellants could be held to be responsible for the same. The Commission totally failed to appreciate this aspect. Whatever may be the position with regard to the collection procedure that by discount or purchase of the bills or otherwise, one thing is clear that all that was required to be done under the terms of the agreement and under the contract had been done by the two banks. Therefore, we do not think that the Commission was justified in having reached the conclusion the appellants services were deficient so as to attract the provisions of the Consumer Protection Act.

Poonam Vs. State Of U.P

hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. (1999) 1 SCC 738 )The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation – an anarchy in law. 49. In this context, reference to the judgment in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524 )would be fruitful. The two-Judge Bench was dealing with the concept of duminus litis which relates to the plaintiff. The Court analysed the provision contained in Order I Rule 10 and various sub-rules. The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party. In the said case, the appellant had instituted a case against the third respondent for declaration that she was the lawfully married wife of the third respondent who had entered context and admitted the claim. An application for impleadment was sought by the respondent nos.1 and 2 on the ground that they were respectively the wife and son of the third respondent and they were interested in denying the appellants status as wife and the children as the legitimate children of the third respondent. The trial court had allowed the application and the said order was confirmed by the High Court in its revisional jurisdiction. This Court referred to the authority in Razia Begum vs. Anwar Begum (AIR 1958 SC 886 )and came to hold that there is a clear distinction between the suits relating to property and those suits in which the subject matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party and accordingly held :- The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. And again:- It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. (1954) 1 All ER 273), wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 All ER 605, 611), that their true test lies not so much in an analysis of what are the constituents of the applicants rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights. Eventually, the Court unsettled the order passed by the trial court as well as by the High Court. 50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party.

0[ds]48. In the instant case, shop no.2 had become vacant. The appellant was allotted the shop, may be in the handicapped quota but such allotment is the resultant factor of the said shop falling vacant. The original allottee, that is the respondent, assailed his cancellation and ultimately succeeded in appeal. We are not concerned with the fact that the appellant herein was allowed to put her stand in the appeal. She was neither a necessary nor a proper party. The appellate authority permitted her to participate but that neither changes the situation nor does it confer any legal status on her. She would have continued to hold the shop had the original allottee lost the appeal. She cannot assail the said order in a writ petition because she is not a necessary party. It is the State or its functionaries, who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. She is a third party to the lis in this context. The decisions which we have referred to hereinbefore directly pertain to the concept of necessary party. The case of Kailash Chand Mahajan (supra) makes it absolutely clear. We have explained the authority in J.S. Yadavs case (supra) and opined that it has to rest on its own facts keeping in view the declaratory relief made therein, and further what has been stated therein cannot be regarded as a binding precedent for the proposition that in a case of removal or dismissal or termination, a subsequently appointed employee is a necessary party. The said principle shall apply on all fours to a fair price shop owner whose licence is cancelled. We may hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. (1999) 1 SCC 738 )The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation – an anarchy in law49. In this context, reference to the judgment in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524 )would be fruitful. The two-Judge Bench was dealing with the concept of duminus litis which relates to the plaintiff. The Court analysed the provision contained in Order I Rule 10 and various sub-rules. The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party. In the said case, the appellant had instituted a case against the third respondent for declaration that she was the lawfully married wife of the third respondent who had entered context and admitted the claim. An application for impleadment was sought by the respondent nos.1 and 2 on the ground that they were respectively the wife and son of the third respondent and they were interested in denying the appellants status as wife and the children as the legitimate children of the third respondent. The trial court had allowed the application and the said order was confirmed by the High Court in its revisional jurisdiction. This Court referred to the authority in Razia Begum vs. Anwar Begum (AIR 1958 SC 886 )and came to hold that there is a clear distinction between the suits relating to property and those suits in which the subject matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party and accordingly held :-The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rightsIt is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered inAmon v. Raphael Tuck & Sons Ltd. (1954) 1 All ER 273),S.A. v. Bank of England (1950) 2 All ER 605,, that their true test lies not so much in an analysis of what are the constituents of the applicants rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated:The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rightsEventually, the Court unsettled the order passed by the trial court as well as by the High Court

### 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: hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. (1999) 1 SCC 738 )The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation – an anarchy in law. 49. In this context, reference to the judgment in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524 )would be fruitful. The two-Judge Bench was dealing with the concept of duminus litis which relates to the plaintiff. The Court analysed the provision contained in Order I Rule 10 and various sub-rules. The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party. In the said case, the appellant had instituted a case against the third respondent for declaration that she was the lawfully married wife of the third respondent who had entered context and admitted the claim. An application for impleadment was sought by the respondent nos.1 and 2 on the ground that they were respectively the wife and son of the third respondent and they were interested in denying the appellants status as wife and the children as the legitimate children of the third respondent. The trial court had allowed the application and the said order was confirmed by the High Court in its revisional jurisdiction. This Court referred to the authority in Razia Begum vs. Anwar Begum (AIR 1958 SC 886 )and came to hold that there is a clear distinction between the suits relating to property and those suits in which the subject matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party and accordingly held :- The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rights. And again:- It is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered in Amon v. Raphael Tuck & Sons Ltd. (1954) 1 All ER 273), wherein after quoting the observations of Wynn-Parry, J. in Dollfus Mieg et Compagnie S.A. v. Bank of England (1950) 2 All ER 605, 611), that their true test lies not so much in an analysis of what are the constituents of the applicants rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated: The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rights. Eventually, the Court unsettled the order passed by the trial court as well as by the High Court. 50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the appellant. The writ petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover. The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party. ### Response: 0 ### Explanation: a necessary party. It is the State or its functionaries, who could have challenged the same in appeal. They have maintained sphinx like silence in that regard. Be that as it may, that would not confer any locus on the subsequent allottee to challenge the order passed in favour of the former allottee. She is a third party to the lis in this context. The decisions which we have referred to hereinbefore directly pertain to the concept of necessary party. The case of Kailash Chand Mahajan (supra) makes it absolutely clear. We have explained the authority in J.S. Yadavs case (supra) and opined that it has to rest on its own facts keeping in view the declaratory relief made therein, and further what has been stated therein cannot be regarded as a binding precedent for the proposition that in a case of removal or dismissal or termination, a subsequently appointed employee is a necessary party. The said principle shall apply on all fours to a fair price shop owner whose licence is cancelled. We may hasten to add, this concept will stand in contradistinction to a case where the land after having vested under any statute in the State have been distributed and possession handed over to different landless persons. It is because of such allotment and delivery of possession in their favour, that is required under the statute rights are created in favour of such allottees and, therefore, they are necessary parties as has been held in Ram Swarup & Ors. vs. S.N. Maira & Ors. (1999) 1 SCC 738 )The subtle distinction has to be understood. It does not relate to a post or position which one holds in a fortuitous circumstance. It has nothing to do with a vacancy. The land of which possession is given and the landless persons who have received the Pattas and have remained in possession, they have a right to retain their possession. It will be an anarchical situation, if they are not impleaded as parties, whereas in a case which relates to a post or position or a vacancy, if he or she who holds the post because of the vacancy having arisen is allowed to be treated as a necessary party or allowed to assail the order, whereby the earlier post holder or allottee succeeds, it will only usher in the reverse situation – an anarchy in law49. In this context, reference to the judgment in Ramesh Hirachand Kundanmal vs. Municipal Corporation of Greater Bombay & Ors. (1992) 2 SCC 524 )would be fruitful. The two-Judge Bench was dealing with the concept of duminus litis which relates to the plaintiff. The Court analysed the provision contained in Order I Rule 10 and various sub-rules. The subject matter in the case pertained to a dispute between the petitioner and the respondent no.1 which centered on the demolition and unauthorized construction by the competent authority under the Bombay Municipal Act. The respondent no.2 was the lessee in possession of the service station. The Municipal Corporation had not issued any notice to the said respondent. It was contended before the Court that the respondent no.2 was instrumental in the initiation of the proceeding by the Municipal Corporation against him. The court addressed to the issue whether the said respondent is a necessary or proper party. In the said case, the appellant had instituted a case against the third respondent for declaration that she was the lawfully married wife of the third respondent who had entered context and admitted the claim. An application for impleadment was sought by the respondent nos.1 and 2 on the ground that they were respectively the wife and son of the third respondent and they were interested in denying the appellants status as wife and the children as the legitimate children of the third respondent. The trial court had allowed the application and the said order was confirmed by the High Court in its revisional jurisdiction. This Court referred to the authority in Razia Begum vs. Anwar Begum (AIR 1958 SC 886 )and came to hold that there is a clear distinction between the suits relating to property and those suits in which the subject matter of litigation is a declaration as regards status or legal character. The Court observed that in the former category, the rule of personal interest is distinguished from the commercial interest which is required to be shown before a person may be added as a party and accordingly held :-The only reason which makes it necessary to make a person a party to an action is so that he should be bound by the result of the action and the question to be settled, therefore, must be a question in the action which cannot be effectually and completely settled unless he is a party. The line has been drawn on a wider construction of the rule between the direct interest or the legal interest and commercial interest. It is, therefore, necessary that the person must be directly or legally interested in the action in the answer, i.e., he can say that the litigation may lead to a result which will affect him legally that is by curtailing his legal rightsIt is difficult to say that the rule contemplates joining as a defendant a person whose only object is to prosecute his own cause of action. Similar provision was considered inAmon v. Raphael Tuck & Sons Ltd. (1954) 1 All ER 273),S.A. v. Bank of England (1950) 2 All ER 605,, that their true test lies not so much in an analysis of what are the constituents of the applicants rights, but rather in what would be the result on the subject matter of the action if those rights could be established, Devlin, J. has stated:The test is May the order for which the plaintiff is asking directly affect the intervener in the enjoyment of his legal rightsEventually, the Court unsettled the order passed by the trial court as well as by the High Court

Sardari Lal & Another Vs. Union of India & Others

Mathew, J.1. This is an appeal, by special leave, against the judgment and order passed in Civil Writ No. 457 of 1967 by the High Court of Delhi.2. The appellants are displaced persons from West Pakistan. On the basis of the claim made by them that they were occupancy tenants of 125 acres of land in the village of Mauza Khunde in Montgomery District and as a consequence of the partition of the country they had to abandon the land, Mr. Tirlok Singh, I.C.S, the then Director General of Rehabilitation, allotted 55 acres of land to them by an order dated June 12, 1953. A sanad was also issued on November 5, 1955.3. The Managing Officer-cum-Assistant Registrar of the Rehabilitation Department at Jullundur, on the scrutiny of the records came to know that the land in question was wrongly allotted to the appellants. He, therefore, forwarded the papers to the Chief Settlement Commissioner, Jullundur, for appropriate action. The Chief Settlement Commissioner, Jullundur, in the exercise of his power under S. 24 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter called the "Act", issued notice to the appellants to show cause why the allotment should not be cancelled. The appellants appeared before him and contended that the land was allotted after full enquiry about the right of the appellants to get the allotment. The appellants also produced affidavits from the legal representatives of the previous owners of the property in Pakistan which they had to abandon to show that their predecessor granted occupancy right in the property to the predecessor-in-interest of the appellants. The Chief Settlement Commissioner was not satisfied about the occupancy right claimed by the appellants in the land in Pakistan. He, therefore, cancelled the allotment evidenced by the sanad by his order dated June 19, 1965.4. The reasoning of the Chief Settlement Commissioner was that the Jamabandi in respect of the land showed that the appellants had no occupancy rights therein and so no reliance can be placed on the affidavits produced by the appellants.5. The appellants filed an application for revision of the order under S. 33 of the Act before the Union of India, Department of Rehabilitation. The revision was dismissed for substantially the same reasons as those given by the Chief Settlement Commissioner in his order.6. The appellants filed a petition under Articles 226 and 227 of the Constitution before the High Court challenging the correctness of the order. The High court dismissed the writ petition in limine and this appeal, by special leave, is against this order.7. The main question which we have to consider in this appeal is whether there was any jurisdictional error or error of law apparent on the face of record in the order passed by Government in the exercise of its power under Section 33 of the Act and whether the High Court was wrong in declining to exercise its jurisdiction under the Articles.8. On behalf of the appellants it was argued that an allotment made under the provisions of the Act after full enquiry can only be cancelled by establishing hat the allotment was obtained by fraud or false representation and as there was no finding either in the order of the Chief Settlement Commissioner or of the revisional authority that the order of allotment was obtained by fraud or by making false representation, they had no authority to cancel the allotment.9. The Chief Settlement Commissioner as well as the revisional authority found, on the basis of Jamabandi of village Khunde, that the appellants were in possession of the land in Pakistan not as occupancy tenants but only as "Gair Dakhilkar". There is no dispute that a person in occupation of land as "Gair Dakhilkar" would only be an ordinary tenant at will. The Chief Settlement Commissioner as well as the revisional authority further found that no reliance could be placed on the affidavits produced by the appellants from "the Muslims who were the national of Pakistan" and since the appellants produced no records to show that they were occupancy tenants, they should not have been allotted that land. In effect, we think, the finding is that the appellant obtained the allotment on the basis of false representation as regards their interests in the land in Pakistan.10. It is noteworthy that in the objection filed by the appellants to the notice by the Chief Settlement Commissioner to show cause why the allotment should not be cancelled, they never contended that the Jamabandi did not represent the correct state of affairs or that there is any mistake in it.In other words, inspite of the opportunity given to the appellants to support the allotment in their favour, they never challenged the correctness of the Jamabandi on the basis of which both the Chief Settlement Commissioner and the revisional authority came to the conclusion that the appellants had no occupancy right in the land in Pakistan. As there was a definite finding in the orders of these authorities that the appellants had no occupancy right in the land in Pakistan based on relevant materials and as the inference therefrom could only be that the appellants obtained the allotment by making false representation, we think that the High Court was justified under Articles 226 or 227 of the Constitution.

0[ds]10. It is noteworthy that in the objection filed by the appellants to the notice by the Chief Settlement Commissioner to show cause why the allotment should not be cancelled, they never contended that the Jamabandi did not represent the correct state of affairs or that there is any mistake in it.In other words, inspite of the opportunity given to the appellants to support the allotment in their favour, they never challenged the correctness of the Jamabandi on the basis of which both the Chief Settlement Commissioner and the revisional authority came to the conclusion that the appellants had no occupancy right in the land in Pakistan. As there was a definite finding in the orders of these authorities that the appellants had no occupancy right in the land in Pakistan based on relevant materials and as the inference therefrom could only be that the appellants obtained the allotment by making false representation, we think that the High Court was justified under Articles 226 or 227 of the Constitution.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: Mathew, J.1. This is an appeal, by special leave, against the judgment and order passed in Civil Writ No. 457 of 1967 by the High Court of Delhi.2. The appellants are displaced persons from West Pakistan. On the basis of the claim made by them that they were occupancy tenants of 125 acres of land in the village of Mauza Khunde in Montgomery District and as a consequence of the partition of the country they had to abandon the land, Mr. Tirlok Singh, I.C.S, the then Director General of Rehabilitation, allotted 55 acres of land to them by an order dated June 12, 1953. A sanad was also issued on November 5, 1955.3. The Managing Officer-cum-Assistant Registrar of the Rehabilitation Department at Jullundur, on the scrutiny of the records came to know that the land in question was wrongly allotted to the appellants. He, therefore, forwarded the papers to the Chief Settlement Commissioner, Jullundur, for appropriate action. The Chief Settlement Commissioner, Jullundur, in the exercise of his power under S. 24 (2) of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, hereinafter called the "Act", issued notice to the appellants to show cause why the allotment should not be cancelled. The appellants appeared before him and contended that the land was allotted after full enquiry about the right of the appellants to get the allotment. The appellants also produced affidavits from the legal representatives of the previous owners of the property in Pakistan which they had to abandon to show that their predecessor granted occupancy right in the property to the predecessor-in-interest of the appellants. The Chief Settlement Commissioner was not satisfied about the occupancy right claimed by the appellants in the land in Pakistan. He, therefore, cancelled the allotment evidenced by the sanad by his order dated June 19, 1965.4. The reasoning of the Chief Settlement Commissioner was that the Jamabandi in respect of the land showed that the appellants had no occupancy rights therein and so no reliance can be placed on the affidavits produced by the appellants.5. The appellants filed an application for revision of the order under S. 33 of the Act before the Union of India, Department of Rehabilitation. The revision was dismissed for substantially the same reasons as those given by the Chief Settlement Commissioner in his order.6. The appellants filed a petition under Articles 226 and 227 of the Constitution before the High Court challenging the correctness of the order. The High court dismissed the writ petition in limine and this appeal, by special leave, is against this order.7. The main question which we have to consider in this appeal is whether there was any jurisdictional error or error of law apparent on the face of record in the order passed by Government in the exercise of its power under Section 33 of the Act and whether the High Court was wrong in declining to exercise its jurisdiction under the Articles.8. On behalf of the appellants it was argued that an allotment made under the provisions of the Act after full enquiry can only be cancelled by establishing hat the allotment was obtained by fraud or false representation and as there was no finding either in the order of the Chief Settlement Commissioner or of the revisional authority that the order of allotment was obtained by fraud or by making false representation, they had no authority to cancel the allotment.9. The Chief Settlement Commissioner as well as the revisional authority found, on the basis of Jamabandi of village Khunde, that the appellants were in possession of the land in Pakistan not as occupancy tenants but only as "Gair Dakhilkar". There is no dispute that a person in occupation of land as "Gair Dakhilkar" would only be an ordinary tenant at will. The Chief Settlement Commissioner as well as the revisional authority further found that no reliance could be placed on the affidavits produced by the appellants from "the Muslims who were the national of Pakistan" and since the appellants produced no records to show that they were occupancy tenants, they should not have been allotted that land. In effect, we think, the finding is that the appellant obtained the allotment on the basis of false representation as regards their interests in the land in Pakistan.10. It is noteworthy that in the objection filed by the appellants to the notice by the Chief Settlement Commissioner to show cause why the allotment should not be cancelled, they never contended that the Jamabandi did not represent the correct state of affairs or that there is any mistake in it.In other words, inspite of the opportunity given to the appellants to support the allotment in their favour, they never challenged the correctness of the Jamabandi on the basis of which both the Chief Settlement Commissioner and the revisional authority came to the conclusion that the appellants had no occupancy right in the land in Pakistan. As there was a definite finding in the orders of these authorities that the appellants had no occupancy right in the land in Pakistan based on relevant materials and as the inference therefrom could only be that the appellants obtained the allotment by making false representation, we think that the High Court was justified under Articles 226 or 227 of the Constitution. ### Response: 0 ### Explanation: 10. It is noteworthy that in the objection filed by the appellants to the notice by the Chief Settlement Commissioner to show cause why the allotment should not be cancelled, they never contended that the Jamabandi did not represent the correct state of affairs or that there is any mistake in it.In other words, inspite of the opportunity given to the appellants to support the allotment in their favour, they never challenged the correctness of the Jamabandi on the basis of which both the Chief Settlement Commissioner and the revisional authority came to the conclusion that the appellants had no occupancy right in the land in Pakistan. As there was a definite finding in the orders of these authorities that the appellants had no occupancy right in the land in Pakistan based on relevant materials and as the inference therefrom could only be that the appellants obtained the allotment by making false representation, we think that the High Court was justified under Articles 226 or 227 of the Constitution.

Hazari & Ors Vs. Neki & Ors

on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff whose title thereto shall he deemed to have accrued from the date of such payment but that if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram v. Shiv Lal, 66 Pun LR 251 = (AIR 1964 Punj 260 (FB)) where it was held that the title to the pre-empted property passes to the pre-emptor under a pre-emption decree on deposit of the purchase-money in terms of the decree and was deemed to pass to him from the date of the deposit. So far suit No. 368 is concerned, there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescribed but as regard suits Nos. 311 and 369 of 1961, it is admitted that the deceased Neki made the payment of the amount under the two decrees within the time prescribed. So far as these two decrees are concerned, the deposit of the purchase money is an additional reason for holding that the legal representatives of Neki were properly substituted in his place in the proceedings of the second appeals.7. It was finally urged on behalf of the appellants that, in any event, S. 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents. The argument was stressed that S. 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singh and his two sons as legal representatives of Neki could not be granted a decree for pre-emption.In our opinion, this argument is wholly irrelevant. The reason is that the Amending Act came into force on February 4, 1960 and Neki instituted the present suits for preemption long after this date.Even the three sales of land were effected after the promulgation of the Amending Act. Reliance was placed on behalf of the appellants on the decision of this Court in Ram Sarup v. Munshi, (1963) 3 SCR 858 = (AIR 1963 SC 553 ) but the material facts of that case are quite different. It appears that the claim of pre-emption in that case was based upon S.. 15 (c) thirdly of the Punjab Pre-emption Act 1913 which states :"Subject to the provisions of S. 14 the right of pre-emption in respect of agricultural land and village immovable property shall vest -(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly, - firstly, in the lineal descendants of the vendor in order; of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession;(c) if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it :-.........................................................................................................................................thridly, in the owners of the estate;..."By S. 4 of the amending Act (Act 10 of 1960) S. 15 of the parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of preemption in the case of persons owning land in the estate as the original S. 15 (c) thirdly had done. Retrospective effect was given to the provisions by the insertion of a new S. 31 in the parent Act. The question for consideration was that whether by reason of this amendment in the law the respondent was entitled to the benefit of the decree which he obtained under the previously existing, enactment. It. was the case of the plaintiff that he owned land in the estate whereas the vendee did not own land there. The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an estate, sought to prove that he too owned land in the same village and estate but in this he failed. As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court on November 8, 1951, and an appeal and second appeal therefrom were also dismissed. The question was whether the respondent was entitled to a decree in view of S. 31 of the Punjab Pre-emption Act 1913 as amended by Punjab Act 10 of 1960 which came into force on February 4, 1960. It was held by this Court that in view of the plain language of S. 31, the substantive law enacted by the legislature in the amended S. 15- of the Pre-emption Act should be applied and the decree for pre-emption in favour of the first respondent should be set aside. It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in (1963) 3 SCR 858 = (AIR 1963 SC 553 ) has no application to the present case. In Ram Sarups case. (1963) 3 SCR 858 = (AIR 1963 SC 553 ) the right of the plaintiff to pre-empt was extinguished retrospectively, in the present case Nekis right to sue has not been extinguished. Neki had the right of pre-emption under the Amended Act at the time he instituted the suit and Nekis right was not extinguished on his death but passed to his legal representatives.

0[ds]4. In support of these appeals, learned counsel put forward the argument that the right of pre-emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre-emption. The argument was that the statutory right of pre-emption under the Punjab Act was not a heritable right and no decree for pre-emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki.We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre-emption, is a personal right on the part of the pre-emptor to get the retransfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundations of the right being the avoidance of the inconvenience and disturbance which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled toare of opinion that if an involuntary transfer takes place by inheritance the successor to the land, takes the whole bundle of the rights which go with the land including the right of pre-emption. The view which we have taken is supported by the language of S. 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre-emption did not abate upon his death and the, the legal representatives of Neki were properly brought on record of the second appeals under the provisions of O. 22, R. 1 read with O. 22. R. 10 of theCode of Civil Procedure.It is necessary to emphasize that we are dealing in this case with the statutory right of pre-emption under Punjab Act l of 1913 and its subsequent amendment and not with the right of pre-emption under the Mohammedan Law. In regard to the latter right it has been held that according to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre-emption has not obtained his decree for pre-emption in his lifetime the right to sue does not survive to hiswas held by this Court that in view of the plain language of S. 31, the substantive law enacted by the legislature in the amended S. 15- of the Pre-emption Act should be applied and the decree for pre-emption in favour of the first respondent should be set aside. It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in (1963) 3 SCR 858 = (AIR 1963 SC 553 ) has no application to the present case. In Ram Sarups case. (1963) 3 SCR 858 = (AIR 1963 SC 553 ) the right of the plaintiff to pre-empt was extinguished retrospectively, in the present case Nekis right to sue has not been extinguished. Neki had the right of pre-emption under the Amended Act at the time he instituted the suit and Nekis right was not extinguished on his death but passed to his legal representatives.

### 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: on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a) the defendant shall deliver possession of the property to the plaintiff whose title thereto shall he deemed to have accrued from the date of such payment but that if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs."In this connection counsel referred to the decision of the Punjab High Court in Ganga Ram v. Shiv Lal, 66 Pun LR 251 = (AIR 1964 Punj 260 (FB)) where it was held that the title to the pre-empted property passes to the pre-emptor under a pre-emption decree on deposit of the purchase-money in terms of the decree and was deemed to pass to him from the date of the deposit. So far suit No. 368 is concerned, there is a dispute as to whether or not Neki deposited the amount under the decree within the time prescribed but as regard suits Nos. 311 and 369 of 1961, it is admitted that the deceased Neki made the payment of the amount under the two decrees within the time prescribed. So far as these two decrees are concerned, the deposit of the purchase money is an additional reason for holding that the legal representatives of Neki were properly substituted in his place in the proceedings of the second appeals.7. It was finally urged on behalf of the appellants that, in any event, S. 31 of the Punjab Act 1 of 1913 as amended by Punjab Act 10 of 1960 stood as a bar to the granting of a decree in favour of the substituted respondents. The argument was stressed that S. 31 of the Punjab Act 1 of 1913 was in plain words retrospective in character and Dhara Singh and his two sons as legal representatives of Neki could not be granted a decree for pre-emption.In our opinion, this argument is wholly irrelevant. The reason is that the Amending Act came into force on February 4, 1960 and Neki instituted the present suits for preemption long after this date.Even the three sales of land were effected after the promulgation of the Amending Act. Reliance was placed on behalf of the appellants on the decision of this Court in Ram Sarup v. Munshi, (1963) 3 SCR 858 = (AIR 1963 SC 553 ) but the material facts of that case are quite different. It appears that the claim of pre-emption in that case was based upon S.. 15 (c) thirdly of the Punjab Pre-emption Act 1913 which states :"Subject to the provisions of S. 14 the right of pre-emption in respect of agricultural land and village immovable property shall vest -(a) where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned or held, is by all the co-sharers jointly, in the persons in order of succession who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold;(b) where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly, - firstly, in the lineal descendants of the vendor in order; of succession; secondly, in the co-sharers, if any, who are agnates, in order of succession;(c) if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it :-.........................................................................................................................................thridly, in the owners of the estate;..."By S. 4 of the amending Act (Act 10 of 1960) S. 15 of the parent Act was repealed and in its place was substituted a new provision which omitted to confer a right of preemption in the case of persons owning land in the estate as the original S. 15 (c) thirdly had done. Retrospective effect was given to the provisions by the insertion of a new S. 31 in the parent Act. The question for consideration was that whether by reason of this amendment in the law the respondent was entitled to the benefit of the decree which he obtained under the previously existing, enactment. It. was the case of the plaintiff that he owned land in the estate whereas the vendee did not own land there. The defendant while not disputing that the plaintiff owned land in the village or the correctness of the allegation that the land was in an estate, sought to prove that he too owned land in the same village and estate but in this he failed. As the case of the plaintiff was directly covered by the terms of the statute his suit was decreed by the trial court on November 8, 1951, and an appeal and second appeal therefrom were also dismissed. The question was whether the respondent was entitled to a decree in view of S. 31 of the Punjab Pre-emption Act 1913 as amended by Punjab Act 10 of 1960 which came into force on February 4, 1960. It was held by this Court that in view of the plain language of S. 31, the substantive law enacted by the legislature in the amended S. 15- of the Pre-emption Act should be applied and the decree for pre-emption in favour of the first respondent should be set aside. It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in (1963) 3 SCR 858 = (AIR 1963 SC 553 ) has no application to the present case. In Ram Sarups case. (1963) 3 SCR 858 = (AIR 1963 SC 553 ) the right of the plaintiff to pre-empt was extinguished retrospectively, in the present case Nekis right to sue has not been extinguished. Neki had the right of pre-emption under the Amended Act at the time he instituted the suit and Nekis right was not extinguished on his death but passed to his legal representatives. ### Response: 0 ### Explanation: 4. In support of these appeals, learned counsel put forward the argument that the right of pre-emption claimed by Neki deceased plaintiff was a personal right which died with him upon his death and the legal representatives of Neki were not entitled to be granted a decree for pre-emption. The argument was that the statutory right of pre-emption under the Punjab Act was not a heritable right and no decree for pre-emption should have been passed by the lower court in favour of the legal representatives as representing the estate of Neki.We are unable to accept the argument put forward by the appellants. It is not correct to say that the right of pre-emption, is a personal right on the part of the pre-emptor to get the retransfer of the property from the vendee who has already become the owner of the same. It is true that the right of pre-emption becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundations of the right being the avoidance of the inconvenience and disturbance which would arise from the introduction of a stranger into the land. The correct legal position is that the statutory law of pre-emption imposes a limitation or disability upon the ownership of a property to the extent that it restricts the owners right of sale and compels him to sell the property to the person entitled to pre-emption under the statute. In other words, the statutory right of pre-emption though not amounting to an interest in the land is a right which attaches to the land and which can be enforced against a purchaser by the person entitled toare of opinion that if an involuntary transfer takes place by inheritance the successor to the land, takes the whole bundle of the rights which go with the land including the right of pre-emption. The view which we have taken is supported by the language of S. 306 of the Indian Succession Act and it follows therefore that the claim of Neki for pre-emption did not abate upon his death and the, the legal representatives of Neki were properly brought on record of the second appeals under the provisions of O. 22, R. 1 read with O. 22. R. 10 of theCode of Civil Procedure.It is necessary to emphasize that we are dealing in this case with the statutory right of pre-emption under Punjab Act l of 1913 and its subsequent amendment and not with the right of pre-emption under the Mohammedan Law. In regard to the latter right it has been held that according to the Mohammadan law applicable to the Sunni sect if a plaintiff in a suit for pre-emption has not obtained his decree for pre-emption in his lifetime the right to sue does not survive to hiswas held by this Court that in view of the plain language of S. 31, the substantive law enacted by the legislature in the amended S. 15- of the Pre-emption Act should be applied and the decree for pre-emption in favour of the first respondent should be set aside. It is manifest that the material facts of the present case are different and the ratio of the decision of this Court in (1963) 3 SCR 858 = (AIR 1963 SC 553 ) has no application to the present case. In Ram Sarups case. (1963) 3 SCR 858 = (AIR 1963 SC 553 ) the right of the plaintiff to pre-empt was extinguished retrospectively, in the present case Nekis right to sue has not been extinguished. Neki had the right of pre-emption under the Amended Act at the time he instituted the suit and Nekis right was not extinguished on his death but passed to his legal representatives.

The Union Of India Vs. Madan Gopal Kabra

--- 5 Ind App 178 (PC) (C) which defined the powers of legislatures created but the British Parliament could have no application to the Union Parliament which came into life as a new legislature on the commencement of the Indian Constitution. It could not be assumed that such a legislature had the power of making a law having retrospective operation in relation to a period prior to its birth unless the Constitution itself clearly and explicity conferred such power. In support of this argument certain observations of one of the Judges in an Australian case (--- Ex parte Walsh and Johnson: In re Yatcs, 37 CLR 36 at pp. 80, 81 (D) were relied on.We are unable to accept the argument. Our Constitution, as appears from the preamble derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution. But it was insisted, such a power should be given in clearly expressed terms. There is, however, no question here of the Constitution operating retrospectively in bringing into existence the Union Parliament or the legislature of the State. The only question is what powers have been conferred upon these legislatures by the representatives of the people who framed the Constitution and, in determining that issue, the principles laid down in cases like --- Queen v. Burah (C) apply in full force. The observations in the Australian case, to which reference has been made, seem to us to go too far and cannot be accepted as sound constitutional doctrine.15. Nor can it be said, in strictness, that the Finance Act, 1950 is retroactive legislation. That Act, as already noticed, purports by S. 2 to charge income-tax and super-tax at specified rates "for the year beginning on the 1st day of April 1950". The case is thus one where the statute purports to operate only prospectively, but such operation has, under the scheme of the Indian Income-tax law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retroactive legislation, though its operation may effect acts done in the past. Dealing with a statute authorising the removal of destitute widows from a parish, it was observed in an English case --- Queen v. St. Mary, White chapel, (1848) 12 Q B 120 at p. 127 (E) :"It was said that the operation of the statute is confined to persons who have become widows after the Act passed and that the presumption against a retrospective statute being intended supported this construction. But we have before shown that the statute is in its direct operation prospective as it relates to future removals only and that it is not properly called a retrospective statute because a part of the requisite for its action is drawn from time antecedent to its passing".It is, however, unnecessary to pursue this aspect of the matter further as we have held that Parliament has the power to make retroactive laws.16. Secondly, it was said that S. 101 of the Government of India Act, 1935, which gave effect to the stipulation in the Instrument of Accession against the imposition by the Dominion Legislature of any tax or duty in the territory of the United State of Rajasthan, was kept alive, notwithstanding its repeal by Art. 395 of the Constitution, by S. 6 of the general Clauses Act, 1897 (which is made applicable to the interpretation of the Constitution by Art. 367(1) as a "right" or "privilege" acquired under the repealed enactment, and so continued to operate under Art. 372(1) as a constitutional limitation on the power of Parliament, with the result that Parliament had no power to impose tax contrary to S. 101 of the Government of India Act. 1935.The argument is somewhat ingenious but there are obvious difficulties in the way of its acceptance. For one thing, S. 101 of the Government of India Act created no right or privilege in the subjects of the United State of Rajasthan which notwithstanding the repeal of the Section could be regarded as still ensuring for their benefit, Section 101 merely imposed a restriction upon the power of the Dominion Legislature to make laws for an acceding State inconsistent with the stipulations contained in the Instrument of Accession.When that Section along with the rest of the Government of India Act, 1935 was repealed by the new Constitution, which has created new Legislatures with power to make retroactive laws, it is idle to suggest that rights or privileges acquired while the old Constitution Act was in force are preserved for ever for that must be the result of the argument by S. 6 of the General Clauses Act, which can have no application to such cases. Furthermore, it will be recalled that the Proclamation made by the Rajpramukh as Ruler of Rajasthan on November 23, 1949 declared and directed that the Constitution of India when brought into force "shall be the Constitution for the Rajasthan State" and it expressly "super-seded and abrogated all other constitutional provisions inconsistent therewith" which were then in force.The competency of the Rajpramukh as the Ruler of the State to accept the Constitution of India as governing that State also was not challenged before us, and it is manifest that after such declaration and direction, no restriction imposed on the Dominion Legislature by the Instrument of Accession and enforced by S. 101 of the Government of India Act could prevail against the legislative powers conferred on Parliament by the Constitution of India. The difference in the constitutional position which previously existed between the Provinces and the Acceding States has thus disappeared except, of course, in regard to matters in which such distinction has been preserved by the Constitution itself, e. g., by Art. 238 and Art. 371.It follows that

1[ds]It may well be that proviso (b)(iii) was designed to bring the income, profits and gains of the year 1949-50 into charge under S. 4(1) (a) and S. 4(1) (c), in which cases receipt or accrual as the case may be, in the taxable territories is the test of chargeability. It may be mentioned here that the exemption form tax under S. 14(2)(c) of the Indian Act of income accruing within Part B States was abrogated, except as regards the State of Jammu and Kashmir, by the amendment of that provision with effect from the first day of April 1950.Even assuming it were necessary for the revenue to bring the case within proviso (b)(iii) in order to sustain the charge on the respondents income accruing in Rajsthan during the year 1949-50, we are of opinion that the construction placed by the learned Judges on that clause cannot be supported. They assume that proviso (b) (iii) is a provision authorising assessment of income-tax, and proceed to discuss what the word "assessment" in that context should be taken to mean. Charge of income to tax and its computation are matters governed by other provisions of the Indian Act. All that S. 2(14-A) does is to define what the expression "Taxable territories" means in certain cases and for certain purposes wherever that expression is used in the various provisions of the Indian Act.And as the expression is used in the charging Section 4 in connection with the conditions which are to determine liability to tax, sub-cl. (iii) of cl. (b) of the definition must, when read with S. 4 of the Indian Act, have reference to chargeability of income. The result is that Ss. 3 and 4 of the Indian Act, in the light of the definition in proviso (b) to the amended S. 2(14-A) and S. 2 of the Indian Finance Act, 1950 authorise the imposition of the Indian Income-tax and super-tax on the income derived by the respondent in the year 1949-50 in the territory of Rajasthan.Nor can S. 6 of the General Clauses Act, 1897 serve to keep alive the liability to pay tax on the income of the year 1949-50 assuming it to have accrued under the repealed State law, for a "different intention" clearly appears in Sections 2 and 13 of the Finance Act read together as indicated above. In any case, no question of keeping any such liability alive could arise in the present case as admittedly no State law of income-tax was in operation in the territory of Rajasthan, except the former State of Bundi. On this view the whole basis of the reasoning of the learned Judges below falls to the ground.The argument was put in two ways. In the first place, it was said broadly that as the Constitution could not operate retrospectively as held by this Court in --- Keshvan v. State of Bombay, AIR 1951 SC 128 (B), the power of legislation conferred by the Constitution upon Parliament could not extend so as to charge retrospectively the income accruing prior to the commencement of the Constitution. This is a fallacy.While it is true that the Constitution has no retrospective operation, except where a different intention clearly appears, it is not correct to say that in bringing into existence new legislatures and conferring on them certain powers of legislation, the Constitution operated retrospectively. The legislative powers conferred upon Parliament under Art. 245 and Art. 246 read with list I of the Seventh Schedule could obviously be exercised only after the Constitution came into force and no retrospective operation of the Constitution is involved in the conferment of those powers. But it is different thing to say that Parliament in exercising the powers thus acquired is precluded form making a retroactive law. The question must depend upon the scope of the powers conferred, and that must be determined, with reference to the "terms of the instrument by which affirmatively, the legislative powers were created and by which, affirmatively, they were245 of the Constitution enacts that subject to its provisions Parliament may make laws for the whole or any part of the territory of India and Art. 246 proceeds to distribute legislative powers as between Parliament and the State Legislature in the county. Thus, these articles read with Entry No. 82 of List I of the Seventh Schedule empower Parliament to make laws with respect to taxes on income for the whole of the territory of India, and no limitation or restriction is imposed in regard to retroactive legislation. It is, therefore, competent for Parliament to make a law imposing a tax on the income of any year prior to the commencement of theare unable to accept the argument. Our Constitution, as appears from the preamble derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution. But it was insisted, such a power should be given in clearly expressed terms. There is, however, no question here of the Constitution operating retrospectively in bringing into existence the Union Parliament or the legislature of the State. The only question is what powers have been conferred upon these legislatures by the representatives of the people who framed the Constitution and, in determining that issue, the principles laid down in cases like --- Queen v. Burah (C) apply in full force. The observations in the Australian case, to which reference has been made, seem to us to go too far and cannot be accepted as sound constitutional doctrine.15. Nor can it be said, in strictness, that the Finance Act, 1950 is retroactive legislation. That Act, as already noticed, purports by S. 2 to charge income-tax and super-tax at specified rates "for the year beginning on the 1st day of April 1950". The case is thus one where the statute purports to operate only prospectively, but such operation has, under the scheme of the Indian Income-tax law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retroactive legislation, though its operation may effect acts done in thecompetency of the Rajpramukh as the Ruler of the State to accept the Constitution of India as governing that State also was not challenged before us, and it is manifest that after such declaration and direction, no restriction imposed on the Dominion Legislature by the Instrument of Accession and enforced by S. 101 of the Government of India Act could prevail against the legislative powers conferred on Parliament by the Constitution of India. The difference in the constitutional position which previously existed between the Provinces and the Acceding States has thus disappeared except, of course, in regard to matters in which such distinction has been preserved by the Constitution itself, e. g., by Art. 238 and Art. 371.It follows that the amendment of S. 2, cl. (145-A) of the Indian Act, by the Finance Act, 1950, so as to authorise the levy of tax on income accruing in the territory of Rajasthan in the year 1949-50 is within the competence of Parliament and therefore valid.

### 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: --- 5 Ind App 178 (PC) (C) which defined the powers of legislatures created but the British Parliament could have no application to the Union Parliament which came into life as a new legislature on the commencement of the Indian Constitution. It could not be assumed that such a legislature had the power of making a law having retrospective operation in relation to a period prior to its birth unless the Constitution itself clearly and explicity conferred such power. In support of this argument certain observations of one of the Judges in an Australian case (--- Ex parte Walsh and Johnson: In re Yatcs, 37 CLR 36 at pp. 80, 81 (D) were relied on.We are unable to accept the argument. Our Constitution, as appears from the preamble derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution. But it was insisted, such a power should be given in clearly expressed terms. There is, however, no question here of the Constitution operating retrospectively in bringing into existence the Union Parliament or the legislature of the State. The only question is what powers have been conferred upon these legislatures by the representatives of the people who framed the Constitution and, in determining that issue, the principles laid down in cases like --- Queen v. Burah (C) apply in full force. The observations in the Australian case, to which reference has been made, seem to us to go too far and cannot be accepted as sound constitutional doctrine.15. Nor can it be said, in strictness, that the Finance Act, 1950 is retroactive legislation. That Act, as already noticed, purports by S. 2 to charge income-tax and super-tax at specified rates "for the year beginning on the 1st day of April 1950". The case is thus one where the statute purports to operate only prospectively, but such operation has, under the scheme of the Indian Income-tax law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retroactive legislation, though its operation may effect acts done in the past. Dealing with a statute authorising the removal of destitute widows from a parish, it was observed in an English case --- Queen v. St. Mary, White chapel, (1848) 12 Q B 120 at p. 127 (E) :"It was said that the operation of the statute is confined to persons who have become widows after the Act passed and that the presumption against a retrospective statute being intended supported this construction. But we have before shown that the statute is in its direct operation prospective as it relates to future removals only and that it is not properly called a retrospective statute because a part of the requisite for its action is drawn from time antecedent to its passing".It is, however, unnecessary to pursue this aspect of the matter further as we have held that Parliament has the power to make retroactive laws.16. Secondly, it was said that S. 101 of the Government of India Act, 1935, which gave effect to the stipulation in the Instrument of Accession against the imposition by the Dominion Legislature of any tax or duty in the territory of the United State of Rajasthan, was kept alive, notwithstanding its repeal by Art. 395 of the Constitution, by S. 6 of the general Clauses Act, 1897 (which is made applicable to the interpretation of the Constitution by Art. 367(1) as a "right" or "privilege" acquired under the repealed enactment, and so continued to operate under Art. 372(1) as a constitutional limitation on the power of Parliament, with the result that Parliament had no power to impose tax contrary to S. 101 of the Government of India Act. 1935.The argument is somewhat ingenious but there are obvious difficulties in the way of its acceptance. For one thing, S. 101 of the Government of India Act created no right or privilege in the subjects of the United State of Rajasthan which notwithstanding the repeal of the Section could be regarded as still ensuring for their benefit, Section 101 merely imposed a restriction upon the power of the Dominion Legislature to make laws for an acceding State inconsistent with the stipulations contained in the Instrument of Accession.When that Section along with the rest of the Government of India Act, 1935 was repealed by the new Constitution, which has created new Legislatures with power to make retroactive laws, it is idle to suggest that rights or privileges acquired while the old Constitution Act was in force are preserved for ever for that must be the result of the argument by S. 6 of the General Clauses Act, which can have no application to such cases. Furthermore, it will be recalled that the Proclamation made by the Rajpramukh as Ruler of Rajasthan on November 23, 1949 declared and directed that the Constitution of India when brought into force "shall be the Constitution for the Rajasthan State" and it expressly "super-seded and abrogated all other constitutional provisions inconsistent therewith" which were then in force.The competency of the Rajpramukh as the Ruler of the State to accept the Constitution of India as governing that State also was not challenged before us, and it is manifest that after such declaration and direction, no restriction imposed on the Dominion Legislature by the Instrument of Accession and enforced by S. 101 of the Government of India Act could prevail against the legislative powers conferred on Parliament by the Constitution of India. The difference in the constitutional position which previously existed between the Provinces and the Acceding States has thus disappeared except, of course, in regard to matters in which such distinction has been preserved by the Constitution itself, e. g., by Art. 238 and Art. 371.It follows that ### Response: 1 ### Explanation: wherever that expression is used in the various provisions of the Indian Act.And as the expression is used in the charging Section 4 in connection with the conditions which are to determine liability to tax, sub-cl. (iii) of cl. (b) of the definition must, when read with S. 4 of the Indian Act, have reference to chargeability of income. The result is that Ss. 3 and 4 of the Indian Act, in the light of the definition in proviso (b) to the amended S. 2(14-A) and S. 2 of the Indian Finance Act, 1950 authorise the imposition of the Indian Income-tax and super-tax on the income derived by the respondent in the year 1949-50 in the territory of Rajasthan.Nor can S. 6 of the General Clauses Act, 1897 serve to keep alive the liability to pay tax on the income of the year 1949-50 assuming it to have accrued under the repealed State law, for a "different intention" clearly appears in Sections 2 and 13 of the Finance Act read together as indicated above. In any case, no question of keeping any such liability alive could arise in the present case as admittedly no State law of income-tax was in operation in the territory of Rajasthan, except the former State of Bundi. On this view the whole basis of the reasoning of the learned Judges below falls to the ground.The argument was put in two ways. In the first place, it was said broadly that as the Constitution could not operate retrospectively as held by this Court in --- Keshvan v. State of Bombay, AIR 1951 SC 128 (B), the power of legislation conferred by the Constitution upon Parliament could not extend so as to charge retrospectively the income accruing prior to the commencement of the Constitution. This is a fallacy.While it is true that the Constitution has no retrospective operation, except where a different intention clearly appears, it is not correct to say that in bringing into existence new legislatures and conferring on them certain powers of legislation, the Constitution operated retrospectively. The legislative powers conferred upon Parliament under Art. 245 and Art. 246 read with list I of the Seventh Schedule could obviously be exercised only after the Constitution came into force and no retrospective operation of the Constitution is involved in the conferment of those powers. But it is different thing to say that Parliament in exercising the powers thus acquired is precluded form making a retroactive law. The question must depend upon the scope of the powers conferred, and that must be determined, with reference to the "terms of the instrument by which affirmatively, the legislative powers were created and by which, affirmatively, they were245 of the Constitution enacts that subject to its provisions Parliament may make laws for the whole or any part of the territory of India and Art. 246 proceeds to distribute legislative powers as between Parliament and the State Legislature in the county. Thus, these articles read with Entry No. 82 of List I of the Seventh Schedule empower Parliament to make laws with respect to taxes on income for the whole of the territory of India, and no limitation or restriction is imposed in regard to retroactive legislation. It is, therefore, competent for Parliament to make a law imposing a tax on the income of any year prior to the commencement of theare unable to accept the argument. Our Constitution, as appears from the preamble derives its authority from the people of India, and learned counsel conceded that it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution. But it was insisted, such a power should be given in clearly expressed terms. There is, however, no question here of the Constitution operating retrospectively in bringing into existence the Union Parliament or the legislature of the State. The only question is what powers have been conferred upon these legislatures by the representatives of the people who framed the Constitution and, in determining that issue, the principles laid down in cases like --- Queen v. Burah (C) apply in full force. The observations in the Australian case, to which reference has been made, seem to us to go too far and cannot be accepted as sound constitutional doctrine.15. Nor can it be said, in strictness, that the Finance Act, 1950 is retroactive legislation. That Act, as already noticed, purports by S. 2 to charge income-tax and super-tax at specified rates "for the year beginning on the 1st day of April 1950". The case is thus one where the statute purports to operate only prospectively, but such operation has, under the scheme of the Indian Income-tax law, to take into account income earned before the statute came into force. Such an enactment cannot, strictly speaking, be said to be retroactive legislation, though its operation may effect acts done in thecompetency of the Rajpramukh as the Ruler of the State to accept the Constitution of India as governing that State also was not challenged before us, and it is manifest that after such declaration and direction, no restriction imposed on the Dominion Legislature by the Instrument of Accession and enforced by S. 101 of the Government of India Act could prevail against the legislative powers conferred on Parliament by the Constitution of India. The difference in the constitutional position which previously existed between the Provinces and the Acceding States has thus disappeared except, of course, in regard to matters in which such distinction has been preserved by the Constitution itself, e. g., by Art. 238 and Art. 371.It follows that the amendment of S. 2, cl. (145-A) of the Indian Act, by the Finance Act, 1950, so as to authorise the levy of tax on income accruing in the territory of Rajasthan in the year 1949-50 is within the competence of Parliament and therefore valid.

Kaloo Etc Vs. Gauri Shankar

and the quantum or fact of rent being in arrears is not disputed, the only way the tenant can be saved from the threat of eviction is to pay up the rent demanded in the notice and to repair the default within the period of 30 days which constitutes locus poenitentiae for him.21. The question still survives whether on facts not in dispute the tenant could be said to have failed to pay the rent within the time stipulated by Section 3 (1) (a) after receipt of the notice of demand. Avoiding repetition, Bhola the tenant had sent a money order Ext. A-10 on September 28, 1965, in the amount of Rs. 20/- even prior to the receipt of the notice dated December 22, 1965. This tender was for rent for two months of July and August, 1965 at the admitted rate of Rs. 10/- p. m. Soon after the notice, a second money order Ext. A-11 in the amount of Rs. 60.69 p. was sent for the rent up to and inclusive of December 31, 1965. A third money order was sent for Rs. 80/- covering rent up to February, 1966. The first money order was prior to the notice and the second and third money orders were subsequent to the notice and they were all prior to the suit. All the three money orders were refused. But even before the suit was filed, Bhola approached the Court of Munsif under Sec. 7-C which enables a tenant who is attempting to pay rent but whose attempt is thwarted by the landlord by refusing to accept the rent tendered, to deposit the rent in the Court. S. 7-C (1) comprehends a situation where a landlord refuses to accept any rent lawfully paid to him by tenant and Section 7-C (2) comprehends a situation where any bona fide doubt or dispute has arisen as to the identity of the person who is entitled to receive any rent payable by the tenant. In both the situations the tenant can approach the Court of the Munsif having jurisdiction in the area where the accommodation is situated, under Section 7-C (3) and deposit the rent. On receipt of this deposit the Court has to serve a notice on the landlord and the deposit is for the benefit of the landlord who can withdraw the same at any time. Sub-sec. (6) provides that where deposit has been made either under S. 7-C (1) or S. 7-C (2) it shall be deemed that the rent has duly been paid to the landlord which would imply that the tenant is not in default so as to be denied the protection of the Rent Act.22. In this case the tenant Bhola tendered rent by three money orders. All the three were refused by the landlord and when called upon to explain why the rent tendered by money order was not accepted, a specious plea was taken that the money order was addressed to Gauri Shankar wali Sheo Narain, and Sheo Narain having nothing to do with the property, it was not a valid tender to the landlord. Is it a fair conduct of the landlord? If one recalls the observations of the trial Court extracted hereinbefore, the recitals in the sale deed under which the landlord purchased the suit property are misleading and likely to confuse any one reading the same. Yet the tenant even before the first demand by notice sent the money order addressed undoubtedly to the respondent with description of the respondent not very happy but one induced by his own sale deed. Was he justified in refusing the same? After refusing the money order when the notice was served, no. attempt was made to clarify the situation, a fact which has appealed to the trial Court in non-suiting the plaintiff. But if the sale deed is confusing and likely to mislead and if the landlord acquired property under such a sale deed where property purchased by Sheo Narain and the present respondent formed overlapping description, could it not be said that a bona fide doubt or dispute would arise as to the person who has purchased the property and would therefore be entitled to recover rent and would not Section 7-C (2) come into play to enable the tenant to deposit the rent in the court of the Munsif to save himself from the threat of eviction and which he unhesitatingly did undertake and deposited the rent? By what logic such a tenant could be said to be one who has failed to pay the rent either prior or subsequent to the notice? He took every possible step within his means and power to pay the rent. It would be a travesty of justice if on some hyper-technical consideration such an over-zealous tenant can be denied the protection of the rent Act. Any other interpretation of the conduct of the tenant may lead in given case to perversion of the Act, namely, adequate protection of the tenant. (See Shyamcharan Sharma V. Dharamdas), (1980) 2 SCR 334 at p. 338 : (AIR 1980 SC 587 ).23. The trial Court approached the matter in the correct perspective and dismissed the suit. The first appellate court merely noted the fact that the money orders sent in the name of Gauri Shankar wali Sheo Narain would not constitute legal tender of rent. The learned appellate Judge did not examine the effect of deposit made under S. 7-C and on the aforementioned short ground allowed the appeal and decreed eviction. Unfortunately, in the High Court the whole emphasis was placed on some almirah which, in our opinion, is a misplaced emphasis and hardly relevant for the decision of the appeal. Neither the effect of previous money orders nor the deposit under S. 7-C were examined by the High Court. The High Court affirmed the decree of the first appellate Court with this observation that the defendant tenant shall not be ejected from the almirah shown in map, Ext. C-24.

0[ds]In examining this question it would be necessary to take into account remedy adopted by the tenant in each appeal under Sectionand whether in the facts and circumstances of the case each of the tenant is entitled to the benefit ofTo be able to successfully evict the tenant under this section, the landlord has to establish affirmatively (i) that the tenant is in arrears of rent for more than three months; (ii) a notice of demand has been served upon him; (iii) and the tenant has failed to pay the rent as in (i) to the landlord within one month from the date of the service of the notice. The tenant can successfullythe landlord by establishing that he was not in arrears of rent on the date of the notice or he has complied with the notice and if while complying with the notice he tenders the rent in arrears by a money order and the landlord refuses to accept the rent, the tenant can proceed to protect himself by initiating a proceeding under Sec.of the 1947 Act. Benefit conferred by S.can also be availed of by the tenant where a bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent payable by the tenant.Landlord Gauri Shankar claims to have purchased the suit property on July 29, 1965, from Shital and Gauri Devi who in turn had purchased the same from one Brij Mohan who had inducted Bhola as the tenant. Except the notice claiming rent there is no. material on record to show whether the vendors of respondent landlord gave any intimation to Bhola as to whom the property was sold and to whom he must pay rent and getThis finding was not questioned by reading out the sale deed of the building in question to us. In the background of this finding of the trial Court the conduct of tenant Bhola may be examined. The respondent landlord complained that tenant Bhola was in arrears from September 1, 1964. Keeping aside for the time being the question of arrears when Brij Mohan was the landlord, the case may be examined from the stand point of the present landlord, from the time he became entitled to recover rent. That would be from the date of the purchase unless he is in a position to show that he has purchased the previous arrears of rent. The sale deed under which respondent claims to be the landlord is dated July 29, 1965. Bhola sent the money order for Rs. 20/0 on September 28, 1965, as rent for the months of July and August, 1965 at the rate of Rs. 10/p. m. which is the admitted monthly rent. Respondent refused to accept the rent so tendered. This was tendered prior to notice Ext. 9 dated December 12, 1965. Bhola again sent a second money order Ext.in the amount of Rs. 60.69 p. for the rent up to and inclusive of December 31, 1965. This was refused by the respondent. A third money order was sent for Rs. 80/covering rent up to February, 1966. This was also refused by the respondent. It was said on behalf of the respondent that the money order was addressed in the name of Gauri Shankar wali Sheo Narain and as the respondent Gauri Shankar was the sole and exclusive owner of the demised property the rent tendered to him in his capacity as the guardian of some minor who had no. interest in the property cannot be said to be legal tender to the landlord and the landlord was justified in refusing to accept the rent. If the matter were to rest here, one could have discovered microscopic justification for the conduct of the landlord but Bhola did not stop by merely sending the money orders. On refusal of three successive money orders, he took the only legal and logical subsequent, step of moving an application under Sectionof the 1947 Act. He had acontention to offer in the proceeding he initiated under Sec.According to him the landlord unjustifiably refused to accept the rent offered by money order, a situation covered by(1) of Sectionand in any event if the sale deed under which the landlord purchased the property gave a misleading account as to who was the purchaser, there would be a bona fide doubt as to the person to whom rent was payable on purchase of the demised property, a situation comprehended in subsection (2) of Sectionand according to him both Ss.(1) and (2) would come into play, and, therefore, he deposited rent in the Court of the Munsif having jurisdiction over the area where the accommodation was situated. That Bhola initiated such a proceeding and made a full deposit is not in dispute. The grievance is that as the refusal to accept the rent was justified and that there was not the slightest doubt as to the identity of the person who was entitled to recover the rent and therefore the proceeding initiated by Bhola under Sectionis misconceived and would not protect him. Said the learned counsel for the respondent, that in this background Bhola and the present appellant claiming through Bhola, is not entitled to the benefit of(6) of Sectionwhich provides that in any case where a deposit has been made as set out in Section(1) or (2), it shall be deemed that the rent has been fully paid by the tenant to the landlord, but Bhola cannot be relieved from the consequences of his ownsubmission, weighty by itself, would have necessitated a thorough analysis of the expression used in Section 3 (1) (a) but in view of the legislative exposition as far as the 1947 Act is concerned, the submission is not open to the learned counsel for the appellant. When the Act was enacted in 1947, Section 3 (1) (a) read as underThe glaring legislative exposition is the deletion of the word "wilfully" and the omission seems to be deliberate inasmuch as the legislative intention becomes manifestly clear that once a notice of demand is made obligatory before an action for ejectment is filed for default in payment of rent, the tenant is given one months time to repair the default and he cannot further be heard to say that the failure was unintentional. As thenow stands, once a notice of demand is served and the quantum or fact of rent being in arrears is not disputed, the only way the tenant can be saved from the threat of eviction is to pay up the rent demanded in the notice and to repair the default within the period of 30 days which constitutes locus poenitentiae forrepetition, Bhola the tenant had sent a money order Ext.on September 28, 1965, in the amount of Rs. 20/even prior to the receipt of the notice dated December 22, 1965. This tender was for rent for two months of July and August, 1965 at the admitted rate of Rs. 10/p. m. Soon after the notice, a second money order Ext.in the amount of Rs. 60.69 p. was sent for the rent up to and inclusive of December 31, 1965. A third money order was sent for Rs. 80/covering rent up to February, 1966. The first money order was prior to the notice and the second and third money orders were subsequent to the notice and they were all prior to the suit. All the three money orders were refused. But even before the suit was filed, Bhola approached the Court of Munsif under Sec.which enables a tenant who is attempting to pay rent but whose attempt is thwarted by the landlord by refusing to accept the rent tendered, to deposit the rent in the Court. S.(1) comprehends a situation where a landlord refuses to accept any rent lawfully paid to him by tenant and Section(2) comprehends a situation where any bona fide doubt or dispute has arisen as to the identity of the person who is entitled to receive any rent payable by the tenant. In both the situations the tenant can approach the Court of the Munsif having jurisdiction in the area where the accommodation is situated, under Section(3) and deposit the rent. On receipt of this deposit the Court has to serve a notice on the landlord and the deposit is for the benefit of the landlord who can withdraw the same at any time.(6) provides that where deposit has been made either under S.(1) or S.(2) it shall be deemed that the rent has duly been paid to the landlord which would imply that the tenant is not in default so as to be denied the protection of the Rent Act.22. In this case the tenant Bhola tendered rent by three money orders. All the three were refused by the landlord and when called upon to explain why the rent tendered by money order was not accepted, a specious plea was taken that the money order was addressed to Gauri Shankar wali Sheo Narain, and Sheo Narain having nothing to do with the property, it was not a valid tender to the landlord. Is it a fair conduct of the landlord? If one recalls the observations of the trial Court extracted hereinbefore, the recitals in the sale deed under which the landlord purchased the suit property are misleading and likely to confuse any one reading the same. Yet the tenant even before the first demand by notice sent the money order addressed undoubtedly to the respondent with description of the respondent not very happy but one induced by his own sale deed. Was he justified in refusing the same? After refusing the money order when the notice was served, no. attempt was made to clarify the situation, a fact which has appealed to the trial Court inthe plaintiff. But if the sale deed is confusing and likely to mislead and if the landlord acquired property under such a sale deed where property purchased by Sheo Narain and the present respondent formed overlapping description, could it not be said that a bona fide doubt or dispute would arise as to the person who has purchased the property and would therefore be entitled to recover rent and would not Section(2) come into play to enable the tenant to deposit the rent in the court of the Munsif to save himself from the threat of eviction and which he unhesitatingly did undertake and deposited the rent? By what logic such a tenant could be said to be one who has failed to pay the rent either prior or subsequent to the notice? He took every possible step within his means and power to pay the rent. It would be a travesty of justice if on someconsideration such antenant can be denied the protection of the rent Act. Any other interpretation of the conduct of the tenant may lead in given case to perversion of the Act, namely, adequate protection of the tenant. (See Shyamcharan Sharma V. Dharamdas), (1980) 2 SCR 334 at p. 338 : (AIR 1980 SC 587 ).23. The trial Court approached the matter in the correct perspective and dismissed the suit. The first appellate court merely noted the fact that the money orders sent in the name of Gauri Shankar wali Sheo Narain would not constitute legal tender of rent. The learned appellate Judge did not examine the effect of deposit made under S.and on the aforementioned short ground allowed the appeal and decreed eviction. Unfortunately, in the High Court the whole emphasis was placed on some almirah which, in our opinion, is a misplaced emphasis and hardly relevant for the decision of the appeal. Neither the effect of previous money orders nor the deposit under S.In the facts set out above, could this tenant be said to be the one who has failed to pay the rent and was to be denied the protection of the Rent Act.27. Facts herein set out clearly show that the reasons which appealed to us in the case of the connected appeal would mutatis mutandis apply here. Therefore, for the same reasons, this appeal will have to be allowed and the decree of the High Court and the first appellate Court would have to be set aside and the one passed by the trial Court has to be restored.

### 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: and the quantum or fact of rent being in arrears is not disputed, the only way the tenant can be saved from the threat of eviction is to pay up the rent demanded in the notice and to repair the default within the period of 30 days which constitutes locus poenitentiae for him.21. The question still survives whether on facts not in dispute the tenant could be said to have failed to pay the rent within the time stipulated by Section 3 (1) (a) after receipt of the notice of demand. Avoiding repetition, Bhola the tenant had sent a money order Ext. A-10 on September 28, 1965, in the amount of Rs. 20/- even prior to the receipt of the notice dated December 22, 1965. This tender was for rent for two months of July and August, 1965 at the admitted rate of Rs. 10/- p. m. Soon after the notice, a second money order Ext. A-11 in the amount of Rs. 60.69 p. was sent for the rent up to and inclusive of December 31, 1965. A third money order was sent for Rs. 80/- covering rent up to February, 1966. The first money order was prior to the notice and the second and third money orders were subsequent to the notice and they were all prior to the suit. All the three money orders were refused. But even before the suit was filed, Bhola approached the Court of Munsif under Sec. 7-C which enables a tenant who is attempting to pay rent but whose attempt is thwarted by the landlord by refusing to accept the rent tendered, to deposit the rent in the Court. S. 7-C (1) comprehends a situation where a landlord refuses to accept any rent lawfully paid to him by tenant and Section 7-C (2) comprehends a situation where any bona fide doubt or dispute has arisen as to the identity of the person who is entitled to receive any rent payable by the tenant. In both the situations the tenant can approach the Court of the Munsif having jurisdiction in the area where the accommodation is situated, under Section 7-C (3) and deposit the rent. On receipt of this deposit the Court has to serve a notice on the landlord and the deposit is for the benefit of the landlord who can withdraw the same at any time. Sub-sec. (6) provides that where deposit has been made either under S. 7-C (1) or S. 7-C (2) it shall be deemed that the rent has duly been paid to the landlord which would imply that the tenant is not in default so as to be denied the protection of the Rent Act.22. In this case the tenant Bhola tendered rent by three money orders. All the three were refused by the landlord and when called upon to explain why the rent tendered by money order was not accepted, a specious plea was taken that the money order was addressed to Gauri Shankar wali Sheo Narain, and Sheo Narain having nothing to do with the property, it was not a valid tender to the landlord. Is it a fair conduct of the landlord? If one recalls the observations of the trial Court extracted hereinbefore, the recitals in the sale deed under which the landlord purchased the suit property are misleading and likely to confuse any one reading the same. Yet the tenant even before the first demand by notice sent the money order addressed undoubtedly to the respondent with description of the respondent not very happy but one induced by his own sale deed. Was he justified in refusing the same? After refusing the money order when the notice was served, no. attempt was made to clarify the situation, a fact which has appealed to the trial Court in non-suiting the plaintiff. But if the sale deed is confusing and likely to mislead and if the landlord acquired property under such a sale deed where property purchased by Sheo Narain and the present respondent formed overlapping description, could it not be said that a bona fide doubt or dispute would arise as to the person who has purchased the property and would therefore be entitled to recover rent and would not Section 7-C (2) come into play to enable the tenant to deposit the rent in the court of the Munsif to save himself from the threat of eviction and which he unhesitatingly did undertake and deposited the rent? By what logic such a tenant could be said to be one who has failed to pay the rent either prior or subsequent to the notice? He took every possible step within his means and power to pay the rent. It would be a travesty of justice if on some hyper-technical consideration such an over-zealous tenant can be denied the protection of the rent Act. Any other interpretation of the conduct of the tenant may lead in given case to perversion of the Act, namely, adequate protection of the tenant. (See Shyamcharan Sharma V. Dharamdas), (1980) 2 SCR 334 at p. 338 : (AIR 1980 SC 587 ).23. The trial Court approached the matter in the correct perspective and dismissed the suit. The first appellate court merely noted the fact that the money orders sent in the name of Gauri Shankar wali Sheo Narain would not constitute legal tender of rent. The learned appellate Judge did not examine the effect of deposit made under S. 7-C and on the aforementioned short ground allowed the appeal and decreed eviction. Unfortunately, in the High Court the whole emphasis was placed on some almirah which, in our opinion, is a misplaced emphasis and hardly relevant for the decision of the appeal. Neither the effect of previous money orders nor the deposit under S. 7-C were examined by the High Court. The High Court affirmed the decree of the first appellate Court with this observation that the defendant tenant shall not be ejected from the almirah shown in map, Ext. C-24. ### Response: 0 ### Explanation: of demand is served and the quantum or fact of rent being in arrears is not disputed, the only way the tenant can be saved from the threat of eviction is to pay up the rent demanded in the notice and to repair the default within the period of 30 days which constitutes locus poenitentiae forrepetition, Bhola the tenant had sent a money order Ext.on September 28, 1965, in the amount of Rs. 20/even prior to the receipt of the notice dated December 22, 1965. This tender was for rent for two months of July and August, 1965 at the admitted rate of Rs. 10/p. m. Soon after the notice, a second money order Ext.in the amount of Rs. 60.69 p. was sent for the rent up to and inclusive of December 31, 1965. A third money order was sent for Rs. 80/covering rent up to February, 1966. The first money order was prior to the notice and the second and third money orders were subsequent to the notice and they were all prior to the suit. All the three money orders were refused. But even before the suit was filed, Bhola approached the Court of Munsif under Sec.which enables a tenant who is attempting to pay rent but whose attempt is thwarted by the landlord by refusing to accept the rent tendered, to deposit the rent in the Court. S.(1) comprehends a situation where a landlord refuses to accept any rent lawfully paid to him by tenant and Section(2) comprehends a situation where any bona fide doubt or dispute has arisen as to the identity of the person who is entitled to receive any rent payable by the tenant. In both the situations the tenant can approach the Court of the Munsif having jurisdiction in the area where the accommodation is situated, under Section(3) and deposit the rent. On receipt of this deposit the Court has to serve a notice on the landlord and the deposit is for the benefit of the landlord who can withdraw the same at any time.(6) provides that where deposit has been made either under S.(1) or S.(2) it shall be deemed that the rent has duly been paid to the landlord which would imply that the tenant is not in default so as to be denied the protection of the Rent Act.22. In this case the tenant Bhola tendered rent by three money orders. All the three were refused by the landlord and when called upon to explain why the rent tendered by money order was not accepted, a specious plea was taken that the money order was addressed to Gauri Shankar wali Sheo Narain, and Sheo Narain having nothing to do with the property, it was not a valid tender to the landlord. Is it a fair conduct of the landlord? If one recalls the observations of the trial Court extracted hereinbefore, the recitals in the sale deed under which the landlord purchased the suit property are misleading and likely to confuse any one reading the same. Yet the tenant even before the first demand by notice sent the money order addressed undoubtedly to the respondent with description of the respondent not very happy but one induced by his own sale deed. Was he justified in refusing the same? After refusing the money order when the notice was served, no. attempt was made to clarify the situation, a fact which has appealed to the trial Court inthe plaintiff. But if the sale deed is confusing and likely to mislead and if the landlord acquired property under such a sale deed where property purchased by Sheo Narain and the present respondent formed overlapping description, could it not be said that a bona fide doubt or dispute would arise as to the person who has purchased the property and would therefore be entitled to recover rent and would not Section(2) come into play to enable the tenant to deposit the rent in the court of the Munsif to save himself from the threat of eviction and which he unhesitatingly did undertake and deposited the rent? By what logic such a tenant could be said to be one who has failed to pay the rent either prior or subsequent to the notice? He took every possible step within his means and power to pay the rent. It would be a travesty of justice if on someconsideration such antenant can be denied the protection of the rent Act. Any other interpretation of the conduct of the tenant may lead in given case to perversion of the Act, namely, adequate protection of the tenant. (See Shyamcharan Sharma V. Dharamdas), (1980) 2 SCR 334 at p. 338 : (AIR 1980 SC 587 ).23. The trial Court approached the matter in the correct perspective and dismissed the suit. The first appellate court merely noted the fact that the money orders sent in the name of Gauri Shankar wali Sheo Narain would not constitute legal tender of rent. The learned appellate Judge did not examine the effect of deposit made under S.and on the aforementioned short ground allowed the appeal and decreed eviction. Unfortunately, in the High Court the whole emphasis was placed on some almirah which, in our opinion, is a misplaced emphasis and hardly relevant for the decision of the appeal. Neither the effect of previous money orders nor the deposit under S.In the facts set out above, could this tenant be said to be the one who has failed to pay the rent and was to be denied the protection of the Rent Act.27. Facts herein set out clearly show that the reasons which appealed to us in the case of the connected appeal would mutatis mutandis apply here. Therefore, for the same reasons, this appeal will have to be allowed and the decree of the High Court and the first appellate Court would have to be set aside and the one passed by the trial Court has to be restored.

Ebrahim Aboobakar And Another Vs. Custodian General Ofevacuee Property

in the same judgment made the following observations:"The preliminary objection to the appeal is two-fold: (1) It is said that the Board of Trade are not persons aggrieved" They are persons whom the court was bound to hear, if they wished to be heard, on the validity of this objection, and the decision has been against them. How it can be said that they are not persons aggrieved, by the decision, passes my understanding. When two persons are in the position of litigants before the High Court, and the decision of the court goes against one of them, how it can be said that he is not a person aggrieved by the decision. I cannot understand. I am clearly of opinion that the Board were persons aggrieved by this decision. Then (2) it is said that the decision is not an order. When the High Court makes a declaration of right, and further orders the costs of the application to be paid (which is the common form here used), and that is drawn up and sealed with the seal of the Court, and, I suppose placed on record, as all orders of the High Court are, it seems to me that it is clearly an order of the Court."20. In our opinion, Tekchand Dolwani is a person aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he had locus standi to prefer the appeal.21. The next point urged was that the appeal had been preferred against the order of the 9th February and not against the order of the 8th and that the respondent had no jurisdiction to hear it. Whether the appeal in substance had been preferred against the order of the 8th or the order of the 9th was a matter which was certainly within the competence of the respondent to decide and does not involved any question of jurisdiction whatsoever. Be that as it may, we have examined the memorandum of appeal presented by Tekchand Dolwani to the respondent and it appears to us that the High Court was right when it held that the appeal was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February. The relief claimed in appeal concerns the order of the 8th and the grounds of appeal only relate to this matter. The only defect pointed out was in the description of the order attacked in appeal. It is well settled that such errors of description cannot be allowed to prejudice the right of a party. The two orders of the 8th and 9th made on consecutive days, though under different provisions of the Ordinance, were interlinked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken.22. The last point raised before us was not taken in the High Court and therefore we have not the benefit of that courts decision on the point. It was contended that no appeal lay against the order of the Additional Custodian dated the 8th February declining to declare Aboobaker an evacuee, that the only order that the Custodian is entitled to pass under section 7 is an order declaring any property to be evacuee property and that it is this order and this order alone which is appealable under section 24. In our opinion, this contention is without force. Section 24 confers a right of appeal against all orders made under section 7 and does not specify the nature of the orders made appealable, In an enquiry under section 7 the first point for adjudication is whether a certain person falls within the definition of the word "evacuee" given in the Ordinance. If he comes within the ambit of the definition, then any property held by him becomes evacuee property. The civil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee property, or whether an evacuee has any right or interest in any evacuee property. The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudication under section 7 and is as such appealable.23. It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee, then he is not entitled to make any order whatsoever but has just to file the proceedings. This contention is unsound. When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable to him has to take the form of an adjudication and necessarily amounts to an order. Reference in this connection may be made to the decision of the Federal Court in RAYARAPPAN NAYANAR v. MADHAVI AMMA", 1949 F C R 667, on an analogous provision of the Code of Civil Procedure contained in Orders XL, Rule 1 and XLIII, Rule 1(s). Order XLIII, Rule I(s) makes any order made under Order XL, Rule 1 appealable while Order XL, Rule, 1 only empowers the court to appoint a receiver. It was held that the order removing a receiver was appealable under Order XLIII, Rule 1 inasmuch as such an order fell within the ambit of Order XL Rule 1 and the power of appointing a receiver included the power of removing or dismissing him. The present case stands on a higher footing. The power of granting a certain relief includes obviously the power of refusing that relief. In our opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.24.

0[ds]It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well asa court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari could not issue to the respondent quashing the order of the 13th May 1950 was right. We are further of the opinion that none of the contentions raised has any meritcivil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee property, or whether an evacuee has any right or interest in any evacuee property. The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudication under section 7 and is as sucha certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable to him has to take the form of an adjudication and necessarily amounts to anour opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.

### 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 the same judgment made the following observations:"The preliminary objection to the appeal is two-fold: (1) It is said that the Board of Trade are not persons aggrieved" They are persons whom the court was bound to hear, if they wished to be heard, on the validity of this objection, and the decision has been against them. How it can be said that they are not persons aggrieved, by the decision, passes my understanding. When two persons are in the position of litigants before the High Court, and the decision of the court goes against one of them, how it can be said that he is not a person aggrieved by the decision. I cannot understand. I am clearly of opinion that the Board were persons aggrieved by this decision. Then (2) it is said that the decision is not an order. When the High Court makes a declaration of right, and further orders the costs of the application to be paid (which is the common form here used), and that is drawn up and sealed with the seal of the Court, and, I suppose placed on record, as all orders of the High Court are, it seems to me that it is clearly an order of the Court."20. In our opinion, Tekchand Dolwani is a person aggrieved within the rule stated in the decision mentioned above and the respondent rightly held that he had locus standi to prefer the appeal.21. The next point urged was that the appeal had been preferred against the order of the 9th February and not against the order of the 8th and that the respondent had no jurisdiction to hear it. Whether the appeal in substance had been preferred against the order of the 8th or the order of the 9th was a matter which was certainly within the competence of the respondent to decide and does not involved any question of jurisdiction whatsoever. Be that as it may, we have examined the memorandum of appeal presented by Tekchand Dolwani to the respondent and it appears to us that the High Court was right when it held that the appeal was in effect and in substance an appeal from the order passed by the Additional Custodian on the 8th February. The relief claimed in appeal concerns the order of the 8th and the grounds of appeal only relate to this matter. The only defect pointed out was in the description of the order attacked in appeal. It is well settled that such errors of description cannot be allowed to prejudice the right of a party. The two orders of the 8th and 9th made on consecutive days, though under different provisions of the Ordinance, were interlinked and the latter order was merely consequential on the conclusion reached on the 8th and the description in the memorandum of appeal that the appeal was against the order of the 9th cannot be considered as really an error of a kind of which serious notice could be taken.22. The last point raised before us was not taken in the High Court and therefore we have not the benefit of that courts decision on the point. It was contended that no appeal lay against the order of the Additional Custodian dated the 8th February declining to declare Aboobaker an evacuee, that the only order that the Custodian is entitled to pass under section 7 is an order declaring any property to be evacuee property and that it is this order and this order alone which is appealable under section 24. In our opinion, this contention is without force. Section 24 confers a right of appeal against all orders made under section 7 and does not specify the nature of the orders made appealable, In an enquiry under section 7 the first point for adjudication is whether a certain person falls within the definition of the word "evacuee" given in the Ordinance. If he comes within the ambit of the definition, then any property held by him becomes evacuee property. The civil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee property, or whether an evacuee has any right or interest in any evacuee property. The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudication under section 7 and is as such appealable.23. It was contended that when the Custodian reached the conclusion that a certain person is not an evacuee, then he is not entitled to make any order whatsoever but has just to file the proceedings. This contention is unsound. When a certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable to him has to take the form of an adjudication and necessarily amounts to an order. Reference in this connection may be made to the decision of the Federal Court in RAYARAPPAN NAYANAR v. MADHAVI AMMA", 1949 F C R 667, on an analogous provision of the Code of Civil Procedure contained in Orders XL, Rule 1 and XLIII, Rule 1(s). Order XLIII, Rule I(s) makes any order made under Order XL, Rule 1 appealable while Order XL, Rule, 1 only empowers the court to appoint a receiver. It was held that the order removing a receiver was appealable under Order XLIII, Rule 1 inasmuch as such an order fell within the ambit of Order XL Rule 1 and the power of appointing a receiver included the power of removing or dismissing him. The present case stands on a higher footing. The power of granting a certain relief includes obviously the power of refusing that relief. In our opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.24. ### Response: 0 ### Explanation: It is plain that such a writ cannot be granted to quash the decision of an inferior court within its jurisdiction on the ground that the decision is wrong. Indeed, it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior court might not have authority to enter on the inquiry or upon some part of it. It may also arise from the absence of some essential preliminary or upon the existence of some particular facts collateral to the actual matter which the court has to try and which are conditions precedent to the assumption of jurisdiction by it. But once it is held that the court has jurisdiction but while exercising it, it made a mistake, the wronged party can only take the course prescribed by law for setting matters right inasmuch as a court has jurisdiction to decide rightly as well asa court of appeal has not only jurisdiction to determine the soundness of the decision of the inferior court as a court of error, but by the very nature of things it has also jurisdiction to determine any points raised before it in the nature of preliminary issues by the parties. Such jurisdiction is inherent in its very constitution as a court of appeal. Whether an appeal is competent, whether a party has locus standi to prefer it, whether the appeal in substance is from one or another order and whether it has been preferred in proper form and within the time prescribed, are all matters for the decision of the appellate court so constituted. Such a tribunal falls within class 2 of the classification of the Master of the Rolls. In these circumstances it seems to us that the order of the High Court of Punjab that a writ of certiorari could not issue to the respondent quashing the order of the 13th May 1950 was right. We are further of the opinion that none of the contentions raised has any meritcivil court is barred from entertaining or adjudicating upon the questions whether the property is or is not evacuee property, or whether an evacuee has any right or interest in any evacuee property. The decision of the Custodian whether in the affirmative or in the negative amounts to an adjudication under section 7 and is as sucha certain person claiming to be interested in getting a property declared evacuee property is allowed to put in a written statement and lead evidence, then the decision of the court whether favourable or unfavorable to him has to take the form of an adjudication and necessarily amounts to anour opinion, therefore, the order made by the Additional Custodian refusing to declare Aboobakar an evacuee and his property evacuee property was an order made under section 7 of the Ordinance and was therefore appealable under section 24.

ARUN KUMAR MANGLIK Vs. CHIRAYU HEALTH AND MEDICARE PRIVATE LTD

the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.? 43. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to ‘defensive medicine? to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.44. In the present case, the record which stares in the face of the adjudicating authority establishes that between 7.30 am and 7 pm, the critical parameters of the patient were not evaluated. The simple expedient of monitoring blood parameters was not undergone. This was in contravention of WHO guidelines as well as the guidelines prescribed by the Directorate of National Vector Borne Diseases Control Programme. It was the finding of the Medical Council of India that while treatment was administered to the patient according to these guidelines, the patient did not receive timely treatment. It had accordingly administered a warning to the respondents to be more careful in the future. In failing to provide medical treatment in accordance with medical guidelines, the respondents failed to satisfy the standard of reasonable care as laid down in the Bolam case and adopted by Indian Courts. To say that the patient or her family would have resisted a blood test, as is urged by the respondents, is merely a conjecture. Since no test was done, such an explanation cannot be accepted.45. The NCDRC had before it a well-considered judgment of the SCDRC based on the evidence on the record. While the jurisdiction of an adjudicatory authority in a first appeal is co-extensive with that of the original authority, the NCDRC has displaced the findings of fact which have been arrived at by the SCDRC without any cogent reasoning.46. The appellate authority has placed a considerable degree of reliance on the fact that the patient was on aspirin. This circumstance was drawn to the attention of the treating doctors at the time of admission. The NCDRC has merely observed that once she was admitted to the hospital, the patient was given medicines. This, in our view, is an insufficient basis to displace the findings of fact and conclusions recorded by the SCDRC.47. For the above reasons, we are of the view that the judgment of the NCDRC is unsustainable. There was no basis or justification to reverse the finding of medical negligence which was arrived at by the SCDRC.48. However, in our view, there is no basis for recording a finding of medical negligence against the Director of the hospital. The Director of the hospital was not the treating doctor or the referring doctor. Hence, while the finding of medical negligence against the hospital would stand confirmed, the second respondent would not be personally liable.49. That leads the Court to the question of damages. Finding the hospital and its Director guilty of medical negligence, the SCDRC directed compensation in the amount of Rs. 6 lakhs together with interest at 9 per cent. 50 While quantifying the compensation, the SCDRC was in error in holding that since the son and daughter of the appellant are ?highly educated and working? and had not joined as complainants, the complainant himself would be entitled to receive compensation only in the amount of Rs. 6 lakhs.51. The complainant has lost his spouse, who was 56 years of age. Though she was not employed, it is now well settled by a catena of decisions of this Court that the contribution made by a non-working spouse to the welfare of the family has an economic equivalent.52. In Lata Wadhwa v State of Bihar, (2001) 8 SCC 197 a three judge Bench of this Court computed damages to be paid to dependants of deceased persons as well as burn victims in the aftermath of a fire at the factory premises. The Court took into consideration the multifarious services rendered to the home by a home-maker and held the estimate arrived at Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000 per annum for the age group of 34 to 59 years.53. In Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 3 SCC 663 Justice S B Sinha held thus: ?172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wifes contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husbands income, etc.? Thus, in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.54. In assessing the amount of compensation, we have been guided by the principle which has been laid down by the Constitution Bench in Lata Wadhwa and in National Insurance Company Ltd. v Pranay Sethi (2017) 13 SCALE 12 with suitable modifications in a case involving medical negligence.

1[ds]22. The real bone of contention in the present case is not the decision which was taken by the doctors to place the patient on a regime of intravenous fluids which, for the purposes of the present appeals, the Court ought to proceed as being on the basis of an established protocol.23. The essential aspect of the case, which bears out the charge of medical negligence, is that between 7.30 am when the patient was admitted to hospital and 6 pm when she developed cardiac arrest, the course of treatment which has been disclosed in the counter affidavit does not indicate any further monitoring of essential parameters particularly those which could be detected by a laboratory analysis of blood samples.24. Since her admission and through the day, the patient was administered intravenous fluids. The fluids were enhanced at 6 pm by 1.5 litres after she developed cardiac arrest. The record before the Court indicates that even thereafter, it was only at 7.15 pm that her blood levels were monitored. The lab report indicated a hemoglobin level of 8.1 andat 19,000. By then, the patient had developed acute signs of cardiac distress and she eventually died within a couple of hours thereafter.25. The requirement of carefully monitoring a patient in such a situation is stipulated both by the guidelines of the World Health Organisation on which the appellant has placed reliance as well as in those incorporated by the Directorate of the National Vector Borne Diseases Control Programme in 2008.26. The WHO guidelines indicate that Dengue is a ‘systemic and dynamic disease? which usually consists of three phases i.e. febrile, critical and recovery. There had been a precipitous decline in the patient?sthe day she was admitted to the hospital.The patient had a prior medical history which included catheter ablation and paroxysmal supra ventricular tachycardia suggestive of cardiac complications and thus fell in the group of patients that require in-hospital management (Group B) under WHO guidelines. The patient was evidently suffering from abdominal discomfort and hospital authorities were required to closely monitor her condition. In failing to do so in a timely manner, the respondents were unable to meet the standard of reasonable care expected of medical services.28. The issue is not whether the patient had already entered a situation involving haemorrhagic fever or a dengue shock syndrome when she was admitted on the morning of 15 November 2009. The real charge of medical negligence stems from the failure of the hospital to regularly monitor the blood parameters of the patient during the course of the day. Had this been done, there can be no manner of doubt that the hospital would have been alive to a situation that there was a decline progressively in the patient?s condition which eventually led to cardiac arrest.29. This Court has consistently held in its decisions (the decision in Kusum Sharma (supra) reiterates that principle) that the standard of care which is expected of a medical professional is the treatment which is expected of one with a reasonable degree of skill and knowledge. A medical practitioner would be liable only where the conduct falls below the standards of a reasonably competent practitioner in the field.30. Decisions of this Court elucidate on the standard of care which is expected of medical practitioners. Medical negligence jurisprudence in India is characterized by a reliance on the ‘Bolam test?.The ?Bolam test? has been the subject of academic debate and evaluation in India and other jurisdictions. Among scholars, the Bolam test has been criticized on the ground that it fails to make the distinction between the ordinary skilled doctor and the reasonably competent doctor.The former places emphasis on the standards adopted by the profession, while the latter denotes that negligence is concerned with departures from what ought to have been done in the circumstances and may be measured by reference to the hypothetical ?reasonable doctor?. The Court must determine what the reasonable doctor would have done and not the profession.Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with ?general and approved practice? and we are bound by this decision.In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to ‘defensive medicine? to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.44. In the present case, the record which stares in the face of the adjudicating authority establishes that between 7.30 am and 7 pm, the critical parameters of the patient were not evaluated. The simple expedient of monitoring blood parameters was not undergone. This was in contravention of WHO guidelines as well as the guidelines prescribed by the Directorate of National Vector Borne Diseases Control Programme. It was the finding of the Medical Council of India that while treatment was administered to the patient according to these guidelines, the patient did not receive timely treatment. It had accordingly administered a warning to the respondents to be more careful in the future. In failing to provide medical treatment in accordance with medical guidelines, the respondents failed to satisfy the standard of reasonable care as laid down in the Bolam case and adopted by Indian Courts. To say that the patient or her family would have resisted a blood test, as is urged by the respondents, is merely a conjecture. Since no test was done, such an explanation cannot be accepted.45. The NCDRC had before it a well-considered judgment of the SCDRC based on the evidence on the record. While the jurisdiction of an adjudicatory authority in a first appeal is co-extensive with that of the original authority, the NCDRC has displaced the findings of fact which have been arrived at by the SCDRC without any cogent reasoning.46. The appellate authority has placed a considerable degree of reliance on the fact that the patient was on aspirin. This circumstance was drawn to the attention of the treating doctors at the time of admission. The NCDRC has merely observed that once she was admitted to the hospital, the patient was given medicines. This, in our view, is an insufficient basis to displace the findings of fact and conclusions recorded by the SCDRC.47. For the above reasons, we are of the view that the judgment of the NCDRC is unsustainable. There was no basis or justification to reverse the finding of medical negligence which was arrived at by the SCDRC.48. However, in our view, there is no basis for recording a finding of medical negligence against the Director of the hospital. The Director of the hospital was not the treating doctor or the referring doctor. Hence, while the finding of medical negligence against the hospital would stand confirmed, the second respondent would not be personally liable.49. That leads the Court to the question of damages. Finding the hospital and its Director guilty of medical negligence, the SCDRC directed compensation in the amount of Rs. 6 lakhs together with interest at 9 per cent. 50 While quantifying the compensation, the SCDRC was in error in holding that since the son and daughter of the appellant are ?highly educated and working? and had not joined as complainants, the complainant himself would be entitled to receive compensation only in the amount of Rs. 6 lakhs.51. The complainant has lost his spouse, who was 56 years of age. Though she was not employed, it is now well settled by a catena of decisions of this Court that the contribution made by a non-working spouse to the welfare of the family has an economic equivalent.52. In Lata Wadhwa v State of Bihar, (2001) 8 SCC 197 a three judge Bench of this Court computed damages to be paid to dependants of deceased persons as well as burn victims in the aftermath of a fire at the factory premises. The Court took into consideration the multifarious services rendered to the home by a home-maker and held the estimate arrived at Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000 per annum for the age group of 34 to 59in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.54. In assessing the amount of compensation, we have been guided by the principle which has been laid down by the Constitution Bench in Lata Wadhwa and in National Insurance Company Ltd. v Pranay Sethi (2017) 13 SCALE 12 with suitable modifications in a case involving medical negligence.

### 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 date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time.? 43. In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to ‘defensive medicine? to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.44. In the present case, the record which stares in the face of the adjudicating authority establishes that between 7.30 am and 7 pm, the critical parameters of the patient were not evaluated. The simple expedient of monitoring blood parameters was not undergone. This was in contravention of WHO guidelines as well as the guidelines prescribed by the Directorate of National Vector Borne Diseases Control Programme. It was the finding of the Medical Council of India that while treatment was administered to the patient according to these guidelines, the patient did not receive timely treatment. It had accordingly administered a warning to the respondents to be more careful in the future. In failing to provide medical treatment in accordance with medical guidelines, the respondents failed to satisfy the standard of reasonable care as laid down in the Bolam case and adopted by Indian Courts. To say that the patient or her family would have resisted a blood test, as is urged by the respondents, is merely a conjecture. Since no test was done, such an explanation cannot be accepted.45. The NCDRC had before it a well-considered judgment of the SCDRC based on the evidence on the record. While the jurisdiction of an adjudicatory authority in a first appeal is co-extensive with that of the original authority, the NCDRC has displaced the findings of fact which have been arrived at by the SCDRC without any cogent reasoning.46. The appellate authority has placed a considerable degree of reliance on the fact that the patient was on aspirin. This circumstance was drawn to the attention of the treating doctors at the time of admission. The NCDRC has merely observed that once she was admitted to the hospital, the patient was given medicines. This, in our view, is an insufficient basis to displace the findings of fact and conclusions recorded by the SCDRC.47. For the above reasons, we are of the view that the judgment of the NCDRC is unsustainable. There was no basis or justification to reverse the finding of medical negligence which was arrived at by the SCDRC.48. However, in our view, there is no basis for recording a finding of medical negligence against the Director of the hospital. The Director of the hospital was not the treating doctor or the referring doctor. Hence, while the finding of medical negligence against the hospital would stand confirmed, the second respondent would not be personally liable.49. That leads the Court to the question of damages. Finding the hospital and its Director guilty of medical negligence, the SCDRC directed compensation in the amount of Rs. 6 lakhs together with interest at 9 per cent. 50 While quantifying the compensation, the SCDRC was in error in holding that since the son and daughter of the appellant are ?highly educated and working? and had not joined as complainants, the complainant himself would be entitled to receive compensation only in the amount of Rs. 6 lakhs.51. The complainant has lost his spouse, who was 56 years of age. Though she was not employed, it is now well settled by a catena of decisions of this Court that the contribution made by a non-working spouse to the welfare of the family has an economic equivalent.52. In Lata Wadhwa v State of Bihar, (2001) 8 SCC 197 a three judge Bench of this Court computed damages to be paid to dependants of deceased persons as well as burn victims in the aftermath of a fire at the factory premises. The Court took into consideration the multifarious services rendered to the home by a home-maker and held the estimate arrived at Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000 per annum for the age group of 34 to 59 years.53. In Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 3 SCC 663 Justice S B Sinha held thus: ?172. Loss of wife to a husband may always be truly compensated by way of mandatory compensation. How one would do it has been baffling the court for a long time. For compensating a husband for loss of his wife, therefore, the courts consider the loss of income to the family. It may not be difficult to do when she had been earning. Even otherwise a wifes contribution to the family in terms of money can always be worked out. Every housewife makes a contribution to his family. It is capable of being measured on monetary terms although emotional aspect of it cannot be. It depends upon her educational qualification, her own upbringing, status, husbands income, etc.? Thus, in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.54. In assessing the amount of compensation, we have been guided by the principle which has been laid down by the Constitution Bench in Lata Wadhwa and in National Insurance Company Ltd. v Pranay Sethi (2017) 13 SCALE 12 with suitable modifications in a case involving medical negligence. ### Response: 1 ### Explanation: academic debate and evaluation in India and other jurisdictions. Among scholars, the Bolam test has been criticized on the ground that it fails to make the distinction between the ordinary skilled doctor and the reasonably competent doctor.The former places emphasis on the standards adopted by the profession, while the latter denotes that negligence is concerned with departures from what ought to have been done in the circumstances and may be measured by reference to the hypothetical ?reasonable doctor?. The Court must determine what the reasonable doctor would have done and not the profession.Our law must take into account advances in medical science and ensure that a patient-centric approach is adopted. The standard of care as enunciated in the Bolam case must evolve in consonance with its subsequent interpretation by English and Indian Courts. Significantly, the standard adopted by the three-judge bench of this Court in Jacob Matthew includes the requirement that the course adopted by the medical professional be consistent with ?general and approved practice? and we are bound by this decision.In the practice of medicine, there could be varying approaches to treatment. There can be a genuine difference of opinion. However, while adopting a course of treatment, the medical professional must ensure that it is not unreasonable. The threshold to prove unreasonableness is set with due regard to the risks associated with medical treatment and the conditions under which medical professionals function. This is to avoid a situation where doctors resort to ‘defensive medicine? to avoid claims of negligence, often to the detriment of the patient. Hence, in a specific case where unreasonableness in professional conduct has been proven with regard to the circumstances of that case, a professional cannot escape liability for medical evidence merely by relying on a body of professional opinion.44. In the present case, the record which stares in the face of the adjudicating authority establishes that between 7.30 am and 7 pm, the critical parameters of the patient were not evaluated. The simple expedient of monitoring blood parameters was not undergone. This was in contravention of WHO guidelines as well as the guidelines prescribed by the Directorate of National Vector Borne Diseases Control Programme. It was the finding of the Medical Council of India that while treatment was administered to the patient according to these guidelines, the patient did not receive timely treatment. It had accordingly administered a warning to the respondents to be more careful in the future. In failing to provide medical treatment in accordance with medical guidelines, the respondents failed to satisfy the standard of reasonable care as laid down in the Bolam case and adopted by Indian Courts. To say that the patient or her family would have resisted a blood test, as is urged by the respondents, is merely a conjecture. Since no test was done, such an explanation cannot be accepted.45. The NCDRC had before it a well-considered judgment of the SCDRC based on the evidence on the record. While the jurisdiction of an adjudicatory authority in a first appeal is co-extensive with that of the original authority, the NCDRC has displaced the findings of fact which have been arrived at by the SCDRC without any cogent reasoning.46. The appellate authority has placed a considerable degree of reliance on the fact that the patient was on aspirin. This circumstance was drawn to the attention of the treating doctors at the time of admission. The NCDRC has merely observed that once she was admitted to the hospital, the patient was given medicines. This, in our view, is an insufficient basis to displace the findings of fact and conclusions recorded by the SCDRC.47. For the above reasons, we are of the view that the judgment of the NCDRC is unsustainable. There was no basis or justification to reverse the finding of medical negligence which was arrived at by the SCDRC.48. However, in our view, there is no basis for recording a finding of medical negligence against the Director of the hospital. The Director of the hospital was not the treating doctor or the referring doctor. Hence, while the finding of medical negligence against the hospital would stand confirmed, the second respondent would not be personally liable.49. That leads the Court to the question of damages. Finding the hospital and its Director guilty of medical negligence, the SCDRC directed compensation in the amount of Rs. 6 lakhs together with interest at 9 per cent. 50 While quantifying the compensation, the SCDRC was in error in holding that since the son and daughter of the appellant are ?highly educated and working? and had not joined as complainants, the complainant himself would be entitled to receive compensation only in the amount of Rs. 6 lakhs.51. The complainant has lost his spouse, who was 56 years of age. Though she was not employed, it is now well settled by a catena of decisions of this Court that the contribution made by a non-working spouse to the welfare of the family has an economic equivalent.52. In Lata Wadhwa v State of Bihar, (2001) 8 SCC 197 a three judge Bench of this Court computed damages to be paid to dependants of deceased persons as well as burn victims in the aftermath of a fire at the factory premises. The Court took into consideration the multifarious services rendered to the home by a home-maker and held the estimate arrived at Rs 12,000 per annum to be grossly low. It was enhanced to Rs 36,000 per annum for the age group of 34 to 59in computing compensation payable on the death of a home-maker spouse who is not employed, the Court must bear in mind that the contribution is significant and capable of being measured in monetary terms.54. In assessing the amount of compensation, we have been guided by the principle which has been laid down by the Constitution Bench in Lata Wadhwa and in National Insurance Company Ltd. v Pranay Sethi (2017) 13 SCALE 12 with suitable modifications in a case involving medical negligence.

Dr. Akshya Bisoi & Another Vs. All India Institute of Medical Sciences & Others

held on 17 June 1998.20 The above extract indicates that the gradings allocated by the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection of the candidates “may be made” on the basis of the gradings/markings of the members of the committee and the technical experts. The expression “may be made” has been approved in place of “will be made” as recorded earlier.21 The judgment of the Delhi High Court in Dr Dilip Kumar Parida v AIIMS (supra) holds that the view of the experts who are co-opted in the selection process is only advisory and that the members of the Standing Selection Committee of AIIMS are not bound by their opinion:“21. AIIMS besides being a statutory body is a specialized body and having provided for a constitution of a Standing Selection Committee, we are in agreement with the contentions on behalf of the respondent No. 5 that the role of the experts co-opted in the section process is merely advisory and the members of the Standing Selection Committee are not bound by the opinion of the experts and are entitled to evaluate the applicants for the various posts independently of the same.23. We may mention that the experts co-opted in the selection process are intended to evaluate the academic aspects of the candidates while on the other hand the Standing Selection Committee is concerned not only with the academic aspect but also with the other parameters viz. of suitability, demeanour, adaptability etc.”The above statement of position in the judgment of the Delhi High Court should not be read to suggest that the experts who are co-opted as part of the Selection Committee have no role and that the other members have to decide on the selection, independently of their views. Experts are co-opted in order to ensure that the Selection Committee is broad-based; that the selection is objective; and that the experience and knowledge of experts drawn from outside provides a valuable input in the ultimate decision. The policy adopted in 1997 indicates that the final selection may be made on the basis of the grading/marking given by the Members of the Selection Committee and the technical experts. Where there is a tie, the decision rests with the Chairperson, after discussion with other members of the Selection Committee. We cannot subscribe to the contention of the petitioners that it is only a tie which can be resolved by the Chairperson and in all other cases, the Committee is obliged to make its selection on a mathematical summation of grades. The fact that selection ‘may be made’ (this expression being in substitution of ‘will be made’) on the basis of the grading given by the members of the Selection Committee and the technical experts suggests that the determination of merit is not merely a mechanical totalling of grades allotted. The Selection Committee has to act objectively. This undoubtedly requires giving due credence to the view of the experts. But while doing so, it must have due regard to all relevant aspects bearing on the interest of the institution. The Selection Committee has to assess the credentials of the candidates which would include the service profile of the candidate. It is in this sense that the Delhi High Court has to be construed to mean that while the views of the experts co-opted to the Selection Committee constitute a valuable perspective and input, they cannot be regarded as binding. The members of the Selection Committee would have to consider the views of the experts and to evaluate them together with all other relevant circumstances.22. In the present case, the record of the court indicates that while making its recommendations for appointment to the post of Additional Professor, the Selection Committee had borne in mind the performance of the candidates, their records as well as the opinion of the technical experts. The minutes of the meeting of 12 September 2005 indicate that the views of the technical experts were considered. To re-evaluate what took place well over twelve years ago would neither be feasible nor appropriate. The policy decision of 1997 indicates that the gradings given by all the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection “may be made” on the basis of the gradings/markings given by the members of the Selection Committee and the technical experts. The Selection Committee which was constituted in 2005 considered the issue of selection and inter se ranking of the selected candidates. In making its final recommendation in regard to their order of merit, upon appointment as Additional Professors, the Selection Committee had due regard to relevant matters including the performance of the candidates, their records and the opinion of the experts. Hence, the ranking which has been assigned cannot be regarded as being in breach of the policy decision of 1997. It would be iniquitous to unsettle the position of seniority, over twelve years after the petitioners and the Fourth respondent were selected as Additional Professors. Even thereafter, when each of them has been promoted as a Professor, it is the Fourth respondent who has been ranked higher than the petitioners.23. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the Fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the First petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon their distinguished service to a premier national institution.

0[ds]12. The above narration indicates that since April 2012, the consistent position which has been maintained by the First respondent is in line with the order of merit which was recommended by the Selection Committee by which the Fourth respondent was placed above the petitioners when they were selected for appointment as Additional Professors.In the present case, the record of the court indicates that while making its recommendations for appointment to the post of Additional Professor, the Selection Committee had borne in mind the performance of the candidates, their records as well as the opinion of the technical experts. The minutes of the meeting of 12 September 2005 indicate that the views of the technical experts were considered. Towhat took place well over twelve years ago would neither be feasible nor appropriate. The policy decision of 1997 indicates that the gradings given by all the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selectionon the basis of the gradings/markings given by the members of the Selection Committee and the technical experts. The Selection Committee which was constituted in 2005 considered the issue of selection and inter se ranking of the selected candidates. In making its final recommendation in regard to their order of merit, upon appointment as Additional Professors, the Selection Committee had due regard to relevant matters including the performance of the candidates, their records and the opinion of the experts. Hence, the ranking which has been assigned cannot be regarded as being in breach of the policy decision of 1997. It would be iniquitous to unsettle the position of seniority, over twelve years after the petitioners and the Fourth respondent were selected as Additional Professors. Even thereafter, when each of them has been promoted as a Professor, it is the Fourth respondent who has been ranked higher than the petitioners.23. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the Fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the First petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon their distinguished service to a premier national institution.

### 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: held on 17 June 1998.20 The above extract indicates that the gradings allocated by the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection of the candidates “may be made” on the basis of the gradings/markings of the members of the committee and the technical experts. The expression “may be made” has been approved in place of “will be made” as recorded earlier.21 The judgment of the Delhi High Court in Dr Dilip Kumar Parida v AIIMS (supra) holds that the view of the experts who are co-opted in the selection process is only advisory and that the members of the Standing Selection Committee of AIIMS are not bound by their opinion:“21. AIIMS besides being a statutory body is a specialized body and having provided for a constitution of a Standing Selection Committee, we are in agreement with the contentions on behalf of the respondent No. 5 that the role of the experts co-opted in the section process is merely advisory and the members of the Standing Selection Committee are not bound by the opinion of the experts and are entitled to evaluate the applicants for the various posts independently of the same.23. We may mention that the experts co-opted in the selection process are intended to evaluate the academic aspects of the candidates while on the other hand the Standing Selection Committee is concerned not only with the academic aspect but also with the other parameters viz. of suitability, demeanour, adaptability etc.”The above statement of position in the judgment of the Delhi High Court should not be read to suggest that the experts who are co-opted as part of the Selection Committee have no role and that the other members have to decide on the selection, independently of their views. Experts are co-opted in order to ensure that the Selection Committee is broad-based; that the selection is objective; and that the experience and knowledge of experts drawn from outside provides a valuable input in the ultimate decision. The policy adopted in 1997 indicates that the final selection may be made on the basis of the grading/marking given by the Members of the Selection Committee and the technical experts. Where there is a tie, the decision rests with the Chairperson, after discussion with other members of the Selection Committee. We cannot subscribe to the contention of the petitioners that it is only a tie which can be resolved by the Chairperson and in all other cases, the Committee is obliged to make its selection on a mathematical summation of grades. The fact that selection ‘may be made’ (this expression being in substitution of ‘will be made’) on the basis of the grading given by the members of the Selection Committee and the technical experts suggests that the determination of merit is not merely a mechanical totalling of grades allotted. The Selection Committee has to act objectively. This undoubtedly requires giving due credence to the view of the experts. But while doing so, it must have due regard to all relevant aspects bearing on the interest of the institution. The Selection Committee has to assess the credentials of the candidates which would include the service profile of the candidate. It is in this sense that the Delhi High Court has to be construed to mean that while the views of the experts co-opted to the Selection Committee constitute a valuable perspective and input, they cannot be regarded as binding. The members of the Selection Committee would have to consider the views of the experts and to evaluate them together with all other relevant circumstances.22. In the present case, the record of the court indicates that while making its recommendations for appointment to the post of Additional Professor, the Selection Committee had borne in mind the performance of the candidates, their records as well as the opinion of the technical experts. The minutes of the meeting of 12 September 2005 indicate that the views of the technical experts were considered. To re-evaluate what took place well over twelve years ago would neither be feasible nor appropriate. The policy decision of 1997 indicates that the gradings given by all the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selection “may be made” on the basis of the gradings/markings given by the members of the Selection Committee and the technical experts. The Selection Committee which was constituted in 2005 considered the issue of selection and inter se ranking of the selected candidates. In making its final recommendation in regard to their order of merit, upon appointment as Additional Professors, the Selection Committee had due regard to relevant matters including the performance of the candidates, their records and the opinion of the experts. Hence, the ranking which has been assigned cannot be regarded as being in breach of the policy decision of 1997. It would be iniquitous to unsettle the position of seniority, over twelve years after the petitioners and the Fourth respondent were selected as Additional Professors. Even thereafter, when each of them has been promoted as a Professor, it is the Fourth respondent who has been ranked higher than the petitioners.23. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the Fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the First petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon their distinguished service to a premier national institution. ### Response: 0 ### Explanation: 12. The above narration indicates that since April 2012, the consistent position which has been maintained by the First respondent is in line with the order of merit which was recommended by the Selection Committee by which the Fourth respondent was placed above the petitioners when they were selected for appointment as Additional Professors.In the present case, the record of the court indicates that while making its recommendations for appointment to the post of Additional Professor, the Selection Committee had borne in mind the performance of the candidates, their records as well as the opinion of the technical experts. The minutes of the meeting of 12 September 2005 indicate that the views of the technical experts were considered. Towhat took place well over twelve years ago would neither be feasible nor appropriate. The policy decision of 1997 indicates that the gradings given by all the members of the Selection Committee and the technical experts are to be placed before the Chairman of the Selection Committee and the final selectionon the basis of the gradings/markings given by the members of the Selection Committee and the technical experts. The Selection Committee which was constituted in 2005 considered the issue of selection and inter se ranking of the selected candidates. In making its final recommendation in regard to their order of merit, upon appointment as Additional Professors, the Selection Committee had due regard to relevant matters including the performance of the candidates, their records and the opinion of the experts. Hence, the ranking which has been assigned cannot be regarded as being in breach of the policy decision of 1997. It would be iniquitous to unsettle the position of seniority, over twelve years after the petitioners and the Fourth respondent were selected as Additional Professors. Even thereafter, when each of them has been promoted as a Professor, it is the Fourth respondent who has been ranked higher than the petitioners.23. For the above reasons, we have come to the conclusion that the grant of relief would unsettle the inter se seniority between the petitioners and the Fourth respondent well over twelve years since the recommendation of the Selection Committee for appointment as Additional Professors. This cannot be done. Some expressions of opinion in favour of the First petitioner in the departmental processes may have engendered a sense of hope. But that cannot furnish a legal ground to unsettle something that has held the field for long years. We close the proceedings with the expectation that these distinguished doctors will pursue their avocations at AIIMS without rancour. Our decision on seniority is no reflection upon their distinguished service to a premier national institution.

M/S.Clarity Gold Private Limited & Another Vs. State Bank of India & Others

to the provisions of Section 14.18. On 23 July 2010 the Bank addressed a letter to the Commissioner of Police, Mumbai stating that under Section 13(4), its authorised officer was taking necessary action in an area falling under the jurisdiction of the Malabar Hill Police Station. A request was made in the letter to direct the Police Station to provide constables for the protection of the authorised officer of the Bank in discharging his official duties under the Act. This was followed by a letter dated 23 July 2010 to the officer incharge of the Malabar Hill Police Station. The letter also recorded that the Bank had authorised an enforcement agency to assist and take all necessary actions under the Act. At the foot of the letter, there is an endorsement to the effect that on 27 July 2010, police bandobast should be provided. After possession was taken, on 28 July 2010 a police complaint came to be lodged by the Manager-Accounts and by the employees of the Petitioners. The complaint was to the following effect:We hereby place on record that at 3 pm today some nearly 20 people alongwith your API Mr.Machinder, Head Constable Mr.Patil and Constable Mr.Bhosle forcefully barged into the above mentioned address and started abusing and using the bad words. On enquiry they wee telling that the State Bank of Indore have Court order to take forceful possession of the flat. We told the persons that the owner was not present and we have to take instructions. We also asked them to show the Court order to which they refused and then they started using bad language and started assaulting. Some of the unidentified person from Bank assaulted us, slapped us pushed us and they used the force and pushed us out of the house. The police was seeing this whole incident but they were standing still and did not take any action When we came to the police station the duty inspector has refused to take our complaint of physical assault and forcefully taking the possession of flat without the due of process of law.19. The Tribunal came to the conclusion that the Bank had taken forcible possession of the property without seeking recourse to an order of the Chief Metropolitan Magistrate under Section 14. Now, under Section 14, where the possession of any secured asset is required to be taken by the secured creditor, the secured creditor may make request in writing to the Chief Metropolitan Magistrate or the District Magistrate concerned to take possession. Thereupon, the Chief Metropolitan Magistrate or the District Magistrate is empowered to take possession of the asset and documents relating thereto and to forward them to the secured creditor. Under subsection (2) the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary. Section 14 of the Act is an enabling provision under which the secured creditor is empowered to seek recourse to the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate for the purpose of taking possession. Though Section 14 is an enabling provision, it will be wholly impermissible for a secured creditor, despite the provisions of Section 14, to take the law into his own hands and to forcibly evict a borrower from the secured asset. Our legal system is governed by the rule of law. If the borrower hands over possession voluntarily to the secured creditor in pursuance of a notice under Section 13(4), it would be open to the secured creditor to take possession. But, if possession is not voluntarily handed over, the secured creditor cannot take the law into his own hands and secure vacant possession by taking recourse to the police machinery. In such an event, the only remedy that is available is to seek an appropriate order from the Chief Metropolitan Magistrate, or as the case may be, the District Magistrate. Parliament has specifically authorised in subsection (2) those authorities to take or cause to be taken such steps and use or caused to be used such force as may be necessary. Authorisation of the use of force for taking possession is therefore a matter which lies in the jurisdiction and power of the authorities prescribed by Section 14. No secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset.20. Having said this, it is clear from the record, that the Debt Recovery Tribunal did, as a matter of fact enter a finding of fact that possession was forcibly taken over by a secured creditor in this case. However, the Tribunal clarified that it was not resting its decision on that finding, since quite independently the Tribunal had come to the conclusion that the notice of possession and the sale notice were invalid. When an Appeal was carried by the secured creditor, the Appellate Tribunal reversed the finding of fact of the Tribunal on issues pertaining to the service and delivery of the possession notice under Rule 8(1) and the publication of the possession notice in the newspaper under Rule 8(2). The Appellate Tribunal did not consider the correctness of the finding which was arrived at by the Tribunal that forcible possession was taken by the secured creditor.21. Whether forcible possession was taken by the secured creditor is essentially a question of fact to be determined on the basis of the material on the record. We are of the view that having regard to the parameters of the jurisdiction under Article 226 of the Constitution, it would only be appropriate and proper if that question is left to be decided by the Appellate Tribunal which has a fact finding jurisdiction. There being no finding of the Appellate Tribunal in that regard, we consider it appropriate and proper to remit the proceeding back to the Appellate Tribunal only on this aspect.

1[ds]n (2) of Section 13 contemplates a notice in writing by the secured creditor to a borrower to discharge his liabilities in full within sixty days of the notice failing which the secured creditor is entitled to exercise his rights under subsectione (1) of Rule 3 of the Security Interest (Enforcement) Rules, 2002 contemplates that the service of a demand notice under Section 13(2) shall be made by delivering or transmitting at the place where the borrower actually and voluntarily resides or carries on business or personally works for gain, by registered post with acknowledgment due, or by speed post or by courier or by any other means of transmission of documents like fax message or electronic mail.(3) of Rule 3 requires that any other notice in writing to be served on the borrower or his agent by an authorised officer, shall be served in the same manner as provided in the rule. Where there is more than one borrower, the demand notice under(4) has to be served on each borrower.(1) of Rule 8 requires that where the secured asset is an immovable property, the authorised officer shall take or cause to be taken possession, by delivering a possession notice conforming to Appendix IV to the borrower and by affixing the notice on the property.10. Now, in the present case, the notice under Section 13(2) was sent in the name of the director of the First Petitioner. The notice was acknowledged by the Second Petitioner and the acknowledgment also bears the rubber stamp of the company. The Company, as a matter of fact, replied to the notice. From these facts, it is abundantly clear that the notice was duly served on both the Company and on the Second Petitioner. The Second Petitioner is a director of the First Petitioner which is a closely held private limited company. From the material on record, it is evident that the Second Petitioner was an agent authorised to accept notice on behalf of the First Petitioner. In any event, the First Petitioner has also acknowledged service of the notice. There was, therefore, valid compliance with the requirement of Section 13(2) and the Rules in regard to the service of notice under Section 13(2).11. The submission that the action that has been taken by the Bank under Section 13(4) is rendered invalid because the objections of the Petitioners to the notice under Section 13(2) were dealt with in a reply which was remitted beyond a period of one week of the receipt of the representation is without any basis. Following the decision of the Supreme Court in Mardia Chemicals Ltd. vs. Union of Indiaors., (AIR 2004 SC 2371 ) subsection (3A) was inserted by Amending Act 30 of 2004 so as to enable a borrower to make a representation or to raise an objection upon a notice under subsection (2). If the secured creditor comes to the conclusion that there is no basis in the objection, reasons have to be communicated within one week of the receipt of the representation. A Division Bench of the Gujarat High Court has, in Bansal vs. DGM Small Industries Development Bank of India, (AIR 2009 Gujarat 100) held that the requirement that the secured creditor must communicate the reasons forof the representation within one week is directory in regard to the period.We are in respectful agreement with the judgment of the Gujarat High Court which holds that every prescription of a period within which an act has to be done does not constitute a prescription of a period of limitation, a failure of compliance with which would render the action invalid. The object of subsection (3A) is to provide an expeditious method for the disposal of objections in order to ensure that the action of the secured creditor is not held up for an unduly long period of time. The period of one week that is prescribed in subsection (3A) is clearly directory. That apart, the Petitioners have not established that any prejudice was caused to them by the delay on the part of the Bank in responding to the representation submitted to the notice under Section 13(2). That submission must thereforeis no dispute about the fact that the notice was affixed as provided. As regards the issue of service, from the material on record, it has emerged that the notice was acknowledged at the premises by theof the First Petitioner. As a matter of fact Murugan Pillai, who acknowledged the notice had also acknowledged the notice of the Bank dated 25 May 2010 to a director and guarantor of the First Petitioner which was remitted to the very same address. Counsel on behalf of the Petitioners has stated before the Court that the First Petitioner is a closely held company and it is not disputed that both the Second Petitioner and her spouse are directors of the company.On the basis of the material on the record, the Debts Recovery Appellate Tribunal was justified in coming to the conclusion that thewas duly authorised to accept notice and that there was valid service of the notice upon him, before possession was taken. While acknowledging the receipt of the notice, theentered no caveat below his endorsement to the effect that he was not duly authorised to accept service of notice. The finding of fact which is rendered by the Appellate Tribunal is therefore borne out from the material on record and does not warrant interference in proceedings under Article 226 of theSection 14 is an enabling provision, it will be wholly impermissible for a secured creditor, despite the provisions of Section 14, to take the law into his own hands and to forcibly evict a borrower from the secured asset. Our legal system is governed by the rule of law. If the borrower hands over possession voluntarily to the secured creditor in pursuance of a notice under Section 13(4), it would be open to the secured creditor to take possession. But, if possession is not voluntarily handed over, the secured creditor cannot take the law into his own hands and secure vacant possession by taking recourse to the police machinery. In such an event, the only remedy that is available is to seek an appropriate order from the Chief Metropolitan Magistrate, or as the case may be, the District Magistrate. Parliament has specifically authorised in subsection (2) those authorities to take or cause to be taken such steps and use or caused to be used such force as may be necessary. Authorisation of the use of force for taking possession is therefore a matter which lies in the jurisdiction and power of the authorities prescribed by Section 14. No secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset.20. Having said this, it is clear from the record, that the Debt Recovery Tribunal did, as a matter of fact enter a finding of fact that possession was forcibly taken over by a secured creditor in this case. However, the Tribunal clarified that it was not resting its decision on that finding, since quite independently the Tribunal had come to the conclusion that the notice of possession and the sale notice were invalid. When an Appeal was carried by the secured creditor, the Appellate Tribunal reversed the finding of fact of the Tribunal on issues pertaining to the service and delivery of the possession notice under Rule 8(1) and the publication of the possession notice in the newspaper under Rule 8(2). The Appellate Tribunal did not consider the correctness of the finding which was arrived at by the Tribunal that forcible possession was taken by the secured creditor.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: to the provisions of Section 14.18. On 23 July 2010 the Bank addressed a letter to the Commissioner of Police, Mumbai stating that under Section 13(4), its authorised officer was taking necessary action in an area falling under the jurisdiction of the Malabar Hill Police Station. A request was made in the letter to direct the Police Station to provide constables for the protection of the authorised officer of the Bank in discharging his official duties under the Act. This was followed by a letter dated 23 July 2010 to the officer incharge of the Malabar Hill Police Station. The letter also recorded that the Bank had authorised an enforcement agency to assist and take all necessary actions under the Act. At the foot of the letter, there is an endorsement to the effect that on 27 July 2010, police bandobast should be provided. After possession was taken, on 28 July 2010 a police complaint came to be lodged by the Manager-Accounts and by the employees of the Petitioners. The complaint was to the following effect:We hereby place on record that at 3 pm today some nearly 20 people alongwith your API Mr.Machinder, Head Constable Mr.Patil and Constable Mr.Bhosle forcefully barged into the above mentioned address and started abusing and using the bad words. On enquiry they wee telling that the State Bank of Indore have Court order to take forceful possession of the flat. We told the persons that the owner was not present and we have to take instructions. We also asked them to show the Court order to which they refused and then they started using bad language and started assaulting. Some of the unidentified person from Bank assaulted us, slapped us pushed us and they used the force and pushed us out of the house. The police was seeing this whole incident but they were standing still and did not take any action When we came to the police station the duty inspector has refused to take our complaint of physical assault and forcefully taking the possession of flat without the due of process of law.19. The Tribunal came to the conclusion that the Bank had taken forcible possession of the property without seeking recourse to an order of the Chief Metropolitan Magistrate under Section 14. Now, under Section 14, where the possession of any secured asset is required to be taken by the secured creditor, the secured creditor may make request in writing to the Chief Metropolitan Magistrate or the District Magistrate concerned to take possession. Thereupon, the Chief Metropolitan Magistrate or the District Magistrate is empowered to take possession of the asset and documents relating thereto and to forward them to the secured creditor. Under subsection (2) the Chief Metropolitan Magistrate or the District Magistrate may take or cause to be taken such steps and use or cause to be used such force as may in his opinion be necessary. Section 14 of the Act is an enabling provision under which the secured creditor is empowered to seek recourse to the Chief Metropolitan Magistrate or, as the case may be, the District Magistrate for the purpose of taking possession. Though Section 14 is an enabling provision, it will be wholly impermissible for a secured creditor, despite the provisions of Section 14, to take the law into his own hands and to forcibly evict a borrower from the secured asset. Our legal system is governed by the rule of law. If the borrower hands over possession voluntarily to the secured creditor in pursuance of a notice under Section 13(4), it would be open to the secured creditor to take possession. But, if possession is not voluntarily handed over, the secured creditor cannot take the law into his own hands and secure vacant possession by taking recourse to the police machinery. In such an event, the only remedy that is available is to seek an appropriate order from the Chief Metropolitan Magistrate, or as the case may be, the District Magistrate. Parliament has specifically authorised in subsection (2) those authorities to take or cause to be taken such steps and use or caused to be used such force as may be necessary. Authorisation of the use of force for taking possession is therefore a matter which lies in the jurisdiction and power of the authorities prescribed by Section 14. No secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset.20. Having said this, it is clear from the record, that the Debt Recovery Tribunal did, as a matter of fact enter a finding of fact that possession was forcibly taken over by a secured creditor in this case. However, the Tribunal clarified that it was not resting its decision on that finding, since quite independently the Tribunal had come to the conclusion that the notice of possession and the sale notice were invalid. When an Appeal was carried by the secured creditor, the Appellate Tribunal reversed the finding of fact of the Tribunal on issues pertaining to the service and delivery of the possession notice under Rule 8(1) and the publication of the possession notice in the newspaper under Rule 8(2). The Appellate Tribunal did not consider the correctness of the finding which was arrived at by the Tribunal that forcible possession was taken by the secured creditor.21. Whether forcible possession was taken by the secured creditor is essentially a question of fact to be determined on the basis of the material on the record. We are of the view that having regard to the parameters of the jurisdiction under Article 226 of the Constitution, it would only be appropriate and proper if that question is left to be decided by the Appellate Tribunal which has a fact finding jurisdiction. There being no finding of the Appellate Tribunal in that regard, we consider it appropriate and proper to remit the proceeding back to the Appellate Tribunal only on this aspect. ### Response: 1 ### Explanation: Company and on the Second Petitioner. The Second Petitioner is a director of the First Petitioner which is a closely held private limited company. From the material on record, it is evident that the Second Petitioner was an agent authorised to accept notice on behalf of the First Petitioner. In any event, the First Petitioner has also acknowledged service of the notice. There was, therefore, valid compliance with the requirement of Section 13(2) and the Rules in regard to the service of notice under Section 13(2).11. The submission that the action that has been taken by the Bank under Section 13(4) is rendered invalid because the objections of the Petitioners to the notice under Section 13(2) were dealt with in a reply which was remitted beyond a period of one week of the receipt of the representation is without any basis. Following the decision of the Supreme Court in Mardia Chemicals Ltd. vs. Union of Indiaors., (AIR 2004 SC 2371 ) subsection (3A) was inserted by Amending Act 30 of 2004 so as to enable a borrower to make a representation or to raise an objection upon a notice under subsection (2). If the secured creditor comes to the conclusion that there is no basis in the objection, reasons have to be communicated within one week of the receipt of the representation. A Division Bench of the Gujarat High Court has, in Bansal vs. DGM Small Industries Development Bank of India, (AIR 2009 Gujarat 100) held that the requirement that the secured creditor must communicate the reasons forof the representation within one week is directory in regard to the period.We are in respectful agreement with the judgment of the Gujarat High Court which holds that every prescription of a period within which an act has to be done does not constitute a prescription of a period of limitation, a failure of compliance with which would render the action invalid. The object of subsection (3A) is to provide an expeditious method for the disposal of objections in order to ensure that the action of the secured creditor is not held up for an unduly long period of time. The period of one week that is prescribed in subsection (3A) is clearly directory. That apart, the Petitioners have not established that any prejudice was caused to them by the delay on the part of the Bank in responding to the representation submitted to the notice under Section 13(2). That submission must thereforeis no dispute about the fact that the notice was affixed as provided. As regards the issue of service, from the material on record, it has emerged that the notice was acknowledged at the premises by theof the First Petitioner. As a matter of fact Murugan Pillai, who acknowledged the notice had also acknowledged the notice of the Bank dated 25 May 2010 to a director and guarantor of the First Petitioner which was remitted to the very same address. Counsel on behalf of the Petitioners has stated before the Court that the First Petitioner is a closely held company and it is not disputed that both the Second Petitioner and her spouse are directors of the company.On the basis of the material on the record, the Debts Recovery Appellate Tribunal was justified in coming to the conclusion that thewas duly authorised to accept notice and that there was valid service of the notice upon him, before possession was taken. While acknowledging the receipt of the notice, theentered no caveat below his endorsement to the effect that he was not duly authorised to accept service of notice. The finding of fact which is rendered by the Appellate Tribunal is therefore borne out from the material on record and does not warrant interference in proceedings under Article 226 of theSection 14 is an enabling provision, it will be wholly impermissible for a secured creditor, despite the provisions of Section 14, to take the law into his own hands and to forcibly evict a borrower from the secured asset. Our legal system is governed by the rule of law. If the borrower hands over possession voluntarily to the secured creditor in pursuance of a notice under Section 13(4), it would be open to the secured creditor to take possession. But, if possession is not voluntarily handed over, the secured creditor cannot take the law into his own hands and secure vacant possession by taking recourse to the police machinery. In such an event, the only remedy that is available is to seek an appropriate order from the Chief Metropolitan Magistrate, or as the case may be, the District Magistrate. Parliament has specifically authorised in subsection (2) those authorities to take or cause to be taken such steps and use or caused to be used such force as may be necessary. Authorisation of the use of force for taking possession is therefore a matter which lies in the jurisdiction and power of the authorities prescribed by Section 14. No secured creditor can by seeking assistance of police machinery unilaterally carry out the eviction of the borrower and take over forcible possession of the secured asset.20. Having said this, it is clear from the record, that the Debt Recovery Tribunal did, as a matter of fact enter a finding of fact that possession was forcibly taken over by a secured creditor in this case. However, the Tribunal clarified that it was not resting its decision on that finding, since quite independently the Tribunal had come to the conclusion that the notice of possession and the sale notice were invalid. When an Appeal was carried by the secured creditor, the Appellate Tribunal reversed the finding of fact of the Tribunal on issues pertaining to the service and delivery of the possession notice under Rule 8(1) and the publication of the possession notice in the newspaper under Rule 8(2). The Appellate Tribunal did not consider the correctness of the finding which was arrived at by the Tribunal that forcible possession was taken by the secured creditor.

Suresh Jindal Vs. Bses Rajdhani Power Ltd.

independent body could make tariff and for that purpose had the statutory authority to issue certain directions, no exception thereto can be taken. 42. We, therefore, are required to consider as to whether the authority to make such replacement of meter by the licensee is contained in Section 20 of the 1910 Act or not. Even if a harmonious construction is given to the Scheme of the Indian Electricity Act as was submitted by Mr. Parikh, we do not see as to how Section 26 would govern Section 20 of the 1910 Act. 43. Section 20 operate in one field namely conferring a power of entry on the licensee. The said provision empowers the licensee inter alia to alter a meter which would include replacement of a meter. It is an independent general provision. In absence of any statutory provision, we do not see any reason to put a restrictive meaning thereto. Even under the General Clauses Act, a statutory authority while exercising statutory power may do all things which are necessary for giving effect thereto. There does not exist any provision in any of the statutes referred to hereinbefore which precludes or prohibits the licensee to replace one set of meter by another. If such a provision is read into the statute, the same would come in the way of giving effect to the benefits of new technological development. Creative interpretation of the provisions of the statute demands that with the advance in science and technology, the Court should read the provisions of a statute in such a manner so as to give effect thereto. [See State of Maharashtra & Anr. v. Dr. Praful B. Desai & Anr. (2003) 4 SCC 601 ] 44. Section 26 of the Act operates in different fields. It comes into being only when there exists a dispute. The dispute may be in regard to the quantum of the amount required to be expended for removing the meter or the correctness of the meter. The dispute may also be, in the event, the meter is held to be not recording the consumption of electrical energy correctly, the amount to which the consumer would be liable to pay, in relation thereto. 45. Electrical Inspector acts as a statutory authority. He has been conferred with a quasi-judicial power to determine the disputes of particular kinds. His decision thereupon is final and conclusive. The correctness of such decision can be questioned only before a superior court of law. Subject of course to a decision of a superior court, the decision of the Electrical Inspector is final and binding on the parties. It is correct that the matter at the relevant point of time was not covered by any statutory regulations, but even otherwise, the respondent had the said authority under Section 20 of the 1910 Act. 46. Construction of Section 20 vis-à-vis Section 26 of the 1910 Act came up for consideration before this Court in Belwal Spinning Mills Ltd. And Others Vs. U.P. State Electricity Board And Another [(1997) 6 SCC 740] , wherein a Division Bench of this Court clearly opined; “37. After giving our careful consideration to the facts and circumstances of the cases in these appeals and the submissions made by Mr. Gupta, Mr. Sen and Mr. Andhyarujina, the learned Solicitor General, it appears to us that Section 20 of the Electricity Act authorises the licensee to enter the premises of the consumer to remove fittings and other apparatus installed by the licensee. Clause (a) of sub-section (1) of Section 20 authorises the licensee to enter the premises of the consumer for “inspecting, testing, repairing or altering the electric supply lines, meters, fittings, works and apparatus for the supply of energy belonging to the licensee”. The licensee, therefore, cannot only enter the premises of the consumer for inspecting, testing etc. but the licensee can also alter the meter whenever such alteration is needed. Such power under Section 20 does not depend on the adjudication of correctness of the meter and other apparatus by the Electrical Inspector on a reference under Section 26(6) of the Electricity Act. But such power flows from the statutory duties and functions of the licensee to maintain the correct meter for recording the quantum of electricity supplied to the consumer. Such duty to ensure maintenance of correct meter in the premises of the consumer has been indicated in sub-section (1) and sub-section (2) of Section 26. The power of removing the meter under Section 20, however, is circumscribed by the proviso to sub-section (4) of Section 26 only when the dispute as to the functioning of the meter has been referred to the Electrical Inspector under sub-section (6) of Section 26. A licensee is authorised under sub-section (7) of Section 26 to place, in addition to the meter installed in the premises of the consumer as referred to in sub-section (1) of Section 26, other meter or apparatus as the licensee deems fit for the purpose of recording or regulating the amount of energy supplied to the consumer. Such power also does not depend on the existence of any dispute as to the correctness of the meter installed.” 47. Reliance on the said decision has also been placed by the High Court. Mr. Parikh, however, would submit that the High Court failed to notice paragraph 48 of the said decision wherein it was laid down that Section 26(6) would apply where the meter is not correct and the power to remove the meter could be exercised only in such a situation and not otherwise. 48. We may, however, notice that the observations made in paragraph 48 were made while considering the question as to whether the decision in terms of sub-section (6) of Section 26 should be limited to a statutory period or not. Observations in paragraph 48 of the said decision having been made in the aforementioned context, the same cannot be said to have any application whatsoever in the instant case.49. For the reasons stated hereinbefore, we

0[ds]Reliance on the said decision has also been placed by the High Court. Mr. Parikh, however, would submit that the High Court failed to notice paragraph 48 of the said decision wherein it was laid down that Section 26(6) would apply where the meter is not correct and the power to remove the meter could be exercised only in such a situation and notmay, however, notice that the observations made in paragraph 48 were made while considering the question as to whether the decision in terms of sub-section (6) of Section 26 should be limited to a statutory period or not. Observations in paragraph 48 of the said decision having been made in the aforementioned context, the same cannot be said to have any application whatsoever in the instant case.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: independent body could make tariff and for that purpose had the statutory authority to issue certain directions, no exception thereto can be taken. 42. We, therefore, are required to consider as to whether the authority to make such replacement of meter by the licensee is contained in Section 20 of the 1910 Act or not. Even if a harmonious construction is given to the Scheme of the Indian Electricity Act as was submitted by Mr. Parikh, we do not see as to how Section 26 would govern Section 20 of the 1910 Act. 43. Section 20 operate in one field namely conferring a power of entry on the licensee. The said provision empowers the licensee inter alia to alter a meter which would include replacement of a meter. It is an independent general provision. In absence of any statutory provision, we do not see any reason to put a restrictive meaning thereto. Even under the General Clauses Act, a statutory authority while exercising statutory power may do all things which are necessary for giving effect thereto. There does not exist any provision in any of the statutes referred to hereinbefore which precludes or prohibits the licensee to replace one set of meter by another. If such a provision is read into the statute, the same would come in the way of giving effect to the benefits of new technological development. Creative interpretation of the provisions of the statute demands that with the advance in science and technology, the Court should read the provisions of a statute in such a manner so as to give effect thereto. [See State of Maharashtra & Anr. v. Dr. Praful B. Desai & Anr. (2003) 4 SCC 601 ] 44. Section 26 of the Act operates in different fields. It comes into being only when there exists a dispute. The dispute may be in regard to the quantum of the amount required to be expended for removing the meter or the correctness of the meter. The dispute may also be, in the event, the meter is held to be not recording the consumption of electrical energy correctly, the amount to which the consumer would be liable to pay, in relation thereto. 45. Electrical Inspector acts as a statutory authority. He has been conferred with a quasi-judicial power to determine the disputes of particular kinds. His decision thereupon is final and conclusive. The correctness of such decision can be questioned only before a superior court of law. Subject of course to a decision of a superior court, the decision of the Electrical Inspector is final and binding on the parties. It is correct that the matter at the relevant point of time was not covered by any statutory regulations, but even otherwise, the respondent had the said authority under Section 20 of the 1910 Act. 46. Construction of Section 20 vis-à-vis Section 26 of the 1910 Act came up for consideration before this Court in Belwal Spinning Mills Ltd. And Others Vs. U.P. State Electricity Board And Another [(1997) 6 SCC 740] , wherein a Division Bench of this Court clearly opined; “37. After giving our careful consideration to the facts and circumstances of the cases in these appeals and the submissions made by Mr. Gupta, Mr. Sen and Mr. Andhyarujina, the learned Solicitor General, it appears to us that Section 20 of the Electricity Act authorises the licensee to enter the premises of the consumer to remove fittings and other apparatus installed by the licensee. Clause (a) of sub-section (1) of Section 20 authorises the licensee to enter the premises of the consumer for “inspecting, testing, repairing or altering the electric supply lines, meters, fittings, works and apparatus for the supply of energy belonging to the licensee”. The licensee, therefore, cannot only enter the premises of the consumer for inspecting, testing etc. but the licensee can also alter the meter whenever such alteration is needed. Such power under Section 20 does not depend on the adjudication of correctness of the meter and other apparatus by the Electrical Inspector on a reference under Section 26(6) of the Electricity Act. But such power flows from the statutory duties and functions of the licensee to maintain the correct meter for recording the quantum of electricity supplied to the consumer. Such duty to ensure maintenance of correct meter in the premises of the consumer has been indicated in sub-section (1) and sub-section (2) of Section 26. The power of removing the meter under Section 20, however, is circumscribed by the proviso to sub-section (4) of Section 26 only when the dispute as to the functioning of the meter has been referred to the Electrical Inspector under sub-section (6) of Section 26. A licensee is authorised under sub-section (7) of Section 26 to place, in addition to the meter installed in the premises of the consumer as referred to in sub-section (1) of Section 26, other meter or apparatus as the licensee deems fit for the purpose of recording or regulating the amount of energy supplied to the consumer. Such power also does not depend on the existence of any dispute as to the correctness of the meter installed.” 47. Reliance on the said decision has also been placed by the High Court. Mr. Parikh, however, would submit that the High Court failed to notice paragraph 48 of the said decision wherein it was laid down that Section 26(6) would apply where the meter is not correct and the power to remove the meter could be exercised only in such a situation and not otherwise. 48. We may, however, notice that the observations made in paragraph 48 were made while considering the question as to whether the decision in terms of sub-section (6) of Section 26 should be limited to a statutory period or not. Observations in paragraph 48 of the said decision having been made in the aforementioned context, the same cannot be said to have any application whatsoever in the instant case.49. For the reasons stated hereinbefore, we ### Response: 0 ### Explanation: Reliance on the said decision has also been placed by the High Court. Mr. Parikh, however, would submit that the High Court failed to notice paragraph 48 of the said decision wherein it was laid down that Section 26(6) would apply where the meter is not correct and the power to remove the meter could be exercised only in such a situation and notmay, however, notice that the observations made in paragraph 48 were made while considering the question as to whether the decision in terms of sub-section (6) of Section 26 should be limited to a statutory period or not. Observations in paragraph 48 of the said decision having been made in the aforementioned context, the same cannot be said to have any application whatsoever in the instant case.

Uoi Vs. M/S Ganesh Das Bhojraj

made known outside the country. Even if, therefore, the view enunciated by Bailhache, J. is taken to be correct, it would be apparent that the test to find out effective publication would be publication in India, not outside India so as to bring it to the notice of everyone who intends to pass through India. It was "published" and made known in India by publication in the Gazette on the 24th November and the ignorance of it by the respondent who is a foreigner is, in our opinion wholly irrelevant.The Court further observed :-".... but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form i.e. by publication within the country in such media as generally adopted to notify to all the persons concerned in the making of rules. In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being published in the Official Gazette. It therefore stands to reason that publication in the Official Gazette viz., the Gazette of India is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned." 14. From the aforesaid judgment it can be stated that it is establish practice that the publication in the official gazette, that is, Gazette of India ordinary method of bringing a rule or subordinate legislation to the notice the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquire himself with the contents of the notification published in the gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill No. 21 of 1998.15. Further, in New Tabacco Co.s case (supra) the Court referred to the decision in Harla v. State of Rajasthan, 1952 SCR 110. In Harlas case the Court referred to Section 3 of Jaipur Laws Act, 1923 which inter alia provided that the Court of Jaipur State shall administer the law passed from time to time by the State and published in the official gazette. In that case, it was admitted that Jaipur Opium Act was never published in the Gazette and, therefore, the Court held that in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. The Court also observed :- "... We take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law ..... The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be." 16. Further, in the case of New Tabacco Co. (supra), the Court relied on the decision in B.K. Srinivasan (supra). In that case (in para 15) after considering various contentions, the Court specifically held that where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable.17. From the aforesaid observations, it is plain and clear that the decision in B.K. Srivasan (supra) also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the official gazette. We also agree with the reasons recorded in Mayer Hans George (supra) and hold that notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. Hence, the decision rendered in Pankaj Jain Agencies (supra) represents the correct exposition of law on the subject. The decision rendered in New Tabucco Co. followed in Garware Nylons Ltd. (supra) does not lay down the correct law.18. The learned counsel for the respondent, however, submitted that there is nothing on record to establish that notification dated 4.2.1987 withdrawing full exemption from the levy of customs duty was published on the same day. For this purpose, original copy of the Notification dated 4.2.1987 published in the Extra-ordinary Gazette on the said that has been produced before us. The Gazette is admissible being official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act, unless contrary is proved. Hence, there is no substance in the contention that notification dated 4.2.1987 was not published in the Gazette on the same day. In our view, said notification came into force on the same date.19. Lastly, at this stage, we would mention that Parliament has added sub-sections (4) and (5) to Section 25 of the Customs Act by Act No. 21 of 1998 w.e.f. 1.6.1998 which prescribe the method and mode of publication of the Notification and the date on which it comes into force. Newly inserted sub-sections (4) and (5) to Section 25 are as under :- "(4) Every notification issued under sub-section (1) shall, -(a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;(b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi.(5) Notwithstanding anything contained in sub-section (4) where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force."

1[ds]From the aforesaid judgment it can be stated that it is establish practice that the publication in the official gazette, that is, Gazette of India ordinary method of bringing a rule or subordinate legislation to the notice the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquire himself with the contents of the notification published in the gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill No. 21 of 1998.15. Further, in New Tabacco Co.s case (supra) the Court referred to the decision in Harla v. State of Rajasthan, 1952 SCR 110. In Harlas case the Court referred to Section 3 of Jaipur Laws Act, 1923 which inter alia provided that the Court of Jaipur State shall administer the law passed from time to time by the State and published in the official gazette. In that case, it was admitted that Jaipur Opium Act was never published in the Gazette and, therefore, the Court held that in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. The Court also observedWe take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law ..... The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.Further, in the case of New Tabacco Co. (supra), the Court relied on the decision in B.K. Srinivasan (supra). In that case (in para 15) after considering various contentions, the Court specifically held that where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable.17. From the aforesaid observations, it is plain and clear that the decision in B.K. Srivasan (supra) also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the official gazette. We also agree with the reasons recorded in Mayer Hans George (supra) and hold that notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. Hence, the decision rendered in Pankaj Jain Agencies (supra) represents the correct exposition of law on the subject. The decision rendered in New Tabucco Co. followed in Garware Nylons Ltd. (supra) does not lay down the correctthis purpose, original copy of the Notification dated 4.2.1987 published in theGazette on the said that has been produced before us. The Gazette is admissible being official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act, unless contrary is proved. Hence, there is no substance in the contention that notification dated 4.2.1987 was not published in the Gazette on the same day. In our view, said notification came into force on the same date.19. Lastly, at this stage, we would mention that Parliament has added(4) and (5) to Section 25 of the Customs Act by Act No. 21 of 1998 w.e.f. 1.6.1998 which prescribe the method and mode of publication of the Notification and the date on which it comes into force.

### 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: made known outside the country. Even if, therefore, the view enunciated by Bailhache, J. is taken to be correct, it would be apparent that the test to find out effective publication would be publication in India, not outside India so as to bring it to the notice of everyone who intends to pass through India. It was "published" and made known in India by publication in the Gazette on the 24th November and the ignorance of it by the respondent who is a foreigner is, in our opinion wholly irrelevant.The Court further observed :-".... but where there is no statutory requirement we conceive the rule to be that it is necessary that it should be published in the usual form i.e. by publication within the country in such media as generally adopted to notify to all the persons concerned in the making of rules. In most of the Indian statutes, including the Act now under consideration, there is provision for the rules made being published in the Official Gazette. It therefore stands to reason that publication in the Official Gazette viz., the Gazette of India is the ordinary method of bringing a rule or subordinate legislation to the notice of the persons concerned." 14. From the aforesaid judgment it can be stated that it is establish practice that the publication in the official gazette, that is, Gazette of India ordinary method of bringing a rule or subordinate legislation to the notice the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquire himself with the contents of the notification published in the gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill No. 21 of 1998.15. Further, in New Tabacco Co.s case (supra) the Court referred to the decision in Harla v. State of Rajasthan, 1952 SCR 110. In Harlas case the Court referred to Section 3 of Jaipur Laws Act, 1923 which inter alia provided that the Court of Jaipur State shall administer the law passed from time to time by the State and published in the official gazette. In that case, it was admitted that Jaipur Opium Act was never published in the Gazette and, therefore, the Court held that in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. The Court also observed :- "... We take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law ..... The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be." 16. Further, in the case of New Tabacco Co. (supra), the Court relied on the decision in B.K. Srinivasan (supra). In that case (in para 15) after considering various contentions, the Court specifically held that where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable.17. From the aforesaid observations, it is plain and clear that the decision in B.K. Srivasan (supra) also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the official gazette. We also agree with the reasons recorded in Mayer Hans George (supra) and hold that notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. Hence, the decision rendered in Pankaj Jain Agencies (supra) represents the correct exposition of law on the subject. The decision rendered in New Tabucco Co. followed in Garware Nylons Ltd. (supra) does not lay down the correct law.18. The learned counsel for the respondent, however, submitted that there is nothing on record to establish that notification dated 4.2.1987 withdrawing full exemption from the levy of customs duty was published on the same day. For this purpose, original copy of the Notification dated 4.2.1987 published in the Extra-ordinary Gazette on the said that has been produced before us. The Gazette is admissible being official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act, unless contrary is proved. Hence, there is no substance in the contention that notification dated 4.2.1987 was not published in the Gazette on the same day. In our view, said notification came into force on the same date.19. Lastly, at this stage, we would mention that Parliament has added sub-sections (4) and (5) to Section 25 of the Customs Act by Act No. 21 of 1998 w.e.f. 1.6.1998 which prescribe the method and mode of publication of the Notification and the date on which it comes into force. Newly inserted sub-sections (4) and (5) to Section 25 are as under :- "(4) Every notification issued under sub-section (1) shall, -(a) unless otherwise provided, come into force on the date of its issue by the Central Government for publication in the Official Gazette;(b) also be published and offered for sale on the date of its issue by the Directorate of Publicity and Public Relations of the Board, New Delhi.(5) Notwithstanding anything contained in sub-section (4) where a notification comes into force on a date later than the date of its issue, the same shall be published and offered for sale by the said Directorate of Publicity and Public Relations on a date on or before the date on which the said notification comes into force." ### Response: 1 ### Explanation: From the aforesaid judgment it can be stated that it is establish practice that the publication in the official gazette, that is, Gazette of India ordinary method of bringing a rule or subordinate legislation to the notice the persons concerned. Individual service of a general notification on every member of the public is not required and the interested person can acquire himself with the contents of the notification published in the gazette. It is the usual mode followed since years and there is no other mode prescribed under the present statute except by the amendment in the year 1998 by Bill No. 21 of 1998.15. Further, in New Tabacco Co.s case (supra) the Court referred to the decision in Harla v. State of Rajasthan, 1952 SCR 110. In Harlas case the Court referred to Section 3 of Jaipur Laws Act, 1923 which inter alia provided that the Court of Jaipur State shall administer the law passed from time to time by the State and published in the official gazette. In that case, it was admitted that Jaipur Opium Act was never published in the Gazette and, therefore, the Court held that in the absence of some specific law or custom to the contrary, a mere resolution of a Council of Ministers in the Jaipur State without further publication or promulgation would not be sufficient to make a law operative. The Court also observedWe take it that if these Proclamations are not published strictly in accordance with the rules so drawn up, they will not be valid law ..... The mode of publication can vary; what is a good method in one country may not necessarily be the best in another. But reasonable publication of some sort there must be.Further, in the case of New Tabacco Co. (supra), the Court relied on the decision in B.K. Srinivasan (supra). In that case (in para 15) after considering various contentions, the Court specifically held that where the parent statute prescribes the mode of publication or promulgation that mode must be followed. Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable.17. From the aforesaid observations, it is plain and clear that the decision in B.K. Srivasan (supra) also reiterates that the notification will take effect only when it is published through the customarily recognised official channel, namely, the official gazette. We also agree with the reasons recorded in Mayer Hans George (supra) and hold that notification under Section 25 of the Customs Act would come into operation as soon as it is published in the Official Gazette and no further publication is required. Hence, the decision rendered in Pankaj Jain Agencies (supra) represents the correct exposition of law on the subject. The decision rendered in New Tabucco Co. followed in Garware Nylons Ltd. (supra) does not lay down the correctthis purpose, original copy of the Notification dated 4.2.1987 published in theGazette on the said that has been produced before us. The Gazette is admissible being official record evidencing public affairs and the Court is required to presume its contents as genuine under Sections 35 and 38 read with Section 81 of the Evidence Act, unless contrary is proved. Hence, there is no substance in the contention that notification dated 4.2.1987 was not published in the Gazette on the same day. In our view, said notification came into force on the same date.19. Lastly, at this stage, we would mention that Parliament has added(4) and (5) to Section 25 of the Customs Act by Act No. 21 of 1998 w.e.f. 1.6.1998 which prescribe the method and mode of publication of the Notification and the date on which it comes into force.

State Of Gujarat Vs. M/S. Kailash Engineering Co

Railway automatically without any further transfer of rights in it to the Railway. In fact, the ownership in the ready coach bodies did not vest in the respondent at all. No doubt, the materials for building the coach bodies had to be obtained by the respondent and brought to the site of construction, but the provision that the ownership in those materials would vest in the Railway as soon as those materials were brought to the site clearly indicated that the respondent, in purchasing those materials was acting more In less in the capacity of an agent for the Railway. While the materials were at site, the effect of vesting of their ownership in the Railway was that if they were destroyed or damaged, the risk had to be borne by the Railway, even though the Railway might have been entitled to reimburse itself, because those materials and goods were in the custody of the respondent on behalf of the Railway. In fact, under Cl. 29, there was a specific provision for the contingency that the materials or plant may be lost, stolen, injured or destroyed by fire, tempest or otherwise. This special provision was to the effect that the liability of the contractor was not to be diminished in any way, nor was the Railway to be in any way answerable for loss or damage on the happening of Such, Contingency. This specia1 provision had to be made, because the ownership in the materials vested in the Railway, though the contractor was in actual physical possession of the materials and plant in order to carry out the works contract. It was for this reason that a specific provision had to be made that the contractor would be liable to the Railway if any such loss occurred. 5. Taking into account all the terms of the contract as a whole, the High Court came to the finding that the contract between the parties was one entire and indivisible contract for carrying out the works specified in full details in the agreement, and that it did not envisage either the sale of materials by the respondent to the Railway, or of the coach bodies as such. 6. In this connection, learned counsel for the appellant relied on the decision of this Court in Patnaik and Company v. State of Orissa. 1965.-2 SCR 782 (AIR 1965 SC: 1655). In that particular case, the contract in question was for the supply of bus bodies, and it was held that when the bus bodies were supplied by the contractor and money received by him, it amounted to a sale. It, however, appears that the facts and circumstances, on the basis of which the Court gave that opinion, do not find place in the case before us. 7. Three main circumstances were relied upon in that case for holding that the transaction amounted to a sale and not to a works contract. The first circumstance was that the bus bodies were, throughout the contract, spoken of as a unit or as a composite thing to be put on the chassis, and this composite body consisted not only of things actually fixed on the chassis but movable things like seat cushions, and other things which could be very easily detached. In the contract, with which we are concerned, the coach bodies are not separately described as units or components to be supplied by the respondent to the Railway. The language used in the contract everywhere describes the duty of the respondent to the Railway. In fact, even during the process of construction of the coach bodies, the unfinished bodies in process of erection were treated, under the terms of the contract, as the property of the Railway. 8. The second circumstance found in that case was that if some work was not satisfactorily done and the Body Builder, on receipt of a written order, did not dismantle or replace the defective work or material at his own cost within seven days, the Controller was entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder; and for this purpose, the Controller was entitled to take delivery of the unfinished body. In the contract before us. as we have already mentioned in the preceding paragraph, the unfinished bodies of the coaches were from the earliest stage treated as the property of the Railway, and there was no question of ownership of the unfinished body passing to the Railway only after its seizure by it as was the case in the other contract in which the property in the unfinished body did not pass to the Government till the unfinished body was seized. 9. The third circumstances taken into account in that case was the liability for the loss, if a fire took place and the bus bodies were destroyed or spoiled. In that case, there was a provision for insurance of the chassis, but there was no such provision regarding insurance of bus bodies, and the Court inferred that till delivery was made, the bus bodies remained the property of the appellant on whom the loss would fall. On the other hand, in the contract with which we are concerned, the terms envisaged the property in the unfinished bodies vesting in the Railway, and since those unfinished bodies were to be in charge of the respondent during construction, a special provision had to be made making the respondent the responsible for the loss and throwing upon the respondent the liability to reimburse the Railway for loss by fire, etc. Thus, the terms of the contract in this case are markedly different from those which came up for consideration in that case. Here, we find that all the terms of the contract lead to the only inference that the respondent was not to the owner of the ready coach bodies and that the property in those bodies vested in the Railway even during the process of construction..

1[ds]5. Taking into account all the terms of the contract as a whole, the High Court came to the finding that the contract between the parties was one entire and indivisible contract for carrying out the works specified in full details in the agreement, and that it did not envisage either the sale of materials by the respondent to the Railway, or of the coach bodies as suchPatnaik and Company v. State of Orissa. 1965.-2 SCR 782 (AIR 1965 SC: 1655).In that particular case, the contract in question was for the supply of bus bodies, and it was held that when the bus bodies were supplied by the contractor and money received by him, it amounted to a sale. It, however, appears that the facts and circumstances, on the basis of which the Court gave that opinion, do not find place in the case before us7. Three main circumstances were relied upon in that case for holding that the transaction amounted to a sale and not to a works contract. The first circumstance was that the bus bodies were, throughout the contract, spoken of as a unit or as a composite thing to be put on the chassis, and this composite body consisted not only of things actually fixed on the chassis but movable things like seat cushions, and other things which could be very easily detached. In the contract, with which we are concerned, the coach bodies are not separately described as units or components to be supplied by the respondent to the Railway. The language used in the contract everywhere describes the duty of the respondent to the Railway. In fact, even during the process of construction of the coach bodies, the unfinished bodies in process of erection were treated, under the terms of the contract, as the property of the Railway8. The second circumstance found in that case was that if some work was not satisfactorily done and the Body Builder, on receipt of a written order, did not dismantle or replace the defective work or material at his own cost within seven days, the Controller was entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder; and for this purpose, the Controller was entitled to take delivery of the unfinished body. In the contract before us. as we have already mentioned in the preceding paragraph, the unfinished bodies of the coaches were from the earliest stage treated as the property of the Railway, and there was no question of ownership of the unfinished body passing to the Railway only after its seizure by it as was the case in the other contract in which the property in the unfinished body did not pass to the Government till the unfinished body was seized9. The third circumstances taken into account in that case was the liability for the loss, if a fire took place and the bus bodies were destroyed or spoiled. In that case, there was a provision for insurance of the chassis, but there was no such provision regarding insurance of bus bodies, and the Court inferred that till delivery was made, the bus bodies remained the property of the appellant on whom the loss would fall. On the other hand, in the contract with which we are concerned, the terms envisaged the property in the unfinished bodies vesting in the Railway, and since those unfinished bodies were to be in charge of the respondent during construction, a special provision had to be made making the respondent the responsible for the loss and throwing upon the respondent the liability to reimburse the Railway for loss by fire, etc. Thus, the terms of the contract in this case are markedly different from those which came up for consideration in that case. Here, we find that all the terms of the contract lead to the only inference that the respondent was not to the owner of the ready coach bodies and that the property in those bodies vested in the Railway even during the process of construction4. The High Court, however in its judgment, reproduced the preamble of the contract as well as a large number of clauses of it to show that in the contract. at every stage. it was clearly mentioned that the contract was for performance of work of building. erecting and furnishing coach bodies on Broad Gauge underframes which already belonged to the Railway The terms of the contract showed that as soon as the materials were taken by the respondent to the site of construction of the coaches, the ownership in those materials vested in the Railway and all that the respondent had to do was to carry out the work of erecting and furnishing the coach bodies. When the coach bodies were ready, the property in them vested in the Railway automatically without any further transfer of rights in it to the Railway. In fact, the ownership in the ready coach bodies did not vest in the respondent at all. No doubt, the materials for building the coach bodies had to be obtained by the respondent and brought to the site of construction, but the provision that the ownership in those materials would vest in the Railway as soon as those materials were brought to the site clearly indicated that the respondent, in purchasing those materials was acting more In less in the capacity of an agent for the Railway. While the materials were at site, the effect of vesting of their ownership in the Railway was that if they were destroyed or damaged, the risk had to be borne by the Railway, even though the Railway might have been entitled to reimburse itself, because those materials and goods were in the custody of the respondent on behalf of the Railway. In fact, under Cl. 29, there was a specific provision for the contingency that the materials or plant may be lost, stolen, injured or destroyed by fire, tempest or otherwise. This special provision was to the effect that the liability of the contractor was not to be diminished in any way, nor was the Railway to be in any way answerable for loss or damage on the happening of Such, Contingency. This specia1 provision had to be made, because the ownership in the materials vested in the Railway, though the contractor was in actual physical possession of the materials and plant in order to carry out the works contract. It was for this reason that a specific provision had to be made that the contractor would be liable to the Railway if any such loss occurred.

### 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: Railway automatically without any further transfer of rights in it to the Railway. In fact, the ownership in the ready coach bodies did not vest in the respondent at all. No doubt, the materials for building the coach bodies had to be obtained by the respondent and brought to the site of construction, but the provision that the ownership in those materials would vest in the Railway as soon as those materials were brought to the site clearly indicated that the respondent, in purchasing those materials was acting more In less in the capacity of an agent for the Railway. While the materials were at site, the effect of vesting of their ownership in the Railway was that if they were destroyed or damaged, the risk had to be borne by the Railway, even though the Railway might have been entitled to reimburse itself, because those materials and goods were in the custody of the respondent on behalf of the Railway. In fact, under Cl. 29, there was a specific provision for the contingency that the materials or plant may be lost, stolen, injured or destroyed by fire, tempest or otherwise. This special provision was to the effect that the liability of the contractor was not to be diminished in any way, nor was the Railway to be in any way answerable for loss or damage on the happening of Such, Contingency. This specia1 provision had to be made, because the ownership in the materials vested in the Railway, though the contractor was in actual physical possession of the materials and plant in order to carry out the works contract. It was for this reason that a specific provision had to be made that the contractor would be liable to the Railway if any such loss occurred. 5. Taking into account all the terms of the contract as a whole, the High Court came to the finding that the contract between the parties was one entire and indivisible contract for carrying out the works specified in full details in the agreement, and that it did not envisage either the sale of materials by the respondent to the Railway, or of the coach bodies as such. 6. In this connection, learned counsel for the appellant relied on the decision of this Court in Patnaik and Company v. State of Orissa. 1965.-2 SCR 782 (AIR 1965 SC: 1655). In that particular case, the contract in question was for the supply of bus bodies, and it was held that when the bus bodies were supplied by the contractor and money received by him, it amounted to a sale. It, however, appears that the facts and circumstances, on the basis of which the Court gave that opinion, do not find place in the case before us. 7. Three main circumstances were relied upon in that case for holding that the transaction amounted to a sale and not to a works contract. The first circumstance was that the bus bodies were, throughout the contract, spoken of as a unit or as a composite thing to be put on the chassis, and this composite body consisted not only of things actually fixed on the chassis but movable things like seat cushions, and other things which could be very easily detached. In the contract, with which we are concerned, the coach bodies are not separately described as units or components to be supplied by the respondent to the Railway. The language used in the contract everywhere describes the duty of the respondent to the Railway. In fact, even during the process of construction of the coach bodies, the unfinished bodies in process of erection were treated, under the terms of the contract, as the property of the Railway. 8. The second circumstance found in that case was that if some work was not satisfactorily done and the Body Builder, on receipt of a written order, did not dismantle or replace the defective work or material at his own cost within seven days, the Controller was entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder; and for this purpose, the Controller was entitled to take delivery of the unfinished body. In the contract before us. as we have already mentioned in the preceding paragraph, the unfinished bodies of the coaches were from the earliest stage treated as the property of the Railway, and there was no question of ownership of the unfinished body passing to the Railway only after its seizure by it as was the case in the other contract in which the property in the unfinished body did not pass to the Government till the unfinished body was seized. 9. The third circumstances taken into account in that case was the liability for the loss, if a fire took place and the bus bodies were destroyed or spoiled. In that case, there was a provision for insurance of the chassis, but there was no such provision regarding insurance of bus bodies, and the Court inferred that till delivery was made, the bus bodies remained the property of the appellant on whom the loss would fall. On the other hand, in the contract with which we are concerned, the terms envisaged the property in the unfinished bodies vesting in the Railway, and since those unfinished bodies were to be in charge of the respondent during construction, a special provision had to be made making the respondent the responsible for the loss and throwing upon the respondent the liability to reimburse the Railway for loss by fire, etc. Thus, the terms of the contract in this case are markedly different from those which came up for consideration in that case. Here, we find that all the terms of the contract lead to the only inference that the respondent was not to the owner of the ready coach bodies and that the property in those bodies vested in the Railway even during the process of construction.. ### Response: 1 ### Explanation: the contractor and money received by him, it amounted to a sale. It, however, appears that the facts and circumstances, on the basis of which the Court gave that opinion, do not find place in the case before us7. Three main circumstances were relied upon in that case for holding that the transaction amounted to a sale and not to a works contract. The first circumstance was that the bus bodies were, throughout the contract, spoken of as a unit or as a composite thing to be put on the chassis, and this composite body consisted not only of things actually fixed on the chassis but movable things like seat cushions, and other things which could be very easily detached. In the contract, with which we are concerned, the coach bodies are not separately described as units or components to be supplied by the respondent to the Railway. The language used in the contract everywhere describes the duty of the respondent to the Railway. In fact, even during the process of construction of the coach bodies, the unfinished bodies in process of erection were treated, under the terms of the contract, as the property of the Railway8. The second circumstance found in that case was that if some work was not satisfactorily done and the Body Builder, on receipt of a written order, did not dismantle or replace the defective work or material at his own cost within seven days, the Controller was entitled to get the balance of the work done by another agency and recover the difference in cost from the Body Builder; and for this purpose, the Controller was entitled to take delivery of the unfinished body. In the contract before us. as we have already mentioned in the preceding paragraph, the unfinished bodies of the coaches were from the earliest stage treated as the property of the Railway, and there was no question of ownership of the unfinished body passing to the Railway only after its seizure by it as was the case in the other contract in which the property in the unfinished body did not pass to the Government till the unfinished body was seized9. The third circumstances taken into account in that case was the liability for the loss, if a fire took place and the bus bodies were destroyed or spoiled. In that case, there was a provision for insurance of the chassis, but there was no such provision regarding insurance of bus bodies, and the Court inferred that till delivery was made, the bus bodies remained the property of the appellant on whom the loss would fall. On the other hand, in the contract with which we are concerned, the terms envisaged the property in the unfinished bodies vesting in the Railway, and since those unfinished bodies were to be in charge of the respondent during construction, a special provision had to be made making the respondent the responsible for the loss and throwing upon the respondent the liability to reimburse the Railway for loss by fire, etc. Thus, the terms of the contract in this case are markedly different from those which came up for consideration in that case. Here, we find that all the terms of the contract lead to the only inference that the respondent was not to the owner of the ready coach bodies and that the property in those bodies vested in the Railway even during the process of construction4. The High Court, however in its judgment, reproduced the preamble of the contract as well as a large number of clauses of it to show that in the contract. at every stage. it was clearly mentioned that the contract was for performance of work of building. erecting and furnishing coach bodies on Broad Gauge underframes which already belonged to the Railway The terms of the contract showed that as soon as the materials were taken by the respondent to the site of construction of the coaches, the ownership in those materials vested in the Railway and all that the respondent had to do was to carry out the work of erecting and furnishing the coach bodies. When the coach bodies were ready, the property in them vested in the Railway automatically without any further transfer of rights in it to the Railway. In fact, the ownership in the ready coach bodies did not vest in the respondent at all. No doubt, the materials for building the coach bodies had to be obtained by the respondent and brought to the site of construction, but the provision that the ownership in those materials would vest in the Railway as soon as those materials were brought to the site clearly indicated that the respondent, in purchasing those materials was acting more In less in the capacity of an agent for the Railway. While the materials were at site, the effect of vesting of their ownership in the Railway was that if they were destroyed or damaged, the risk had to be borne by the Railway, even though the Railway might have been entitled to reimburse itself, because those materials and goods were in the custody of the respondent on behalf of the Railway. In fact, under Cl. 29, there was a specific provision for the contingency that the materials or plant may be lost, stolen, injured or destroyed by fire, tempest or otherwise. This special provision was to the effect that the liability of the contractor was not to be diminished in any way, nor was the Railway to be in any way answerable for loss or damage on the happening of Such, Contingency. This specia1 provision had to be made, because the ownership in the materials vested in the Railway, though the contractor was in actual physical possession of the materials and plant in order to carry out the works contract. It was for this reason that a specific provision had to be made that the contractor would be liable to the Railway if any such loss occurred.

Purushothaman Nambudiri Vs. The State Of Kerala

or(b) of Art. 31A(2). As already pointed out, any extrinsic aid to construction can be sought only when the words of the statute reasonably and properly interpreted are of ambiguous import, and the construction of the clauses now under consideration leads to no ambiguity. In the circumstances, to accept the construction contended for by the respondent would be not to interpret the enacted words, but to rewrite the clauses altogether. Beside, Art. 31A makes provision for special cases where on account of over-whelming social needs, the protection normally afforded to the citizen by the guarantee of fundamental rights is withdrawn. It would, I consider, be a proper rule of construction to interpret the terms of such a provision with strictness which would serve to preserve the area of the guaranteed freedoms from encroachment except as specially provided. In other words, if the construction of Art. 31A were ambiguous, the ambiguity should be resolved in favour of the citizen so as to reserve to him the guarantee of the fundamental rights guaranteed by Arts. 14, 19 and 31 except where the same has been denied to him by the clear words of the Constitution. 67. Secondly, reliance was placed on three decisions of this Court 1959 Supp (1) SCR 489 : (AIR 1959 SC 459 ), 1959 Supp (1) SCR 748 : (AIR 1959 SC 519 ) and W. P. Nos. 93 and 125 of 1959 D/-4-4-1961: (AIR 1961 SC 1517 ). In the two reported decisions, no doubt this Court held that interests of persons similar to those of raiyatwari proprietors were comprehended within the definition of an estate within sub-cl. (a) but the reasoning upon which this was rested is wholly inapplicable for resolving the controversy now before us. In the first case 1959 Supp (1) SCR 489 : (AIR 1959 SC 459 ), the Bombay Land Revenue Code 1879 contained a definition of an estate which included not merely the estates of intermediaries such as zamindars, taluqdars and other proprietors but also an occupant, i. e., a person who held directly under the government and whose property was assessed to land revenue in full. The question however was whether the provision in Art. 31A(2)(a) that the expression estates shall have the same meaning as that expression has in the existing law relating to land-tenures in force in the area could be read as permitting the exclusion from the definition of interests which were defined in such a law as estate on the ground that such interests were not those of an intermediary. This Court held that full effect had to be given to these words and that the definition of an estate in a pre-Constitution law relating to land tenures must determine the content of that expression. It would be seen that the result would have been the same whether the case arose before or after the Fourth Amendment. The decision in 1959 Supp (1) SCR 748 : (AIR 1959 SC 519 ) proceeds on an identical basis and turned on the definition of an estate in the Punjab Revenue Act 17 of 1887, In this, as in the earlier case in relation to the Bombay Land Revenue Code, there could be no dispute that the enactment was a law in relation to land-tenure. The only question therefore was whether full effect could or ought to be given to the words of the definition, and this was answered in the affirmative. In my opinion, the learned Attorney-General cannot derive any assistance from either of these decisions. In the unreported decision in WP Nos. 93 and 125 of 1959 D/- 4-4-1961 : (AIR 1961 SC 1517 ) the challenge was to the validity of a Bombay enactment of 1958 which extended the Bombay Tenancy and Agricultural Lands Act 1956 to the Vidarbha region, an enactment whose constitutional validity had been upheld by this Court in Medhis case. The argument before the Court was that the lands of the petitioners were not an estate and this, for the most part, was sought to be supported by the absence of any definition of the word estate in the Madhya Pradesh Land Revenue Code of 1954 which, was taken to be the existing law relating to land-tenures in the Vidarbha region. This Court accepted the submission of Counsel for the respondent that Art. 31A applied to and saved the legislation from being impugned under Arts. 14, 19 and 31 for the reason that the interest of the petitioners in that case (who were bhoomiswamis) was the local equivalent of an estate. The decision, therefore, is no authority for the point now under consideration as to the proper meaning to be attached to the word raiyat and under-raiyat in sub-cl. (2)(b) of Art. 31A or as regards the effect of the Fourth Amendment to the Constitution in regard to the point now under controversy. 68. From the foregoing it would be seen that the interests of the petitioner in the lands held by him on Puravaka tenure are within Art. 31A because they are lands belonging to a Jenmi and so covered by the definition of an estate as amended by virtue of the Fourth Amendment to the Constitution. With regard, however, to the Pandara, vaka Verumpattom lands I am clearly of the opinion that they are not an estate and that the interests of the petitioner in them do not amount to an interest in an estate within sub-cl. (b) of Art. 31A(2). 69. It would follow that the validity of the impugned Act in relation to Pandaravaka lands would have to be considered with reference to Arts. 14, 19 and 31. For the reasons stated in the judgment of this Court in Writ Petitions 114 and 115 which need not be repeated, I hold that the impugned Act is constitutionally invalid and cannot be applied to the Pandaravaka Verumpattom lands of the petitioner but that the petitioner would not be entitled to any relief as regards his other properties. 70. Order:

0[ds]. It would thus be seen that under the Constitution, where the State Legislature is bicameral the Legislative Council is not subject to dissolution and this is a feature which distinguishes the State Legislatures from the English Houses of Parliament. When the Parliament is dissolved both the Houses stand dissolved, whereas the position is different in India. In the States with bicameral Legislature only the Legislative Assembly can be dissolved but not the Legislative Council. The same is the position under Art. 83 in regard to the House of the People and the Council of States. This material distinction has to be borne in mind in construing the provisions of Art. 196 and appreciating their effectIt is true that the question raised before us by the present petition under Art. 196 is not free from difficulty; but, on the whole, we are inclined to take the view that the effect of cl. (5) is that all cases not falling within its scope are not subject to the doctrine of lapse of pending business on the dissolution of the Legislative Assembly. In that sense we read cl. (5) as dealing exhaustively with Bills which would lapse on the dissolution of the Assembly. If that be the true position then the argument that the Bill which was pending assent of the President lapsed on the dissolution of the Legislative Assembly cannot be upheld19. It is well known that the Constitution First Amendment of 1951 was made in order to validate the acquisition of zamindar estates and the abolition of permanent settlement. In other words, the effect of the First Amendment was to provide that any law which affected the rights of any proprietor or intermediate holder any estate shall not be void on the ground that its provisions were inconsistent with any of the fundamental rights guaranteed by Part III of the Constitution. The acquisition of zamindari rights and the abolition of permanent settlement, however, was only the first step in the matter of agrarian reform which the Constitution-makers had in mind. When the first zamindari abolition laws were passed in pursuance of the programme of social welfare legislation their validity was impugned on the ground that they contravened the provisions of Arts.14, 19 and 31. In order to save the impugned legislation from any such challenge Arts. 31A and 31B and the Ninth Schedule were enacted by the Constitution First Amendment Act; and it is in that context that Art. 31A (2)(a) and (b) were also enacted. After the zamindari abolition legislation was thus saved the Constitution-makers thought of enabling the state Legislatures to take the next step in the matter of agrarian reform. As subsequent legislation passed by several States shows the next step which was intended to be taken in the matter of agrarian reform was to put a ceiling on the extent of individual holding of agricultural land. The inevitable consequence of putting a ceiling on individual occupation or ownership of such agricultural and was to provide for the acquisition of the land held in excess of the prescribed maximum for distribution amongst the tillers of the soil.It is in the light of this background that we have to determine the question as to whether the property with which the petitioner is concerned constitutes an estate or rights in relation to an estate under cl. (2)(a) or (b)24. It is necessary therefore to have some basic idea of the meaning of the word estate is used in Art. 31A(2)(a), As we have said already, where the word estate as such is used in the existing law relating to land-tenures in force in a particular area, there is no difficulty and the word estate as defined in the existing law would have that meaning for that area and there would be no necessity for looking for a local equivalent. But where the word estate as such is not defined in an existing law it will be necessary to see if some other term is defined or used in the existing law in a particular area which in that area is the local equivalent of the word estate. In that case the word estate would have the meaning assigned to that term in the existing law in that area. To determine therefore whether a particular term defined or used in a particular area is the local equivalent of the word estate as used in Art. 31A(2) (a) it is necessary to have some basic concept of the meaning of the word estate as used in the relevant Article of the Constitution. It seems to us that the basic concept of the word estate is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part, if therefore a term is used or defined in any existing law in a local area which corresponds to this basic concept of estate that would be the local equivalent of the word estate in that area. It is not necessary that there must be an intermediary in an estate before it can be called an estate within the meaning of Art. 31A(2)(a); it is true that in many cases of estates such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever. It is not the presence of the intermediary that determines whether a particular landed property is an estate or not; what determines the character of such property to be an estate is whether it comes within the definition of the word estate in the existing law in a particular area or is for the purpose of that area the local equivalent of the word estate, irrespective of whether there are intermediaries in existence or not. This, in our opinion, is also borne out by consideration of the relevant decisions of this Cour34. It would thus be seen that under Cl. 13 the person holding lands on the Pandaravaka verumpattom tenure is not a tenant. He is given the proprietary right in the soil itself, subject of course to the lights as to metals and minerals reserved in favour of the State. Indeed, the whole scheme of the new proclamation appears to be to change the character of the possession of the Pandaravaka verumpattom tenure-holder from that of a tenant into that of a proprietor-holder. It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment into a recovery of rent. The proprietor of the land held on Pandaravaka verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State. It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka verumpattom tenure-holders the holders in turn would let out the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries.Land revenue record is required to be prepared by the proclamation and relevant entries showing the extent of the properties belonging to the respective holders and the details about their lability to pay the assessment are intended to be shown in the said record. In our opinion, it would not be reasonable to hold that the lands held by the petitioner under the Pandaravaka verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State.In the proclamation there does not appear to be a provision for forfeiture or surrender and the scheme adopted by the proclamation suggests that the amount due from the tenure-holder by way of assessment would presumably be recovered as arrears of land revenue and not as rent. Therefore, we are inclined to hold that the Pandaravaka verumpattom can be regarded as a local equivalent of an estate under cl. (2)(a) of Art. 31ASince it was thought that the said method of apportionment was fair and equitable the clause adopted the same in the State of Cochin. It would thus be clear that the lands held by the petitioner under the Puravaka tenure satisfy the test of even the narrow construction placed by the petitioner on the term estate in cl. (2)(a). Therefore, there can be no doubt that about 350 acres of land held by the petitioner on the puravaka tenure constitute an estate under cl. (2)(a).

### 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: or(b) of Art. 31A(2). As already pointed out, any extrinsic aid to construction can be sought only when the words of the statute reasonably and properly interpreted are of ambiguous import, and the construction of the clauses now under consideration leads to no ambiguity. In the circumstances, to accept the construction contended for by the respondent would be not to interpret the enacted words, but to rewrite the clauses altogether. Beside, Art. 31A makes provision for special cases where on account of over-whelming social needs, the protection normally afforded to the citizen by the guarantee of fundamental rights is withdrawn. It would, I consider, be a proper rule of construction to interpret the terms of such a provision with strictness which would serve to preserve the area of the guaranteed freedoms from encroachment except as specially provided. In other words, if the construction of Art. 31A were ambiguous, the ambiguity should be resolved in favour of the citizen so as to reserve to him the guarantee of the fundamental rights guaranteed by Arts. 14, 19 and 31 except where the same has been denied to him by the clear words of the Constitution. 67. Secondly, reliance was placed on three decisions of this Court 1959 Supp (1) SCR 489 : (AIR 1959 SC 459 ), 1959 Supp (1) SCR 748 : (AIR 1959 SC 519 ) and W. P. Nos. 93 and 125 of 1959 D/-4-4-1961: (AIR 1961 SC 1517 ). In the two reported decisions, no doubt this Court held that interests of persons similar to those of raiyatwari proprietors were comprehended within the definition of an estate within sub-cl. (a) but the reasoning upon which this was rested is wholly inapplicable for resolving the controversy now before us. In the first case 1959 Supp (1) SCR 489 : (AIR 1959 SC 459 ), the Bombay Land Revenue Code 1879 contained a definition of an estate which included not merely the estates of intermediaries such as zamindars, taluqdars and other proprietors but also an occupant, i. e., a person who held directly under the government and whose property was assessed to land revenue in full. The question however was whether the provision in Art. 31A(2)(a) that the expression estates shall have the same meaning as that expression has in the existing law relating to land-tenures in force in the area could be read as permitting the exclusion from the definition of interests which were defined in such a law as estate on the ground that such interests were not those of an intermediary. This Court held that full effect had to be given to these words and that the definition of an estate in a pre-Constitution law relating to land tenures must determine the content of that expression. It would be seen that the result would have been the same whether the case arose before or after the Fourth Amendment. The decision in 1959 Supp (1) SCR 748 : (AIR 1959 SC 519 ) proceeds on an identical basis and turned on the definition of an estate in the Punjab Revenue Act 17 of 1887, In this, as in the earlier case in relation to the Bombay Land Revenue Code, there could be no dispute that the enactment was a law in relation to land-tenure. The only question therefore was whether full effect could or ought to be given to the words of the definition, and this was answered in the affirmative. In my opinion, the learned Attorney-General cannot derive any assistance from either of these decisions. In the unreported decision in WP Nos. 93 and 125 of 1959 D/- 4-4-1961 : (AIR 1961 SC 1517 ) the challenge was to the validity of a Bombay enactment of 1958 which extended the Bombay Tenancy and Agricultural Lands Act 1956 to the Vidarbha region, an enactment whose constitutional validity had been upheld by this Court in Medhis case. The argument before the Court was that the lands of the petitioners were not an estate and this, for the most part, was sought to be supported by the absence of any definition of the word estate in the Madhya Pradesh Land Revenue Code of 1954 which, was taken to be the existing law relating to land-tenures in the Vidarbha region. This Court accepted the submission of Counsel for the respondent that Art. 31A applied to and saved the legislation from being impugned under Arts. 14, 19 and 31 for the reason that the interest of the petitioners in that case (who were bhoomiswamis) was the local equivalent of an estate. The decision, therefore, is no authority for the point now under consideration as to the proper meaning to be attached to the word raiyat and under-raiyat in sub-cl. (2)(b) of Art. 31A or as regards the effect of the Fourth Amendment to the Constitution in regard to the point now under controversy. 68. From the foregoing it would be seen that the interests of the petitioner in the lands held by him on Puravaka tenure are within Art. 31A because they are lands belonging to a Jenmi and so covered by the definition of an estate as amended by virtue of the Fourth Amendment to the Constitution. With regard, however, to the Pandara, vaka Verumpattom lands I am clearly of the opinion that they are not an estate and that the interests of the petitioner in them do not amount to an interest in an estate within sub-cl. (b) of Art. 31A(2). 69. It would follow that the validity of the impugned Act in relation to Pandaravaka lands would have to be considered with reference to Arts. 14, 19 and 31. For the reasons stated in the judgment of this Court in Writ Petitions 114 and 115 which need not be repeated, I hold that the impugned Act is constitutionally invalid and cannot be applied to the Pandaravaka Verumpattom lands of the petitioner but that the petitioner would not be entitled to any relief as regards his other properties. 70. Order: ### Response: 0 ### Explanation: of agrarian reform. As subsequent legislation passed by several States shows the next step which was intended to be taken in the matter of agrarian reform was to put a ceiling on the extent of individual holding of agricultural land. The inevitable consequence of putting a ceiling on individual occupation or ownership of such agricultural and was to provide for the acquisition of the land held in excess of the prescribed maximum for distribution amongst the tillers of the soil.It is in the light of this background that we have to determine the question as to whether the property with which the petitioner is concerned constitutes an estate or rights in relation to an estate under cl. (2)(a) or (b)24. It is necessary therefore to have some basic idea of the meaning of the word estate is used in Art. 31A(2)(a), As we have said already, where the word estate as such is used in the existing law relating to land-tenures in force in a particular area, there is no difficulty and the word estate as defined in the existing law would have that meaning for that area and there would be no necessity for looking for a local equivalent. But where the word estate as such is not defined in an existing law it will be necessary to see if some other term is defined or used in the existing law in a particular area which in that area is the local equivalent of the word estate. In that case the word estate would have the meaning assigned to that term in the existing law in that area. To determine therefore whether a particular term defined or used in a particular area is the local equivalent of the word estate as used in Art. 31A(2) (a) it is necessary to have some basic concept of the meaning of the word estate as used in the relevant Article of the Constitution. It seems to us that the basic concept of the word estate is that the person holding the estate should be proprietor of the soil and should be in direct relationship with the State paying land revenue to it except where it is remitted in whole or in part, if therefore a term is used or defined in any existing law in a local area which corresponds to this basic concept of estate that would be the local equivalent of the word estate in that area. It is not necessary that there must be an intermediary in an estate before it can be called an estate within the meaning of Art. 31A(2)(a); it is true that in many cases of estates such intermediaries exist, but there are many holders of small estates who cultivate their lands without any intermediary whatever. It is not the presence of the intermediary that determines whether a particular landed property is an estate or not; what determines the character of such property to be an estate is whether it comes within the definition of the word estate in the existing law in a particular area or is for the purpose of that area the local equivalent of the word estate, irrespective of whether there are intermediaries in existence or not. This, in our opinion, is also borne out by consideration of the relevant decisions of this Cour34. It would thus be seen that under Cl. 13 the person holding lands on the Pandaravaka verumpattom tenure is not a tenant. He is given the proprietary right in the soil itself, subject of course to the lights as to metals and minerals reserved in favour of the State. Indeed, the whole scheme of the new proclamation appears to be to change the character of the possession of the Pandaravaka verumpattom tenure-holder from that of a tenant into that of a proprietor-holder. It is true that he is made liable to pay half of the net produce and that may appear to be a little too high, but the measure of the levy will not convert what is intended to be a recovery of assessment into a recovery of rent. The proprietor of the land held on Pandaravaka verumpattom tenure is nevertheless a proprietor of the land and he holds the land subject to his liability to pay the assessment to the State. It is not difficult to imagine that in a fairly large number of lands held by Pandaravaka verumpattom tenure-holders the holders in turn would let out the lands to the cultivators and thus would come into existence a local equivalent of the class of intermediaries.Land revenue record is required to be prepared by the proclamation and relevant entries showing the extent of the properties belonging to the respective holders and the details about their lability to pay the assessment are intended to be shown in the said record. In our opinion, it would not be reasonable to hold that the lands held by the petitioner under the Pandaravaka verumpattom tenure do not confer on him the proprietary right at all but make him a tenant of the State.In the proclamation there does not appear to be a provision for forfeiture or surrender and the scheme adopted by the proclamation suggests that the amount due from the tenure-holder by way of assessment would presumably be recovered as arrears of land revenue and not as rent. Therefore, we are inclined to hold that the Pandaravaka verumpattom can be regarded as a local equivalent of an estate under cl. (2)(a) of Art. 31ASince it was thought that the said method of apportionment was fair and equitable the clause adopted the same in the State of Cochin. It would thus be clear that the lands held by the petitioner under the Puravaka tenure satisfy the test of even the narrow construction placed by the petitioner on the term estate in cl. (2)(a). Therefore, there can be no doubt that about 350 acres of land held by the petitioner on the puravaka tenure constitute an estate under cl. (2)(a).

NTPC Limited Vs. Ansaldo Caldaie Boilers India P. Ltd. & Another

the Bidder. Learned counsel urged that the use of the expression "provided" in dealing with the capability of the Bidder to deal with variable pressures merely indicated that the Steam Generator Manufacturer would have to provide technical tie-up for variable pressure design and in the absence of the same, the bid submitted would still qualify for being considered. It was urged that the use of the expression "provided" would have to be read along with the phrase "designed, engineered, manufactured/got manufactured" etc. The further usage of the words "in addition" indicated that the stipulation regarding the provision of an evaporator suitable for variable pressure operation was an additional, ancillary and peripheral requirement and not integral to the type of Steam Generator contemplated. Mr. Rohatgi urged that the submission made on behalf of the Appellant to the contrary was incorrect since it had been in no uncertain terms submitted that in the bid document and in the pleadings before the High Court and this Court noted that the evaporator provided with the Steam Generator at the reference plant at TNP was suitable for variable pressure operation.21. It was submitted that the entire basis of the case made out by the Appellant was, therefore, non-est and the High Court did not commit any error in allowing the Writ Petition filed by the Respondents. 22. There is no dispute that the Respondent No.1 chose Route 4 while submitting its Tender Bid, in its capacity as an Indian Joint Venture Company for manufacturing Super-Critical Steam Generator in India between an Indian Company and a Qualified Steam Generator Manufacturer. The crucial condition for a Bidder of the said category to be considered is contained in Clause 7.1.1 of the Tender Documents, which has been extracted hereinbefore and provides that the Bidder should have designed, engineered, manufactured/got manufactured, erected/ supervised direction, commissioned/supervised commissioning of at least one Steam Generator having rated capacity of 1500 Tonnes of Steam per hour or above and that it should be provided with an Evaporator suitable for variable pressure operations for special category and supercritical pressure ranges. 23. The controversy which led to the rejection of the Technical Bid of the Respondent No.1 was with regard to the question as to whether in the case of a Joint Venture Undertaking it was essential that the Qualified Steam Generator Manufacturer also had to be the manufacturer of the evaporator or whether it could function as a facilitator. Furthermore, what appears to have weighed with the Appellant in rejecting the Technical Bid of the Respondent No.1 was that the Steam Generator had been designed for constant pressure and not variable pressure, as required by the Appellant. 24. Admittedly, the evaporator is an integral part of the Steam Generator. The question is whether the same could not be manufactured by a third party and supplied to the Qualified Steam Generator Manufacturer for use in the boiler. Although, the said proposition has been hotly contested on behalf of the Respondent, an attempt was also made to show that the evaporator was in fact designed for variable pressure, but such a submission was contrary to the confirmation given by the Respondent No.1 which indicated that the evaporator had been designed for Constant Pressure (Universal Pressure) operation only. The MOU, while permitting manufacturing, erection or commissioning of the Steam Generator, provided that the same could be outsourced, but the "designing" and "engineering" of the Steam Generator had to be done by the Bidder himself and if the party proposed as Qualified Steam Generator Manufacturer and the Bidder had not designed and engineered the Steam Generator itself, it could not be said that the qualifying requirements for such manufacturer had been satisfied. 25. From the terms and conditions contained in the MOU, it appears to us that it was the intention of the Appellant that the Qualified Steam Generator Manufacturer would have to be the manufacturer of the evaporator itself and could not have outsourced the manufacture thereof to a third party, since the evaporator controlling the pressure of the Steam generated is a vital and crucial component of the Steam Generator itself. The Appellant, which will be the ultimate user of the Generator, must be presumed to be conscious of the competence of the tenderer to "provide" the evaporator in keeping with the required specifications. 26. In the aforesaid context, we are unable to uphold the decision of the Division Bench of the Delhi High Court quashing the letter dated 5th January, 2011, issued by the Appellant herein, informing the Respondent No.1 that its Techno-commercial Bid had been rejected on the ground that it did not meet the minimum requirement set forth in item No.4 of Section III of the Tender Documents. The High Court while interpreting the provisions of Clause 7.1.1 of the Tender Documents was influenced by the use of the phrase "manufactured/got manufactured" while considering the fact that although, Ansaldo Caldaie, Italy, was being projected as the Qualified Steam Generator Manufacturer, Siemens A.G. was shown as the technology owner/licensor of the evaporator which was offered by the Respondent No.1. In other words, the evaporator being offered by the Respondent No.1 was one which had been manufactured not by the Qualified Steam Generator Manufacturer, but by a third party, which was not contemplated in the aforesaid condition of the Tender Documents.27. The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired level. 28. In that view of the matter, we

1[ds]25. From the terms and conditions contained in the MOU, it appears to us that it was the intention of the Appellant that the Qualified Steam Generator Manufacturer would have to be the manufacturer of the evaporator itself and could not have outsourced the manufacture thereof to a third party, since the evaporator controlling the pressure of the Steam generated is a vital and crucial component of the Steam Generator itself. The Appellant, which will be the ultimate user of the Generator, must be presumed to be conscious of the competence of the tenderer to "provide" the evaporator in keeping with the requiredare unable to uphold the decision of the Division Bench of the Delhi High Court quashing the letter dated 5th January, 2011, issued by the Appellant herein, informing the Respondent No.1 that its Techno-commercial Bid had been rejected on the ground that it did not meet the minimum requirement set forth in item No.4 of Section III of the Tender Documents. The High Court while interpreting the provisions of Clause 7.1.1 of the Tender Documents was influenced by the use of the phrase "manufactured/got manufactured" while considering the fact that although, Ansaldo Caldaie, Italy, was being projected as the Qualified Steam Generator Manufacturer, Siemens A.G. was shown as the technology owner/licensor of the evaporator which was offered by the Respondent No.1. In other words, the evaporator being offered by the Respondent No.1 was one which had been manufactured not by the Qualified Steam Generator Manufacturer, but by a third party, which was not contemplated in the aforesaid condition of the Tender Documents.27. The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired

### 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 Bidder. Learned counsel urged that the use of the expression "provided" in dealing with the capability of the Bidder to deal with variable pressures merely indicated that the Steam Generator Manufacturer would have to provide technical tie-up for variable pressure design and in the absence of the same, the bid submitted would still qualify for being considered. It was urged that the use of the expression "provided" would have to be read along with the phrase "designed, engineered, manufactured/got manufactured" etc. The further usage of the words "in addition" indicated that the stipulation regarding the provision of an evaporator suitable for variable pressure operation was an additional, ancillary and peripheral requirement and not integral to the type of Steam Generator contemplated. Mr. Rohatgi urged that the submission made on behalf of the Appellant to the contrary was incorrect since it had been in no uncertain terms submitted that in the bid document and in the pleadings before the High Court and this Court noted that the evaporator provided with the Steam Generator at the reference plant at TNP was suitable for variable pressure operation.21. It was submitted that the entire basis of the case made out by the Appellant was, therefore, non-est and the High Court did not commit any error in allowing the Writ Petition filed by the Respondents. 22. There is no dispute that the Respondent No.1 chose Route 4 while submitting its Tender Bid, in its capacity as an Indian Joint Venture Company for manufacturing Super-Critical Steam Generator in India between an Indian Company and a Qualified Steam Generator Manufacturer. The crucial condition for a Bidder of the said category to be considered is contained in Clause 7.1.1 of the Tender Documents, which has been extracted hereinbefore and provides that the Bidder should have designed, engineered, manufactured/got manufactured, erected/ supervised direction, commissioned/supervised commissioning of at least one Steam Generator having rated capacity of 1500 Tonnes of Steam per hour or above and that it should be provided with an Evaporator suitable for variable pressure operations for special category and supercritical pressure ranges. 23. The controversy which led to the rejection of the Technical Bid of the Respondent No.1 was with regard to the question as to whether in the case of a Joint Venture Undertaking it was essential that the Qualified Steam Generator Manufacturer also had to be the manufacturer of the evaporator or whether it could function as a facilitator. Furthermore, what appears to have weighed with the Appellant in rejecting the Technical Bid of the Respondent No.1 was that the Steam Generator had been designed for constant pressure and not variable pressure, as required by the Appellant. 24. Admittedly, the evaporator is an integral part of the Steam Generator. The question is whether the same could not be manufactured by a third party and supplied to the Qualified Steam Generator Manufacturer for use in the boiler. Although, the said proposition has been hotly contested on behalf of the Respondent, an attempt was also made to show that the evaporator was in fact designed for variable pressure, but such a submission was contrary to the confirmation given by the Respondent No.1 which indicated that the evaporator had been designed for Constant Pressure (Universal Pressure) operation only. The MOU, while permitting manufacturing, erection or commissioning of the Steam Generator, provided that the same could be outsourced, but the "designing" and "engineering" of the Steam Generator had to be done by the Bidder himself and if the party proposed as Qualified Steam Generator Manufacturer and the Bidder had not designed and engineered the Steam Generator itself, it could not be said that the qualifying requirements for such manufacturer had been satisfied. 25. From the terms and conditions contained in the MOU, it appears to us that it was the intention of the Appellant that the Qualified Steam Generator Manufacturer would have to be the manufacturer of the evaporator itself and could not have outsourced the manufacture thereof to a third party, since the evaporator controlling the pressure of the Steam generated is a vital and crucial component of the Steam Generator itself. The Appellant, which will be the ultimate user of the Generator, must be presumed to be conscious of the competence of the tenderer to "provide" the evaporator in keeping with the required specifications. 26. In the aforesaid context, we are unable to uphold the decision of the Division Bench of the Delhi High Court quashing the letter dated 5th January, 2011, issued by the Appellant herein, informing the Respondent No.1 that its Techno-commercial Bid had been rejected on the ground that it did not meet the minimum requirement set forth in item No.4 of Section III of the Tender Documents. The High Court while interpreting the provisions of Clause 7.1.1 of the Tender Documents was influenced by the use of the phrase "manufactured/got manufactured" while considering the fact that although, Ansaldo Caldaie, Italy, was being projected as the Qualified Steam Generator Manufacturer, Siemens A.G. was shown as the technology owner/licensor of the evaporator which was offered by the Respondent No.1. In other words, the evaporator being offered by the Respondent No.1 was one which had been manufactured not by the Qualified Steam Generator Manufacturer, but by a third party, which was not contemplated in the aforesaid condition of the Tender Documents.27. The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired level. 28. In that view of the matter, we ### Response: 1 ### Explanation: 25. From the terms and conditions contained in the MOU, it appears to us that it was the intention of the Appellant that the Qualified Steam Generator Manufacturer would have to be the manufacturer of the evaporator itself and could not have outsourced the manufacture thereof to a third party, since the evaporator controlling the pressure of the Steam generated is a vital and crucial component of the Steam Generator itself. The Appellant, which will be the ultimate user of the Generator, must be presumed to be conscious of the competence of the tenderer to "provide" the evaporator in keeping with the requiredare unable to uphold the decision of the Division Bench of the Delhi High Court quashing the letter dated 5th January, 2011, issued by the Appellant herein, informing the Respondent No.1 that its Techno-commercial Bid had been rejected on the ground that it did not meet the minimum requirement set forth in item No.4 of Section III of the Tender Documents. The High Court while interpreting the provisions of Clause 7.1.1 of the Tender Documents was influenced by the use of the phrase "manufactured/got manufactured" while considering the fact that although, Ansaldo Caldaie, Italy, was being projected as the Qualified Steam Generator Manufacturer, Siemens A.G. was shown as the technology owner/licensor of the evaporator which was offered by the Respondent No.1. In other words, the evaporator being offered by the Respondent No.1 was one which had been manufactured not by the Qualified Steam Generator Manufacturer, but by a third party, which was not contemplated in the aforesaid condition of the Tender Documents.27. The importance of the above condition is manifested in the functioning of the Steam Generator which handles High Pressure Steam for the purpose of turning the turbines for generating electricity. The design and engineering of the evaporator and the boiler itself has to be such as to withstand the very high temperatures and pressures generated. The importance of the variable pressure operations is of great importance as far as generation and wastage of energy is concerned. The importance of the evaporator in controlling pressure during operations is to automatically regulate the flow of water, generation of pressure and temperature of the steam to the desired

Harbans Lal Jain Vs. Union of India

appellant himself had sold various plots of land at rates varying between Rs. 4/- and Rs. 5/- per square yard. His case was that the value of the land at the time of the notification in 1962 was more than ten times the price prevailing in the years 1950-52. He also pointed out that the land in question was adjacent to the fully developed Model Town colony, where all services such as pucca road, electricity, water supply, sewage, etc. existed and where the price of the land was Rs. 100/- per square yard. It was also pointed out by the appellant that the land abutted on the Princes Road which is metalled road and had a potential value being situated in the best expanding locality. He further sated that the land was not in a low lying area, as held by the Collector, and was suitable for developing a colony and the compensation should have been awarded by the Collector at the rate of Rs. 70/- per square yard. The appellant claimed for a reference to the Court under Section 18 of the Act and the Additional District Judge, Delhi, by his judgment dated December 18, 1967, enhanced the compensation to Rs. 8/- per square yard basing his decision upon the earlier High Court judgment which we have already adverted to. Thereupon the appellant preferred an appeal to the Delhi High Court. The High Court enhanced the price of the acquired land to Rs. 10/- per square yard. Hence Civil Appeal No. 1106 of 1972 by certificate by the appellant. The respondent, Union of India, also being aggrieved by the judgment of the High Court filed a counter appeal, Civil Appeal No. 2355 of 1972, with certificate.2. The reasons given by the High Court enhancing the price of the land may be quoted below:"The argument is that the fair market price of a portion of this very land was fixed by the High Court at Rs. 8/- in 1959. Thereafter, there has admittedly been a trend of rise in the prices. The ratio of the rise is indicated not only by the sale of plots in Model Town covered by Exhibits A. 1 to A. 5 but also by the sale of other agricultural land on which reliance was placed by the respondent and this ratio shows that between 1959 and 1962, there was a rise of at least 100% in the price of land in that area."The learned counsel for the appellant submits that on the findings of the High Court, as noted above, he is at least entitled to Rs. 16/- per square yard, being double the rate awarded by the High Court in 1959.3. As this stage it will be appropriate to note the reasons given by the High Court in not allowing Rs. 16/- per square yard. The first ground is that the level of the land is lower than that of the Model Town by two feet and that even on the Mall road side by one foot. The second reason is that with the acquisition of 43 bighas 4 biswas of land belonging to the appellant in 1959 the present land lost its frontage on the Princess Road and the only approach to it now is through the roads of Model Town. The third reason given by the High Court is that the ratio of rise of undeveloped land would be comparatively lower than the ratio of rise of developed land.4. It is, however, clear that even in an undeveloped state of the land the appellant had been given compensation for the land in the earlier acquisition proceeding at the rate of Rs. 8/- per square yard. Besides, we find from the earlier High Court judgment (Ext. A-34) that the High Court took into account the fact that the remaining portion of the land, a part of which is the subject-matter of this appeal, had already been notified for acquisition under Section 4 of the Act. We may read what the High Court had observed in the earlier case;"Coming to the question of severance, it has been stated at the Bar by Mr. Shankar, and not controverted by Mr. Bhagwati Dayal, the learned counsel for the appellant, that the remainder of the land belonging to the appellant has also been acquired. In this view of the matter, it seems unnecessary and pointless to discuss the question of severance and the amount of compensation awarded by us would have a material bearing on the compensation which is to be awarded for the land for the severance of which compensation has been claimed. There is thus no force in the claim for an increase in the amount awarded by the District Judge in respect of severance."It is therefore absolutely clear that the second reasons given by the High Court has no material bearing on this case and the appellants claim cannot be adversely affected further on this account. With regard to the first reason, it is sufficient to point out that was already taken into account by the High Court while fixing compensation at the rate of R. 8/- per square yard in the earlier proceedings. With regard to the third ground, the High Court itself has found that "there was a rise of at least 100 per cent in the price of land in that area". We area, therefore, clearly of opinion that the reasons given by the High Court for deducting Rs. 6/- per square yard are not at all relevant considerations in this case in favour of not granting Rs. 16/- per square yard which the High Court was prepared to grant but for the above grounds. We, therefore, hold that the appellant is entitled to Rs. 16/- per square yardfor the land in dispute in this appeal. The appellant will be entitled to solatium at 15% on the total enhanced compensation in addition to interest at the rate of 6% per annum for the date of possession till the date of payment.

1[ds]4. It is, however, clear that even in an undeveloped state of the land the appellant had been given compensation for the land in the earlier acquisition proceeding at the rate of Rs. 8/per square yard. Besides, we find from the earlier High Court judgment (Ext.that the High Court took into account the fact that the remaining portion of the land, a part of which is theof this appeal, had already been notified for acquisition under Section 4 of the Act. We may read what the High Court had observed in the earlier case;"Coming to the question of severance, it has been stated at the Bar by Mr. Shankar, and not controverted by Mr. Bhagwati Dayal, the learned counsel for the appellant, that the remainder of the land belonging to the appellant has also been acquired. In this view of the matter, it seems unnecessary and pointless to discuss the question of severance and the amount of compensation awarded by us would have a material bearing on the compensation which is to be awarded for the land for the severance of which compensation has been claimed. There is thus no force in the claim for an increase in the amount awarded by the District Judge in respect of severance."It is therefore absolutely clear that the second reasons given by the High Court has no material bearing on this case and the appellants claim cannot be adversely affected further on this account. With regard to the first reason, it is sufficient to point out that was already taken into account by the High Court while fixing compensation at the rate of R. 8/per square yard in the earlier proceedings. With regard to the third ground, the High Court itself has found that "there was a rise of at least 100 per cent in the price of land in that area". We area, therefore, clearly of opinion that the reasons given by the High Court for deducting Rs. 6/per square yard are not at all relevant considerations in this case in favour of not granting Rs. 16/per square yard which the High Court was prepared to grant but for the above grounds. We, therefore, hold that the appellant is entitled to Rs. 16/per square yardfor the land in dispute in this appeal. The appellant will be entitled to solatium at 15% on the total enhanced compensation in addition to interest at the rate of 6% per annum for the date of possession till the date of payment.

### 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: appellant himself had sold various plots of land at rates varying between Rs. 4/- and Rs. 5/- per square yard. His case was that the value of the land at the time of the notification in 1962 was more than ten times the price prevailing in the years 1950-52. He also pointed out that the land in question was adjacent to the fully developed Model Town colony, where all services such as pucca road, electricity, water supply, sewage, etc. existed and where the price of the land was Rs. 100/- per square yard. It was also pointed out by the appellant that the land abutted on the Princes Road which is metalled road and had a potential value being situated in the best expanding locality. He further sated that the land was not in a low lying area, as held by the Collector, and was suitable for developing a colony and the compensation should have been awarded by the Collector at the rate of Rs. 70/- per square yard. The appellant claimed for a reference to the Court under Section 18 of the Act and the Additional District Judge, Delhi, by his judgment dated December 18, 1967, enhanced the compensation to Rs. 8/- per square yard basing his decision upon the earlier High Court judgment which we have already adverted to. Thereupon the appellant preferred an appeal to the Delhi High Court. The High Court enhanced the price of the acquired land to Rs. 10/- per square yard. Hence Civil Appeal No. 1106 of 1972 by certificate by the appellant. The respondent, Union of India, also being aggrieved by the judgment of the High Court filed a counter appeal, Civil Appeal No. 2355 of 1972, with certificate.2. The reasons given by the High Court enhancing the price of the land may be quoted below:"The argument is that the fair market price of a portion of this very land was fixed by the High Court at Rs. 8/- in 1959. Thereafter, there has admittedly been a trend of rise in the prices. The ratio of the rise is indicated not only by the sale of plots in Model Town covered by Exhibits A. 1 to A. 5 but also by the sale of other agricultural land on which reliance was placed by the respondent and this ratio shows that between 1959 and 1962, there was a rise of at least 100% in the price of land in that area."The learned counsel for the appellant submits that on the findings of the High Court, as noted above, he is at least entitled to Rs. 16/- per square yard, being double the rate awarded by the High Court in 1959.3. As this stage it will be appropriate to note the reasons given by the High Court in not allowing Rs. 16/- per square yard. The first ground is that the level of the land is lower than that of the Model Town by two feet and that even on the Mall road side by one foot. The second reason is that with the acquisition of 43 bighas 4 biswas of land belonging to the appellant in 1959 the present land lost its frontage on the Princess Road and the only approach to it now is through the roads of Model Town. The third reason given by the High Court is that the ratio of rise of undeveloped land would be comparatively lower than the ratio of rise of developed land.4. It is, however, clear that even in an undeveloped state of the land the appellant had been given compensation for the land in the earlier acquisition proceeding at the rate of Rs. 8/- per square yard. Besides, we find from the earlier High Court judgment (Ext. A-34) that the High Court took into account the fact that the remaining portion of the land, a part of which is the subject-matter of this appeal, had already been notified for acquisition under Section 4 of the Act. We may read what the High Court had observed in the earlier case;"Coming to the question of severance, it has been stated at the Bar by Mr. Shankar, and not controverted by Mr. Bhagwati Dayal, the learned counsel for the appellant, that the remainder of the land belonging to the appellant has also been acquired. In this view of the matter, it seems unnecessary and pointless to discuss the question of severance and the amount of compensation awarded by us would have a material bearing on the compensation which is to be awarded for the land for the severance of which compensation has been claimed. There is thus no force in the claim for an increase in the amount awarded by the District Judge in respect of severance."It is therefore absolutely clear that the second reasons given by the High Court has no material bearing on this case and the appellants claim cannot be adversely affected further on this account. With regard to the first reason, it is sufficient to point out that was already taken into account by the High Court while fixing compensation at the rate of R. 8/- per square yard in the earlier proceedings. With regard to the third ground, the High Court itself has found that "there was a rise of at least 100 per cent in the price of land in that area". We area, therefore, clearly of opinion that the reasons given by the High Court for deducting Rs. 6/- per square yard are not at all relevant considerations in this case in favour of not granting Rs. 16/- per square yard which the High Court was prepared to grant but for the above grounds. We, therefore, hold that the appellant is entitled to Rs. 16/- per square yardfor the land in dispute in this appeal. The appellant will be entitled to solatium at 15% on the total enhanced compensation in addition to interest at the rate of 6% per annum for the date of possession till the date of payment. ### Response: 1 ### Explanation: 4. It is, however, clear that even in an undeveloped state of the land the appellant had been given compensation for the land in the earlier acquisition proceeding at the rate of Rs. 8/per square yard. Besides, we find from the earlier High Court judgment (Ext.that the High Court took into account the fact that the remaining portion of the land, a part of which is theof this appeal, had already been notified for acquisition under Section 4 of the Act. We may read what the High Court had observed in the earlier case;"Coming to the question of severance, it has been stated at the Bar by Mr. Shankar, and not controverted by Mr. Bhagwati Dayal, the learned counsel for the appellant, that the remainder of the land belonging to the appellant has also been acquired. In this view of the matter, it seems unnecessary and pointless to discuss the question of severance and the amount of compensation awarded by us would have a material bearing on the compensation which is to be awarded for the land for the severance of which compensation has been claimed. There is thus no force in the claim for an increase in the amount awarded by the District Judge in respect of severance."It is therefore absolutely clear that the second reasons given by the High Court has no material bearing on this case and the appellants claim cannot be adversely affected further on this account. With regard to the first reason, it is sufficient to point out that was already taken into account by the High Court while fixing compensation at the rate of R. 8/per square yard in the earlier proceedings. With regard to the third ground, the High Court itself has found that "there was a rise of at least 100 per cent in the price of land in that area". We area, therefore, clearly of opinion that the reasons given by the High Court for deducting Rs. 6/per square yard are not at all relevant considerations in this case in favour of not granting Rs. 16/per square yard which the High Court was prepared to grant but for the above grounds. We, therefore, hold that the appellant is entitled to Rs. 16/per square yardfor the land in dispute in this appeal. The appellant will be entitled to solatium at 15% on the total enhanced compensation in addition to interest at the rate of 6% per annum for the date of possession till the date of payment.

Commissioner of Income Tax Bihar-II Patna Vs. Bokaro Steel Limited

rent will be assessable to tax under s. 22 as income from house property. Likewise, the company may have income from other sources. The company may also, as in that case, keep the surplus funds in short-term deposits in order to earn interest. Such interest will be chargeable under s. 56 of the IT Act. This Court also emphasised the fact that the company was not bound to utilise the interest so earned to adjust it against the interest paid on borrowed capital. The company was free to use this income in any manner it liked. However, while interest earned by investing borrowed capital in short-term deposits is an independent source of income not connected with the construction activities or business activities of the assessee, the same cannot be said in the present case where the utilisation of various assets of the company and the payments received for such utilisation are directly linked with the activity of setting up the steel plant of the assessee. These receipts are inextricably linked with the setting up of the capital structure of the assessee-company. They must, therefore, be viewed as capital receipts going to reduce the cost of construction. In the case of Challapalli Sugars Ltd. vs. CIT (SC) : TC 17R.834, this Court examined the question whether interest paid before the commencement of production by a company on amounts borrowed for the acquisition and installation of plant and machinery would form a part of the actual cost of the asset to the assessee within the meaning of that expression in s. 10(5) of the Indian IT Act, 1922, and whether the assessee will be entitled to depreciation allowances and development rebate with reference to such interest also. The Court held that the accepted accountancy rule for determining cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition. In case money is borrowed by a newly started company which is in the process of constructing and erecting its plant, the interest incurred before the commencement of production on such borrowed money can be capitalised and added to the cost of the fixed assets created as a result of such expenditure. By the same reasoning if the assessee receives any amounts which are inextricably linked with the process of setting up its plant and machinery, such receipts will go to reduce the cost of its assets. These are receipts of a capital nature and cannot be taxed as income. 8. The same reasoning would apply to royalty received by the assessee-company for stone, etc. excavated from the assessee-companys land. The land had been allowed to be utilised by the contractors for the purpose of excavating stones to be used in the construction work of assessees steel plant. The cost of the plant to the extent of such royalty received, is reduced for the assessee. It is, therefore, rightly taken as a capital receipt. 9. In the asst. yr. 1971-72, the assessee had shown in its books of accounts a sum of Rs. 7, 39, 232 as income from interest received from Hindustan Steel Ltd. for the eight locomotives supplied by the assessee-company to them. The entry in this regard was reversed in the next year since Hindustan Steel Ltd. had replaced the eight locomotives lent by the assessee-company to it by new ones. The entire nature of the transaction was changed between the parties. There was a resolution of the assessee-company in this regard and the income from interest did not result at all as the original agreement ceased to be operative ab initio. The entry in the books which was made was about a hypothetical income which did not materialise and the entry was reversed in the next year. Both the Tribunal as well as the High Court have held that since this entry reflected only hypothetical income, it could not be brought to tax as income. Only real income can be brought to tax. 10. In support of this finding, the assessee has drawn our attention to a decision of this Court in Godhra Electricity Co. Ltd. vs. CIT (SC) where the Court, inter alia, examined the cash system and the mercantile system of accounting in the context of hypothetical income. The computation of income is made in accordance with the method of accounting regularly employed by the assessee. It may be either the cash system where entries are made on the basis of actual receipts and actual outgoings or disbursements; or it may be the mercantile system where entries are made on accrual basis, that is to say, accrual of the right to receive payment and the accrual of the liability to disburse or pay. However, in both cases unless there is real income, there cannot be any income-tax. Considering the facts before it, the Court said that although the assessee-company was following the mercantile system of accounting and had made entries in the books regarding enhanced charges for the supply of electricity made to its consumers, no real income had accrued to the assessee-company in respect of those enhanced charges in view of the fact that soon after the assessee-company decided to enhance the rate, representative suits were filed by the consumers which were decreed by the Court and ultimately, after various proceedings which took place, the assessee-company was not able to realise the enhanced charges. The Court held that no real income had accrued to assessee-company and hence the entries in respect of enhanced charges did not reflect the real income of the assessee and could not be brought to tax by the ITO. 11. In the present case also the entry which was initially made as interest was reversed the next year because in fact the nature of the transaction was changed and the assessee did not receive any real income. The High Court has, therefore, rightly held this entry as not reflecting the real income of the assessee and hence not exigible to income-tax.

0[ds]4. During these assessment years, the respondent-assessee had invested the amounts borrowed by it for the construction work which were not immediately required, in short-term deposits and earned interest. It has been held in these proceedings that the receipt of interest amounts to income of the assessee from other sources. The assessee has not filed any appeal from this finding which is given against it. In any case, this question is now concluded by a decision of this Court in Tuticorin Alkali Chemicals & Fertilisers Ltd. vs. CIT (SC). Hence, we are not called upon to examine that issue.5. We will take the first three heads under which the assessee has received certain amounts. These are, the rent charged by the assessee to its contractors for housing workers and staff employed by the contractor for the construction work of the assessee including certain amenities granted to the staff by the assessee. Secondly, hire charges for plant and machinery which was given to the contractors by the assessee for use in the construction work of the assessee and thirdly, interest from advances made to the contractors by the assessee for the purpose of facilitating the work of construction. The activities of the assessee in connection with all these three receipts are directly connected with or are incidental to the work of construction of its plant undertaken by the assessee. Broadly speaking, these pertain to the arrangements made by the assessee with its contractors pertaining to the work of construction. To facilitate the work of the contractor, the assessee permitted the contractor to use the premises of the assessee for housing its staff and workers engaged in the construction activity of the assessees plant. This was clearly to facilitate the work of construction. Had this facility not been provided by the assessee, the contractors would have had to make their own arrangements and this would have been reflected in the charges of the contractors for the construction work. Instead, the assessee has provided these facilities. The same is true of the hire charges for plant and machinery which was given by the assessee to the contractor for the assessees construction work. The receipts in this connection also go to compensate the assessee for the wear and tear on the machinery. The advances which the assessee made to the contractor to facilitate the construction activity of putting together a very large project was as much to ensure that the work of the contractors proceeded without any financial hitches as to help the contractors. The arrangements which were made between the assessee-company and the contractors pertaining to these three receipts are arrangements which are intrinsically connected with the construction of its steel plant. The receipts have been adjusted against the charges payable to the contractors and have gone to reduce the cost of construction. They have, therefore, been rightly held as capital receipts and not income of the assessee from any independent source.However, while interest earned by investing borrowed capital in short-term deposits is an independent source of income not connected with the construction activities or business activities of the assessee, the same cannot be said in the present case where the utilisation of various assets of the company and the payments received for such utilisation are directly linked with the activity of setting up the steel plant of the assessee. These receipts are inextricably linked with the setting up of the capital structure of the assessee-company. They must, therefore, be viewed as capital receipts going to reduce the cost of construction. In the case of Challapalli Sugars Ltd. vs. CIT (SC) : TC 17R.834, this Court examined the question whether interest paid before the commencement of production by a company on amounts borrowed for the acquisition and installation of plant and machinery would form a part of the actual cost of the asset to the assessee within the meaning of that expression in s. 10(5) of the Indian IT Act, 1922, and whether the assessee will be entitled to depreciation allowances and development rebate with reference to such interest also. The Court held that the accepted accountancy rule for determining cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition. In case money is borrowed by a newly started company which is in the process of constructing and erecting its plant, the interest incurred before the commencement of production on such borrowed money can be capitalised and added to the cost of the fixed assets created as a result of such expenditure. By the same reasoning if the assessee receives any amounts which are inextricably linked with the process of setting up its plant and machinery, such receipts will go to reduce the cost of its assets. These are receipts of a capital nature and cannot be taxed as income8. The same reasoning would apply to royalty received by the assessee-company for stone, etc. excavated from the assessee-companys land. The land had been allowed to be utilised by the contractors for the purpose of excavating stones to be used in the construction work of assessees steel plant. The cost of the plant to the extent of such royalty received, is reduced for the assessee. It is, therefore, rightly taken as a capital receipt9. In the asst. yr. 1971-72, the assessee had shown in its books of accounts a sum of Rs. 7, 39, 232 as income from interest received from Hindustan Steel Ltd. for the eight locomotives supplied by the assessee-company to them. The entry in this regard was reversed in the next year since Hindustan Steel Ltd. had replaced the eight locomotives lent by the assessee-company to it by new ones. The entire nature of the transaction was changed between the parties. There was a resolution of the assessee-company in this regard and the income from interest did not result at all as the original agreement ceased to be operative ab initio. The entry in the books which was made was about a hypothetical income which did not materialise and the entry was reversed in the next year. Both the Tribunal as well as the High Court have held that since this entry reflected only hypothetical income, it could not be brought to tax as income. Only real income can be brought to tax.11. In the present case also the entry which was initially made as interest was reversed the next year because in fact the nature of the transaction was changed and the assessee did not receive any real income. The High Court has, therefore, rightly held this entry as not reflecting the real income of the assessee and hence not exigible to income-tax.

### 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: rent will be assessable to tax under s. 22 as income from house property. Likewise, the company may have income from other sources. The company may also, as in that case, keep the surplus funds in short-term deposits in order to earn interest. Such interest will be chargeable under s. 56 of the IT Act. This Court also emphasised the fact that the company was not bound to utilise the interest so earned to adjust it against the interest paid on borrowed capital. The company was free to use this income in any manner it liked. However, while interest earned by investing borrowed capital in short-term deposits is an independent source of income not connected with the construction activities or business activities of the assessee, the same cannot be said in the present case where the utilisation of various assets of the company and the payments received for such utilisation are directly linked with the activity of setting up the steel plant of the assessee. These receipts are inextricably linked with the setting up of the capital structure of the assessee-company. They must, therefore, be viewed as capital receipts going to reduce the cost of construction. In the case of Challapalli Sugars Ltd. vs. CIT (SC) : TC 17R.834, this Court examined the question whether interest paid before the commencement of production by a company on amounts borrowed for the acquisition and installation of plant and machinery would form a part of the actual cost of the asset to the assessee within the meaning of that expression in s. 10(5) of the Indian IT Act, 1922, and whether the assessee will be entitled to depreciation allowances and development rebate with reference to such interest also. The Court held that the accepted accountancy rule for determining cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition. In case money is borrowed by a newly started company which is in the process of constructing and erecting its plant, the interest incurred before the commencement of production on such borrowed money can be capitalised and added to the cost of the fixed assets created as a result of such expenditure. By the same reasoning if the assessee receives any amounts which are inextricably linked with the process of setting up its plant and machinery, such receipts will go to reduce the cost of its assets. These are receipts of a capital nature and cannot be taxed as income. 8. The same reasoning would apply to royalty received by the assessee-company for stone, etc. excavated from the assessee-companys land. The land had been allowed to be utilised by the contractors for the purpose of excavating stones to be used in the construction work of assessees steel plant. The cost of the plant to the extent of such royalty received, is reduced for the assessee. It is, therefore, rightly taken as a capital receipt. 9. In the asst. yr. 1971-72, the assessee had shown in its books of accounts a sum of Rs. 7, 39, 232 as income from interest received from Hindustan Steel Ltd. for the eight locomotives supplied by the assessee-company to them. The entry in this regard was reversed in the next year since Hindustan Steel Ltd. had replaced the eight locomotives lent by the assessee-company to it by new ones. The entire nature of the transaction was changed between the parties. There was a resolution of the assessee-company in this regard and the income from interest did not result at all as the original agreement ceased to be operative ab initio. The entry in the books which was made was about a hypothetical income which did not materialise and the entry was reversed in the next year. Both the Tribunal as well as the High Court have held that since this entry reflected only hypothetical income, it could not be brought to tax as income. Only real income can be brought to tax. 10. In support of this finding, the assessee has drawn our attention to a decision of this Court in Godhra Electricity Co. Ltd. vs. CIT (SC) where the Court, inter alia, examined the cash system and the mercantile system of accounting in the context of hypothetical income. The computation of income is made in accordance with the method of accounting regularly employed by the assessee. It may be either the cash system where entries are made on the basis of actual receipts and actual outgoings or disbursements; or it may be the mercantile system where entries are made on accrual basis, that is to say, accrual of the right to receive payment and the accrual of the liability to disburse or pay. However, in both cases unless there is real income, there cannot be any income-tax. Considering the facts before it, the Court said that although the assessee-company was following the mercantile system of accounting and had made entries in the books regarding enhanced charges for the supply of electricity made to its consumers, no real income had accrued to the assessee-company in respect of those enhanced charges in view of the fact that soon after the assessee-company decided to enhance the rate, representative suits were filed by the consumers which were decreed by the Court and ultimately, after various proceedings which took place, the assessee-company was not able to realise the enhanced charges. The Court held that no real income had accrued to assessee-company and hence the entries in respect of enhanced charges did not reflect the real income of the assessee and could not be brought to tax by the ITO. 11. In the present case also the entry which was initially made as interest was reversed the next year because in fact the nature of the transaction was changed and the assessee did not receive any real income. The High Court has, therefore, rightly held this entry as not reflecting the real income of the assessee and hence not exigible to income-tax. ### Response: 0 ### Explanation: the rent charged by the assessee to its contractors for housing workers and staff employed by the contractor for the construction work of the assessee including certain amenities granted to the staff by the assessee. Secondly, hire charges for plant and machinery which was given to the contractors by the assessee for use in the construction work of the assessee and thirdly, interest from advances made to the contractors by the assessee for the purpose of facilitating the work of construction. The activities of the assessee in connection with all these three receipts are directly connected with or are incidental to the work of construction of its plant undertaken by the assessee. Broadly speaking, these pertain to the arrangements made by the assessee with its contractors pertaining to the work of construction. To facilitate the work of the contractor, the assessee permitted the contractor to use the premises of the assessee for housing its staff and workers engaged in the construction activity of the assessees plant. This was clearly to facilitate the work of construction. Had this facility not been provided by the assessee, the contractors would have had to make their own arrangements and this would have been reflected in the charges of the contractors for the construction work. Instead, the assessee has provided these facilities. The same is true of the hire charges for plant and machinery which was given by the assessee to the contractor for the assessees construction work. The receipts in this connection also go to compensate the assessee for the wear and tear on the machinery. The advances which the assessee made to the contractor to facilitate the construction activity of putting together a very large project was as much to ensure that the work of the contractors proceeded without any financial hitches as to help the contractors. The arrangements which were made between the assessee-company and the contractors pertaining to these three receipts are arrangements which are intrinsically connected with the construction of its steel plant. The receipts have been adjusted against the charges payable to the contractors and have gone to reduce the cost of construction. They have, therefore, been rightly held as capital receipts and not income of the assessee from any independent source.However, while interest earned by investing borrowed capital in short-term deposits is an independent source of income not connected with the construction activities or business activities of the assessee, the same cannot be said in the present case where the utilisation of various assets of the company and the payments received for such utilisation are directly linked with the activity of setting up the steel plant of the assessee. These receipts are inextricably linked with the setting up of the capital structure of the assessee-company. They must, therefore, be viewed as capital receipts going to reduce the cost of construction. In the case of Challapalli Sugars Ltd. vs. CIT (SC) : TC 17R.834, this Court examined the question whether interest paid before the commencement of production by a company on amounts borrowed for the acquisition and installation of plant and machinery would form a part of the actual cost of the asset to the assessee within the meaning of that expression in s. 10(5) of the Indian IT Act, 1922, and whether the assessee will be entitled to depreciation allowances and development rebate with reference to such interest also. The Court held that the accepted accountancy rule for determining cost of fixed assets is to include all expenditure necessary to bring such assets into existence and to put them in working condition. In case money is borrowed by a newly started company which is in the process of constructing and erecting its plant, the interest incurred before the commencement of production on such borrowed money can be capitalised and added to the cost of the fixed assets created as a result of such expenditure. By the same reasoning if the assessee receives any amounts which are inextricably linked with the process of setting up its plant and machinery, such receipts will go to reduce the cost of its assets. These are receipts of a capital nature and cannot be taxed as income8. The same reasoning would apply to royalty received by the assessee-company for stone, etc. excavated from the assessee-companys land. The land had been allowed to be utilised by the contractors for the purpose of excavating stones to be used in the construction work of assessees steel plant. The cost of the plant to the extent of such royalty received, is reduced for the assessee. It is, therefore, rightly taken as a capital receipt9. In the asst. yr. 1971-72, the assessee had shown in its books of accounts a sum of Rs. 7, 39, 232 as income from interest received from Hindustan Steel Ltd. for the eight locomotives supplied by the assessee-company to them. The entry in this regard was reversed in the next year since Hindustan Steel Ltd. had replaced the eight locomotives lent by the assessee-company to it by new ones. The entire nature of the transaction was changed between the parties. There was a resolution of the assessee-company in this regard and the income from interest did not result at all as the original agreement ceased to be operative ab initio. The entry in the books which was made was about a hypothetical income which did not materialise and the entry was reversed in the next year. Both the Tribunal as well as the High Court have held that since this entry reflected only hypothetical income, it could not be brought to tax as income. Only real income can be brought to tax.11. In the present case also the entry which was initially made as interest was reversed the next year because in fact the nature of the transaction was changed and the assessee did not receive any real income. The High Court has, therefore, rightly held this entry as not reflecting the real income of the assessee and hence not exigible to income-tax.

A. Navinchandra Steels Private Limited Vs. SREI Equipment Finance Limited & Ors

mentioned in paragraph 31 of Action Ispat (supra). 25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held: The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]: The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up. It is also summarised in Palmers Company Precedents Vol. II, page 415: Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made. The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act. (at pages 383, 384) This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12). 26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses. 27. Dr. Singhvi and Shri Ranjit Kumar have vehemently argued that SREI has suppressed the winding up proceeding in its application under Section 7 of the IBC before the NCLT and has resorted to Section 7 only as a subterfuge to avoid moving a transfer application before the High Court in the pending winding up proceeding. These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met.

0[ds]14. Having heard learned counsel for all the parties, it is important to restate a few fundamentals. Given the object of the IBC as delineated in paragraphs 25 to 28 of Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 [Swiss Ribbons], it is clear that the IBC is a special statute dealing with revival of companies that are in the red, winding up only being resorted to in case all attempts of revival fail. Vis-à-vis the Companies Act, which is a general statute dealing with companies, including companies that are in the red, the IBC is not only a special statute which must prevail in the event of conflict, but has a non-obstante clause contained in Section 238, which makes it even clearer that in case of conflict, the provisions of the IBC will prevail.15. In Allahabad Bank v. Canara Bank, (2000) 4 SCC 406 , this Court had to deal with whether the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 [RDB Act] was a special statute qua the Companies Act, 1956. This Court held that the Companies Act is a general Act and does not prevail against the RDB Act, which was a later Act and which has a non-obstante clause that clearly excludes the provisions of the Companies Act in case of conflict. This was stated by the Court as follows:Special law v. general law38. At the same time, some High Courts have rightly held that the Companies Act is a general Act and does not prevail under the RDB Act. They have relied upon Union of India v. India Fisheries (P) Ltd. [AIR 1966 SC 35 : (1965) 3 SCR 679 : (1965) 57 ITR 331 ].39. There can be a situation in law where the same statute is treated as a special statute vis-à-vis one legislation and again as a general statute vis-à-vis yet another legislation. Such situations do arise as held in LIC of India v. D.J. Bahadur [(1981) 1 SCC 315 : 1981 SCC (L&S) 111 : AIR 1980 SC 2181 ]. It was there observed:… for certain cases, an Act may be general and for certain other purposes, it may be special and the court cannot blur a distinction when dealing with the finer points of law.For example, a Rent Control Act may be a special statute as compared to the Code of Civil Procedure. But vis-à-vis an Act permitting eviction from public premises or some special class of buildings, the Rent Control Act may be a general statute. In fact in Damji Valji Shah v. LIC of India [AIR 1966 SC 135 : (1965) 3 SCR 665 ] (already referred to), this Court has observed that vis-à-vis the LIC Act, 1956, the Companies Act, 1956 can be treated as a general statute. This is clear from para 19 of that judgment. It was observed:Further, the provisions of the special Act, i.e., the LIC Act, will override the provisions of the general Act, viz., the Companies Act which is an Act relating to companies in general.(emphasis in original)Thus, some High Courts rightly treated the Companies Act as a general statute, and the RDB Act as a special statute overriding the general statute.Special law v. special law40. Alternatively, the Companies Act, 1956 and the RDB Act can both be treated as special laws, and the principle that when there are two special laws, the latter will normally prevail over the former if there is a provision in the latter special Act giving it overriding effect, can also be applied. Such a provision is there in the RDB Act, namely, Section 34. A similar situation arose in Maharashtra Tubes Ltd. v. State Industrial and Investment Corpn. of Maharashtra Ltd. [(1993) 2 SCC 144] where there was inconsistency between two special laws, the Finance Corporation Act, 1951 and the Sick Industries Companies (Special Provisions) Act, 1985. The latter contained Section 32 which gave overriding effect to its provisions and was held to prevail over the former. It was pointed out by Ahmadi, J. that both special statutes contained non obstante clauses but that the1985 Act being a subsequent enactment, the non obstante clause therein would ordinarily prevail over the non obstante clause in Section 46-B of the 1951 Act unless it is found that the 1985 Act is a general statute and the 1951 Act is a special one. (SCC p. 157, para 9)Therefore, in view of Section 34 of the RDB Act, the said Act overrides the Companies Act, to the extent there is anything inconsistent between the Acts.17. In Madras Petrochem Ltd. v. BIFR, (2016) 4 SCC 1 , this Court had to deal with whether a predecessor statute to the IBC, which has been repealed by the IBC, namely, the Sick Industrial Companies (Special Provisions) Act, 1985, prevails over the SARFAESI Act to the extent of inconsistency therewith. This Court noted that in the case of two statutes which contain non-obstante clauses, the later Act will normally prevail, holding:36. A conspectus of the aforesaid decisions shows that the Sick Industrial Companies (Special Provisions) Act, 1985 prevails in all situations where there are earlier enactments with non obstante clauses similar to the Sick Industrial Companies (Special Provisions) Act, 1985. Where there are later enactments with similar non obstante clauses, the Sick Industrial Companies (Special Provisions) Act, 1985 has been held to prevail only in a situation where the reach of the non obstante clause in the later Act is limited—such as in the case of the Arbitration and Conciliation Act, 1996—or in the case of the later Act expressly yielding to the Sick Industrial Companies (Special Provisions) Act, 1985, as in the case of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Where such is not the case, as in the case of Special Courts Act, 1992, it is the Special Courts Act, 1992 which was held to prevail over the Sick Industrial Companies (Special Provisions) Act, 1985.37. We have now to undertake an analysis of the Acts in question. The first thing to be noticed is the difference between Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and Section 34 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Section 37 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 does not include the Sick Industrial Companies (Special Provisions) Act, 1985 unlike Section 34(2) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. Section 37 of the Securities and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 states that the said Act shall be in addition to and not in derogation of four Acts, namely, the Companies Act, the Securities Contracts (Regulation) Act, 1956, the Securities and Exchange Board of India Act, 1992 and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. It is clear that the first three Acts deal with securities generally and the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 deals with recovery of debts due to banks and financial institutions. Interestingly, Section 41 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 makes amendments in three Acts—the Companies Act, the Securities Contracts (Regulation) Act, 1956, and the Sick Industrial Companies (Special Provisions) Act, 1985. It is of great significance that only the first two Acts are included in Section 37 and not the third i.e. the Sick Industrial Companies (Special Provisions) Act, 1985. This is for the obvious reason that the framers of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 intended that the Sick Industrial Companies (Special Provisions) Act, 1985 be covered by the non obstante clause contained in Section 35, and not by the exception thereto carved out by Section 37. Further, whereas the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 is expressly mentioned in Section 37, the Sick Industrial Companies (Special Provisions) Act, 1985 is not, making the above position further clear. And this is in stark contrast, as has been stated above, to Section 34(2) of the Recovery of Debts Due to Banksand FinancialInstitutions Act, 1993, which expressly included the Sick Industrial Companies (Special Provisions) Act, 1985. The new legislative scheme qua recovery of debts contained in the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 has, therefore, to be given precedence over the Sick Industrial Companies (Special Provisions) Act, 1985, unlike the old scheme for recovery of debts contained in the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.18. Indeed, this position has been echoed in several judgments of this Court. In Jaipur Metals & Electricals Employees Organization v. Jaipur Metals & Electricals Ltd., (2019) 4 SCC 227 [Jaipur Metals], this Court, in dealing with whether proceedings under the Sick Industrial Companies (Special Provisions) Act, 1985 were to be transferred to the NCLT under the IBC, held:19. However, this does not end the matter. It is clear that Respondent 3 has filed a Section 7 application under the Code on 11-1-2018, on which an order has been passed admitting such application by NCLT on 13-4-2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding-up proceedings before the High Court. It was open for Respondent 3 at any time before a winding-up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows:238. Provisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.20. Shri Daves ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule to the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule to the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside. NCLT proceedings will now continue from the stage at which they have been left off. Obviously, the company petition pending before the High Court cannot be proceeded with further in view of Section 238 of the Code. The writ petitions that are pending before the High Court have also to be disposed of in light of the fact that proceedings under the Code must run their entire course. We, therefore, allow the appeal and set aside the High Courts judgment [Jaipur Metals and Electricals Ltd., In re, 2018 SCC OnLine Raj 1472].20. In Duncans Industries Ltd. v. AJ Agrochem, (2019) 9 SCC 725 , this Court was faced with a situation of conflict between Section 16-G(1)(c) of the Tea Act, 1953, under which winding up/liquidation proceedings were to take place (and which could not take place without prior consent of the Central Government), and a proceeding initiated under Section 9 of the IBC. After relying upon the judgment of this Court in Innoventive Industries Ltd. v. ICICI Bank, (2018) 1 SCC 407 and Swiss Ribbons (supra), this Court held:7.4. Section 16-G(1)(c) refers to the proceeding for winding up of such company or for the appointment of receiver in respect thereof. Therefore, as such, the proceedings under Section 9 IBC shall not be limited and/or restricted to winding up and/or appointment of receiver only. The winding up/liquidation of the company shall be the last resort and only on an eventuality when the corporate insolvency resolution process fails. As observed by this Court in Swiss Ribbons (P) Ltd. [Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 : AIR 2019 SC 739 ], referred to hereinabove, the primary focus of the legislation while enacting IBC is to ensure revival and continuation of the corporate debtor by protecting the corporate debtor from its own management and from a corporate debt by liquidation and such corporate insolvency resolution process is to be completed in a time-bound manner. Therefore, the entire corporate insolvency resolution process as such cannot be equated with winding up proceedings. Therefore, considering Section 238 IBC, which is a subsequent Act to the Tea Act, 1953, shall be applicable and the provisions of IBC shall have an overriding effect over the Tea Act, 1953. Any other view would frustrate the object and purpose of IBC. If the submission on behalf of the appellant that before initiation of proceedings under Section 9 IBC, the consent of the Central Government as provided under Section 16-G(1)(c) of the Tea Act is to be obtained, in that case, the main object and purpose of IBC, namely, to complete the corporate insolvency resolution process in a time-bound manner, shall be frustrated. The sum and substance of the above discussion would be that the provisions of IBC would have an overriding effect over the Tea Act, 1953 and that no prior consent of the Central Government before initiation of the proceedings under Section 7 or Section 9 IBC would be required and even without such consent of the Central Government, the insolvency proceedings under Section 7 or Section 9 IBC initiated by the operational creditor shall be maintainable.22. In Action Ispat (supra), this Court was faced with a proceeding in which a winding up petition had been admitted by the High Court and then transferred to the NCLT to be tried as a proceeding under the IBC. After referring to the judgments in Jaipur Metals (supra), Forech (supra), and Kaledonia (supra), and after setting out various Sections dealing with winding up of companies under the Companies Act, 2013, this Court then held:20. What becomes clear upon a reading of the three judgments of this Court is the following:(i) So far as transfer of winding up proceedings is concerned, the Code began tentatively by leaving proceedings relating to winding up of companies to be transferred to NCLT at a stage as may be prescribed by the Central Government.(ii) This was done by the Transfer Rules, 2016 [Companies (Transfer of Pending Proceedings) Rules, 2016] which came into force with effect from 15.12.2016. Rules 5 and 6 referred to three types of proceedings. Only those proceedings which are at the stage of pre-service of notice of the winding up petition stand compulsorily transferred to the NCLT.(iii) The result therefore was that post notice and pre admission of winding up petitions, parallel proceedings would continue under both statutes, leading to a most unsatisfactory state of affairs. This led to the introduction of the 5th proviso to section 434(1)(c) which, as has been correctly pointed out in Kaledonia [Kaledonia Jute & Fibres Pvt. Ltd. v. Axis Nirman & Industries Ltd., 2020 SCC OnLine SC 943], is not restricted to any particular stage of a winding up proceeding.(iv) Therefore, what follows as a matter of law is that even post admission of a winding up petition, and after the appointment of a Company Liquidator to take over the assets of a company sought to be wound up, discretion is vested in the Company Court to transfer such petition to the NCLT. The question that arises before us in this case is how is such discretion to be exercised?xxx xxx xxx31. Given the aforesaid scheme of winding up under Chapter XX of the Companies Act, 2013, it is clear that several stages are contemplated, with the Tribunal retaining the power to control the proceedings in a winding up petition even after it is admitted. Thus, in a winding up proceeding where the petition has not been served in terms of Rule 26 of the Companies (Court) Rules, 1959 at a pre-admission stage, given the beneficial result of the application of the Code, such winding up proceeding is compulsorily transferable to the NCLT to be resolved under the Code. Even post issue of notice and pre admission, the same result would ensue. However, post admission of a winding up petition and after the assets of the company sought to be wound up become in custodia legis and are taken over by the Company Liquidator, section 290 of the Companies Act, 2013 would indicate that the Company Liquidator may carry on the business of the company, so far as may be necessary, for the beneficial winding up of the company, and may even sell the company as a going concern. So long as no actual sales of the immovable or movable properties have taken place, nothing irreversible is done which would warrant a Company Court staying its hands on a transfer application made to it by a creditor or any party to the proceedings. It is only where the winding up proceedings have reached a stage where it would be irreversible, making it impossible to set the clock back that the Company Court must proceed with the winding up, instead of transferring the proceedings to the NCLT to now be decided in accordance with the provisions of the Code. Whether this stage is reached would depend upon the facts and circumstances of each case.23. A conspectus of the aforesaid authorities would show that a petition either under Section 7 or Section 9 of the IBC is an independent proceeding which is unaffected by winding up proceedings that may be filed qua the same company. Given the object sought to be achieved by the IBC, it is clear that only where a company in winding up is near corporate death that no transfer of the winding up proceeding would then take place to the NCLT to be tried as a proceeding under the IBC. Short of an irresistible conclusion that corporate death is inevitable, every effort should be made to resuscitate the corporate debtor in the larger public interest, which includes not only the workmen of the corporate debtor, but also its creditors and the goods it produces in the larger interest of the economy of the country. It is, thus, not possible to accede to the argument on behalf of the Appellant that given Section 446 of the Companies Act, 1956 / Section 279 of the Companies Act, 2013, once a winding up petition is admitted, the winding up petition should trump any subsequent attempt at revival of the company through a Section 7 or Section 9 petition filed under the IBC.What is clear by this Section is that a compromise or arrangement can also be entered into in an IBC proceeding if liquidation is ordered. However, what is of importance is that under the Companies Act, it is only winding up that can be ordered, whereas under the IBC, the primary emphasis is on revival of the corporate debtor through infusion of a new management.24. On facts also, in the present case, nothing can be said to have become irretrievable in the sense mentioned in paragraph 31 of Action Ispat (supra).25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held:The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]:The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up.It is also summarised in Palmers Company Precedents Vol. II, page 415:Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made.The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act.The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act.(at pages 383, 384)This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12).26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses.These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met.

### 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: mentioned in paragraph 31 of Action Ispat (supra). 25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held: The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]: The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up. It is also summarised in Palmers Company Precedents Vol. II, page 415: Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made. The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act. The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act. (at pages 383, 384) This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12). 26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses. 27. Dr. Singhvi and Shri Ranjit Kumar have vehemently argued that SREI has suppressed the winding up proceeding in its application under Section 7 of the IBC before the NCLT and has resorted to Section 7 only as a subterfuge to avoid moving a transfer application before the High Court in the pending winding up proceeding. These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met. ### Response: 0 ### Explanation: into in an IBC proceeding if liquidation is ordered. However, what is of importance is that under the Companies Act, it is only winding up that can be ordered, whereas under the IBC, the primary emphasis is on revival of the corporate debtor through infusion of a new management.24. On facts also, in the present case, nothing can be said to have become irretrievable in the sense mentioned in paragraph 31 of Action Ispat (supra).25. It is settled law that a secured creditor stands outside the winding up and can realise its security dehors winding up proceedings. In M.K. Ranganathan v. Govt. of Madras, (1955) 2 SCR 374 , this Court held:The position of a secured creditor in the winding up of a company has been thus stated by Lord Wrenbury in Food Controller v. Cork [1923 Appeal Cases 647]:The phrase outside the winding up is an intelligible phrase if used, as it often is, with reference to a secured creditor, say a mortgagee. The mortgagee of a company in liquidation is in a position to say the mortgaged property is to the extent of the mortgage my property. It is immaterial to me whether my mortgage is in winding up or not. I remain outside the winding up and shall enforce my rights as mortgagee. This is to be contrasted with the case in which such a creditor prefers to assert his right, not as a mortgagee, but as a creditor. He may say I will prove in respect of my debt. If so, he comes into the winding up.It is also summarised in Palmers Company Precedents Vol. II, page 415:Sometimes the mortgagee sells, with or without the concurrence of the liquidator, in exercise of a power of sale vested in him by the mortgage. It is not necessary to obtain liberty to exercise the power of sale, although orders giving such liberty have sometimes been made.The secured creditor is thus outside the winding up and can realise his security without the leave of the winding up Court, though if he files a suit or takes other legal proceedings for the realisation of his security he is bound under Section 231 (corresponding with Section 171 of the Indian Companies Act) to obtain the leave of, the winding up Court before he can do so although such leave would almost automatically be granted. Section 231 has been read together with Section 228(1) and the attachment, sequestration, distress or execution referred to in the latter have reference to proceedings taken through the Court and if the creditor has resort to those proceedings he cannot put them in force against the estate or effects of the Company after the commencement of the winding up without the leave of the winding up Court. The provisions in Section 317 are also supplementary to the provisions of Section 231 and emphasise the position of the secured creditor as one outside the winding up, the secured creditor being, in regard to the exercise of those rights and privileges, in the same position as he would be under the Bankruptcy Act.The corresponding provisions of the Indian Companies Act have been almost bodily incorporated from those of the English Companies Act and if there was nothing more, the position of the secured creditor here also would be the same as that obtaining in England and he would also be outside the winding up and a sale by him without the intervention of the Court would be valid and could not be challenged as void under Section 232(1), Indian Companies Act.(at pages 383, 384)This principle has been followed in Central Bank of India v. Elmot Engineering Co., (1994) 4 SCC 159 ( at paragraph 14), Industrial Credit and Investment Corpn. of India Ltd. v. Srinivas Agencies, (1996) 4 SCC 165 ( at paragraph 2), and Board of Trustees, Port of Mumbai v. Indian Oil Corpn., (1998) 4 SCC 302 ( at paragraph 12).26. Indiabulls, a secured creditor of the corporate debtor, viz. SRUIL, has, in enforcement of its debt by a mortgage, sold the mortgaged property outside the winding up. The aforesaid sale is the subject matter of proceedings in the Bombay High Court filed by the provisional liquidator. If the aforesaid sale is set aside, the asset of SRUIL that has been sold will come back to the provisional liquidator for the purposes of winding up. If the sale is upheld, equally, there are other assets of SRUIL which continue to be in the hands of the provisional liquidator for the purposes of winding up. We may also add that on the facts of this case, though no application for transfer of the winding up proceeding pending in the Bombay High Court has been filed, the Bombay High Court has itself, by the orders dated 28.11.2019 and 23.01.2020, directed the provisional liquidator to hand over the records and assets of SRUIL to the IRP in the Section 7 proceeding that is pending before the NCLT. No doubt, this has not yet been done as the IRP has not yet been able to pay the requisite amount to the provisional liquidator for his expenses.These arguments do not avail the Appellant for the simple reason that Section 7 is an independent proceeding, as has been held in catena of judgments of this Court, which has to be tried on its own merits. Any suppression of the winding up proceeding would, therefore, not be of any effect in deciding a Section 7 petition on the basis of the provisions contained in the IBC. Equally, it cannot be said that any subterfuge has been availed of for the same reason that Section 7 is an independent proceeding that stands by itself. As has been correctly pointed out by Shri Sinha, a discretionary jurisdiction under the fifth proviso to Section 434(1)(c) of the Companies Act, 2013 cannot prevail over the undoubted jurisdiction of the NCLT under the IBC once the parameters of Section 7 and other provisions of the IBC have been met.

U. P. State Cement Corporation Limited and Others Vs. B. K. Tiwari

D. P. WADHWA, J. Special leave granted. 2. This appeal is directed against the judgment dated 4-4-1997 of the Division Bench of the High Court of Judicature at Allahabad allowing the writ petition of the respondent whereby he was held entitled to the benefits of the revised pay scale and designation of the post he was holding 3. In pursuance of an advertisement issued by the appellant the respondent applies for a post of Manager (Personnel) Grade E-4 by letter dated 1-5-1986. He was, however, offered the post of Deputy Manager (P & IR) on terms and conditions as mentioned in letter dated 23-10-1986 of the appellant. The respondent declined this post stating that he had applied for the post of Manager (P & IR) and could not accept the post of Deputy Manager (P & IR). This was by letter dated 5-11-1986. In the meanwhile, there was revision of pay scales of the officers and staff of the appellant, which was communicated to the appellant by letter dated 12-11-1986 of the State Government. The relevant part of the revision of pay scales is as under Sl. Designation Pay scales Designation Pay scales No. (in Rs.) (in Rs.) 3. Dy. Manager/Sr. 1400-1800 Manager (Works) 1500-60- Dy. Manager/ 1800-100- Manager 2000 4. Manager/Company 1500-2000 Joint Sr. Manager 1800-100- Secretary (Works)/Company 2000-125- Secretary 2-2250 4. Then comes the appointment letter issued to the respondent. This letter is in brief and we merely produce the same as under "Gram : U.P. Cement, Churk The Uttar Pradesh State Cement Corporation Ltd (A U.P. Govt. Undertaking) Registered Post (Seal) Unit : Churk Cement Factory Regd : Office Churk 231206 Dept : Ref No. PS/HQ/R-10/1038 Dated December 4, 1986To Shri B. K. Tiwari 120, Vindhweshni Nagar Orderly Bazar Varanasi Cantt. 221002 Sub : Officer of Appointment for the Post of Manager (Personnel & IR) Dear Sir Please refer to your letter No. NIL of dated 5th November, 1986 on the above subject. After due consideration it has been decided to amend your appointment offer to the following extent 1. Your designation is hereby amended as Manager (Personnel & IR) 2. Your basic pay will be Rs. 1500 per month in the scale of pay of Rs. 1500-60-1800-100-2000 3. Your joining time is hereby extended up to 15th February, 1987. No further extension will be granted All other terms and conditions of out appointment offer No PS/HQ/R-10/872 dated 23-10-1986 remain unaltered Yours faithfully sd/- (N. M. Majumdar) Chairman and Managing Director" 5. The respondent accepted the offer given to him by the aforesaid appointment letter and accepted the post of the Manager (P & IR). He joined this post on 28-2-1987 and on 24-4-1987 represented to the appellant that he was entitled to placement in the revised grade of Rs. 1800-2250 which according to him was applicable to Manager (P & IR) Headquarters. This representation was rejected and this led to filing of the writ petition by the respondent in the High Court which was allowed as aforesaid 6. We do not think there is much controversy involved in the present case. The respondent said that at the time when he had applied for the post of Manager (E-4) it was in the pay scale of Rs. 1500-2000 and what was offered to him was the post of Deputy Manager in the pay scale of Rs. 1400-1800. Thus, according to the respondent, when he was offered the post of Manager, the pay scale had already been revised to Rs. 1800-2250 to which, he said, he was entitled. We dont think this contention of the respondent can be accepted. Letter offering him the appointment of Manager is specific. This letter, as noted above, was written after the revision of pay scales. Not only that, the letter mentioning the designation of the respondent had also, in clear terms, mentioned the pay scale of the Manager which was being offered to him7. This letter was accepted by the respondent with the terms and conditions contained therein. The respondent cannot read in the letter more than what it says. Offer of appointment was given to the respondent after revision of the pay scales and the appellant could not possibly have given the old pay scales. We, therefore, do not accept the view taken by the High Court

0[ds]We dont think this contention of the respondent can be accepted. Letter offering him the appointment of Manager is specific. This letter, as noted above, was written after the revision of pay scales. Not only that, the letter mentioning the designation of the respondent had also, in clear terms, mentioned the pay scale of the Manager which was being offered to him7. This letter was accepted by the respondent with the terms and conditions contained therein. The respondent cannot read in the letter more than what it says. Offer of appointment was given to the respondent after revision of the pay scales and the appellant could not possibly have given the old pay scales. We, therefore, do not accept the view taken 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: D. P. WADHWA, J. Special leave granted. 2. This appeal is directed against the judgment dated 4-4-1997 of the Division Bench of the High Court of Judicature at Allahabad allowing the writ petition of the respondent whereby he was held entitled to the benefits of the revised pay scale and designation of the post he was holding 3. In pursuance of an advertisement issued by the appellant the respondent applies for a post of Manager (Personnel) Grade E-4 by letter dated 1-5-1986. He was, however, offered the post of Deputy Manager (P & IR) on terms and conditions as mentioned in letter dated 23-10-1986 of the appellant. The respondent declined this post stating that he had applied for the post of Manager (P & IR) and could not accept the post of Deputy Manager (P & IR). This was by letter dated 5-11-1986. In the meanwhile, there was revision of pay scales of the officers and staff of the appellant, which was communicated to the appellant by letter dated 12-11-1986 of the State Government. The relevant part of the revision of pay scales is as under Sl. Designation Pay scales Designation Pay scales No. (in Rs.) (in Rs.) 3. Dy. Manager/Sr. 1400-1800 Manager (Works) 1500-60- Dy. Manager/ 1800-100- Manager 2000 4. Manager/Company 1500-2000 Joint Sr. Manager 1800-100- Secretary (Works)/Company 2000-125- Secretary 2-2250 4. Then comes the appointment letter issued to the respondent. This letter is in brief and we merely produce the same as under "Gram : U.P. Cement, Churk The Uttar Pradesh State Cement Corporation Ltd (A U.P. Govt. Undertaking) Registered Post (Seal) Unit : Churk Cement Factory Regd : Office Churk 231206 Dept : Ref No. PS/HQ/R-10/1038 Dated December 4, 1986To Shri B. K. Tiwari 120, Vindhweshni Nagar Orderly Bazar Varanasi Cantt. 221002 Sub : Officer of Appointment for the Post of Manager (Personnel & IR) Dear Sir Please refer to your letter No. NIL of dated 5th November, 1986 on the above subject. After due consideration it has been decided to amend your appointment offer to the following extent 1. Your designation is hereby amended as Manager (Personnel & IR) 2. Your basic pay will be Rs. 1500 per month in the scale of pay of Rs. 1500-60-1800-100-2000 3. Your joining time is hereby extended up to 15th February, 1987. No further extension will be granted All other terms and conditions of out appointment offer No PS/HQ/R-10/872 dated 23-10-1986 remain unaltered Yours faithfully sd/- (N. M. Majumdar) Chairman and Managing Director" 5. The respondent accepted the offer given to him by the aforesaid appointment letter and accepted the post of the Manager (P & IR). He joined this post on 28-2-1987 and on 24-4-1987 represented to the appellant that he was entitled to placement in the revised grade of Rs. 1800-2250 which according to him was applicable to Manager (P & IR) Headquarters. This representation was rejected and this led to filing of the writ petition by the respondent in the High Court which was allowed as aforesaid 6. We do not think there is much controversy involved in the present case. The respondent said that at the time when he had applied for the post of Manager (E-4) it was in the pay scale of Rs. 1500-2000 and what was offered to him was the post of Deputy Manager in the pay scale of Rs. 1400-1800. Thus, according to the respondent, when he was offered the post of Manager, the pay scale had already been revised to Rs. 1800-2250 to which, he said, he was entitled. We dont think this contention of the respondent can be accepted. Letter offering him the appointment of Manager is specific. This letter, as noted above, was written after the revision of pay scales. Not only that, the letter mentioning the designation of the respondent had also, in clear terms, mentioned the pay scale of the Manager which was being offered to him7. This letter was accepted by the respondent with the terms and conditions contained therein. The respondent cannot read in the letter more than what it says. Offer of appointment was given to the respondent after revision of the pay scales and the appellant could not possibly have given the old pay scales. We, therefore, do not accept the view taken by the High Court ### Response: 0 ### Explanation: We dont think this contention of the respondent can be accepted. Letter offering him the appointment of Manager is specific. This letter, as noted above, was written after the revision of pay scales. Not only that, the letter mentioning the designation of the respondent had also, in clear terms, mentioned the pay scale of the Manager which was being offered to him7. This letter was accepted by the respondent with the terms and conditions contained therein. The respondent cannot read in the letter more than what it says. Offer of appointment was given to the respondent after revision of the pay scales and the appellant could not possibly have given the old pay scales. We, therefore, do not accept the view taken by the High Court

NIRMALA KOTHARI Vs. UNITED INDIA INSURANCE CO.LTD

forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. vs. Lehru & Ors. (2003) 3 SCC 338 : 2003 SCC (Cri) 641 a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC vs. National Insurance Co. (2013) 10 SCC 217 We may extract the relevant paragraph from the Judgment: (Pepsu case, SCC pp. 223-24, para10) In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhs case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation. 9. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (2004) 3 SCC 297 : 2004 SCC (Cri) 733 (SCC pp.341, para 110) that, 110. (iii)…Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time. 11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. 12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence.

1[ds]7. Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149(2)(a)(ii) deals with the conditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is not duly licenced or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is not liable for compensation. In the instant case it is a matter of fact that no record of the licence bearing no. P03041288753070 was found with the licensing authority10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence.

### 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: forth the facts of the present case, the question of law that arises for consideration is what is the extent of care/diligence expected of the employer/insured while employing a driver? To answer this question, we shall advert to the legal position regarding the liability of the Insurance Company when the driver of the offending vehicle possessed an invalid/fake driving licence. In the case of United India Insurance Co. Ltd. vs. Lehru & Ors. (2003) 3 SCC 338 : 2003 SCC (Cri) 641 a two Judge Bench of this court has taken the view that the Insurance Company cannot be permitted to avoid its liability on the ground that the person driving the vehicle at the time of the accident was not duly licenced. It was further held that the willful breach of the conditions of the policy should be established. The law with this respect has been discussed in detail in the case of Pepsu RTC vs. National Insurance Co. (2013) 10 SCC 217 We may extract the relevant paragraph from the Judgment: (Pepsu case, SCC pp. 223-24, para10) In a claim for compensation, it is certainly open to the insurer under Section 149(2)(a)(ii) to take a defence that the driver of the vehicle involved in the accident was not duly licensed. Once such a defence is taken, the onus is on the insurer. But even after it is proved that the licence possessed by the driver was a fake one, whether there is liability on the insurer is the moot question. As far as the owner of the vehicle is concerned, when he hires a driver, he has to check whether the driver has a valid driving licence. Thereafter he has to satisfy himself as to the competence of the driver. If satisfied in that regard also, it can be said that the owner had taken reasonable care in employing a person who is qualified and competent to drive the vehicle. The owner cannot be expected to go beyond that, to the extent of verifying the genuineness of the driving licence with the licensing authority before hiring the services of the driver. However, the situation would be different if at the time of insurance of the vehicle or thereafter the insurance company requires the owner of the vehicle to have the licence duly verified from the licensing authority or if the attention of the owner of the vehicle is otherwise invited to the allegation that the licence issued to the driver employed by him is a fake one and yet the owner does not take appropriate action for verification of the matter regarding the genuineness of the licence from the licensing authority. That is what is explained in Swaran Singhs case (supra). If despite such information with the owner that the licence possessed by his driver is fake, no action is taken by the insured for appropriate verification, then the insured will be at fault and, in such circumstances, the insurance company is not liable for the compensation. 9. While the insurer can certainly take the defence that the licence of the driver of the car at the time of accident was invalid/fake however the onus of proving that the insured did not take adequate care and caution to verify the genuineness of the licence or was guilty of willful breach of the conditions of the insurance policy or the contract of insurance lies on the insurer. 10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous. It has been categorically held in the case of National Insurance Co. Ltd. vs. Swaran Singh & Ors. (2004) 3 SCC 297 : 2004 SCC (Cri) 733 (SCC pp.341, para 110) that, 110. (iii)…Mere absence, fake or invalid driving licence or disqualification of the driver for driving at the relevant time, are not in themselves defences available to the insurer against either the insured or the third parties. To avoid its liability towards the insured, the insurer has to prove that the insured was guilty of negligence and failed to exercise reasonable care in the matter of fulfilling the condition of the policy regarding use of vehicles by a duly licenced driver or one who was not disqualified to drive at the relevant time. 11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable. 12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence. ### Response: 1 ### Explanation: 7. Breach of conditions under Section 149(2)(a) of the Motor Vehicles Act, 1988 absolves the insurer of its liability to the insured. Section 149(2)(a)(ii) deals with the conditions regarding driving licence. In case the vehicle at the time of accident is driven by a person who is not duly licenced or by a person who has been disqualified from holding or obtaining a driving licence during the period of disqualification, the insurer is not liable for compensation. In the instant case it is a matter of fact that no record of the licence bearing no. P03041288753070 was found with the licensing authority10. The view taken by the National Commission that the law as settled in the Pepsu case (Supra) is not applicable in the present matter as it related to third-party claim is erroneous11. While hiring a driver the employer is expected to verify if the driver has a driving licence. If the driver produces a licence which on the face of it looks genuine, the employer is not expected to further investigate into the authenticity of the licence unless there is cause to believe otherwise. If the employer finds the driver to be competent to drive the vehicle and has satisfied himself that the driver has a driving licence there would be no breach of Section 149(2)(a)(ii) and the Insurance Company would be liable under the policy. It would be unreasonable to place such a high onus on the insured to make enquiries with RTOs all over the country to ascertain the veracity of the driving licence. However, if the Insurance Company is able to prove that the owner/insured was aware or had notice that the licence was fake or invalid and still permitted the person to drive, the insurance company would no longer continue to be liable12. On facts, in the instant case, the Appellant/Complainant had employed the Driver, Dharmendra Singh as driver after checking his driving licence. The driving licence was purported to have been issued by the licencing authority, Sheikh Sarai, Delhi, however, the same could not be verified as the concerned officer of the licencing authority deposed that the record of the licence was not available with them. It is not the contention of the Respondent/ Insurance Company that the Appellant/complainant is guilty of willful negligence while employing the driver. The driver had been driving competently and there was no reason for the Appellant/Complainant to doubt the veracity of the drivers licence.

R. B. Seth Champalal Ram Swarup Vs. Commissioner of Income Tax, East Punjab, Delhi and Ajmer

of the value of Rs. 85, 137 to satisfy some of the losses in speculation. The Income-tax Officer rejected the claim of the appellant that it had incurred losses in speculation and treated Rs. 85, 137 as income from an undisclosed source. The Appellate Assistant Commissioner of Income-tax, B-Range, Delhi, confirmed the order of the Income-tax Officer. The Income-tax Appellate Tribunal disallowed the claim of the appellant about the losses in speculation, but about the amount of Rs. 85, 137 the Tribunal observed "...we are of opinion that there is no justification for making this addition....There is nothing improbable in the assessee selling the gold ornaments for the purpose of paying the speculation losses. They were sold, according to the books, in 4 or 5 lots. We would, therefore, direct that the addition of Rs. 85, 137 may be deleted."2. The appellant then applied under section 66(1) of the Indian Income-tax Act, 1922, for reference of the following questions to the High Court of Judicature at Allahabad" (i) Whether there is any evidence on record to justify the finding of the Tribunal that the assessee failed to prove that they had suffered speculation losses to the tune of Rs. 1, 58, 080 ?(ii) Whether the loss suffered by the assessee in speculation, viz., Rs. 1, 58, 080, is an admissible deduction under the Indian Income-tax Act ?"3. The Tribunal rejected the application holding that no question of law arose out of its order. The appellant then moved the High Court of Allahabad under section 66(2) of the Income-tax Act and prayed that the Tribunal be called upon to state the case and refer the questions of law stated in the application. The High Court was of the view that the order of the Tribunal disallowing losses claimed by the appellant in speculative business was founded on appreciation of evidence, and no question of law arose therefrom, on which a statement of the case could be called for. But the High Court observed" The argument of learned counsel for the assessee is that, in view of this finding which amounts to acceptance of the case of the assessee that there were some speculation losses, the Tribunal was entirely wrong in disallowing the claim of speculation losses at least to the extent of the sum of Rs. 85, 137. In our opinion this point raised on behalf of the assessee is a question of law on which we should ask for a statement of the case from the Tribunal. In the circumstances, we direct the Tribunal to state the case on this point as indicated by us above after framing an appropriate question."Against the order of the High Court refusing to state the case with regard to the loss of Rs. 1, 58, 080, the appellant has appealed to this court with special leave4. On the evidence before it, the Tribunal held that the appellant failed to prove that it had suffered losses in speculative business in the year of account amounting to Rs. 1, 58, 080. The case of the appellant about the losses in speculation was disbelieved, because (1) the appellant failed to produce a copy of its account with the brokers and admitted not to have maintained a sauda nondh for the purpose of the speculative transactions, (2) that the appellant did not maintain any proper accounts for its speculative business, (3) that " there was no guarantee " that the appellant had produced all ankdas, and (4) that in the cash book of the appellant there were many cash credits which were not satisfactorily explained. The burden of proving that the appellant had suffered losses in speculation lay upon it, and the Tribunal on a review of the evidence held that the appellant failed to prove that case. No question of law arises from the finding recorded by the TribunalIt was urged by Mr. Shroff for the appellant that this finding was inconsistent with the order of the High Court calling for a statement of the case in respect of the amount of Rs. 85, 137. The High Court directed that a statement of the case be submitted in respect of this amount of Rs. 85, 137, and a reference was made pursuant to that order. We do not feel called upon to consider at this stage whether there is any inconsistency in the order. Prima facie the order that the amount of Rs. 85, 137 is not income from undisclosed sources, and is on that account not liable to be included in the appellants income has no direct bearing on the question relating to proof of loss of Rs. 1, 58, 0805. We have felt greatly disturbed at the leisurely pace at which this case has reached this court. The Income-tax Appellate Tribunal passed its order in appeal under section 33 of the Act on July 2, 1951, and the application under section 66(1) was dismissed by the Tribunal on October 20, 1951. A petition under section 66(2) was moved in the High Court on April 15, 1952, and that petition was disposed of on December 11, 1957. This court was then approached for special leave on March 31, 1958, and the printed record which runs into no more than 81 pages was sent by the High Court to this court in 1964. The High Court, as we have already stated, called for a statement of the case in respect of one question, and we are informed at the Bar that the reference is still pending. These proceedings relate to assessment for the year 1945-46. More than twenty years have elapsed since the end of the year of account and more than fourteen years have gone by since the Tribunal disposed of the appeal. It is a matter of regret that the end of assessment proceedings is not yet in sight. It is hardly necessary to say that delays of this nature in the hearing of cases are apt to bring the administration of justice into contempt

0[ds]The High Court directed that a statement of the case be submitted in respect of this amount of Rs. 85, 137, and a reference was made pursuant to that order. We do not feel called upon to consider at this stage whether there is any inconsistency in the order. Prima facie the order that the amount of Rs. 85, 137 is not income from undisclosed sources, and is on that account not liable to be included in the appellants income has no direct bearing on the question relating to proof of loss of Rs. 1, 58,have felt greatly disturbed at the leisurely pace at which this case has reached this court. TheAppellate Tribunal passed its order in appeal under section 33 of the Act on July 2, 1951, and the application under section 66(1) was dismissed by the Tribunal on October 20, 1951. A petition under section 66(2) was moved in the High Court on April 15, 1952, and that petition was disposed of on December 11, 1957. This court was then approached for special leave on March 31, 1958, and the printed record which runs into no more than 81 pages was sent by the High Court to this court in 1964. The High Court, as we have already stated, called for a statement of the case in respect of one question, and we are informed at the Bar that the reference is still pending. These proceedings relate to assessment for the yearMore than twenty years have elapsed since the end of the year of account and more than fourteen years have gone by since the Tribunal disposed of the appeal. It is a matter of regret that the end of assessment proceedings is not yet in sight. It is hardly necessary to say that delays of this nature in the hearing of cases are apt to bring the administration of justice into contempt

### 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: of the value of Rs. 85, 137 to satisfy some of the losses in speculation. The Income-tax Officer rejected the claim of the appellant that it had incurred losses in speculation and treated Rs. 85, 137 as income from an undisclosed source. The Appellate Assistant Commissioner of Income-tax, B-Range, Delhi, confirmed the order of the Income-tax Officer. The Income-tax Appellate Tribunal disallowed the claim of the appellant about the losses in speculation, but about the amount of Rs. 85, 137 the Tribunal observed "...we are of opinion that there is no justification for making this addition....There is nothing improbable in the assessee selling the gold ornaments for the purpose of paying the speculation losses. They were sold, according to the books, in 4 or 5 lots. We would, therefore, direct that the addition of Rs. 85, 137 may be deleted."2. The appellant then applied under section 66(1) of the Indian Income-tax Act, 1922, for reference of the following questions to the High Court of Judicature at Allahabad" (i) Whether there is any evidence on record to justify the finding of the Tribunal that the assessee failed to prove that they had suffered speculation losses to the tune of Rs. 1, 58, 080 ?(ii) Whether the loss suffered by the assessee in speculation, viz., Rs. 1, 58, 080, is an admissible deduction under the Indian Income-tax Act ?"3. The Tribunal rejected the application holding that no question of law arose out of its order. The appellant then moved the High Court of Allahabad under section 66(2) of the Income-tax Act and prayed that the Tribunal be called upon to state the case and refer the questions of law stated in the application. The High Court was of the view that the order of the Tribunal disallowing losses claimed by the appellant in speculative business was founded on appreciation of evidence, and no question of law arose therefrom, on which a statement of the case could be called for. But the High Court observed" The argument of learned counsel for the assessee is that, in view of this finding which amounts to acceptance of the case of the assessee that there were some speculation losses, the Tribunal was entirely wrong in disallowing the claim of speculation losses at least to the extent of the sum of Rs. 85, 137. In our opinion this point raised on behalf of the assessee is a question of law on which we should ask for a statement of the case from the Tribunal. In the circumstances, we direct the Tribunal to state the case on this point as indicated by us above after framing an appropriate question."Against the order of the High Court refusing to state the case with regard to the loss of Rs. 1, 58, 080, the appellant has appealed to this court with special leave4. On the evidence before it, the Tribunal held that the appellant failed to prove that it had suffered losses in speculative business in the year of account amounting to Rs. 1, 58, 080. The case of the appellant about the losses in speculation was disbelieved, because (1) the appellant failed to produce a copy of its account with the brokers and admitted not to have maintained a sauda nondh for the purpose of the speculative transactions, (2) that the appellant did not maintain any proper accounts for its speculative business, (3) that " there was no guarantee " that the appellant had produced all ankdas, and (4) that in the cash book of the appellant there were many cash credits which were not satisfactorily explained. The burden of proving that the appellant had suffered losses in speculation lay upon it, and the Tribunal on a review of the evidence held that the appellant failed to prove that case. No question of law arises from the finding recorded by the TribunalIt was urged by Mr. Shroff for the appellant that this finding was inconsistent with the order of the High Court calling for a statement of the case in respect of the amount of Rs. 85, 137. The High Court directed that a statement of the case be submitted in respect of this amount of Rs. 85, 137, and a reference was made pursuant to that order. We do not feel called upon to consider at this stage whether there is any inconsistency in the order. Prima facie the order that the amount of Rs. 85, 137 is not income from undisclosed sources, and is on that account not liable to be included in the appellants income has no direct bearing on the question relating to proof of loss of Rs. 1, 58, 0805. We have felt greatly disturbed at the leisurely pace at which this case has reached this court. The Income-tax Appellate Tribunal passed its order in appeal under section 33 of the Act on July 2, 1951, and the application under section 66(1) was dismissed by the Tribunal on October 20, 1951. A petition under section 66(2) was moved in the High Court on April 15, 1952, and that petition was disposed of on December 11, 1957. This court was then approached for special leave on March 31, 1958, and the printed record which runs into no more than 81 pages was sent by the High Court to this court in 1964. The High Court, as we have already stated, called for a statement of the case in respect of one question, and we are informed at the Bar that the reference is still pending. These proceedings relate to assessment for the year 1945-46. More than twenty years have elapsed since the end of the year of account and more than fourteen years have gone by since the Tribunal disposed of the appeal. It is a matter of regret that the end of assessment proceedings is not yet in sight. It is hardly necessary to say that delays of this nature in the hearing of cases are apt to bring the administration of justice into contempt ### Response: 0 ### Explanation: The High Court directed that a statement of the case be submitted in respect of this amount of Rs. 85, 137, and a reference was made pursuant to that order. We do not feel called upon to consider at this stage whether there is any inconsistency in the order. Prima facie the order that the amount of Rs. 85, 137 is not income from undisclosed sources, and is on that account not liable to be included in the appellants income has no direct bearing on the question relating to proof of loss of Rs. 1, 58,have felt greatly disturbed at the leisurely pace at which this case has reached this court. TheAppellate Tribunal passed its order in appeal under section 33 of the Act on July 2, 1951, and the application under section 66(1) was dismissed by the Tribunal on October 20, 1951. A petition under section 66(2) was moved in the High Court on April 15, 1952, and that petition was disposed of on December 11, 1957. This court was then approached for special leave on March 31, 1958, and the printed record which runs into no more than 81 pages was sent by the High Court to this court in 1964. The High Court, as we have already stated, called for a statement of the case in respect of one question, and we are informed at the Bar that the reference is still pending. These proceedings relate to assessment for the yearMore than twenty years have elapsed since the end of the year of account and more than fourteen years have gone by since the Tribunal disposed of the appeal. It is a matter of regret that the end of assessment proceedings is not yet in sight. It is hardly necessary to say that delays of this nature in the hearing of cases are apt to bring the administration of justice into contempt

MOHD. ALI Vs. THE STATE OF HIMACHAL PRADESH

about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants. 11. Further, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225 , in paragraphs 10 and 12 held as under:- 10. It was, however, urged that Section 25-F is not attracted in this case for an entirely different reason. Mr Markendeya contended that before Section 25-F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25-F…… 12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in sub-clause (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter V-A. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25-F. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it…… In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period. 12. Further, it is an admitted position that though the appellant worked as such till 1991 under different work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellant. 13.

0[ds]Further, it is an admitted position that though the appellant worked as such till 1991 under different work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellantIn Surendra Kumar Verma and Others vs. Central Government Industrialr Court, New Delhi and Another (1980) 4 SCC 443 , ae Bench of this Court has very categorically dealt with the theory of 240 days as contemplated under Section 25B of the Act. The relevant paragraphs of the judgment are reproduced hereinbelow:8….The provision appears to be plain enough. Sectionrequires that a workman should be in continuous service for not less than one year under an employer before that provision applies. While so, present Section) steps in and says that even if a workman has not been in continuous service under an employer for a period of one year, he shall be deemed to have been in such continuous service for a period of one year, if he has actually worked under the employer for 240 days in the preceding period of twelve months. There is no stipulation that he should have been in employment or service under the employer for a whole period of twelve months. In fact, the thrust of the provision is that he need not be. That appears to be the plain meaning without gloss from any sourcewas not always so worded. Prior to Act 36 of 1964, it read as follows:For the purposes of Sections, a workman who, during a period of twelve calendar months, has actually worked in an industry for not less than two hundred and forty days shall be deemed to have completed one year of continuous service in the industry. Explanation.—…. The difference between old Sectionis patent. The clausewhere a workman is not in continuous service … for a period of one year) so significantly begins, was equally significantly absent from old SectionOf the same degree of significance was the circumstance that prior to Act 36 of 1964 the expressionwas separately defined by Section 2(eee) as follows:(eee) continuous service means uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal, ort or a cessation of work which is not due to any fault on the part of the workman;Section 2(eee) was omitted by the same Act 36 of 1964 which recast Sectionas it read prior to Act 36 of 1964, in the light of the then existing Section 2 (eee), certainly lent itself to the construction that a workman had to be in the service of the employer for a period of one year and should have worked for not less than 240 days before he could claim to have completed one years completed service so as to attract the provisions of SectionThat precisely was what was decided by this Court in Sur Enamel and Stamping Works Ltd. v. Workmen. The court said:On the plain terms of the Sectiononly a workman who has been in continuous service for not less than one year under an employer is entitled to its benefit. Continuous service is defined in Section 2(eee) as meaning uninterrupted service, and includes service which may be interrupted merely on account of sickness or authorised leave or an accident or a strike which is not illegal or at or a cessation of work which is not due to any fault on the part of the workman. What is meant by one year of continuous service has been defined in SectionUnder this section a workman who during a period of twelve calendar months has actually worked in an industry for not less than 240 days shall be deemed to have completed service in the industry. . . . The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of SectionBefore a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or moreAct 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S.) now begins with the clausewhere a workman is not in continuous service . . . for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellantsFurther, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225 , in paragraphs 10 and 12 held as under:10. It was, however, urged that Sectionis not attracted in this case for an entirely different reason. Mr Markendeya contended that before Sectionn (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning ofn (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days.n (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated inn (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions ine (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in SectionOn a pure grammatical construction the contention that even for invoking clause (2) of Sectionthe workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it……In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period.

### 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: about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellants. 11. Further, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225 , in paragraphs 10 and 12 held as under:- 10. It was, however, urged that Section 25-F is not attracted in this case for an entirely different reason. Mr Markendeya contended that before Section 25-F is invoked, the condition of eligibility for a workman to complain of invalid retrenchment must be satisfied. According to him unless the workman has put in continuous service for not less than one year his case would not be governed by Section 25-F…… 12. Sub-section (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning of sub-section (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days. Sub-section (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated in sub-section (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions in sub-clause (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter V-A. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in Section 25-F. On a pure grammatical construction the contention that even for invoking clause (2) of Section 25-B the workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it…… In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period. 12. Further, it is an admitted position that though the appellant worked as such till 1991 under different work/schemes i.e. Rabi and Kharif and completed 240 days in a calendar year only during the years 1980, 1981, 1982 and 1986 to 1989 but he worked only for 195 days in the year 1990 and 19.5 days in the immediate preceding year of his dismissal which is below the required 240 days of working in the period of 12 calendar months preceding the date of dismissal, therefore, he is not entitled to take the benefits of the provisions of Section 25F of the Act and Division Bench of the High Court was right in dismissing the appeal of the present appellant. 13. ### Response: 0 ### Explanation: for not less than 240 days shall be deemed to have completed service in the industry. . . . The position (therefore) is that during a period of employment for less than 11 calendar months these two persons worked for more than 240 days. In our opinion that would not satisfy the requirement of SectionBefore a workman can be considered to have completed one year of continuous service in an industry it must be shown first that he was employed for a period of not less than 12 calendar months and, next that during those 12 calendar months had worked for not less than 240 days. Where, as in the present case, the workmen have not at all been employed for a period of 12 calendar months it becomes unnecessary to examine whether the actual days of work numbered 240 days or moreAct 36 of 1964 has drastically changed the position. Section 2(eee) has been repealed and S.) now begins with the clausewhere a workman is not in continuous service . . . for a period of one year. These changes brought about by Act 36 of 1964 appear to be clearly designed to provide that a workman who has actually worked under the employer for not less than 240 days during a period of twelve months shall be deemed to have been in continuous service for a period of one year whether or not he has in fact been in such continuous service for a period of one year. It is enough that he has worked for 240 days in a period of 12 months; it is not necessary that he should have been in the service of the employer for one whole year. So we hold that Usha Kumari and Madhu Bala are in the same position as the other appellantsFurther, this Court, in Mohan Lal vs. Management of M/s Bharat Electronics Limited (1981) 3 SCC 225 , in paragraphs 10 and 12 held as under:10. It was, however, urged that Sectionis not attracted in this case for an entirely different reason. Mr Markendeya contended that before Sectionn (2) incorporates another deeming fiction for an entirely different situation. It comprehends a situation where a workman is not in continuous service within the meaning ofn (1) for a period of one year or six months, he shall be deemed to be in continuous service under an employer for a period of one year or six months, as the case may be, if the workman during the period of 12 calendar months just preceding the date with reference to which calculation is to be made, has actually worked under that employer for not less than 240 days.n (2) specifically comprehends a situation where a workman is not in continuous service as per the deeming fiction indicated inn (1) for a period of one year or six months. In such a case he is deemed to be in continuous service for a period of one year if he satisfies the conditions ine (a) of clause (2). The conditions are that commencing (sic) the date with reference to which calculation is to be made, in case of retrenchment the date of retrenchment, if in a period of 12 calendar months just preceding such date the workman has rendered service for a period of 240 days, he shall be deemed to be in continuous service for a period of one year for the purposes of Chapter. It is not necessary for the purposes of clause (2)(a) that the workman should be in service for a period of one year. If he is in service for a period of one year and that if that service is continuous service within the meaning of clause (1) his case would be governed by clause (1) and his case need not be covered by clause (2). Clause (2) envisages a situation not governed by clause (1). And clause (2)(a) provides for a fiction to treat a workman in continuous service for a period of one year despite the fact that he has not rendered uninterrupted service for a period of one year but he has rendered service for a period of 240 days during the period of 12 calendar months counting backwards and just preceding the relevant date being the date of retrenchment. In other words, in order to invoke the fiction enacted in clause (2)(a) it is necessary to determine first the relevant date i.e. the date of termination of service which is complained of as retrenchment. After that date is ascertained, move backward to a period of 12 months just preceding the date of retrenchment and then ascertain whether within the period of 12 months, the workman has rendered service for a period of 240 days. If these three facts are affirmatively answered in favour of the workman pursuant to the deeming fiction enacted in clause (2)(a) it will have to be assumed that the workman is in continuous service for a period of one year and he will satisfy the eligibility qualification enacted in SectionOn a pure grammatical construction the contention that even for invoking clause (2) of Sectionthe workman must be shown to be in continuous service for a period of one year would render clause (2) otiose and socially beneficial legislation would receive a set back by this impermissible assumptions. The contention must first be negatived on a pure grammatical construction of clause (2). And in any event, even if there be any such thing in favour of the construction, it must be negatived on the ground that it would render clause (2) otiose. The language of clause (2) is so clear and unambiguous that no precedent is necessary to justify the interpretation we have placed on it……In view of the aforesaid principles laid down by this Court and also the categorical findings of the High Court, the contention of the appellant herein is not sustainable in the eyes of law since the provisions are very clear qua the calculation of period.

Hemraj Chandrakar and Ors Vs. State of Chhattisgarh and Ors

Abhay Manohar Sapre, J.1. Leave granted.2. This appeal arises from the final judgment and order dated 28.09.2016 passed by the High Court of Chhattisgarh at Bilaspur in W.A. No. 467 of 2016 whereby the Division Bench of the High Court dismissed the appeal filed by the Appellants herein and upheld the order dated 08.04.2016 passed by the Single Judge in Writ Petition (c) No. 696 of 2016 by which the writ petition filed by the Appellants herein was dismissed on the ground of delay and laches.3. In order to appreciate the short legal issue involved in the appeal, few relevant facts, which lie in a narrow compass, need to be mentioned herein-below.4. The Appellants are the writ Petitioners before the High Court.5. Challenging the land acquisition proceedings, the Appellants filed petition being Writ Petition (C) No. 696/2016 before the High Court.6. The Single Judge of the High Court dismissed the writ petition by order dated 08.04.2016 on the ground of delay and laches. Since the writ petition was dismissed on the ground of delay and laches, no ground of challenge raised by the writ Petitioners (Appellants herein) was gone into by the Single Judge.7. The writ Petitioners felt aggrieved and filed intra-court appeal before the Division Bench. By impugned judgment, the Division Bench dismissed the appeal and upheld the order of the Single Judge with the following observations contained in Para 4 of the judgment:4. We have perused the record of the writ petition and in the writ petition there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over. Therefore, we have no reason to discard clear cut finding given by the learned Single Judge that the land has been used for development of Naya Raipur. Therefore, we find no merit in the appeal, which is accordingly dismissed.8. It is against this judgment, the Appellants (writ Petitioners) felt aggrieved and filed this appeal by way of special leave before this Court.9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the Division Bench for deciding Writ Appeal No. 467 of 2016 afresh in accordance with law.10. The need to remand the case to the Division Bench of the High Court has arisen because from the perusal of Para 4 of the impugned judgment quoted supra, we find that the Division Bench observed, "there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over".11. Learned Counsel for the Appellants (writ Petitioners), however, pointed out, by referring to the prescribed Column No. 3 (particulars of the cause/order against which the petition is made) of the writ petition, Para 4 of the application for grant of interim relief dated 29.02.2016 filed along with the writ petition, and paras 1.1, 1.20, 2.2, 2.4 and 2.7 of the writ appeal memo that the writ Petitioners have made specific averments in these paras that they are in possession of the land in question.12. Learned Counsel, therefore, contended that the observation made by the Division Bench on this issue, which led to dismissal of their appeal, does not appear to be correct being contrary to the record of the case.13. In our opinion, in the light of the averments made by the writ Petitioners in the aforementioned paras, as detailed above, which seem to have escaped the attention of the Division Bench, the impugned judgment needs to be set aside.

1[ds]9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the Division Bench for deciding Writ Appeal No. 467 of 2016 afresh in accordance with law10. The need to remand the case to the Division Bench of the High Court has arisen because from the perusal of Para 4 of the impugned judgment quoted supra, we find that the Division Bench observed, "there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over"13. In our opinion, in the light of the averments made by the writ Petitioners in the aforementioned paras, as detailed above, which seem to have escaped the attention of the Division Bench, the impugned judgment needs to be set aside.

### 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: Abhay Manohar Sapre, J.1. Leave granted.2. This appeal arises from the final judgment and order dated 28.09.2016 passed by the High Court of Chhattisgarh at Bilaspur in W.A. No. 467 of 2016 whereby the Division Bench of the High Court dismissed the appeal filed by the Appellants herein and upheld the order dated 08.04.2016 passed by the Single Judge in Writ Petition (c) No. 696 of 2016 by which the writ petition filed by the Appellants herein was dismissed on the ground of delay and laches.3. In order to appreciate the short legal issue involved in the appeal, few relevant facts, which lie in a narrow compass, need to be mentioned herein-below.4. The Appellants are the writ Petitioners before the High Court.5. Challenging the land acquisition proceedings, the Appellants filed petition being Writ Petition (C) No. 696/2016 before the High Court.6. The Single Judge of the High Court dismissed the writ petition by order dated 08.04.2016 on the ground of delay and laches. Since the writ petition was dismissed on the ground of delay and laches, no ground of challenge raised by the writ Petitioners (Appellants herein) was gone into by the Single Judge.7. The writ Petitioners felt aggrieved and filed intra-court appeal before the Division Bench. By impugned judgment, the Division Bench dismissed the appeal and upheld the order of the Single Judge with the following observations contained in Para 4 of the judgment:4. We have perused the record of the writ petition and in the writ petition there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over. Therefore, we have no reason to discard clear cut finding given by the learned Single Judge that the land has been used for development of Naya Raipur. Therefore, we find no merit in the appeal, which is accordingly dismissed.8. It is against this judgment, the Appellants (writ Petitioners) felt aggrieved and filed this appeal by way of special leave before this Court.9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the Division Bench for deciding Writ Appeal No. 467 of 2016 afresh in accordance with law.10. The need to remand the case to the Division Bench of the High Court has arisen because from the perusal of Para 4 of the impugned judgment quoted supra, we find that the Division Bench observed, "there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over".11. Learned Counsel for the Appellants (writ Petitioners), however, pointed out, by referring to the prescribed Column No. 3 (particulars of the cause/order against which the petition is made) of the writ petition, Para 4 of the application for grant of interim relief dated 29.02.2016 filed along with the writ petition, and paras 1.1, 1.20, 2.2, 2.4 and 2.7 of the writ appeal memo that the writ Petitioners have made specific averments in these paras that they are in possession of the land in question.12. Learned Counsel, therefore, contended that the observation made by the Division Bench on this issue, which led to dismissal of their appeal, does not appear to be correct being contrary to the record of the case.13. In our opinion, in the light of the averments made by the writ Petitioners in the aforementioned paras, as detailed above, which seem to have escaped the attention of the Division Bench, the impugned judgment needs to be set aside. ### Response: 1 ### Explanation: 9. Having heard the learned Counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and remand the case to the Division Bench for deciding Writ Appeal No. 467 of 2016 afresh in accordance with law10. The need to remand the case to the Division Bench of the High Court has arisen because from the perusal of Para 4 of the impugned judgment quoted supra, we find that the Division Bench observed, "there is not a single averment that the possession of the land has not been taken. In the writ petition, there is no averment much less any proof of the fact that this land has been taken over"13. In our opinion, in the light of the averments made by the writ Petitioners in the aforementioned paras, as detailed above, which seem to have escaped the attention of the Division Bench, the impugned judgment needs to be set aside.

Bikash Chandra Saha Vs. The State of West Bengal

Palekar, J.1. This is a petition under Article 32 of the Constitution for an order in the nature of habeas corpus on the ground that the petitioner is illegally detained. The detention order was passed by the District Magistrate, 24 Parganas, on 22-1-1972. It was passed in the exercise of the powers conferred by sub-section (1) r/w sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971), since the District Magistrate was satisfied that with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the community it was necessary to detain him.2. The detenus case was placed before the Advisory Board on 24-2-1972 and after receiving the opinion of the Advisory Board the State Government confirmed the detention on 29-3-1972. It appears that the petitioner had approached the High Court but his petition was dismissed on 19-6-972. The petitioner has come here under Article 32 of the Constitution by a separate petition.3. The grounds which were communicated to the petitioner are as follows:"You have been storing and dealing in both foreign imported rice and indigenous rice keeping godown and shop on K. N. C. Road, Baraset town, P. S. Baraset, Distt. 24-Parganas from February, 1970 without obtaining any licence or authority. On 6-11-1971, at about 23.00 hrs. you illegally procured a huge quantity of foreign imported Japanese rice from Sekendar Ali Mondal and Nurujjaman at Digha, P. S. Baraset, Distt. 4-Parganas and carried such rice to your shop and 2 godowns in a lorry at Baraset town in the same night without any permit for storing and subsequent sale without having any licence or authority. In pursuance of a statement of Sekendar Ali Mondal and on his identification on. 7-11-71 between 08.30 hrs. and 11.00 hrs., your shop and 2 godowns on K. N. C. Road, Baraset town were searched and 38.96 qtls. of foreign imported Japanese rice, 1.08 qtls. of atap rice and 00.60 qtls. of boiled rice, stored therein for sale, without any authority, were seized. As a result of your action, normal supply of rice to the public consumers was interrupted causing great hardship upon them. Thus you acted in a manner prejudicial to the maintenance of supplies and services, essential to the community."4. It was contended by Mr. A. K. Gupta as amicus curiae for the petitioner that the grounds were not really relevant for the satisfaction that a detention order was necessary. We do not agree. The detention order was necessary in the view of the District Magistrate because the activities of the petitioner were prejudicial to the maintenance of supplies and services essential to the community. Supply of rice to the community was an essential supply controlled by statute. The allegations made against the detenu show that he had been conducting clandestine business in rice. He had a godown and a shop in which he stored imported and local rice and dealt in it without a licence or authority. On one night he was seen storing imported rice in his godown and the very next morning when the place was raided, large quantities of both imported and local rice were recovered from his possession. On these facts the District Magistrate is entitled to be satisfied that by dealing in rice in such clandestine fashion on a large scale the petitioner was disrupting the delicately balanced supply of essential foodstuffs to the community and, therefore, in order to prevent him from doing so it was necessary to detain him. In our opinion, the grounds were quite relevant to the detention order.5. Nor do we find any substance in the argument that the grounds are vague.The grounds are quite clear. It was also contended that it appeared from the affidavit that grounds other than those which were communicated to the detenu must have been taken into consideration before passing the order. In this connection reference was made to para 7 of the affidavit made by the District Magistrate in which the following statement occurs:"The detenu-petitioner is a notorious smuggler and black marketeer of rice mainly operating in Barasat town District 24-Parganas."It was contended that the grounds on which the District Magistrate called the petitioner a notorious smuggler had not been communicated to the petitioner and since apparently that fact had entered into the consideration of his case before the satisfaction was arrived at by the District Magistrate the detention order was invalid. We do not think that this statement that he was a notorious smuggler, was intended to suggest apart from what was said in the grounds, that there was other material for calling him a notorious smuggler. The ground given showed that he was storing and selling imported rice which could have been done only after smuggling it. The reference in the affidavit to the fact that he was a smuggler is reflected in the specific ground communicated to the petitioner. That he was also a black marketeer is sufficiently reflected in the allegation that he was selling rice clandestinely. We do not, therefore, think that the District Magistrate had, been influenced in making the order by considerations other than those which have been specified by him in the grounds communicated to the petitioner.

0[ds]The detention order was necessary in the view of the District Magistrate because the activities of the petitioner were prejudicial to the maintenance of supplies and services essential to the community. Supply of rice to the community was an essential supply controlled by statute. The allegations made against the detenu show that he had been conducting clandestine business in rice. He had a godown and a shop in which he stored imported and local rice and dealt in it without a licence or authority. On one night he was seen storing imported rice in his godown and the very next morning when the place was raided, large quantities of both imported and local rice were recovered from his possession. On these facts the District Magistrate is entitled to be satisfied that by dealing in rice in such clandestine fashion on a large scale the petitioner was disrupting the delicately balanced supply of essential foodstuffs to the community and, therefore, in order to prevent him from doing so it was necessary to detain him. In our opinion, the grounds were quite relevant to the detention order.5. Nor do we find any substance in the argument that the grounds are vague.The grounds are quite clear. It was also contended that it appeared from the affidavit that grounds other than those which were communicated to the detenu must have been taken into consideration before passing the order. In this connection reference was made to para 7 of the affidavit made by the District Magistrate in which the following statement occurs:"Theis a notorious smuggler and black marketeer of rice mainly operating in Barasat town Districtwas contended that the grounds on which the District Magistrate called the petitioner a notorious smuggler had not been communicated to the petitioner and since apparently that fact had entered into the consideration of his case before the satisfaction was arrived at by the District Magistrate the detention order was invalid. We do not think that this statement that he was a notorious smuggler, was intended to suggest apart from what was said in the grounds, that there was other material for calling him a notorious smuggler. The ground given showed that he was storing and selling imported rice which could have been done only after smuggling it. The reference in the affidavit to the fact that he was a smuggler is reflected in the specific ground communicated to the petitioner. That he was also a black marketeer is sufficiently reflected in the allegation that he was selling rice clandestinely. We do not, therefore, think that the District Magistrate had, been influenced in making the order by considerations other than those which have been specified by him in the grounds communicated to the petitioner.

### 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: Palekar, J.1. This is a petition under Article 32 of the Constitution for an order in the nature of habeas corpus on the ground that the petitioner is illegally detained. The detention order was passed by the District Magistrate, 24 Parganas, on 22-1-1972. It was passed in the exercise of the powers conferred by sub-section (1) r/w sub-section (2) of Section 3 of the Maintenance of Internal Security Act, 1971 (Act 26 of 1971), since the District Magistrate was satisfied that with a view to preventing the petitioner from acting in a manner prejudicial to the maintenance of supplies and services essential to the community it was necessary to detain him.2. The detenus case was placed before the Advisory Board on 24-2-1972 and after receiving the opinion of the Advisory Board the State Government confirmed the detention on 29-3-1972. It appears that the petitioner had approached the High Court but his petition was dismissed on 19-6-972. The petitioner has come here under Article 32 of the Constitution by a separate petition.3. The grounds which were communicated to the petitioner are as follows:"You have been storing and dealing in both foreign imported rice and indigenous rice keeping godown and shop on K. N. C. Road, Baraset town, P. S. Baraset, Distt. 24-Parganas from February, 1970 without obtaining any licence or authority. On 6-11-1971, at about 23.00 hrs. you illegally procured a huge quantity of foreign imported Japanese rice from Sekendar Ali Mondal and Nurujjaman at Digha, P. S. Baraset, Distt. 4-Parganas and carried such rice to your shop and 2 godowns in a lorry at Baraset town in the same night without any permit for storing and subsequent sale without having any licence or authority. In pursuance of a statement of Sekendar Ali Mondal and on his identification on. 7-11-71 between 08.30 hrs. and 11.00 hrs., your shop and 2 godowns on K. N. C. Road, Baraset town were searched and 38.96 qtls. of foreign imported Japanese rice, 1.08 qtls. of atap rice and 00.60 qtls. of boiled rice, stored therein for sale, without any authority, were seized. As a result of your action, normal supply of rice to the public consumers was interrupted causing great hardship upon them. Thus you acted in a manner prejudicial to the maintenance of supplies and services, essential to the community."4. It was contended by Mr. A. K. Gupta as amicus curiae for the petitioner that the grounds were not really relevant for the satisfaction that a detention order was necessary. We do not agree. The detention order was necessary in the view of the District Magistrate because the activities of the petitioner were prejudicial to the maintenance of supplies and services essential to the community. Supply of rice to the community was an essential supply controlled by statute. The allegations made against the detenu show that he had been conducting clandestine business in rice. He had a godown and a shop in which he stored imported and local rice and dealt in it without a licence or authority. On one night he was seen storing imported rice in his godown and the very next morning when the place was raided, large quantities of both imported and local rice were recovered from his possession. On these facts the District Magistrate is entitled to be satisfied that by dealing in rice in such clandestine fashion on a large scale the petitioner was disrupting the delicately balanced supply of essential foodstuffs to the community and, therefore, in order to prevent him from doing so it was necessary to detain him. In our opinion, the grounds were quite relevant to the detention order.5. Nor do we find any substance in the argument that the grounds are vague.The grounds are quite clear. It was also contended that it appeared from the affidavit that grounds other than those which were communicated to the detenu must have been taken into consideration before passing the order. In this connection reference was made to para 7 of the affidavit made by the District Magistrate in which the following statement occurs:"The detenu-petitioner is a notorious smuggler and black marketeer of rice mainly operating in Barasat town District 24-Parganas."It was contended that the grounds on which the District Magistrate called the petitioner a notorious smuggler had not been communicated to the petitioner and since apparently that fact had entered into the consideration of his case before the satisfaction was arrived at by the District Magistrate the detention order was invalid. We do not think that this statement that he was a notorious smuggler, was intended to suggest apart from what was said in the grounds, that there was other material for calling him a notorious smuggler. The ground given showed that he was storing and selling imported rice which could have been done only after smuggling it. The reference in the affidavit to the fact that he was a smuggler is reflected in the specific ground communicated to the petitioner. That he was also a black marketeer is sufficiently reflected in the allegation that he was selling rice clandestinely. We do not, therefore, think that the District Magistrate had, been influenced in making the order by considerations other than those which have been specified by him in the grounds communicated to the petitioner. ### Response: 0 ### Explanation: The detention order was necessary in the view of the District Magistrate because the activities of the petitioner were prejudicial to the maintenance of supplies and services essential to the community. Supply of rice to the community was an essential supply controlled by statute. The allegations made against the detenu show that he had been conducting clandestine business in rice. He had a godown and a shop in which he stored imported and local rice and dealt in it without a licence or authority. On one night he was seen storing imported rice in his godown and the very next morning when the place was raided, large quantities of both imported and local rice were recovered from his possession. On these facts the District Magistrate is entitled to be satisfied that by dealing in rice in such clandestine fashion on a large scale the petitioner was disrupting the delicately balanced supply of essential foodstuffs to the community and, therefore, in order to prevent him from doing so it was necessary to detain him. In our opinion, the grounds were quite relevant to the detention order.5. Nor do we find any substance in the argument that the grounds are vague.The grounds are quite clear. It was also contended that it appeared from the affidavit that grounds other than those which were communicated to the detenu must have been taken into consideration before passing the order. In this connection reference was made to para 7 of the affidavit made by the District Magistrate in which the following statement occurs:"Theis a notorious smuggler and black marketeer of rice mainly operating in Barasat town Districtwas contended that the grounds on which the District Magistrate called the petitioner a notorious smuggler had not been communicated to the petitioner and since apparently that fact had entered into the consideration of his case before the satisfaction was arrived at by the District Magistrate the detention order was invalid. We do not think that this statement that he was a notorious smuggler, was intended to suggest apart from what was said in the grounds, that there was other material for calling him a notorious smuggler. The ground given showed that he was storing and selling imported rice which could have been done only after smuggling it. The reference in the affidavit to the fact that he was a smuggler is reflected in the specific ground communicated to the petitioner. That he was also a black marketeer is sufficiently reflected in the allegation that he was selling rice clandestinely. We do not, therefore, think that the District Magistrate had, been influenced in making the order by considerations other than those which have been specified by him in the grounds communicated to the petitioner.

Commnr. Of Customs (Imports), Mumbai Vs. M/S. Tullow India Operations Ltd

matter to the best of its abilities. It is not in dispute that the importers were, but for production of the certificate, otherwise entitled to the grant of benefit in terms of the said notification.30. The conditions referred to in Sub-section (1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries, non-compliance of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come.31. It is no doubt true that the fiscal liability has to be certain. There cannot, however, be any doubt that in a case of this nature ONGC being a Government company for all intent and purport was also certain that it would get the requisite exemption, subject of course, to its fulfilling the condition of obtaining such essentiality certificate.32. There is no universal law, as was suggested by Mr. Ganguly, that fiscal liability cannot be deferred. In a statute where there is a provision for a provisional assessment and/ or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment.33. The question may be considered from another angle. The Directorate General of Hydrocarbons was indisputably aware about the existence of such exemption notification. The certificate in accordance with law has not only been granted, the same expressly refers to the exemption notification, the entry of the table, the relevant clauses applicable therefor also the bills of entries dated 22.5.1999 and 22.6.1999. Indisputably, therefore, the Directorate General of Hydrocarbons was aware of all requisite requirements necessary therefor. It may presume that the department was also aware of the provisions of the Customs Act and the consequences likely to be suffered by the importer in the event of its inability to produce the same before the Competent Authority at the time of importation. The exercise undertaken by the said department, thus, was not to end in futility. 34. In almost a similar situation, the question came up before this Court in Commissioner of Central Excise v. M.P.V. & Engg. Industries, III (2003) SLT 630=2003 (153) ELT 485 , (wherein one of us, B.P. Singh, J. was a member) which was answered stating that an assessee although was otherwise entitled to obtain the benefit of an exemption certificate, the same should not ordinarily be denied to it because of any administrative delay over which he had no say in the following words: “....In a case of this nature it is only reasonable to take the view that the benefit of exemption will accrue to a unit found to be a small-scale industrial unit from the date on which the application was made for the grant of registration certificate. Such a unit should not be deprived of the benefit to which it is otherwise entitled as a small-scale industrial unit merely because the authorities concerned took their own time in disposing of the application. We, therefore, agree with the majority view of the Tribunal and hold that the benefit of exemption under the notification in question should be extended to the respondent with effect from the date on which the application for grant of registration was made by it before the Competent Authority.” 35. The essentiality certificate, thus, must be treated to be a proof of the fact that the importers have fulfilled the conditions enabling them to obtain the benefit under the exemption notification.36. The principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning.37. The decision of this Court in Jindal Drilling and Indus. Ltd. (supra), relied upon by Mr. Ganguly has no application to the facts and circumstances of the instant case.38. It is true that ordinarily, the golden rule of literal interpretation must be given effect to. But it is also well-settled that where literal interpretation gives rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka and Another v. Rishi Dixit and Others, IV (2005) SLT 614=(2005) 5 SCC 598 ; Colgate Palmolive (India) Ltd. v. MRTP Commission and Others, VI (2002) SLT 543=III (2002) CPJ 18 (SC)=(2003) 1 SCC 129 ].39. Furthermore, it is also well-settled that the Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. However, we do not intend to lay down a law that delay on the part of the authorities in granting such certificates would automatically enable an assessee to obtain refund. Each case has to be judged on its own facts.40. We, however, do not agree with the contention of Mr. Lakshmikumaran that by reason of a public notice issued by a Customs House situated in a State, the effect and purport of statutory notification can be taken away. In terms of Section 151A of the Customs Act, it is only the Board which may issue instructions. Even under the aforementioned provision, the Board exercises a limited power. [See Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi, III (2005) SLT 374=(2005) 2 SCC 720. 41. Having regard to the facts and circumstances of this case, we are of the opinion that the Tribunal has committed no illegality in remitting the matter back to the Commissioner. Civil Appeal No. 5900 of 2004 is, therefore, dismissed.

1[ds]29. Both the Customs Department and Ministry of Petroleum and Natural Gas are departments of the Central Government. The substantive provisions which were required to be complied with for the purpose of obtaining the benefits under the said exemption notification have indisputably been complied with. It is not the case of the department that the assesse has anything to do with the grant of certificate except to pursue the matter to the best of its abilities. It is not in dispute that the importers were, but for production of the certificate, otherwise entitled to the grant of benefit in terms of the said notification.30. The conditions referred to in(1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries,of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come.31. It is no doubt true that the fiscal liability has to be certain. There cannot, however, be any doubt that in a case of this nature ONGC being a Government company for all intent and purport was also certain that it would get the requisite exemption, subject of course, to its fulfilling the condition of obtaining such essentiality certificate.32. There is no universal law, as was suggested by Mr. Ganguly, that fiscal liability cannot be deferred. In a statute where there is a provision for a provisional assessment and/ or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment.33. The question may be considered from another angle. The Directorate General of Hydrocarbons was indisputably aware about the existence of such exemption notification. The certificate in accordance with law has not only been granted, the same expressly refers to the exemption notification, the entry of the table, the relevant clauses applicable therefor also the bills of entries dated 22.5.1999 and 22.6.1999. Indisputably, therefore, the Directorate General of Hydrocarbons was aware of all requisite requirements necessary therefor. It may presume that the department was also aware of the provisions of the Customs Act and the consequences likely to be suffered by the importer in the event of its inability to produce the same before the Competent Authority at the time of importation. The exercise undertaken by the said department, thus, was not to end in futility.The essentiality certificate, thus, must be treated to be a proof of the fact that the importers have fulfilled the conditions enabling them to obtain the benefit under the exemption notification.36. The principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning.37. The decision of this Court in Jindal Drilling and Indus. Ltd. (supra), relied upon by Mr. Ganguly has no application to the facts and circumstances of the instant case.38. It is true that ordinarily, the golden rule of literal interpretation must be given effect to. But it is alsothat where literal interpretation gives rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka and Another v. Rishi Dixit and Others, IV (2005) SLT 614=(2005) 5 SCC 598 ; Colgate Palmolive (India) Ltd. v. MRTP Commission and Others, VI (2002) SLT 543=III (2002) CPJ 18 (SC)=(2003) 1 SCC 129 ].39. Furthermore, it is alsothat the Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. However, we do not intend to lay down a law that delay on the part of the authorities in granting such certificates would automatically enable an assessee to obtain refund. Each case has to be judged on its own facts.40. We, however, do not agree with the contention of Mr. Lakshmikumaran that by reason of a public notice issued by a Customs House situated in a State, the effect and purport of statutory notification can be taken away. In terms of Section 151A of the Customs Act, it is only the Board which may issue instructions. Even under the aforementioned provision, the Board exercises a limited power. [See Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi, III (2005) SLT 374=(2005) 2 SCC 720. 41. Having regard to the facts and circumstances of this case, we are of the opinion that the Tribunal has committed no illegality in remitting the matter back to the Commissioner. Civil Appeal No. 5900 of 2004 is, therefore, dismissed.

### 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: matter to the best of its abilities. It is not in dispute that the importers were, but for production of the certificate, otherwise entitled to the grant of benefit in terms of the said notification.30. The conditions referred to in Sub-section (1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries, non-compliance of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come.31. It is no doubt true that the fiscal liability has to be certain. There cannot, however, be any doubt that in a case of this nature ONGC being a Government company for all intent and purport was also certain that it would get the requisite exemption, subject of course, to its fulfilling the condition of obtaining such essentiality certificate.32. There is no universal law, as was suggested by Mr. Ganguly, that fiscal liability cannot be deferred. In a statute where there is a provision for a provisional assessment and/ or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment.33. The question may be considered from another angle. The Directorate General of Hydrocarbons was indisputably aware about the existence of such exemption notification. The certificate in accordance with law has not only been granted, the same expressly refers to the exemption notification, the entry of the table, the relevant clauses applicable therefor also the bills of entries dated 22.5.1999 and 22.6.1999. Indisputably, therefore, the Directorate General of Hydrocarbons was aware of all requisite requirements necessary therefor. It may presume that the department was also aware of the provisions of the Customs Act and the consequences likely to be suffered by the importer in the event of its inability to produce the same before the Competent Authority at the time of importation. The exercise undertaken by the said department, thus, was not to end in futility. 34. In almost a similar situation, the question came up before this Court in Commissioner of Central Excise v. M.P.V. & Engg. Industries, III (2003) SLT 630=2003 (153) ELT 485 , (wherein one of us, B.P. Singh, J. was a member) which was answered stating that an assessee although was otherwise entitled to obtain the benefit of an exemption certificate, the same should not ordinarily be denied to it because of any administrative delay over which he had no say in the following words: “....In a case of this nature it is only reasonable to take the view that the benefit of exemption will accrue to a unit found to be a small-scale industrial unit from the date on which the application was made for the grant of registration certificate. Such a unit should not be deprived of the benefit to which it is otherwise entitled as a small-scale industrial unit merely because the authorities concerned took their own time in disposing of the application. We, therefore, agree with the majority view of the Tribunal and hold that the benefit of exemption under the notification in question should be extended to the respondent with effect from the date on which the application for grant of registration was made by it before the Competent Authority.” 35. The essentiality certificate, thus, must be treated to be a proof of the fact that the importers have fulfilled the conditions enabling them to obtain the benefit under the exemption notification.36. The principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning.37. The decision of this Court in Jindal Drilling and Indus. Ltd. (supra), relied upon by Mr. Ganguly has no application to the facts and circumstances of the instant case.38. It is true that ordinarily, the golden rule of literal interpretation must be given effect to. But it is also well-settled that where literal interpretation gives rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka and Another v. Rishi Dixit and Others, IV (2005) SLT 614=(2005) 5 SCC 598 ; Colgate Palmolive (India) Ltd. v. MRTP Commission and Others, VI (2002) SLT 543=III (2002) CPJ 18 (SC)=(2003) 1 SCC 129 ].39. Furthermore, it is also well-settled that the Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. However, we do not intend to lay down a law that delay on the part of the authorities in granting such certificates would automatically enable an assessee to obtain refund. Each case has to be judged on its own facts.40. We, however, do not agree with the contention of Mr. Lakshmikumaran that by reason of a public notice issued by a Customs House situated in a State, the effect and purport of statutory notification can be taken away. In terms of Section 151A of the Customs Act, it is only the Board which may issue instructions. Even under the aforementioned provision, the Board exercises a limited power. [See Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi, III (2005) SLT 374=(2005) 2 SCC 720. 41. Having regard to the facts and circumstances of this case, we are of the opinion that the Tribunal has committed no illegality in remitting the matter back to the Commissioner. Civil Appeal No. 5900 of 2004 is, therefore, dismissed. ### Response: 1 ### Explanation: 29. Both the Customs Department and Ministry of Petroleum and Natural Gas are departments of the Central Government. The substantive provisions which were required to be complied with for the purpose of obtaining the benefits under the said exemption notification have indisputably been complied with. It is not the case of the department that the assesse has anything to do with the grant of certificate except to pursue the matter to the best of its abilities. It is not in dispute that the importers were, but for production of the certificate, otherwise entitled to the grant of benefit in terms of the said notification.30. The conditions referred to in(1) of Section 25 as regard time when such certificate is to be produced would, thus, mean those which were within the control and power of the importer. If it is not within the power and control of the importer and depends upon the acts of other public functionaries,of such condition, subject to just exception cannot be held to be a condition precedent which would disable it from obtaining the benefit therefrom for all times to come.31. It is no doubt true that the fiscal liability has to be certain. There cannot, however, be any doubt that in a case of this nature ONGC being a Government company for all intent and purport was also certain that it would get the requisite exemption, subject of course, to its fulfilling the condition of obtaining such essentiality certificate.32. There is no universal law, as was suggested by Mr. Ganguly, that fiscal liability cannot be deferred. In a statute where there is a provision for a provisional assessment and/ or provisional clearance, subject to compliance of certain conditions, such conditions may be fulfilled at a later stage, namely, at the stage of final clearance or final assessment.33. The question may be considered from another angle. The Directorate General of Hydrocarbons was indisputably aware about the existence of such exemption notification. The certificate in accordance with law has not only been granted, the same expressly refers to the exemption notification, the entry of the table, the relevant clauses applicable therefor also the bills of entries dated 22.5.1999 and 22.6.1999. Indisputably, therefore, the Directorate General of Hydrocarbons was aware of all requisite requirements necessary therefor. It may presume that the department was also aware of the provisions of the Customs Act and the consequences likely to be suffered by the importer in the event of its inability to produce the same before the Competent Authority at the time of importation. The exercise undertaken by the said department, thus, was not to end in futility.The essentiality certificate, thus, must be treated to be a proof of the fact that the importers have fulfilled the conditions enabling them to obtain the benefit under the exemption notification.36. The principles as regard construction of an exemption notification are no longer res integra; whereas the eligibility clause in relation to an exemption notification is given strict meaning wherefor the notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility clause, the exemption clause therein may be construed liberally. An eligibility criteria, therefore, deserves a strict construction, although construction of a condition thereof may be given a liberal meaning.37. The decision of this Court in Jindal Drilling and Indus. Ltd. (supra), relied upon by Mr. Ganguly has no application to the facts and circumstances of the instant case.38. It is true that ordinarily, the golden rule of literal interpretation must be given effect to. But it is alsothat where literal interpretation gives rise to an anomaly or absurdity, the same should be avoided. [See Ashok Lanka and Another v. Rishi Dixit and Others, IV (2005) SLT 614=(2005) 5 SCC 598 ; Colgate Palmolive (India) Ltd. v. MRTP Commission and Others, VI (2002) SLT 543=III (2002) CPJ 18 (SC)=(2003) 1 SCC 129 ].39. Furthermore, it is alsothat the Legislature always intends to avoid hardship. In a situation of this nature, the exemption notification cannot be construed in a way which would prove to be oppressive in nature. However, we do not intend to lay down a law that delay on the part of the authorities in granting such certificates would automatically enable an assessee to obtain refund. Each case has to be judged on its own facts.40. We, however, do not agree with the contention of Mr. Lakshmikumaran that by reason of a public notice issued by a Customs House situated in a State, the effect and purport of statutory notification can be taken away. In terms of Section 151A of the Customs Act, it is only the Board which may issue instructions. Even under the aforementioned provision, the Board exercises a limited power. [See Pahwa Chemicals (P) Ltd. v. Commissioner of Central Excise, New Delhi, III (2005) SLT 374=(2005) 2 SCC 720. 41. Having regard to the facts and circumstances of this case, we are of the opinion that the Tribunal has committed no illegality in remitting the matter back to the Commissioner. Civil Appeal No. 5900 of 2004 is, therefore, dismissed.

C. Vasantlal and Company Vs. Commissioner of Income Tax, Bombay City

under the direction of the High Court of Bombay submitted a statement of the case and referred the two questions set out hereinbefore. The High Court after an exhaustive review of the evidence held that there was material on the record to support the findings of the Tribunal that the sums of Rs. 1, 45, 706 and Rs. 48, 185 which were the subject-matter of the reference represented the income of the assesseesThe Income-tax Appellate Tribunal on a review of the evidence recorded the following findings(1) That the assessees in the years previous to Samvat 2002 had no transactions with Messrs. Meghaji Kapurchand or with Messrs. Bhimaji Motiji and it was not possible to believe that transactions involving large sums of money would be put through by the assessees in respect of new constituents without taking any deposit or security(2) That the entries made in the books of accounts of the assessees were suspicious and appeared to have been written not in the usual course of business(3) That the transactions with Messrs. Meghaji Kapurchand and Messrs. Bhimaji Motiji always showed gains in their favour, there being not a single transaction where they had suffered loss. This in the opinion of the Appellate Tribunal was " unrealistic. "(4) The partners of the two firms had stated before the Income-tax Officer that the transactions were " bogus transactions " and that they had " sold the profits with an ulterior motive. "(5) Even in their statements before the Appellate Assistant Commissioner Achaldas and Poonamchand did not pretend that these transactions were genuine transactions. They merely asserted that the transactions were effected by persons " who were not available " at the time of the enquiry(6) That Messrs. Meghaji Kapurchand and Messrs. Bhimaji Motiji had encashed the cheques issued by the assessees and admitted that they had paid back the amounts thereofBefore the Income-tax Officer they stated that the amounts of the cheques were returned by them to the assessees but before the Appellate Assistant Commissioner they stated that they had returned those amounts to " unknown and unidentifiable parties. "4. In the light of these findings and the refusal of the assessees to examine Joitram Kedarnath in support of their case that the latter had received payments from the assessees as claimed, the Tribunal agreed with the view of the Income-tax OfficerBy the two questions referred, the High Court was called upon to advise the Tribunal whether there was any material on the record to support the finding that the amount of Rs. 1, 45, 706 and Rs. 48, 185 represented the income of the assessees5. Counsel for the assessees in this appeal has contended that the statements of Achaldas and Poonamchand who were examined by the Income-tax Officer in the absence of the assessees could not be regarded as evidence against the assessees and that the only legal evidence on the record was the statement of these witnesses before the Appellate Assistant Commissioner and therein the witnesses absolved the assessees from any complicity in the transactions6. We are unable to hold that the statements made by Achaldas and Poonamchand before the Income-tax Officer were not material on which the Tribunal could act. The case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses, and had made it over to the parties who had earned profits. The income-tax authorities held that the transactions were not genuine transactions. Again the evidence of Achaldas and Poonamchand clearly showed that these amounts were repaid. In the statements made by these two persons before the Income-tax Officer it was asserted that the repayment of the amounts of the cheques was made to the assessees. Before the Appellate Assistant Commissioner they stated that they handed over the moneys to some other persons whose presence could not be procured. There is nothing on the record to show that the Income-tax Officer had not disclosed to the assessees the material he had collected by examining Achaldas and Poonamchand. In any event, the Appellate Assistant Commissioner in the interest of justice and fair play gave the assessees an opportunity to cross-examine these two persons. The Income-tax Officer is not bound by any technical rules of the law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry. But if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it. The statements made by Achaldas and Poonamchand before the Income-tax Officer were material on which the income-tax authorities could act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. It was therefore open to the Tribunal in appreciating the evidence to rely upon the statements made by Achaldas and Poonamchand before the Income-tax Officer and to disbelieve the statements made by them before the Appellate Assistant CommissionerThe jurisdiction of the High Court under section 66 of the Income-tax Act is merely advisory. The High Court does not sit in appeal over the judgment of the income-tax authorities : it is not concerned to decide whether the conclusion of the Tribunal on appreciation of evidence is correct. There was apparently a mass of evidence on which the conclusion of the Appellate Tribunal could be founded and the question which fell to be determined by it was purely one of fact. It is true that a finding of fact which is not supported by any evidence or is unreasonable and perverse may be open to challenge on the ground that it is not supported by any material on the record, but, as we have already observed, there was material on which the Income-tax Tribunal could reasonably arrive at the conclusion which it did. The High Court was, therefore, right in recording the answers to the two questions submitted to it

0[ds]6. We are unable to hold that the statements made by Achaldas and Poonamchand before theOfficer were not material on which the Tribunal could act. The case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses, and had made it over to the parties who had earned profits. Theauthorities held that the transactions were not genuine transactions. Again the evidence of Achaldas and Poonamchand clearly showed that these amounts were repaid. In the statements made by these two persons before theOfficer it was asserted that the repayment of the amounts of the cheques was made to the assessees. Before the Appellate Assistant Commissioner they stated that they handed over the moneys to some other persons whose presence could not be procured. There is nothing on the record to show that theOfficer had not disclosed to the assessees the material he had collected by examining Achaldas and Poonamchand. In any event, the Appellate Assistant Commissioner in the interest of justice and fair play gave the assessees an opportunity tothese two persons. TheOfficer is not bound by any technical rules of the law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry. But if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it. The statements made by Achaldas and Poonamchand before theOfficer were material on which theauthorities could act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. It was therefore open to the Tribunal in appreciating the evidence to rely upon the statements made by Achaldas and Poonamchand before theOfficer and to disbelieve the statements made by them before the Appellate Assistant CommissionerThe jurisdiction of the High Court under section 66 of theAct is merelyis true that a finding of fact which is not supported by any evidence or is unreasonable and perverse may be open to challenge on the ground that it is not supported by any material on the record, but, as we have already observed, there was material on which theTribunal could reasonably arrive at the conclusion which it did. The High Court was, therefore, right in recording the answers to the two questions submitted to it

### 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: under the direction of the High Court of Bombay submitted a statement of the case and referred the two questions set out hereinbefore. The High Court after an exhaustive review of the evidence held that there was material on the record to support the findings of the Tribunal that the sums of Rs. 1, 45, 706 and Rs. 48, 185 which were the subject-matter of the reference represented the income of the assesseesThe Income-tax Appellate Tribunal on a review of the evidence recorded the following findings(1) That the assessees in the years previous to Samvat 2002 had no transactions with Messrs. Meghaji Kapurchand or with Messrs. Bhimaji Motiji and it was not possible to believe that transactions involving large sums of money would be put through by the assessees in respect of new constituents without taking any deposit or security(2) That the entries made in the books of accounts of the assessees were suspicious and appeared to have been written not in the usual course of business(3) That the transactions with Messrs. Meghaji Kapurchand and Messrs. Bhimaji Motiji always showed gains in their favour, there being not a single transaction where they had suffered loss. This in the opinion of the Appellate Tribunal was " unrealistic. "(4) The partners of the two firms had stated before the Income-tax Officer that the transactions were " bogus transactions " and that they had " sold the profits with an ulterior motive. "(5) Even in their statements before the Appellate Assistant Commissioner Achaldas and Poonamchand did not pretend that these transactions were genuine transactions. They merely asserted that the transactions were effected by persons " who were not available " at the time of the enquiry(6) That Messrs. Meghaji Kapurchand and Messrs. Bhimaji Motiji had encashed the cheques issued by the assessees and admitted that they had paid back the amounts thereofBefore the Income-tax Officer they stated that the amounts of the cheques were returned by them to the assessees but before the Appellate Assistant Commissioner they stated that they had returned those amounts to " unknown and unidentifiable parties. "4. In the light of these findings and the refusal of the assessees to examine Joitram Kedarnath in support of their case that the latter had received payments from the assessees as claimed, the Tribunal agreed with the view of the Income-tax OfficerBy the two questions referred, the High Court was called upon to advise the Tribunal whether there was any material on the record to support the finding that the amount of Rs. 1, 45, 706 and Rs. 48, 185 represented the income of the assessees5. Counsel for the assessees in this appeal has contended that the statements of Achaldas and Poonamchand who were examined by the Income-tax Officer in the absence of the assessees could not be regarded as evidence against the assessees and that the only legal evidence on the record was the statement of these witnesses before the Appellate Assistant Commissioner and therein the witnesses absolved the assessees from any complicity in the transactions6. We are unable to hold that the statements made by Achaldas and Poonamchand before the Income-tax Officer were not material on which the Tribunal could act. The case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses, and had made it over to the parties who had earned profits. The income-tax authorities held that the transactions were not genuine transactions. Again the evidence of Achaldas and Poonamchand clearly showed that these amounts were repaid. In the statements made by these two persons before the Income-tax Officer it was asserted that the repayment of the amounts of the cheques was made to the assessees. Before the Appellate Assistant Commissioner they stated that they handed over the moneys to some other persons whose presence could not be procured. There is nothing on the record to show that the Income-tax Officer had not disclosed to the assessees the material he had collected by examining Achaldas and Poonamchand. In any event, the Appellate Assistant Commissioner in the interest of justice and fair play gave the assessees an opportunity to cross-examine these two persons. The Income-tax Officer is not bound by any technical rules of the law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry. But if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it. The statements made by Achaldas and Poonamchand before the Income-tax Officer were material on which the income-tax authorities could act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. It was therefore open to the Tribunal in appreciating the evidence to rely upon the statements made by Achaldas and Poonamchand before the Income-tax Officer and to disbelieve the statements made by them before the Appellate Assistant CommissionerThe jurisdiction of the High Court under section 66 of the Income-tax Act is merely advisory. The High Court does not sit in appeal over the judgment of the income-tax authorities : it is not concerned to decide whether the conclusion of the Tribunal on appreciation of evidence is correct. There was apparently a mass of evidence on which the conclusion of the Appellate Tribunal could be founded and the question which fell to be determined by it was purely one of fact. It is true that a finding of fact which is not supported by any evidence or is unreasonable and perverse may be open to challenge on the ground that it is not supported by any material on the record, but, as we have already observed, there was material on which the Income-tax Tribunal could reasonably arrive at the conclusion which it did. The High Court was, therefore, right in recording the answers to the two questions submitted to it ### Response: 0 ### Explanation: 6. We are unable to hold that the statements made by Achaldas and Poonamchand before theOfficer were not material on which the Tribunal could act. The case of the assessees was that the transactions in respect of which they had maintained accounts were genuine transactions and that they had received payment from the parties who suffered losses, and had made it over to the parties who had earned profits. Theauthorities held that the transactions were not genuine transactions. Again the evidence of Achaldas and Poonamchand clearly showed that these amounts were repaid. In the statements made by these two persons before theOfficer it was asserted that the repayment of the amounts of the cheques was made to the assessees. Before the Appellate Assistant Commissioner they stated that they handed over the moneys to some other persons whose presence could not be procured. There is nothing on the record to show that theOfficer had not disclosed to the assessees the material he had collected by examining Achaldas and Poonamchand. In any event, the Appellate Assistant Commissioner in the interest of justice and fair play gave the assessees an opportunity tothese two persons. TheOfficer is not bound by any technical rules of the law of evidence. It is open to him to collect materials to facilitate assessment even by private enquiry. But if he desires to use the material so collected, the assessee must be informed of the material and must be given an adequate opportunity of explaining it. The statements made by Achaldas and Poonamchand before theOfficer were material on which theauthorities could act provided that the material was disclosed and the assessees had opportunity to render their explanation in that behalf. It was therefore open to the Tribunal in appreciating the evidence to rely upon the statements made by Achaldas and Poonamchand before theOfficer and to disbelieve the statements made by them before the Appellate Assistant CommissionerThe jurisdiction of the High Court under section 66 of theAct is merelyis true that a finding of fact which is not supported by any evidence or is unreasonable and perverse may be open to challenge on the ground that it is not supported by any material on the record, but, as we have already observed, there was material on which theTribunal could reasonably arrive at the conclusion which it did. The High Court was, therefore, right in recording the answers to the two questions submitted to it

M/S. Larsen & Toubro Ltd Vs. Commnr. Of Central Excise, Pune-Ii

of the assessee. We are unable to accept the contention of the learned counsel. The tenor of the order, the assessee had produced certain documents such as registration form, trade mark authorities assigning the trade mark to them but the fact remains that there was material evidence by way of seizure of goods manufactured by M/s. P & B Laboratories bearing the same logo much after the alleged transfer of trade mark to the appellants" discloses that the Tribunal accepted that there has been an assignment but proceeded to deal with the case of inapplicability of the exemption under the notification on the ground that the logo was being used by M/s. P & B Laboratories also. We have already indicated above that use of logo of the manufacturer by third parties is alien for purposes of denial of exemption on the strength of para 7 of the notification. In this view of the matter, we are unable to uphold the order of the Tribunal denying the exemption to the assessee.20. In any event, the ground that the assessee has suppressed the fact that M/s. P & B Laboratories was also using the logo for availing the benefit under the notification cannot be a valid reason to invoke the proviso to Section 11A of the Act. There is no obligation on the owner of a logo to make a roving enquiry to ascertain whether any other person is also using his logo and disclose it to the authorities to avert a possible allegation of suppression of fact for purposes of invoking the proviso." 17. Yet again in Nizam Sugar Factory vs. Collector of Central Excise, A.P., [2006 (197) ELT 465 (SC)] the ratio rendered in P & B Pharmaceuticals Ltd. (supra) has been reiterated stating: "Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant." 18. In the said decision, this Court followed the earlier judgment of the Division Bench of this Court in ECE Industries Limited v. Commissioner of Central Excise (2004) 13 SCC 719 = 2004 (164) ELT 236 , wherein it was categorically stated: "6. Appellant was served with a second SCN by the Collector on 16.7.1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19.3.1983; that they had not taken necessary licence; had not followed the procedure prescribed under the rules; and had not discharged duty liability. The said SCN covered the period of assessment years 1982-83 to 1986-87. Appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28.2.1984 and for the period April, 1982 to September, 1982 the department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. It was contended that they were under bona fide belief that since such impure carbon dioxide was not exigible to payment of duty, they were not required to file either Classification List or the Price List or take out licence. It was submitted that resorting to extended period of limitation under Section 11A(1) was not justified in the circumstances of the case. Appellant was served with the third SCN on 12.9.1988 for the period 16.3.1988 to 27.6.1988 on the same allegations. Assessee filed its reply in terms of the earlier replies i.e. reply to SCN dated 16.7.1987. The adjudicating authority did not accept the appellants contention and the demands raised in the SCN were confirmed.xxx xxx xxx8. Without going into the question regarding Classification and marketability and leaving the same open, we intend to dispose of the appeals on the point of limitation only. This Court in the case of P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) ELT 14 (SC) has taken the view that in a case in which a show cause notice has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department." 19. Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked. [See Commissioner of Central Excise, Chandigarh vs. M/s. Punjab Laminates Pvt. Ltd., (2006 (7) SCC 431 )] 20. Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case.

1[ds]11. The Tribunal in its order dated 25.4.2003, in the case of M/s. B.E. Billimoria & Co. Pvt. Ltd. opined that similar goods manufactured by others do not attract the provisions of the Central Excise Act. It is stated that the same bench of the Tribunal in its judgment dated 10.5.2004, in Ragunath Ramchandra Shanbhag (supra), came to a similar conclusion.12. During the period in question beingno direct decision on the point involved was available. It was noticed that different benches of the Tribunal in different cases had rendering their decisions differently. In the case of Billimoria (supra), it was categorically held that manufacture of PSC Girders would not attract the provisions of Central Excise Act, 1944.13. Correctness of Billimoria (supra) was questioned by another Bench of the Tribunal and the matter was referred to a larger Bench. The larger Bench in Asian Techs Ltd. (supra) relying upon or on the basis of a large number of decisions of this Court opined that the excise duty was payable and the principles of works contract would not be applicable in a case of this nature. We, therefore, accept the contention of the learned counsel that it was not a case where element of suppression extended to apply to extended period of limitation. It is also not a case where the appellant did not plead bona fide. It is furthermore not a case where the Tribunal and consequently this Court, could have arrived at a finding that the appellant took recourse to suppressio veri.14. Acts of fraud or suppression, it is well settled, must be specifically pleaded. The allegations in regard to suppression of facts must be clear and explicit so as to enable the noticee to reply thereto effectively. It was not the case of the revenue that the activities of the appellant were not known to it.15. Admittedly, when the first show cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of six months (as the law then stood) i.e. within the prescribed period of limitation but only in exceptional cases, the said period could be extended to 5 years. When in the original notice, such an allegation had not been made, we are of the opinion that the same could not have been made subsequently as the facts alleged to have been suppressed by the appellant were known to them.Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked.Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: of the assessee. We are unable to accept the contention of the learned counsel. The tenor of the order, the assessee had produced certain documents such as registration form, trade mark authorities assigning the trade mark to them but the fact remains that there was material evidence by way of seizure of goods manufactured by M/s. P & B Laboratories bearing the same logo much after the alleged transfer of trade mark to the appellants" discloses that the Tribunal accepted that there has been an assignment but proceeded to deal with the case of inapplicability of the exemption under the notification on the ground that the logo was being used by M/s. P & B Laboratories also. We have already indicated above that use of logo of the manufacturer by third parties is alien for purposes of denial of exemption on the strength of para 7 of the notification. In this view of the matter, we are unable to uphold the order of the Tribunal denying the exemption to the assessee.20. In any event, the ground that the assessee has suppressed the fact that M/s. P & B Laboratories was also using the logo for availing the benefit under the notification cannot be a valid reason to invoke the proviso to Section 11A of the Act. There is no obligation on the owner of a logo to make a roving enquiry to ascertain whether any other person is also using his logo and disclose it to the authorities to avert a possible allegation of suppression of fact for purposes of invoking the proviso." 17. Yet again in Nizam Sugar Factory vs. Collector of Central Excise, A.P., [2006 (197) ELT 465 (SC)] the ratio rendered in P & B Pharmaceuticals Ltd. (supra) has been reiterated stating: "Allegation of suppression of facts against the appellant cannot be sustained. When the first SCN was issued all the relevant facts were in the knowledge of the authorities. Later on, while issuing the second and third show cause notices the same/similar facts could not be taken as suppression of facts on the part of the assessee as these facts were already in the knowledge of the authorities. We agree with the view taken in the aforesaid judgments and respectfully following the same, hold that there was no suppression of facts on the part of the assessee/appellant." 18. In the said decision, this Court followed the earlier judgment of the Division Bench of this Court in ECE Industries Limited v. Commissioner of Central Excise (2004) 13 SCC 719 = 2004 (164) ELT 236 , wherein it was categorically stated: "6. Appellant was served with a second SCN by the Collector on 16.7.1987 alleging that the appellant was supplying carbon dioxide to another unit as per agreement dated 19.3.1983; that they had not taken necessary licence; had not followed the procedure prescribed under the rules; and had not discharged duty liability. The said SCN covered the period of assessment years 1982-83 to 1986-87. Appellant responded to the second SCN and took the plea that the SCN under consideration was practically a repetition of the allegations contained in the SCN dated 28.2.1984 and for the period April, 1982 to September, 1982 the department had raised demands under two different SCNs. It was pointed out that carbon dioxide in the impure form was not marketable as it also contained carbon monoxide in lethal proportions. It was contended that they were under bona fide belief that since such impure carbon dioxide was not exigible to payment of duty, they were not required to file either Classification List or the Price List or take out licence. It was submitted that resorting to extended period of limitation under Section 11A(1) was not justified in the circumstances of the case. Appellant was served with the third SCN on 12.9.1988 for the period 16.3.1988 to 27.6.1988 on the same allegations. Assessee filed its reply in terms of the earlier replies i.e. reply to SCN dated 16.7.1987. The adjudicating authority did not accept the appellants contention and the demands raised in the SCN were confirmed.xxx xxx xxx8. Without going into the question regarding Classification and marketability and leaving the same open, we intend to dispose of the appeals on the point of limitation only. This Court in the case of P & B Pharmaceuticals (P) Ltd. v. Collector of Central Excise reported in (2003) 3 SCC 599 = 2003 (153) ELT 14 (SC) has taken the view that in a case in which a show cause notice has been issued for the earlier period on certain set of facts, then, on the same set of facts another SCN based on the same/similar set of facts invoking the extended period of limitation on the plea of suppression of facts by the assessee cannot be issued as the facts were already in the knowledge of the department." 19. Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked. [See Commissioner of Central Excise, Chandigarh vs. M/s. Punjab Laminates Pvt. Ltd., (2006 (7) SCC 431 )] 20. Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case. ### Response: 1 ### Explanation: 11. The Tribunal in its order dated 25.4.2003, in the case of M/s. B.E. Billimoria & Co. Pvt. Ltd. opined that similar goods manufactured by others do not attract the provisions of the Central Excise Act. It is stated that the same bench of the Tribunal in its judgment dated 10.5.2004, in Ragunath Ramchandra Shanbhag (supra), came to a similar conclusion.12. During the period in question beingno direct decision on the point involved was available. It was noticed that different benches of the Tribunal in different cases had rendering their decisions differently. In the case of Billimoria (supra), it was categorically held that manufacture of PSC Girders would not attract the provisions of Central Excise Act, 1944.13. Correctness of Billimoria (supra) was questioned by another Bench of the Tribunal and the matter was referred to a larger Bench. The larger Bench in Asian Techs Ltd. (supra) relying upon or on the basis of a large number of decisions of this Court opined that the excise duty was payable and the principles of works contract would not be applicable in a case of this nature. We, therefore, accept the contention of the learned counsel that it was not a case where element of suppression extended to apply to extended period of limitation. It is also not a case where the appellant did not plead bona fide. It is furthermore not a case where the Tribunal and consequently this Court, could have arrived at a finding that the appellant took recourse to suppressio veri.14. Acts of fraud or suppression, it is well settled, must be specifically pleaded. The allegations in regard to suppression of facts must be clear and explicit so as to enable the noticee to reply thereto effectively. It was not the case of the revenue that the activities of the appellant were not known to it.15. Admittedly, when the first show cause notice was issued, the extended period of limitation was not resorted to. A notice should ordinarily be issued within a period of six months (as the law then stood) i.e. within the prescribed period of limitation but only in exceptional cases, the said period could be extended to 5 years. When in the original notice, such an allegation had not been made, we are of the opinion that the same could not have been made subsequently as the facts alleged to have been suppressed by the appellant were known to them.Furthermore, extension of the period of limitation entails both civil and criminal consequences and, therefore, must be specifically stated in the show cause notice, in absence whereof the Court would be entitled to raise an inference that the case was not one where the extended period of limitation could be invoked.Another aspect of the matter cannot also be lost sight of. Appellant as also the Konkan Railawy raised a definite plea of bona fide. Such a plea had not been rejected. As a matter of fact, while considering imposition of penalty under Section 11A of the Act, the Commissioner has refused to impose any penalty upon the appellant on the premise that it was not guilty of any act of mala fide. We, therefore, keeping in view the facts and circumstances of this case, are of the considered view that the impugned judgment cannot be sustained. It is set aside accordingly. We hold that the Revenue was not justified in invoking the extended period of limitation in the instant case.

Golden Films and Finance Private Limited and Anotherv. State of Jammu and Kashmir and Others,. (Writ Petition No. 4074 of 1985) and Messrs M. A. Ramzana and Company Vs. Union of India and Others(Writ Petition (Civil) No. 11971 of 1985)

was on February 7, 1981. As the application was not disposed of within the period prescribed by the Rules, it was deemed to have been rejected and the petitioner company preferred a revision to the Central Government. The Central Government by an order dated April 29, 1982 allowed the revision petition and directed the State Government to pass final orders on merits within two hundred days from the date of receipt of the order of the Central Government. It further directed that if the State Government failed to do so it would be open to the petitioner company to seek redress in a court of law. As the State Government, despite reminders, failed to dispose of the petitioner companys application, the petitioner company invoked the Jurisdiction of the Court under Article 32 of the Constitution to direct the State Government to grant a lease or in the alternative to consider the application of the petitioner in accordance with law. The State of Jammu and Kashmir is the first respondent, the Union of India is the second respondent, M/s M. A. Ramzana is the third respondent, the National Mineral Development Corporation is the fourth respondent and the Jammu and Kashmir Minerals Limited is the fifth respondent. On behalf of the Government of Jammu and Kashmir, a counter-affidavit has been filed in which it has been stated that the application of the petitioner company for grant of a mining lease could not be considered as the lease in favour of the Jammu and Kashmir Minerals Limited which had been granted in August, 1963 for a period of twenty years was still subsisting. It was, however, admitted that the State Corporation was unable to exploit the mines to extent it should have done because of financial constraints and the inaccessibility of the area. 4. The discussions which the Corporation had with various entrepreneurs were admitted. It was admitted that the petitioner company made an application under the Rules. It was stated that Government of Jammu and Kashmir considered the application to be premature, in view of the subsisting lease in favour of the Jammu and Kashmir Minerals Corporation. It was further stated that through the lease expired in 1983, the State Government had not notified the Paddar mines as available for grant of a fresh lease as the area was proposed to be reserved by the State Government for being worked by a Public Sector Undertaking. A counter-affidavit was also filed by the Jammu and Kashmir Minerals Limited, the government corporation. It was admitted that the government company was unable to conduct any mining operations after 1978 because of financial difficulties. The discussions which the company had with various entrepreneurs were admitted. The tender notice and the response of different parties were also admitted. It was further stated that out of a total of eleven offers received and considered by the government the offers of the petitioner company and Ramzana & Co. were considered to be the most viable and since Ramzana & Co. was a local entrepreneur it was thought desirable to award the lease jointly to the petitioner company and Ramzana & Co. But as the petitioner company was not wiling, it was decided to recommended that Ramzana & Co. should be granted the lease of the mines. 5. Accordingly, the State Government addressed the Central Government for its approval for granting a lease in favour of Ramzana & Co. The Central Government, however, declined to accord its approval. It was further stated that at a meeting held in 1984 between the officials of the State Government and the Chairman and Adviser to the National Minerals Development Corporation, a decision was taken to grant a prospecting licence to National Minerals Development Corporation and to consider the question of granting a mining lease in favour of a joint venture company. What is of important and significance to be noted here is that the State Government did recommend the grant of a lease to Ramzana & Co. and sought the approval of the Central Government for that purpose in 1981 itself when the so-called lease in favour of the government corporation was still subsisting. This is sufficient to expose the hollowness of the claim now made in the counter-affidavits that the application of the petitioner company for the grant of a mining lease was not considered on merits as it was thought to be premature in view of the lease subsisting in favour of the Jammu and Kashmir Minerals Limited. As mentioned by us earlier, all parties including the government and the corporation acted on the assumption that the lease, if any, was not subsisting and that the Paddar mines were available for exploitation by grant of a lease. It is on that assumption that we must now proceed. It does not lie in the mouth of the government or the corporation to put forward the alleged lease in favour of the corporation as a bar to the grant of a lease to the petitioner company. 6. The statement in the counter-affidavit that it is proposed to reserve the area for the grant of a mining lease in favour of a Public Sector Undertaking is equally unsubstantial. Under Rule 58 of the Mineral Concession Rules, it is open to the State Government by notification in the official gazette to reserve any area for exploitation by the government, a corporation established by any Central, State or Provincial Act or a government company within the meaning of Section 617 of the Companies Act. It is not disputed that the State Government has not, in the present case, issued any notification reserving the Paddar mines area for exploitation by the government or a government corporation or a government company. In the absence of such a notification we see no basis for the statement in the counter-affidavit that the government is not prepared to consider the application of the petitioner company as the area is proposed to be reserved for exploitation by a Public Sector Undertaking. 7.

1[ds]For reasons best known to the respondents no effort was made to produce an authentic or reconstructed copy of the lease deed. It appears to us that the true reason for theled lease deed is itsWhat has been described as a lease by the respondents was apparently not a lease under the Mineral Concession Rules but a mere government order by which an arrangement was made to work the mine, the word lease having been used to describe the arrangement for want of a more appropriate word. For one reason or the other the Jammu and Kashmir Mineral Company was unable to exploit the mines and mining operations were at a standstill for a consideration number of years. It may be said without fear of contradiction that every one of the parties proceeded on the assumption that there was no subsisting mining lease and that the Paddar Mines were available for the grant of a mining lease. There were protracted negotiations between the present petitioner, Golden Films and Finance Private Limited and the Government of Jammu and Kashmir and the Jammu and Kashmir Minerals Company for the grant of a mining lease for exploitation the Paddar mines. On June 26, 1978, the petitioner company submitted their proposals for working the mines before a Committee of senior government officials appointed by the government company to examine such proposals. On November 23, 1978, the petitioner company was supplied with copies of proposals received from other firms for exploiting the mines and the Committee invited the petitioner company to make such changes in their original proposals as they desired in the light of the proposals received from other firms. The petitioner company submitted their revised proposals to the Jammu and Kashmir Minerals Limited. Thereafter global tenders were invited from anyone interested in exploiting the mines. On April 12, 1979, the petitioner company submitted their proposal in response to the tender notice. It is asserted in the petition and it is not contradicted by the respondents that the committee of officials of the Government of Jammu and Kashmir who examined the proposals found the petitioner companys tender the best. However, the petitioner company was asked whether they were prepared to take the firm of M/s M. A. Ramzana & Co. as a minor partner in the mining project.The petitioner company did not agree to the suggestion and wrote a letter dated October 10, 1980 to the Chief Secretary to the Government of Jammu and Kashmir pointing out that their tender was adjudged the best on merits and therefore, it was right and proper that the right to exploit the mines should be awarded to them. There was no reply to this letter. Thereafter the petitioner company submitted a formal application under Rule 22 of the Mineral Concession Rules to the Government for the grant of a mining lease. This was on February 7, 1981. As the application was not disposed of within the period prescribed by the Rules, it was deemed to have been rejected and the petitioner company preferred a revision to the Central Government. The Central Government by an order dated April 29, 1982 allowed the revision petition and directed the State Government to pass final orders on merits within two hundred days from the date of receipt of the order of the Central Government. It further directed that if the State Government failed to do so it would be open to the petitioner company to seek redress in a court of law. As the State Government, despite reminders, failed to dispose of the petitioner companys application, the petitioner company invoked the Jurisdiction of the Court under Article 32 of the Constitution to direct the State Government to grant a lease or in the alternative to consider the application of the petitioner in accordance with law. The State of Jammu and Kashmir is the first respondent, the Union of India is the second respondent, M/s M. A. Ramzana is the third respondent, the National Mineral Development Corporation is the fourth respondent and the Jammu and Kashmir Minerals Limited is the fifth respondent. On behalf of the Government of Jammu and Kashmir, ahas been filed in which it has been stated that the application of the petitioner company for grant of a mining lease could not be considered as the lease in favour of the Jammu and Kashmir Minerals Limited which had been granted in August, 1963 for a period of twenty years was still subsisting. It was, however, admitted that the State Corporation was unable to exploit the mines to extent it should have done because of financial constraints and the inaccessibility of the area.The discussions which the Corporation had with various entrepreneurs were admitted. It was admitted that the petitioner company made an application under the Rules. It was stated that Government of Jammu and Kashmir considered the application to be premature, in view of the subsisting lease in favour of the Jammu and Kashmir Minerals Corporation. It was further stated that through the lease expired in 1983, the State Government had not notified the Paddar mines as available for grant of a fresh lease as the area was proposed to be reserved by the State Government for being worked by a Public Sector Undertaking. Awas also filed by the Jammu and Kashmir Minerals Limited, the government corporation. It was admitted that the government company was unable to conduct any mining operations after 1978 because of financial difficulties. The discussions which the company had with various entrepreneurs were admitted. The tender notice and the response of different parties were also admitted. It was further stated that out of a total of eleven offers received and considered by the government the offers of the petitioner company and Ramzana & Co. were considered to be the most viable and since Ramzana & Co. was a local entrepreneur it was thought desirable to award the lease jointly to the petitioner company and Ramzana & Co. But as the petitioner company was not wiling, it was decided to recommended that Ramzana & Co. should be granted the lease of the mines.Accordingly, the State Government addressed the Central Government for its approval for granting a lease in favour of Ramzana & Co. The Central Government, however, declined to accord its approval. It was further stated that at a meeting held in 1984 between the officials of the State Government and the Chairman and Adviser to the National Minerals Development Corporation, a decision was taken to grant a prospecting licence to National Minerals Development Corporation and to consider the question of granting a mining lease in favour of a joint venture company. What is of important and significance to be noted here is that the State Government did recommend the grant of a lease to Ramzana & Co. and sought the approval of the Central Government for that purpose in 1981 itself when thelease in favour of the government corporation was still subsisting. This is sufficient to expose the hollowness of the claim now made in thethat the application of the petitioner company for the grant of a mining lease was not considered on merits as it was thought to be premature in view of the lease subsisting in favour of the Jammu and Kashmir Minerals Limited. As mentioned by us earlier, all parties including the government and the corporation acted on the assumption that the lease, if any, was not subsisting and that the Paddar mines were available for exploitation by grant of a lease. It is on that assumption that we must now proceed. It does not lie in the mouth of the government or the corporation to put forward the alleged lease in favour of the corporation as a bar to the grant of a lease to the petitioner company.The statement in thethat it is proposed to reserve the area for the grant of a mining lease in favour of a Public Sector Undertaking is equally unsubstantial. Under Rule 58 of the Mineral Concession Rules, it is open to the State Government by notification in the official gazette to reserve any area for exploitation by the government, a corporation established by any Central, State or Provincial Act or a government company within the meaning of Section 617 of the Companies Act. It is not disputed that the State Government has not, in the present case, issued any notification reserving the Paddar mines area for exploitation by the government or a government corporation or a government company. In the absence of such a notification we see no basis for the statement in thethat the government is not prepared to consider the application of the petitioner company as the area is proposed to be reserved for exploitation by a Public Sector Undertaking.

### 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: was on February 7, 1981. As the application was not disposed of within the period prescribed by the Rules, it was deemed to have been rejected and the petitioner company preferred a revision to the Central Government. The Central Government by an order dated April 29, 1982 allowed the revision petition and directed the State Government to pass final orders on merits within two hundred days from the date of receipt of the order of the Central Government. It further directed that if the State Government failed to do so it would be open to the petitioner company to seek redress in a court of law. As the State Government, despite reminders, failed to dispose of the petitioner companys application, the petitioner company invoked the Jurisdiction of the Court under Article 32 of the Constitution to direct the State Government to grant a lease or in the alternative to consider the application of the petitioner in accordance with law. The State of Jammu and Kashmir is the first respondent, the Union of India is the second respondent, M/s M. A. Ramzana is the third respondent, the National Mineral Development Corporation is the fourth respondent and the Jammu and Kashmir Minerals Limited is the fifth respondent. On behalf of the Government of Jammu and Kashmir, a counter-affidavit has been filed in which it has been stated that the application of the petitioner company for grant of a mining lease could not be considered as the lease in favour of the Jammu and Kashmir Minerals Limited which had been granted in August, 1963 for a period of twenty years was still subsisting. It was, however, admitted that the State Corporation was unable to exploit the mines to extent it should have done because of financial constraints and the inaccessibility of the area. 4. The discussions which the Corporation had with various entrepreneurs were admitted. It was admitted that the petitioner company made an application under the Rules. It was stated that Government of Jammu and Kashmir considered the application to be premature, in view of the subsisting lease in favour of the Jammu and Kashmir Minerals Corporation. It was further stated that through the lease expired in 1983, the State Government had not notified the Paddar mines as available for grant of a fresh lease as the area was proposed to be reserved by the State Government for being worked by a Public Sector Undertaking. A counter-affidavit was also filed by the Jammu and Kashmir Minerals Limited, the government corporation. It was admitted that the government company was unable to conduct any mining operations after 1978 because of financial difficulties. The discussions which the company had with various entrepreneurs were admitted. The tender notice and the response of different parties were also admitted. It was further stated that out of a total of eleven offers received and considered by the government the offers of the petitioner company and Ramzana & Co. were considered to be the most viable and since Ramzana & Co. was a local entrepreneur it was thought desirable to award the lease jointly to the petitioner company and Ramzana & Co. But as the petitioner company was not wiling, it was decided to recommended that Ramzana & Co. should be granted the lease of the mines. 5. Accordingly, the State Government addressed the Central Government for its approval for granting a lease in favour of Ramzana & Co. The Central Government, however, declined to accord its approval. It was further stated that at a meeting held in 1984 between the officials of the State Government and the Chairman and Adviser to the National Minerals Development Corporation, a decision was taken to grant a prospecting licence to National Minerals Development Corporation and to consider the question of granting a mining lease in favour of a joint venture company. What is of important and significance to be noted here is that the State Government did recommend the grant of a lease to Ramzana & Co. and sought the approval of the Central Government for that purpose in 1981 itself when the so-called lease in favour of the government corporation was still subsisting. This is sufficient to expose the hollowness of the claim now made in the counter-affidavits that the application of the petitioner company for the grant of a mining lease was not considered on merits as it was thought to be premature in view of the lease subsisting in favour of the Jammu and Kashmir Minerals Limited. As mentioned by us earlier, all parties including the government and the corporation acted on the assumption that the lease, if any, was not subsisting and that the Paddar mines were available for exploitation by grant of a lease. It is on that assumption that we must now proceed. It does not lie in the mouth of the government or the corporation to put forward the alleged lease in favour of the corporation as a bar to the grant of a lease to the petitioner company. 6. The statement in the counter-affidavit that it is proposed to reserve the area for the grant of a mining lease in favour of a Public Sector Undertaking is equally unsubstantial. Under Rule 58 of the Mineral Concession Rules, it is open to the State Government by notification in the official gazette to reserve any area for exploitation by the government, a corporation established by any Central, State or Provincial Act or a government company within the meaning of Section 617 of the Companies Act. It is not disputed that the State Government has not, in the present case, issued any notification reserving the Paddar mines area for exploitation by the government or a government corporation or a government company. In the absence of such a notification we see no basis for the statement in the counter-affidavit that the government is not prepared to consider the application of the petitioner company as the area is proposed to be reserved for exploitation by a Public Sector Undertaking. 7. ### Response: 1 ### Explanation: under Rule 22 of the Mineral Concession Rules to the Government for the grant of a mining lease. This was on February 7, 1981. As the application was not disposed of within the period prescribed by the Rules, it was deemed to have been rejected and the petitioner company preferred a revision to the Central Government. The Central Government by an order dated April 29, 1982 allowed the revision petition and directed the State Government to pass final orders on merits within two hundred days from the date of receipt of the order of the Central Government. It further directed that if the State Government failed to do so it would be open to the petitioner company to seek redress in a court of law. As the State Government, despite reminders, failed to dispose of the petitioner companys application, the petitioner company invoked the Jurisdiction of the Court under Article 32 of the Constitution to direct the State Government to grant a lease or in the alternative to consider the application of the petitioner in accordance with law. The State of Jammu and Kashmir is the first respondent, the Union of India is the second respondent, M/s M. A. Ramzana is the third respondent, the National Mineral Development Corporation is the fourth respondent and the Jammu and Kashmir Minerals Limited is the fifth respondent. On behalf of the Government of Jammu and Kashmir, ahas been filed in which it has been stated that the application of the petitioner company for grant of a mining lease could not be considered as the lease in favour of the Jammu and Kashmir Minerals Limited which had been granted in August, 1963 for a period of twenty years was still subsisting. It was, however, admitted that the State Corporation was unable to exploit the mines to extent it should have done because of financial constraints and the inaccessibility of the area.The discussions which the Corporation had with various entrepreneurs were admitted. It was admitted that the petitioner company made an application under the Rules. It was stated that Government of Jammu and Kashmir considered the application to be premature, in view of the subsisting lease in favour of the Jammu and Kashmir Minerals Corporation. It was further stated that through the lease expired in 1983, the State Government had not notified the Paddar mines as available for grant of a fresh lease as the area was proposed to be reserved by the State Government for being worked by a Public Sector Undertaking. Awas also filed by the Jammu and Kashmir Minerals Limited, the government corporation. It was admitted that the government company was unable to conduct any mining operations after 1978 because of financial difficulties. The discussions which the company had with various entrepreneurs were admitted. The tender notice and the response of different parties were also admitted. It was further stated that out of a total of eleven offers received and considered by the government the offers of the petitioner company and Ramzana & Co. were considered to be the most viable and since Ramzana & Co. was a local entrepreneur it was thought desirable to award the lease jointly to the petitioner company and Ramzana & Co. But as the petitioner company was not wiling, it was decided to recommended that Ramzana & Co. should be granted the lease of the mines.Accordingly, the State Government addressed the Central Government for its approval for granting a lease in favour of Ramzana & Co. The Central Government, however, declined to accord its approval. It was further stated that at a meeting held in 1984 between the officials of the State Government and the Chairman and Adviser to the National Minerals Development Corporation, a decision was taken to grant a prospecting licence to National Minerals Development Corporation and to consider the question of granting a mining lease in favour of a joint venture company. What is of important and significance to be noted here is that the State Government did recommend the grant of a lease to Ramzana & Co. and sought the approval of the Central Government for that purpose in 1981 itself when thelease in favour of the government corporation was still subsisting. This is sufficient to expose the hollowness of the claim now made in thethat the application of the petitioner company for the grant of a mining lease was not considered on merits as it was thought to be premature in view of the lease subsisting in favour of the Jammu and Kashmir Minerals Limited. As mentioned by us earlier, all parties including the government and the corporation acted on the assumption that the lease, if any, was not subsisting and that the Paddar mines were available for exploitation by grant of a lease. It is on that assumption that we must now proceed. It does not lie in the mouth of the government or the corporation to put forward the alleged lease in favour of the corporation as a bar to the grant of a lease to the petitioner company.The statement in thethat it is proposed to reserve the area for the grant of a mining lease in favour of a Public Sector Undertaking is equally unsubstantial. Under Rule 58 of the Mineral Concession Rules, it is open to the State Government by notification in the official gazette to reserve any area for exploitation by the government, a corporation established by any Central, State or Provincial Act or a government company within the meaning of Section 617 of the Companies Act. It is not disputed that the State Government has not, in the present case, issued any notification reserving the Paddar mines area for exploitation by the government or a government corporation or a government company. In the absence of such a notification we see no basis for the statement in thethat the government is not prepared to consider the application of the petitioner company as the area is proposed to be reserved for exploitation by a Public Sector Undertaking.

Sham Sundar & Ors Vs. State Of Haryana

against and punished accordinglyProvided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordinglyExplanation. - For the purposes of this section, -(a) "Company" means any body corporate, and includes a firm or other association of individuals, and(b) "director" in relation to a firm means a partner in the firm." 7. From explanation to Section 10 it will be seen that the company includes a firm and other association of persons. Section 10 provides that the person shall be deemed to be guilty of contravention of an order made under Section 3 if he was in charge of and was responsible to the firm for the conduct of the business of the firm. What is of importance to note is, that the person who was entrusted with the business of the firm and was responsible to the firm for the conduct of the business, could alone be prosecuted for the offence complained of. 8. Counsel for the State, however, relied upon the legal liability of partners and he argued that it would be for the accused partners to prove that the offence was committed without their knowledge or in spite of exercising due diligence on their part. He relied upon the proviso to sub-section (1) of Section 10. It is true that under the Indian Partnership Act, 1932, a firm or partnership is not a legal entity but is merely an association of persons (who have) agreed to carry on business. It is only a collective name for individuals, carrying on business in partnership. The essential characteristic of a firm is that each partner is a representative of other partners. Each of the partners is an agent as well as a principle. He is an agent insofar as he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he is bound by acts of other partners. In fact every partners is liable for an act of the firm. Section 2(a) of the Partnership Act defines an "act of a firm" to mean any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. 9. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does make all the partners liable for the offence whether they do business or not. 10. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State. 11. We have perused the evidence of the prosecution. Santlal Inspector, Food and Civil Supplies (PW 1) has deposed that the accused were partners of the firm. He has state that the statement Ex. P 8 regarding purchase of paddy and supply of levy rice was signed by Lajpat Rai as partner on behalf of the firm. The rest of his statement relates to the short supply of levy rice, and it does not indicate that other partners were also conduction the business during the relevant time. The statement of PW 3 who investigated the case does not indicate anything further. He has seized the relevant documents like stock register and recovery memo and arrested all the four accused. These documents do not indicate even remotely that all the partners were doing the business of the firm. There is no other evidence on record on this aspect. With these tit bits, it is impossible to hold that when the offence was committed all the partners were conducting the business of the firm. However, Lajpat Rai accused 3 cannot escape the liability. The material on record indicates that he was conducting the business of the firm and in fact, he has signed the statement Ex. P 8 on behalf of the firm. His conviction cannot therefore be disturbed. But the conviction of other partners is absolutely uncalled for.

1[ds]It is true that under the Indian Partnership Act, 1932, a firm or partnership is not a legal entity but is merely an association of persons (who have) agreed to carry on business.But we are concerned with a criminal liability under penal provision and not a civilpenal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does make all the partners liable for the offence whether they do business orIt is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for theWe have perused the evidence of the prosecution. Santlal Inspector, Food and Civil Supplies (PW 1) has deposed that the accused were partners of the firm. He has state that the statement Ex. P 8 regarding purchase of paddy and supply of levy rice was signed by Lajpat Rai as partner on behalf of the firm. The rest of his statement relates to the short supply of levy rice, and it does not indicate that other partners were also conduction the business during the relevant time. The statement of PW 3 who investigated the case does not indicate anything further. He has seized the relevant documents like stock register and recovery memo and arrested all the four accused. These documents do not indicate even remotely that all the partners were doing the business of the firm. There is no other evidence on record on this aspect. With these tit bits, it is impossible to hold that when the offence was committed all the partners were conducting the business of the firm. However, Lajpat Rai accused 3 cannot escape the liability. The material on record indicates that he was conducting the business of the firm and in fact, he has signed the statement Ex. P 8 on behalf of the firm. His conviction cannot therefore be disturbed. But the conviction of other partners is absolutely uncalled for

### 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: against and punished accordinglyProvided that nothing contained in this sub-section shall render any such person liable to any punishment if he proves that the contravention took place without his knowledge or that he exercised all due diligence to prevent such contravention(2) Notwithstanding anything contained in sub-section (1) where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordinglyExplanation. - For the purposes of this section, -(a) "Company" means any body corporate, and includes a firm or other association of individuals, and(b) "director" in relation to a firm means a partner in the firm." 7. From explanation to Section 10 it will be seen that the company includes a firm and other association of persons. Section 10 provides that the person shall be deemed to be guilty of contravention of an order made under Section 3 if he was in charge of and was responsible to the firm for the conduct of the business of the firm. What is of importance to note is, that the person who was entrusted with the business of the firm and was responsible to the firm for the conduct of the business, could alone be prosecuted for the offence complained of. 8. Counsel for the State, however, relied upon the legal liability of partners and he argued that it would be for the accused partners to prove that the offence was committed without their knowledge or in spite of exercising due diligence on their part. He relied upon the proviso to sub-section (1) of Section 10. It is true that under the Indian Partnership Act, 1932, a firm or partnership is not a legal entity but is merely an association of persons (who have) agreed to carry on business. It is only a collective name for individuals, carrying on business in partnership. The essential characteristic of a firm is that each partner is a representative of other partners. Each of the partners is an agent as well as a principle. He is an agent insofar as he can bind the other partners by his acts within the scope of the partnership agreement. He is a principal to the extent that he is bound by acts of other partners. In fact every partners is liable for an act of the firm. Section 2(a) of the Partnership Act defines an "act of a firm" to mean any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm. 9. But we are concerned with a criminal liability under penal provision and not a civil liability. The penal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does make all the partners liable for the offence whether they do business or not. 10. It is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for the State. 11. We have perused the evidence of the prosecution. Santlal Inspector, Food and Civil Supplies (PW 1) has deposed that the accused were partners of the firm. He has state that the statement Ex. P 8 regarding purchase of paddy and supply of levy rice was signed by Lajpat Rai as partner on behalf of the firm. The rest of his statement relates to the short supply of levy rice, and it does not indicate that other partners were also conduction the business during the relevant time. The statement of PW 3 who investigated the case does not indicate anything further. He has seized the relevant documents like stock register and recovery memo and arrested all the four accused. These documents do not indicate even remotely that all the partners were doing the business of the firm. There is no other evidence on record on this aspect. With these tit bits, it is impossible to hold that when the offence was committed all the partners were conducting the business of the firm. However, Lajpat Rai accused 3 cannot escape the liability. The material on record indicates that he was conducting the business of the firm and in fact, he has signed the statement Ex. P 8 on behalf of the firm. His conviction cannot therefore be disturbed. But the conviction of other partners is absolutely uncalled for. ### Response: 1 ### Explanation: It is true that under the Indian Partnership Act, 1932, a firm or partnership is not a legal entity but is merely an association of persons (who have) agreed to carry on business.But we are concerned with a criminal liability under penal provision and not a civilpenal provision must be strictly construed in the first place. Secondly, there is no vicarious liability in criminal law unless the statute takes that also within its fold. Section 10 does not provide for such liability. It does make all the partners liable for the offence whether they do business orIt is, therefore, necessary to add an emphatic note of caution in this regard. More often it is common that some of the partners of a firm may not even be knowing of what is going on day to day in the firm. There may be partners, better known as sleeping partners who are not required to take part in the business of the firm. There may be ladies and minors who were admitted for the benefit of partnership. They may not know anything about the business of the firm. It would be a travesty of justice to prosecute all partners and ask them to prove under the proviso to sub-section (1) that the offence was committed without their knowledge. It is significant to note that the obligation for the accused to prove under the proviso that the offence took place without his knowledge or that he exercised all due diligence to prevent such offence arises only when the prosecution establishes that the requisite condition mentioned in sub-section (1) is established. The requisite condition is that the partner was responsible for carrying on the business and was during the relevant time in charge of the business. In the absence of any such proof, no partner could be convicted. We, therefore, reject the contention urged by counsel for theWe have perused the evidence of the prosecution. Santlal Inspector, Food and Civil Supplies (PW 1) has deposed that the accused were partners of the firm. He has state that the statement Ex. P 8 regarding purchase of paddy and supply of levy rice was signed by Lajpat Rai as partner on behalf of the firm. The rest of his statement relates to the short supply of levy rice, and it does not indicate that other partners were also conduction the business during the relevant time. The statement of PW 3 who investigated the case does not indicate anything further. He has seized the relevant documents like stock register and recovery memo and arrested all the four accused. These documents do not indicate even remotely that all the partners were doing the business of the firm. There is no other evidence on record on this aspect. With these tit bits, it is impossible to hold that when the offence was committed all the partners were conducting the business of the firm. However, Lajpat Rai accused 3 cannot escape the liability. The material on record indicates that he was conducting the business of the firm and in fact, he has signed the statement Ex. P 8 on behalf of the firm. His conviction cannot therefore be disturbed. But the conviction of other partners is absolutely uncalled for

Harshad Govardhan Sondagar Vs. Internl. Assets Reconstrn. Co. Ltd.& Others

of sub- section (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under sub-section (2) of Section 13 of the SARFAESI Act by a borrower. Hence, the view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is set aside. 26. A further question of law raised in these appeals is whether the tenants have remedies under the concerned tenancy law. In the State of Maharashtra, the Maharashtra Rent Control Act, 1999 is in force and this Act applies to premises let for the purposes of residence, education, business, trade or storage specified in Schedule I and Schedule II of the Act as well as houses let out in areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applied before the commencement of the Act. Section 33 of the Maharashtra Rent Control Act is titled `Jurisdiction of courts and it provides that the courts named therein `shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under the Act and the applications which are to be decided by the State Government or an officer authorised by it or the Competent Authority. The question of law that we have to consider is whether the appellants as tenants of premises in the State of Maharashtra including Mumbai will have any remedy to move these courts having jurisdiction under Section 33 of the Maharashtra Rent Control Act and obtain the relief of injunction against the secured creditor taking possession of the secured asset from the appellants. The answer to this question is in Section 34 of the SARFAESI Act, which is extracted hereinbelow: "34. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).A reading of the second limb of Section 34 of the SARFAESI Act would show that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Thus, when action is sought to be taken by the secured creditor under Section 13 of the SARFAESI Act or by the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act, the Court or the authority mentioned in Section 33 of the Maharashtra Rent Control Act cannot grant the injunction to prevent such action by the secured creditor or by the Chief Metropolitan Magistrate or the District Magistrate. Even otherwise, Section 33 of the Maharashtra Rent Control Act vests jurisdiction in the courts named therein to decide disputes between the landlord and the tenant and not disputes between the secured creditor and the tenant under landlord who is a borrower of the secured assets." 27. We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made `only by a registered instrument and all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord. Orders and directions of this Court in the facts of the cases before the Court:

1[ds]15. When we read the different provisions of Section 13 of the SARFAESI Act extracted above, we find that(4) of Section 13 provides that in case the borrower fails to discharge his liability in full within sixty days from the date of notice provided in(2) of Section 13 of the SARFAESI Act, the secured creditor may take recourse to one or more of the measures mentioned therein to recover his secured debt.The High Court, however, has relied on Transcore v. Union of India & Anr. [(2008) 1 SCC 125] for holding that the SARFAESI Act provides for recovery of possession byprocess and it removes all fetters on the right of the secured creditor and that the secured creditor is entitled to take recourse to any one or more of the measures specified in Section 13(4) of the SARFAESI Act to recover a secured debt, notwithstanding anything contained in any other law for the time being in force. The High Court has also relied on the aforesaid decision of this Court in the case of Transcore (supra) to record a finding that the scheme of Section 13(4) read with Section 17(3) of the SARFAESI Act shows that if the borrower is dispossessed not in accordance with the provisions of the SARFAESI Act, the Debts Recovery Tribunal is entitled to restore status quo ante . The High Court has also relied on the observations of this Court in Transcore (supra) that the disputes which are sought to be avoided by Rule 8 read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 are those where third party interest is created overnight and third party takes up the defence of being a bona fide purchaser for value without notice. We have perused the aforesaid decision of this Court in Transcore (supra) and we find that in that case, the question whether the secured creditor, in exercise of its rights under Section 13 of the SARFAESI Act, can take over possession of the secured asset in possession of a lessee under a valid lease was not considered nor was the question whether there is anything in the SARFAESI Act inconsistent with the right of a lessee to remain in possession of the secured asset under the Transfer of Property Actour view, therefore, the High Court has not properly appreciated the judgment of this Court in Transcore (supra) and has lost sight of the opening words of subsection (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under(2) of Section 13 of the SARFAESI Act by athe view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is setquestion of law that we have to consider is whether the appellants as tenants of premises in the State of Maharashtra including Mumbai will have any remedy to move these courts having jurisdiction under Section 33 of the Maharashtra Rent Control Act and obtain the relief of injunction against the secured creditor taking possession of the secured asset from the appellants.We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made `only by a registered instrument and all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.

### 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: of sub- section (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under sub-section (2) of Section 13 of the SARFAESI Act by a borrower. Hence, the view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is set aside. 26. A further question of law raised in these appeals is whether the tenants have remedies under the concerned tenancy law. In the State of Maharashtra, the Maharashtra Rent Control Act, 1999 is in force and this Act applies to premises let for the purposes of residence, education, business, trade or storage specified in Schedule I and Schedule II of the Act as well as houses let out in areas to which the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 applied before the commencement of the Act. Section 33 of the Maharashtra Rent Control Act is titled `Jurisdiction of courts and it provides that the courts named therein `shall have jurisdiction to entertain and try any suit or proceeding between a landlord and a tenant relating to the recovery of rent or possession of any premises and to decide any application made under the Act and the applications which are to be decided by the State Government or an officer authorised by it or the Competent Authority. The question of law that we have to consider is whether the appellants as tenants of premises in the State of Maharashtra including Mumbai will have any remedy to move these courts having jurisdiction under Section 33 of the Maharashtra Rent Control Act and obtain the relief of injunction against the secured creditor taking possession of the secured asset from the appellants. The answer to this question is in Section 34 of the SARFAESI Act, which is extracted hereinbelow: "34. Civil court not to have jurisdiction.-No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).A reading of the second limb of Section 34 of the SARFAESI Act would show that no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. Thus, when action is sought to be taken by the secured creditor under Section 13 of the SARFAESI Act or by the Chief Metropolitan Magistrate or the District Magistrate under Section 14 of the SARFAESI Act, the Court or the authority mentioned in Section 33 of the Maharashtra Rent Control Act cannot grant the injunction to prevent such action by the secured creditor or by the Chief Metropolitan Magistrate or the District Magistrate. Even otherwise, Section 33 of the Maharashtra Rent Control Act vests jurisdiction in the courts named therein to decide disputes between the landlord and the tenant and not disputes between the secured creditor and the tenant under landlord who is a borrower of the secured assets." 27. We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made `only by a registered instrument and all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord. Orders and directions of this Court in the facts of the cases before the Court: ### Response: 1 ### Explanation: 15. When we read the different provisions of Section 13 of the SARFAESI Act extracted above, we find that(4) of Section 13 provides that in case the borrower fails to discharge his liability in full within sixty days from the date of notice provided in(2) of Section 13 of the SARFAESI Act, the secured creditor may take recourse to one or more of the measures mentioned therein to recover his secured debt.The High Court, however, has relied on Transcore v. Union of India & Anr. [(2008) 1 SCC 125] for holding that the SARFAESI Act provides for recovery of possession byprocess and it removes all fetters on the right of the secured creditor and that the secured creditor is entitled to take recourse to any one or more of the measures specified in Section 13(4) of the SARFAESI Act to recover a secured debt, notwithstanding anything contained in any other law for the time being in force. The High Court has also relied on the aforesaid decision of this Court in the case of Transcore (supra) to record a finding that the scheme of Section 13(4) read with Section 17(3) of the SARFAESI Act shows that if the borrower is dispossessed not in accordance with the provisions of the SARFAESI Act, the Debts Recovery Tribunal is entitled to restore status quo ante . The High Court has also relied on the observations of this Court in Transcore (supra) that the disputes which are sought to be avoided by Rule 8 read with Rule 9 of the Security Interest (Enforcement) Rules, 2002 are those where third party interest is created overnight and third party takes up the defence of being a bona fide purchaser for value without notice. We have perused the aforesaid decision of this Court in Transcore (supra) and we find that in that case, the question whether the secured creditor, in exercise of its rights under Section 13 of the SARFAESI Act, can take over possession of the secured asset in possession of a lessee under a valid lease was not considered nor was the question whether there is anything in the SARFAESI Act inconsistent with the right of a lessee to remain in possession of the secured asset under the Transfer of Property Actour view, therefore, the High Court has not properly appreciated the judgment of this Court in Transcore (supra) and has lost sight of the opening words of subsection (1) of Section 13 of the SARFAESI Act which state that notwithstanding anything contained in section 69 or section 69A of the Transfer of Property Act, 1882, any security interest created in favour of any secured creditor may be enforced, without the intervention of the court or tribunal, by such creditor in accordance with the provisions of the Act. The High Court has failed to appreciate that the provisions of Section 13 of the SARFAESI Act thus override the provisions of Section 69 or section 69A of the Transfer of Property Act, but does not override the provisions of the Transfer of Property Act relating to the rights of a lessee under a lease created before receipt of a notice under(2) of Section 13 of the SARFAESI Act by athe view taken by the Bombay High Court in the impugned judgment as well as in M/s Trade Well (supra) so far as the rights of the lessee in possession of the secured asset under a valid lease made by the mortgagor prior to the creation of mortgage or after the creation of mortgage in accordance with Section 65A of the Transfer of Property Act is not correct and the impugned judgment of the High Court insofar it takes this view is setquestion of law that we have to consider is whether the appellants as tenants of premises in the State of Maharashtra including Mumbai will have any remedy to move these courts having jurisdiction under Section 33 of the Maharashtra Rent Control Act and obtain the relief of injunction against the secured creditor taking possession of the secured asset from the appellants.We may now consider the contention of the respondents that some of the appellants have not produced any document to prove that they are bona fide lessees of the secured assets. We find that in the cases before us, the appellants have relied on the written instruments or rent receipts issued by the landlord to the tenant. Section 107 of the Transfer of Property Act provides that a lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made `only by a registered instrument and all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Hence, if any of the appellants claim that they are entitled to possession of a secured asset for any term exceeding one year from the date of the lease made in his favour, he has to produce proof of execution of a registered instrument in his favour by the lessor. Where he does not produce proof of execution of a registered instrument in his favour and instead relies on an unregistered instrument or oral agreement accompanied by delivery of possession, the Chief Metropolitan Magistrate or the District Magistrate, as the case may be, will have to come to the conclusion that he is not entitled to the possession of the secured asset for more than an year from the date of the instrument or from the date of delivery of possession in his favour by the landlord.

Kiriti Pal & Others Vs. State of West Bengal & Others

9.11.2008. Ext.34 shows Saraswati gave 7 calls to Siddique Mia during the period from 11.11.2008 to 14.11.2008. Documentary evidence indicates that Siddique Mia made 13 calls to Saraswati during the period from 10.11.2008 to 27.11.2008. Ext.35 shows that Saraswati gave 38 calls to Durga Sutradhar during the period from 11.11.2008 to 20.11.2008. Documentary evidence also indicates that all the accused were in contact with one another over the phone. Scrutiny of call details revealed that on 11.11.2008 Saraswati gave 2 calls to Anjali. One call was at 12.55 hours and another call was at 12.58 hours and 4 calls to Siddique Mia, first call was at 9.55 hours and the last call was at 17.20 hrs. Documentary evidence further indicates that on 11.11.2008 Siddique Mia had a telephonic conversation with Mustaque Mia around 19.19 hours and Siddique Mia had also telephonic conversation with Saraswati and the first call was around 9.55 hours and the last call was at 21.42 hours. Saraswati had a telephonic conversation too with Durga Sutradhar on that date and there were six incoming and outgoing calls. The first call was around 10.57 hours and the last call was at 17.57 hours. 25. Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 ( Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy. 26. Apart from telephonic conversation, prosecution also relied upon recoveries made pursuant to the confessional statement of the appellants 2 and 3 (Siddique Mia and Mustaque Mia). Pursuant to the statement of Siddique Mia one TVS Fiero red colour motor cycle bearing No. WB-54B/8245 with its key and nokia mobile handset (phone No.9932345230) were seized under Ext.17/3. Pursuant to the statement of Mustaque Mia nokia mobile handset having connection No. 9932705533, one gold finger ring in the shape of a flower with inscription of letter `Anjali, and silver made chain with one Amethist and red coral fitted with it were seized under Ext. 18/3. Recoveries made and seizure list were sought to be proved by examination of PW17-Uttam Mondal. PW17 had deposed that he knew deceased Anjali. PW17 was then employed in the hotel run by Bhagyadhar Dhibar which was owned by Anjali. In his evidence PW17 stated that in January 2009, two or three gentlemen came to his hotel and took his signature and that he did not know why his signatures were being taken. Though PW17 identified his signatures in the seizure list, evidence of PW17 no way establishes recoveries being made at the instance of the accused 2 and 3. Evidence of PW17 is far from convincing and is not of much assistance to the prosecution as he has not clearly spoken about the recoveries and the seizure list. The gold ring and silver made chain recovered were also not shown to the other witnesses for being identified as that of Anjali. No other evidence was adduced by the prosecution to substantiate the recovery of objects and the seizure list. 27. Sofar as the complicity of fourth accused-Durga Sutradhar, the prosecution mainly relied upon the call record and judicial confession of Durga recorded by Judicial Magistrate, 2nd Court, Suri, Birbhum (Ext.26). Prosecution relied upon the recovery a notebook seized from the possession of appellant Durga Sutradhar where she has written Kiritis phone number clandestinely coded as `Dadu. Ext. 30 call records of Kiriti Pal phone also revealed that there were number of calls from Kiriti Pal to fourth appellant. Like in the case of appellants No. 2 and 3 (Siddique Mia and Mustaque Mia) apart from telephone calls, no other evidence was adduced by the prosecution to bring home the guilt of fourth accused-Durga Sutradhar. Insofar as the judicial confessional statement recorded under Section 164 Cr.P.C., it is not an inculpatory statement; but it is only to the effect of showing the subsequent conduct of A-1 Kiriti Pal in threatening Durga Sutradhar-fourth appellant not to disclose anything to the police. In our view, neither the telephone calls between the first appellant-Kiriti Pal and Durga Sutradhar-fourth appellant nor her confessional statement by themselves would be sufficient to establish the guilt of fourth appellant. 28. In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside.

0[ds]11.2008 and that at about 10.00/10.30 p.m., first appellant Kiriti Pal came alone. The theory of "last seen alive" comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. On the next day morning at about 9.30 a.m., body of deceased Anjali was found in Babuibona jungle an isolated place which is 25 k.m. away from her residence. The place where the dead body was found was connected with Rajnagar - Suri Road. The time when Anjali left with first appellant-Kiriti Pal and the time she was found dead is so proximate which, in our view, points to the guilt of the first appellant.15. Having regard to the time gap being small, it is for the first appellant to explain the circumstances how and where and in what manner he parted company with Anjali. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last found alive has to explain the circumstances in which he parted the company as pointed out by the trial court and the High Court, first appellant has failed to discharge the onus and failed to offer any explanation as to how, as to when and how and in what manner he parted the company of Anjali, is a strong militating circumstance against the first appellant-Kiriti Pal. There is force in the submission of the learned counsel for the State that the first appellant-Kiriti Pal failed to offer any explanation, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidenceinto consideration the case of prosecution in its entirety and keeping in mind the circumstances precedes and follow the point of having so last seen, "the last seen theory", in our view, is a strong incriminating circumstance in the chain of circumstances that would point to the guilt of the first appellant with someis true that motive is an important factor in cases where the conviction is based on circumstantial evidence but that does not mean in all cases of circumstantial evidence if prosecution is unable to prove the motive satisfactorily, the prosecution must fail. In this case, of course, prosecution has not adduced evidence as to what was the motive for committing murder of Anjali. But it is a matter of common knowledge that murders have been committed without any pro-eminent motive. It is well established that the mere fact that the prosecution has failed to translate the mental disposition of the accused into evidence, that does not mean that no such mental condition existed in the mind of the accused.The circumstances relied upon by the prosecution against the first appellant Kiriti Pal are well established by the prosecution. Upon appreciation of evidence, the trial court and the High Court rightly held that the incriminating circumstances against the first appellant Kiriti Pal are firmly established and form a complete chain pointing to the guilt of the accused and are consistent with the hypothesis of the guilt of the first appellant. We find no substantial ground to interfere with the conviction of the first appellant Kiriti Pal under Section 302 IPC. Insofar as the charge of rape is concerned, we agree with the view of the High Court that there is no positive evidence for sustaining the conviction under Section 376(2)(g) IPC. The conviction of the first appellant Kiriti Pal under Section 25(i)(a) (b) of Arms Act and the sentence imposed on him is confirmed.Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 ( Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy.In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside.

### 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: 9.11.2008. Ext.34 shows Saraswati gave 7 calls to Siddique Mia during the period from 11.11.2008 to 14.11.2008. Documentary evidence indicates that Siddique Mia made 13 calls to Saraswati during the period from 10.11.2008 to 27.11.2008. Ext.35 shows that Saraswati gave 38 calls to Durga Sutradhar during the period from 11.11.2008 to 20.11.2008. Documentary evidence also indicates that all the accused were in contact with one another over the phone. Scrutiny of call details revealed that on 11.11.2008 Saraswati gave 2 calls to Anjali. One call was at 12.55 hours and another call was at 12.58 hours and 4 calls to Siddique Mia, first call was at 9.55 hours and the last call was at 17.20 hrs. Documentary evidence further indicates that on 11.11.2008 Siddique Mia had a telephonic conversation with Mustaque Mia around 19.19 hours and Siddique Mia had also telephonic conversation with Saraswati and the first call was around 9.55 hours and the last call was at 21.42 hours. Saraswati had a telephonic conversation too with Durga Sutradhar on that date and there were six incoming and outgoing calls. The first call was around 10.57 hours and the last call was at 17.57 hours. 25. Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 ( Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy. 26. Apart from telephonic conversation, prosecution also relied upon recoveries made pursuant to the confessional statement of the appellants 2 and 3 (Siddique Mia and Mustaque Mia). Pursuant to the statement of Siddique Mia one TVS Fiero red colour motor cycle bearing No. WB-54B/8245 with its key and nokia mobile handset (phone No.9932345230) were seized under Ext.17/3. Pursuant to the statement of Mustaque Mia nokia mobile handset having connection No. 9932705533, one gold finger ring in the shape of a flower with inscription of letter `Anjali, and silver made chain with one Amethist and red coral fitted with it were seized under Ext. 18/3. Recoveries made and seizure list were sought to be proved by examination of PW17-Uttam Mondal. PW17 had deposed that he knew deceased Anjali. PW17 was then employed in the hotel run by Bhagyadhar Dhibar which was owned by Anjali. In his evidence PW17 stated that in January 2009, two or three gentlemen came to his hotel and took his signature and that he did not know why his signatures were being taken. Though PW17 identified his signatures in the seizure list, evidence of PW17 no way establishes recoveries being made at the instance of the accused 2 and 3. Evidence of PW17 is far from convincing and is not of much assistance to the prosecution as he has not clearly spoken about the recoveries and the seizure list. The gold ring and silver made chain recovered were also not shown to the other witnesses for being identified as that of Anjali. No other evidence was adduced by the prosecution to substantiate the recovery of objects and the seizure list. 27. Sofar as the complicity of fourth accused-Durga Sutradhar, the prosecution mainly relied upon the call record and judicial confession of Durga recorded by Judicial Magistrate, 2nd Court, Suri, Birbhum (Ext.26). Prosecution relied upon the recovery a notebook seized from the possession of appellant Durga Sutradhar where she has written Kiritis phone number clandestinely coded as `Dadu. Ext. 30 call records of Kiriti Pal phone also revealed that there were number of calls from Kiriti Pal to fourth appellant. Like in the case of appellants No. 2 and 3 (Siddique Mia and Mustaque Mia) apart from telephone calls, no other evidence was adduced by the prosecution to bring home the guilt of fourth accused-Durga Sutradhar. Insofar as the judicial confessional statement recorded under Section 164 Cr.P.C., it is not an inculpatory statement; but it is only to the effect of showing the subsequent conduct of A-1 Kiriti Pal in threatening Durga Sutradhar-fourth appellant not to disclose anything to the police. In our view, neither the telephone calls between the first appellant-Kiriti Pal and Durga Sutradhar-fourth appellant nor her confessional statement by themselves would be sufficient to establish the guilt of fourth appellant. 28. In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside. ### Response: 0 ### Explanation: 11.2008 and that at about 10.00/10.30 p.m., first appellant Kiriti Pal came alone. The theory of "last seen alive" comes into play when the time gap between the way the accused and the deceased were last seen together and the deceased was found dead was so small, the possibility of any other person committing the murder becomes impossible. On the next day morning at about 9.30 a.m., body of deceased Anjali was found in Babuibona jungle an isolated place which is 25 k.m. away from her residence. The place where the dead body was found was connected with Rajnagar - Suri Road. The time when Anjali left with first appellant-Kiriti Pal and the time she was found dead is so proximate which, in our view, points to the guilt of the first appellant.15. Having regard to the time gap being small, it is for the first appellant to explain the circumstances how and where and in what manner he parted company with Anjali. Thus, on the principle that the person who is last found in the company of another is dead or missing, the person with whom he was last found alive has to explain the circumstances in which he parted the company as pointed out by the trial court and the High Court, first appellant has failed to discharge the onus and failed to offer any explanation as to how, as to when and how and in what manner he parted the company of Anjali, is a strong militating circumstance against the first appellant-Kiriti Pal. There is force in the submission of the learned counsel for the State that the first appellant-Kiriti Pal failed to offer any explanation, it must be held that he failed to discharge the burden cast upon him by Section 106 of the Evidenceinto consideration the case of prosecution in its entirety and keeping in mind the circumstances precedes and follow the point of having so last seen, "the last seen theory", in our view, is a strong incriminating circumstance in the chain of circumstances that would point to the guilt of the first appellant with someis true that motive is an important factor in cases where the conviction is based on circumstantial evidence but that does not mean in all cases of circumstantial evidence if prosecution is unable to prove the motive satisfactorily, the prosecution must fail. In this case, of course, prosecution has not adduced evidence as to what was the motive for committing murder of Anjali. But it is a matter of common knowledge that murders have been committed without any pro-eminent motive. It is well established that the mere fact that the prosecution has failed to translate the mental disposition of the accused into evidence, that does not mean that no such mental condition existed in the mind of the accused.The circumstances relied upon by the prosecution against the first appellant Kiriti Pal are well established by the prosecution. Upon appreciation of evidence, the trial court and the High Court rightly held that the incriminating circumstances against the first appellant Kiriti Pal are firmly established and form a complete chain pointing to the guilt of the accused and are consistent with the hypothesis of the guilt of the first appellant. We find no substantial ground to interfere with the conviction of the first appellant Kiriti Pal under Section 302 IPC. Insofar as the charge of rape is concerned, we agree with the view of the High Court that there is no positive evidence for sustaining the conviction under Section 376(2)(g) IPC. The conviction of the first appellant Kiriti Pal under Section 25(i)(a) (b) of Arms Act and the sentence imposed on him is confirmed.Apart from telephonic conversation, no other evidence was adduced by the prosecution to bring home that first accused hatched a conspiracy. There is no evidence to prove as to how the appellants 2 and 3 ( Siddique Mia and Mustaque Mia) had gone to the place of occurrence and what was their subsequent conduct. Their presence near the scene of occurrence could have been established by the prosecution either by examining some witnesses near and around the place of occurrence or by proving the location of the calls so as to establish the proximity of the accused with the scene of occurrence. Apart from the extract of the call records, no other evidence was adduced by the prosecution to establish the conspiracy.In a case based on circumstantial evidence, the court must adopt a very conscious approach and should record conviction only if all the links in the chain are complete pointing to the guilt of the accused. All the links forming complete chain must be firmly established by the prosecution. Each link taken separately may just suggest suspicion but such suspicion itself may not take the place of proof and not sufficient to convict the accused. All the circumstances must be firmly established and must be consistent only with the hypothesis of the guilt. But that is not to say that the prosecution must meet each and every hypothesis put forward by the accused however farfetched it may be. As discussed earlier, the telephonic calls and the recovery may raise suspicion against the accused but mere suspicion itself cannot take the place of proof. In our view, evidence adduced by the prosecution against appellants 2 and 3 (Siddique Mia and Mustaque Mia) do not form a complete chain connecting the accused with the crime and the conviction of the appellants under Section 302 IPC read with Section 120B IPC cannot be sustained and deserves to be set aside. Likewise, conviction of fourth appellant-Durga Sutradhar under Section 120B cannot be sustained and is liable to be set aside.

Chetsingh Vs. State of Punjab and Others

BEG, C.J.1. This appeal under Article 136 of the Constitution is directed against a very detailed Judgment of the Punjab & Haryana High Court on a Writ Petition No. 1875 of 1965 filed under Articles 226 and 227 of the Constitution, assailing an order of the Additional Director, Consolidation of Holdings, passed on 8 June, 1965. A perusal of that order, together with the earlier order of 4 May, 1965, and the application for restoration dated 15 May, 1965, filed by Gurdev Singh, respondent No. 3, shows: Gurdev Singh, who had some complaint against the Consolidation Scheme, was not present so that his petition was ordered to be filed by the Additional Director, Consolidation on 4 May, 1965. Gurdev Singh, soon thereafter i.e. on 15 May, 1965, filed an application for restoration supported by an affidavit, attributing his absence on 4 May, 1965, to his illness. The. order dated 8 June, 1965, of the Additional Director, shows that the applicant Gurdev Singhs assertion that he could not attend due to illness, over which he had no control, was accepted by the Additional Director, who proceeded to exercise his powers under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) and to set right the grievance of the applicant, Gurdev Singh, after going into all the relevant records. The learned Judge of the High Court, who heard the petition also went through the records very carefully, came to the conclusion that an assertion of rights by the petitioner/ appellant, a member of the Sanjam Group, merely because of some report contained in the "Fard Badar, " could not take away the effect of entries in the revenue records. The learned Judge held that no injustice was caused to the petitioner/appellant also, there was no ground for interference under Article 226 of the Constitution.The learned counsel for the appellant has relied upon the case of Harbhajan Singh v. Karam Singh&Ors. reported in 1966 (1) S.C.R. 817, where this Court held that the Addl. Director exercising the powers of the State Government has no jurisdiction under section 42 of the Act to review his previous order.Section 42 of the Act runs as follows:"The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:Provided that no order or scheme or repartition shall be varied or reserved without giving the parties interested notice to appear and opportunity to be heard except in case where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration."2. The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being , heard due to his illness, seems to us to amount to a finding that the proviso. could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act. It could be ignored as "non est." The view taken in Harbhajan Singhs case (supra) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are non est can be ignored at any stage.3. On the facts and circumstances of this case, we think that this is not a fit case for interference under Article 136 of the Constitution. The appellant, if he has acquired any rights by reason of long possession, ca n assert them whenever any proceedings are taken before a competent authority to dispossess him. What we have held here or whatever has been held by the High Court will not affect such other rights, if any, as the Appellant may have acquired by reason of possession.

0[ds]The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being , heard due to his illness, seems to us to amount to a finding that the proviso. could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act. It could be ignored as "non est." The view taken in Harbhajan Singhs case (supra) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are non est can be ignored at anythe facts and circumstances of this case, we think that this is not a fit case for interference under Article 136 of the Constitution. The appellant, if he has acquired any rights by reason of long possession, ca n assert them whenever any proceedings are taken before a competent authority to dispossess him. What we have held here or whatever has been held by the High Court will not affect such other rights, if any, as the Appellant may have acquired by reason of possession.

### 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: BEG, C.J.1. This appeal under Article 136 of the Constitution is directed against a very detailed Judgment of the Punjab & Haryana High Court on a Writ Petition No. 1875 of 1965 filed under Articles 226 and 227 of the Constitution, assailing an order of the Additional Director, Consolidation of Holdings, passed on 8 June, 1965. A perusal of that order, together with the earlier order of 4 May, 1965, and the application for restoration dated 15 May, 1965, filed by Gurdev Singh, respondent No. 3, shows: Gurdev Singh, who had some complaint against the Consolidation Scheme, was not present so that his petition was ordered to be filed by the Additional Director, Consolidation on 4 May, 1965. Gurdev Singh, soon thereafter i.e. on 15 May, 1965, filed an application for restoration supported by an affidavit, attributing his absence on 4 May, 1965, to his illness. The. order dated 8 June, 1965, of the Additional Director, shows that the applicant Gurdev Singhs assertion that he could not attend due to illness, over which he had no control, was accepted by the Additional Director, who proceeded to exercise his powers under section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 (hereinafter referred to as the Act) and to set right the grievance of the applicant, Gurdev Singh, after going into all the relevant records. The learned Judge of the High Court, who heard the petition also went through the records very carefully, came to the conclusion that an assertion of rights by the petitioner/ appellant, a member of the Sanjam Group, merely because of some report contained in the "Fard Badar, " could not take away the effect of entries in the revenue records. The learned Judge held that no injustice was caused to the petitioner/appellant also, there was no ground for interference under Article 226 of the Constitution.The learned counsel for the appellant has relied upon the case of Harbhajan Singh v. Karam Singh&Ors. reported in 1966 (1) S.C.R. 817, where this Court held that the Addl. Director exercising the powers of the State Government has no jurisdiction under section 42 of the Act to review his previous order.Section 42 of the Act runs as follows:"The State Government may at any time for the purpose of satisfying itself as to the legality or propriety of any order passed, scheme prepared or confirmed or repartition made by any officer under this Act, call for and examine the record of any case pending before or disposed of by such officer and may pass such order in reference thereto as it thinks fit:Provided that no order or scheme or repartition shall be varied or reserved without giving the parties interested notice to appear and opportunity to be heard except in case where the State Government is satisfied that the proceedings have been vitiated by unlawful consideration."2. The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being , heard due to his illness, seems to us to amount to a finding that the proviso. could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act. It could be ignored as "non est." The view taken in Harbhajan Singhs case (supra) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are non est can be ignored at any stage.3. On the facts and circumstances of this case, we think that this is not a fit case for interference under Article 136 of the Constitution. The appellant, if he has acquired any rights by reason of long possession, ca n assert them whenever any proceedings are taken before a competent authority to dispossess him. What we have held here or whatever has been held by the High Court will not affect such other rights, if any, as the Appellant may have acquired by reason of possession. ### Response: 0 ### Explanation: The proviso to Section 42 lays down that notice to interested parties to appear and opportunity to be heard are conditions precedent to passing of an order under Section 42. The fact that the Additional Director was satisfied that the respondent, Gurdev Singh, did not have an opportunity of being , heard due to his illness, seems to us to amount to a finding that the proviso. could not be complied with so that the previous order could not be held to be an order duly passed under Section 42 of the Act. It could be ignored as "non est." The view taken in Harbhajan Singhs case (supra) would not apply to the instant case although Section 42 of the Act does not contain a power of review. Orders which are non est can be ignored at anythe facts and circumstances of this case, we think that this is not a fit case for interference under Article 136 of the Constitution. The appellant, if he has acquired any rights by reason of long possession, ca n assert them whenever any proceedings are taken before a competent authority to dispossess him. What we have held here or whatever has been held by the High Court will not affect such other rights, if any, as the Appellant may have acquired by reason of possession.

Commissioner Of Agricultural Income Tax, Trivandrum Vs. Smt. Lucy Kochuvareed

the agricultural income was first assessed though the first proviso to sub-section (2) extends the time for reassessment in a case where notice under sub-section (1) had been issued within the time prescribed by the sub-section, till the expiry of one year from the date of service of the notice even if at the time of reassessment the prescribed period of three years had elapsed. The second proviso to sub-section (2) states that the limitation of time prescribed by section 35 will not apply to an assessment or reassessment made in consequence of any direction contained in an order under section 31, section 32, section 34 or section 60. Section 36 empowers the authority which passed an order on appeal or revision, within three years from the date of such order, and the Agricultural Income-tax Officer within three years from the date of any assessment made by him, to rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be. Sub-section (1) of section 60 provides that the assessee or the Commissioner may require the Appellate Tribunal to refer to the High Court any question of law arising out of an order under section 32(5). Sub-section (2) of section 60 permits an assessee who is served with a notice of an order under section 34 which is prejudicial to him to require the Commissioner to refer to the High Court any question of law arising out of such orderThe majority decision of the High Court took the view that this was a case of escaped assessment and that the power of revision conferred on the Commissioner by section 34 of the Act could not be, utilised for the purpose of reassessment of income that escaped assessment disregarding the provisions of section 35. Sub-section (1) of section 34 makes it clear that the power of revision is exercisable "subject to the provisions of this Act". It was pointed out in the majority judgment that section 35 contains a specific provision for reassessment of income that had escaped assessment and it was held that revisional powers under section 34 could be availed of to reopen cases of escaped assessment only within the time limit and in accordance with the procedure prescribed by section 35. Before us, Mr. Patel, learned counsel for the respondent, reiterated the same contention. Mr. Krishnamurthy Iyer appearing for the appellant challenged the decision of the High Court on two grounds : (1) the income sought to be reassessed was not income that had "escaped" assessment and, as such, the provisions of section 35 are not relevant for the present purpose ; and (2) assuming this was a case of income escaping assessment, even then the second proviso to sub-section (2) of section 35 removes the bar of time for any assessment or reassessment made to give effect to a direction under section 34. On the first question the High Court found, relying on the decision of this court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar that this was a case of escaped income. In Kameshwar Singhs case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural Income-tax Act, 1938, which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal. It was held in Kameshwar Singhs case that under section 26 of the Bihar Act, the Agricultural Income-tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income-tax Officer then thought that it was exempt". The same view was taken in an earlier decision of this court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax that : "even if the assessee has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment". But the question that arises in the case before us is not covered by either of these decisions. This is not a case where the Agricultural Income-tax Officer omitted to assess any item of income disclosed in the assessees return. Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some deductions for the maintenance of the immature rubber plantation. The Agricultural Income-tax Officer allowed such deductions as he thought proper after considering the matter. The Commissioner in remanding the cases to the Agricultural Income-tax Officer "for fresh disposal according to law" thought that the deductions allowed were excessive. The Agricultural Income-tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim. Every case of under-assessment is not a case of escaped assessment. The view we take finds support from the decision of this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanlakshmi Vilas Cashew CoOn the other question, the High Court held that the order of the Commissioner directing the Agricultural Income-tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment. For the appellant it was contended that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34. As we have held that this was not a case of escaped assessment, this other question does not arise for consideration.5. In our opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should, therefore, be answered in the affirmative.6.

1[ds]On the first question the High Court found, relying on the decision of this court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar that this was a case of escaped income. In Kameshwar Singhs case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural Income-tax Act, 1938, which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal. It was held in Kameshwar Singhs case that under section 26 of the Bihar Act, the Agricultural Income-tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income-tax Officer then thought that it was exempt". The same view was taken in an earlier decision of this court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax that : "even if the assessee has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment". But the question that arises in the case before us is not covered by either of these decisions. This is not a case where the Agricultural Income-tax Officer omitted to assess any item of income disclosed in the assessees return. Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some deductions for the maintenance of the immature rubber plantation. The Agricultural Income-tax Officer allowed such deductions as he thought proper after considering the matter. The Commissioner in remanding the cases to the Agricultural Income-tax Officer "for fresh disposal according to law" thought that the deductions allowed were excessive. The Agricultural Income-tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim. Every case of under-assessment is not a case of escaped assessment. The view we take finds support from the decision of this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanlakshmi Vilas Cashew CoOn the other question, the High Court held that the order of the Commissioner directing the Agricultural Income-tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment. For the appellant it was contended that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34. As we have held that this was not a case of escaped assessment, this other question does not arise forour opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should, therefore, be answered in the affirmative.

### Instruction: Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text. ### Input: the agricultural income was first assessed though the first proviso to sub-section (2) extends the time for reassessment in a case where notice under sub-section (1) had been issued within the time prescribed by the sub-section, till the expiry of one year from the date of service of the notice even if at the time of reassessment the prescribed period of three years had elapsed. The second proviso to sub-section (2) states that the limitation of time prescribed by section 35 will not apply to an assessment or reassessment made in consequence of any direction contained in an order under section 31, section 32, section 34 or section 60. Section 36 empowers the authority which passed an order on appeal or revision, within three years from the date of such order, and the Agricultural Income-tax Officer within three years from the date of any assessment made by him, to rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be. Sub-section (1) of section 60 provides that the assessee or the Commissioner may require the Appellate Tribunal to refer to the High Court any question of law arising out of an order under section 32(5). Sub-section (2) of section 60 permits an assessee who is served with a notice of an order under section 34 which is prejudicial to him to require the Commissioner to refer to the High Court any question of law arising out of such orderThe majority decision of the High Court took the view that this was a case of escaped assessment and that the power of revision conferred on the Commissioner by section 34 of the Act could not be, utilised for the purpose of reassessment of income that escaped assessment disregarding the provisions of section 35. Sub-section (1) of section 34 makes it clear that the power of revision is exercisable "subject to the provisions of this Act". It was pointed out in the majority judgment that section 35 contains a specific provision for reassessment of income that had escaped assessment and it was held that revisional powers under section 34 could be availed of to reopen cases of escaped assessment only within the time limit and in accordance with the procedure prescribed by section 35. Before us, Mr. Patel, learned counsel for the respondent, reiterated the same contention. Mr. Krishnamurthy Iyer appearing for the appellant challenged the decision of the High Court on two grounds : (1) the income sought to be reassessed was not income that had "escaped" assessment and, as such, the provisions of section 35 are not relevant for the present purpose ; and (2) assuming this was a case of income escaping assessment, even then the second proviso to sub-section (2) of section 35 removes the bar of time for any assessment or reassessment made to give effect to a direction under section 34. On the first question the High Court found, relying on the decision of this court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar that this was a case of escaped income. In Kameshwar Singhs case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural Income-tax Act, 1938, which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal. It was held in Kameshwar Singhs case that under section 26 of the Bihar Act, the Agricultural Income-tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income-tax Officer then thought that it was exempt". The same view was taken in an earlier decision of this court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax that : "even if the assessee has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment". But the question that arises in the case before us is not covered by either of these decisions. This is not a case where the Agricultural Income-tax Officer omitted to assess any item of income disclosed in the assessees return. Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some deductions for the maintenance of the immature rubber plantation. The Agricultural Income-tax Officer allowed such deductions as he thought proper after considering the matter. The Commissioner in remanding the cases to the Agricultural Income-tax Officer "for fresh disposal according to law" thought that the deductions allowed were excessive. The Agricultural Income-tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim. Every case of under-assessment is not a case of escaped assessment. The view we take finds support from the decision of this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanlakshmi Vilas Cashew CoOn the other question, the High Court held that the order of the Commissioner directing the Agricultural Income-tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment. For the appellant it was contended that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34. As we have held that this was not a case of escaped assessment, this other question does not arise for consideration.5. In our opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should, therefore, be answered in the affirmative.6. ### Response: 1 ### Explanation: On the first question the High Court found, relying on the decision of this court in Maharajadhiraj Sir Kameshwar Singh v. State of Bihar that this was a case of escaped income. In Kameshwar Singhs case one of the provisions that came up for interpretation was section 26 of the Bihar Agricultural Income-tax Act, 1938, which is similar in many respects to section 35(1) of the Act we are concerned with in this appeal. It was held in Kameshwar Singhs case that under section 26 of the Bihar Act, the Agricultural Income-tax Officer was competent to "assess any item of income which he had omitted to tax earlier, even though in the return that income was included and the Agricultural Income-tax Officer then thought that it was exempt". The same view was taken in an earlier decision of this court in Maharaj Kumar Kamal Singh v. Commissioner of Income-tax that : "even if the assessee has submitted a return of his income, cases may well occur where the whole of the income has not been assessed and such part of the income as has not been assessed can well be regarded as having escaped assessment". But the question that arises in the case before us is not covered by either of these decisions. This is not a case where the Agricultural Income-tax Officer omitted to assess any item of income disclosed in the assessees return. Here the assessee made a full disclosure of his income and claimed certain deductions. It is not disputed that he was entitled to claim some deductions for the maintenance of the immature rubber plantation. The Agricultural Income-tax Officer allowed such deductions as he thought proper after considering the matter. The Commissioner in remanding the cases to the Agricultural Income-tax Officer "for fresh disposal according to law" thought that the deductions allowed were excessive. The Agricultural Income-tax Officer may have committed an error in allowing deductions to the extent he did, but he did so after applying his mind to the claim. Every case of under-assessment is not a case of escaped assessment. The view we take finds support from the decision of this court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Dhanlakshmi Vilas Cashew CoOn the other question, the High Court held that the order of the Commissioner directing the Agricultural Income-tax Officer to reassess the income for the two years was bad, having been made after the expiry of the period prescribed by section 35 for the reassessment of income that had escaped assessment. For the appellant it was contended that the second proviso to section 35 removed the limitation of time in the case of a reassessment made in consequence of a direction or order under section 34. As we have held that this was not a case of escaped assessment, this other question does not arise forour opinion the Commissioner in this case had jurisdiction to make the order he did under section 34, and the question referred to the High Court under section 60(2) should, therefore, be answered in the affirmative.

MANAGEMENT HINDUSTAN MACHINE TOOLS LTD Vs. GHANSHYAM SHARMA

Abhay Manohar Sapre, J. 1. This appeal is filed against the final judgment and order dated 18.12.2007 passed by the High Court of Judicature of Rajasthan in D.B. Civil Special Appeal (Writ) No.1417 of 1997 whereby the High Court allowed the appeal filed by the respondent. 2. Facts of the case lie in a narrow compass. They are stated infra. 3. The appellant is a Government company engaged in manufacture of certain items.It is now declared as a sick company. 4. The respondent (workman) claimed that he worked with the appellant Company as a casual helper in its manufacturing plant from 10.06.1976 to 30.07.1977. He complained that by an oral order; the appellant on 31.07.1977 terminated his services and, therefore, since 31.07.1977 he is no longer in the employment of the appellant. 5. The termination of the respondent, therefore, gave rise to the industrial dispute between the parties. The State, on the prayer made by the respondent (workman), referred the dispute under Section 10 of the Industrial Disputes Act (for short ?the Act?) to the Labour Court, Jaipur on 03.11.1983, for its adjudication. 6.The parties contested the Reference on merits before the Labour Court. By award dated 21.09.1988, the Labour Court answered the Reference in respondents favour. 7. It was held that termination of the respondent was not legal and proper and, therefore, it was liable to be set aside. It was accordingly set aside.It was also held that the respondent be reinstated in service by the appellant and he be given continuity in service, also. 8. The appellant (employer-company) felt aggrieved and filed writ petition in the High Court. By an order dated 17.09.1997, the High Court (Single Judge) allowed the writ petition and set aside the award of the Labour Court. 9. The respondent (employee) felt aggrieved and filed intra court appeal before the Division Bench. By impugned order, the Division Bench allowed the appeal, set aside the order of the learned Single Judge and restored the award of the Labour Court which has given rise to filing of this special leave to appeal by the Employer in this court. 10. Heard Shri Sushil Kumar Jain, learned senior counsel for the appellant. None appeared for the respondent though served. 11. So the short question, which arises for consideration in this appeal, is whether the Division Bench was justified in allowing the respondents appeal and was, therefore, justified in restoring the award of the Labour Court. 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appeal deserves to be partly allowed by modifying the award of the Labour Court to the extent indicated infra. 13. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was casual. 14. In a case of this nature, and having regard to the fact that many decades had passed in between with no evidence adduced by the respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with payment of back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential benefits. 15. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensation to the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of cases. (See- Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal Assistant Engineer Rajasthan Development Corporation vs Gitam Singh (2010) 6 SCC 773 and Assistant Engineer, Rajasthan Development Corporation & Ors. vs. Gitam Singh (2013) 5 SCC 136 ).

1[ds]12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appealdeserves to be partly allowed by modifying the award of the Labour Court to the extent indicated. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was. In a case of this nature, and having regard tothe fact that many decadeshad passed in between with no evidence adduced bythe respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with paymentof back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensationto the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: Abhay Manohar Sapre, J. 1. This appeal is filed against the final judgment and order dated 18.12.2007 passed by the High Court of Judicature of Rajasthan in D.B. Civil Special Appeal (Writ) No.1417 of 1997 whereby the High Court allowed the appeal filed by the respondent. 2. Facts of the case lie in a narrow compass. They are stated infra. 3. The appellant is a Government company engaged in manufacture of certain items.It is now declared as a sick company. 4. The respondent (workman) claimed that he worked with the appellant Company as a casual helper in its manufacturing plant from 10.06.1976 to 30.07.1977. He complained that by an oral order; the appellant on 31.07.1977 terminated his services and, therefore, since 31.07.1977 he is no longer in the employment of the appellant. 5. The termination of the respondent, therefore, gave rise to the industrial dispute between the parties. The State, on the prayer made by the respondent (workman), referred the dispute under Section 10 of the Industrial Disputes Act (for short ?the Act?) to the Labour Court, Jaipur on 03.11.1983, for its adjudication. 6.The parties contested the Reference on merits before the Labour Court. By award dated 21.09.1988, the Labour Court answered the Reference in respondents favour. 7. It was held that termination of the respondent was not legal and proper and, therefore, it was liable to be set aside. It was accordingly set aside.It was also held that the respondent be reinstated in service by the appellant and he be given continuity in service, also. 8. The appellant (employer-company) felt aggrieved and filed writ petition in the High Court. By an order dated 17.09.1997, the High Court (Single Judge) allowed the writ petition and set aside the award of the Labour Court. 9. The respondent (employee) felt aggrieved and filed intra court appeal before the Division Bench. By impugned order, the Division Bench allowed the appeal, set aside the order of the learned Single Judge and restored the award of the Labour Court which has given rise to filing of this special leave to appeal by the Employer in this court. 10. Heard Shri Sushil Kumar Jain, learned senior counsel for the appellant. None appeared for the respondent though served. 11. So the short question, which arises for consideration in this appeal, is whether the Division Bench was justified in allowing the respondents appeal and was, therefore, justified in restoring the award of the Labour Court. 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appeal deserves to be partly allowed by modifying the award of the Labour Court to the extent indicated infra. 13. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was casual. 14. In a case of this nature, and having regard to the fact that many decades had passed in between with no evidence adduced by the respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with payment of back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential benefits. 15. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensation to the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of cases. (See- Senior Superintendent Telegraph (Traffic) Bhopal vs. Santosh Kumar Seal Assistant Engineer Rajasthan Development Corporation vs Gitam Singh (2010) 6 SCC 773 and Assistant Engineer, Rajasthan Development Corporation & Ors. vs. Gitam Singh (2013) 5 SCC 136 ). ### Response: 1 ### Explanation: 12. Having heard the learned counsel for the appellant and on perusal of the record of the case, we are of the considered opinion that the appealdeserves to be partly allowed by modifying the award of the Labour Court to the extent indicated. It is not in dispute that the respondent was a casual worker and hardly worked for one year (10.6.1976 to 30.7.1977). It is also not in dispute that his appointment was. In a case of this nature, and having regard tothe fact that many decadeshad passed in between with no evidence adduced bythe respondent that whether he was gainfully employed from 1977 onwards or not, the Labour Court should have awarded lump sum money compensation to the respondent in lieu of the relief of reinstatement along with paymentof back wages and continuity of service by taking recourse to the powers under Section 11-A of the Act, rather than to direct his reinstatement with all consequential. In other words,having regard to the peculiar nature of the respondents appointment and rendering of services by him for a very short duration (just 240 days only) and with no evidence as to whether he worked for gains or not after his services came to an end in 1977, this was a fit case where the Labour Court should have awarded lump sum compensationto the respondent instead of directing his reinstatement in service with consequential benefits. The Labour Court was empowered to pass such order by taking recourse to the powers under Section 11-A of the Act. This has also been the view of this Court in such type of

T.S.P.L.P. Chidambaram Chettiar Vs. T.K.B. Santhanaramaswami Odayar & Others

no question of restoration or revival of any anterior right. The same reasoning applies to the Paimash account dated August 25, 1830, Ex. A-147 which cannot, therefore, be held to be of much relevance in this connection. Reliance was placed on behalf of the appellant on Ex. A-134, the Land Register for Panni-mangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain-fed, the land-holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular). It was, argued for the appellant that the expression Iruwaram means that the land was owned as Pannai or private land. Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, Ex. B-8 which shows that the lands are Iruwaram and there are no wet lands. But the use of the expression Iruwaram in these documents is not decisive of the question whether the land is private land of the appellant or not.Under S. 3 (10) of the Act, private land comprises of two categories, private lands technically so-called, and lands deemed to be private lands. In regard to private lands technically so-called, it must be the domain or home-farm land of the land-holder as understood in law. The mere fact that particular lands are described in popular parlance as pannai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = (AIR 1918 PC 182) that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words domain or home-farm land without attaching to them a meaning; and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home-farm, that is to say, lands appurtenant to the land-holders residence and kept for his enjoyment and use. The home-farm is land which the landlord cultivates himself, as distinct from land which he lets out to tenants to be farmed. The first clause is, therefore meant to include and signify those, lands which are in the ordinary sense of the word home-farm lands. The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it is not the intention m the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them out on short term leases. There must, in our opinion, be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.In the present case there is no proof that the lands were ever directly cultivated by the land-holder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja or dry land. In column 4 which requires the entry to be made as private land they are not entered as private lands. It was argued for the appellant that the lands are sometimes called Padugai and that the expression meant that the lands were within the flood bank and forming part of the river bed. But the description of the land as Padugai is not of much consequence because they are also called as Orathur Thottam, thottam, meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot he padugai in the sense in which the term is normally used. The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically. But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under S. 185 of the Act that the lands in the inam village are not private lands and the argument of the appellant on this aspect of the case must be rejected.

1[ds]The Government Order, 1862 was therefore a fresh grant due to the bounty of the Government and not because of any antecedent rights in the grantees. It was pointed out that the words relinquished or restored, in the Government Order did not have the legal effect of reviving any such right because no rights survived the act of State. The root of title of the grantees was the Government Order of 1862 and it was therefore held that the restoration amounted to a grant in inam by the British Government within the meaning of the Act. But the question whether with regard to any particular area what was granted in inam is a whole village or less than a whole village is a question that has to be decided with reference to the facts of each particular caseIn our opinion, there is no justification for this argument. On behalf of the respondents reference was made to Ex. A-64, Pannimangalam Vattam Jamabandhi Account individual-war, Fasli 1298 which shows in column No. 3 Orathur Padugai as a village. Similarly, in Ex. A-78 (a), Cess account for Pannimangalam Vattam and Ex. A-79, the Village war Jamabandhi Account Fasli 1309 Orathur Padugai village is shown as a whole village. Exhibit A-82. Village war Jamabandhi Individual war, Fasli 1310, Ex. A-84, Jamabandhi Ghoshpara for the village, Fasli 1311 and Exs. A-153 to A-157 all mention Orathur Padugai as a village. All the leases, lease auctions and receipts given for payment of rent speak of Orathur Padugai as a separate village. Even the sale deeds, Exs. B-6, B-31, B-32 and B-33 contain a recital of Orathur Padugai as a separate village. It is manifest therefore that there is sufficient material to show that at least since 1830 onwards Orathur Padugai is a whole village. On behalf of the appellant reference was made to Ex. A-128 and Ex. A-129 dated April 6, 1800 and July 5, 1800. Exhibit A-128 is a letter from the Resident, Tanjore to the Secretary to the Government of Madras in which there is a reference to Pannimungalam. It is stated therein thatthe fields of Pannymungalam to the westward of Tanjore which from time immemorial have been reserved for the pasture of the circar cow do remain in the Rajas possession. There is neither village nor cultivation on these lands.In answer to this letter there is a communication from the Chief Secretary to the Government to the Resident, Tanjore Ex. A-129The Subordinate Judge and the High Court have concurrently come to the conclusion, upon consideration of the evidence, that the lands in suit are not private lands but ryoti lands. On behalf of the appellant Mr. Kesava Iyengar conceded that onus is on the appellant to show that the lands are private lands within the meaning of the Act, but the argument was stressed that the lower courts have failed to take into account certain important documents filed on behalf of the appellant, viz., A-128, A-129 and the Paimash account dated August 25, 1830, Ex. A-147 and the Land Register, Ex. A-134. In our opinion, there is no warrant for the argument advanced on behalf of the appellant. As regards Exs. A-128 and A-129 it is apparent that apart from the question as to the identity of the land, they relate to a period to the grant of 1862 which alone constitutes the root of title of the grantees and there is no question of restoration or revival of any anterior right. The same reasoning applies to the Paimash account dated August 25, 1830, Ex. A-147 which cannot, therefore, be held to be of much relevance in this connection. Reliance was placed on behalf of the appellant on Ex. A-134, the Land Register for Panni-mangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain-fed, the land-holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular). It was, argued for the appellant that the expression Iruwaram means that the land was owned as Pannai or private land. Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, Ex. B-8 which shows that the lands are Iruwaram and there are no wet lands. But the use of the expression Iruwaram in these documents is not decisive of the question whether the land is private land of the appellant or not.Under S. 3 (10) of the Act, private land comprises of two categories, private lands technically so-called, and lands deemed to be private lands. In regard to private lands technically so-called, it must be the domain or home-farm land of the land-holder as understood in law. The mere fact that particular lands are described in popular parlance as pannai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = (AIR 1918 PC 182) that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words domain or home-farm land without attaching to them a meaning; and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home-farm, that is to say, lands appurtenant to the land-holders residence and kept for his enjoyment and use. The home-farm is land which the landlord cultivates himself, as distinct from land which he lets out to tenants to be farmed. The first clause is, therefore meant to include and signify those, lands which are in the ordinary sense of the word home-farm lands. The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it is not the intention m the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them out on short term leases. There must, in our opinion, be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.In the present case there is no proof that the lands were ever directly cultivated by the land-holder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja or dry land. In column 4 which requires the entry to be made as private land they are not entered as private lands. It was argued for the appellant that the lands are sometimes called Padugai and that the expression meant that the lands were within the flood bank and forming part of the river bed. But the description of the land as Padugai is not of much consequence because they are also called as Orathur Thottam, thottam, meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot he padugai in the sense in which the term is normally used. The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically. But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under S. 185 of the Act that the lands in the inam village are not private lands and the argument of the appellant on this aspect of the case must be rejected.

### 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: no question of restoration or revival of any anterior right. The same reasoning applies to the Paimash account dated August 25, 1830, Ex. A-147 which cannot, therefore, be held to be of much relevance in this connection. Reliance was placed on behalf of the appellant on Ex. A-134, the Land Register for Panni-mangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain-fed, the land-holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular). It was, argued for the appellant that the expression Iruwaram means that the land was owned as Pannai or private land. Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, Ex. B-8 which shows that the lands are Iruwaram and there are no wet lands. But the use of the expression Iruwaram in these documents is not decisive of the question whether the land is private land of the appellant or not.Under S. 3 (10) of the Act, private land comprises of two categories, private lands technically so-called, and lands deemed to be private lands. In regard to private lands technically so-called, it must be the domain or home-farm land of the land-holder as understood in law. The mere fact that particular lands are described in popular parlance as pannai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = (AIR 1918 PC 182) that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words domain or home-farm land without attaching to them a meaning; and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home-farm, that is to say, lands appurtenant to the land-holders residence and kept for his enjoyment and use. The home-farm is land which the landlord cultivates himself, as distinct from land which he lets out to tenants to be farmed. The first clause is, therefore meant to include and signify those, lands which are in the ordinary sense of the word home-farm lands. The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it is not the intention m the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them out on short term leases. There must, in our opinion, be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.In the present case there is no proof that the lands were ever directly cultivated by the land-holder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja or dry land. In column 4 which requires the entry to be made as private land they are not entered as private lands. It was argued for the appellant that the lands are sometimes called Padugai and that the expression meant that the lands were within the flood bank and forming part of the river bed. But the description of the land as Padugai is not of much consequence because they are also called as Orathur Thottam, thottam, meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot he padugai in the sense in which the term is normally used. The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically. But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under S. 185 of the Act that the lands in the inam village are not private lands and the argument of the appellant on this aspect of the case must be rejected. ### Response: 1 ### Explanation: no question of restoration or revival of any anterior right. The same reasoning applies to the Paimash account dated August 25, 1830, Ex. A-147 which cannot, therefore, be held to be of much relevance in this connection. Reliance was placed on behalf of the appellant on Ex. A-134, the Land Register for Panni-mangalam which shows that in Orathur Thattimal Padugai which consists of Punjais (dry lands) and are rain-fed, the land-holder (the Tanjore Palace Estate) owns both the warams (Iruwaram in vernacular). It was, argued for the appellant that the expression Iruwaram means that the land was owned as Pannai or private land. Reference was made to the record of rights and Irrigation Memoir dated January 13, 1935, Ex. B-8 which shows that the lands are Iruwaram and there are no wet lands. But the use of the expression Iruwaram in these documents is not decisive of the question whether the land is private land of the appellant or not.Under S. 3 (10) of the Act, private land comprises of two categories, private lands technically so-called, and lands deemed to be private lands. In regard to private lands technically so-called, it must be the domain or home-farm land of the land-holder as understood in law. The mere fact that particular lands are described in popular parlance as pannai, kambattam, sir, khas, is not decisive of the question unless the lands so called partake of the characteristics of domain or home-farm lands. In our opinion the correct test to ascertain whether a land is domain or home-farm is that accepted by the Judicial Committee in Yerlagadda Malikarjuna Prasad Nayudu v. Somayya, ILR 42 Mad 400 = (AIR 1918 PC 182) that is, whether it is land which a zamindar has cultivated himself and intends to retain as resumable for cultivation by himself even if from time to time he demises for a season. The Legislature did not use the words domain or home-farm land without attaching to them a meaning; and it is reasonable to suppose that the legislature would attach to these words the meaning which would be given to them in ordinary English. It seems to us that the sub-clause (b) (i) of the definition is intended to cover those lands which come obviously within what would ordinarily be recognised as the domain or home-farm, that is to say, lands appurtenant to the land-holders residence and kept for his enjoyment and use. The home-farm is land which the landlord cultivates himself, as distinct from land which he lets out to tenants to be farmed. The first clause is, therefore meant to include and signify those, lands which are in the ordinary sense of the word home-farm lands. The other clauses of the definition appear to deal with those lands which would not necessarily be regarded as home farm lands in the ordinary usage of the term; and with reference to those lands there is a proviso that lands purchased at a sale for arrears of revenue shall not be regarded as private lands unless cultivated directly by the landlord for the required period. It seems to us that the definition read as a whole indicates clearly that the ordinary test for private land is the test of retention by the landholder for his personal use and cultivation by him or under his personal supervision. No doubt, such lands may be let on short leases for the convenience of the land-holder without losing their distinctive character; but it is not the intention m the scheme of the Act to treat as private those lands with reference to which the only peculiarity is the fact that the landlord owns both the varams in the lands and has been letting them out on short term leases. There must, in our opinion, be something in the evidence either by way of proof of direct cultivation or by some clear indication of an intent to regard these lands as retained for the personal use of the land-holder and his establishment in order to place those lands in the special category of private lands in which a tenant under the Act cannot acquire occupancy rights.In the present case there is no proof that the lands were ever directly cultivated by the land-holder. Admittedly, soon after the grant of 1862 the estate came under the administration of Receivers, who always let out the lands to the tenants to be cultivated. In Ex. B-8, the Record of Rights the lands are entered in column 5 as Punja or dry land. In column 4 which requires the entry to be made as private land they are not entered as private lands. It was argued for the appellant that the lands are sometimes called Padugai and that the expression meant that the lands were within the flood bank and forming part of the river bed. But the description of the land as Padugai is not of much consequence because they are also called as Orathur Thottam, thottam, meaning a garden where garden crops are raised to distinguish it from paddy fields. It appears that the lands actually lie between two rivers and comprise more than 100 acres, and by their physical feature cannot he padugai in the sense in which the term is normally used. The argument was stressed on behalf of the appellant that leasing rights of the land were auctioned periodically. But the High Court has observed that one and the same tenant continued to bid at the auction and there was evidence that tenants continued to cultivate the lands without break or change, and the fact that there were periodical auctions of the lease rights did not necessarily deprive the tenants of the occupancy rights which they were enjoying. We accordingly hold that the appellant has not adduced sufficient evidence to rebut the presumption under S. 185 of the Act that the lands in the inam village are not private lands and the argument of the appellant on this aspect of the case must be rejected.

Somashekhar A.S Vs. United India Insurance Co. Ltd

1. Leave granted. 2. We have heard learned counsel for the parties. 3. We have gone through the Award of the Tribunal and find that the compensation had been determined on the basis of the age factor as well as the disability of 60 per cent as would be clear from paragraph 27 of the order of the Commissioner for Workmens Compensation (page 62 of the paper book). While taking this into account, the Tribunal found that compensation payable was ` 4,95,984/-. This amount has been reduced by the High Court to `3,12,469/-. 4. After hearing learned counsel for the parties we find that the High Court was not justified in reducing the amount any further as the earning capacity was to be reduced by 60 per cent and not 63 per cent. We, accordingly, restore the order of the Tribunal and direct that the appellant would be entitled to the compensation awarded by the Tribunal. 5. The learned counsel for the Insurance Company has, however, contended that the loss had been determined properly by the High Court at 60 per cent, as per Section 4 of the Workmens Compensation Act. We have gone through this provision and find that appellant claimed a loss at 60 per cent and that is what has been awarded by the Tribunal. 6.

1[ds]the High Court was not justified in reducing the amount any further as the earning capacity was to be reduced by 60 per cent and not 63 per cent. We, accordingly, restore the order of the Tribunal and direct that the appellant would be entitled to the compensation awarded by the Tribunal.

### 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: 1. Leave granted. 2. We have heard learned counsel for the parties. 3. We have gone through the Award of the Tribunal and find that the compensation had been determined on the basis of the age factor as well as the disability of 60 per cent as would be clear from paragraph 27 of the order of the Commissioner for Workmens Compensation (page 62 of the paper book). While taking this into account, the Tribunal found that compensation payable was ` 4,95,984/-. This amount has been reduced by the High Court to `3,12,469/-. 4. After hearing learned counsel for the parties we find that the High Court was not justified in reducing the amount any further as the earning capacity was to be reduced by 60 per cent and not 63 per cent. We, accordingly, restore the order of the Tribunal and direct that the appellant would be entitled to the compensation awarded by the Tribunal. 5. The learned counsel for the Insurance Company has, however, contended that the loss had been determined properly by the High Court at 60 per cent, as per Section 4 of the Workmens Compensation Act. We have gone through this provision and find that appellant claimed a loss at 60 per cent and that is what has been awarded by the Tribunal. 6. ### Response: 1 ### Explanation: the High Court was not justified in reducing the amount any further as the earning capacity was to be reduced by 60 per cent and not 63 per cent. We, accordingly, restore the order of the Tribunal and direct that the appellant would be entitled to the compensation awarded by the Tribunal.

Gvk Inds. Ltd Vs. The Income Tax Officer

It reads as follows: "We propose the following scope of services to be performed by ABB PTF:Assisting GVK Industries Limited ("GVK") in putting together the financial structure and security package to be offered to the lenders;Evaluating the pros and cons of various lending alternatives, both for the local and the foreign borrowings;Developing a comprehensive financial model to evaluate the project and to perform various sensivity studies;Preparing a preliminary information Memorandum to be used as the basis for placing the foreign and local debt;Accessing Export Credit Agencies world wide obtaining commercial bank support on the most comprehensive terms;Assisting GVK in loan negotiations and documentation with lendors; andStructuring, negotiating and closing the financing for this project in a coordinated and expeditious manner.We propose a compensation structure based only on success. As an exception, ABB PTF does not propose either any retainers or any reimbursement for travel and other expenses incurred by ABB PTF.The success fee will be 0.75% of the total debt, payable at financial closing." 30. The said letter was placed before the Board of Directors of the appellant company in its meeting held on August 21, 1993. The relevant part of the resolution passed by the Board is extracted hereinbelow: ".....It was explained to the Directors that ABB-PTFs scope of service for the project include:Developing a comprehensive financial model;Tying up the rupee/foreign currency loan requirements of the project;Assessing Export Credit Agencies worldwide and obtaining commercial banks support on the most competitive terms;Assisting GVK in loan negotiations and documentation with lenders.For the above scope of service ABB PTF would be paid a fee of 0.75% of the loan amount which is payable only on successful financial closing. The Directors while approving this arrangement, advised that ABB-PTF should also be involved in the public issue of the company." 31. From the aforesaid two documents, it is clear as crystal that the obligation of the NRC was to: (i) Develop comprehensive financial model to tie-up the rupee and foreign currency loan requirements of the project.(ii) Assist expert credit agencies world-wide and obtain commercial bank support on the most competitive terms.(iii) Assist the appellant company in loan negotiations and documentation with the lenders. 32. Pursuant to the aforesaid exercises carried out by the NRC, the company was successful in availing loan/financial assistance in India from the Industrial Development Bank of India (IDBI) which acted as a lead financier for the rupee loan requirement. For foreign currency loan requirement, the appellant approached International Finance Corporation, Washington D.C., USA and was successful. In this backdrop, "success fee" of Rs.5.4 crores was paid to the NRC.33. In this factual score, the expression, managerial, technical or consultancy service, are to be appreciated. The said expressions have not been defined in the Act, and, therefore, it is obligatory on our part to examine how the said expressions are used and understood by the persons engaged in business. The general and common usage of the said words has to be understood at common parlance. 34. In the case at hand, we are concerned with the expression "consultancy services". In this regard, a reference to the decision by the authority for advance ruling In Re. P.No. 28 of 1999 [1999) 242 ITR 280], would be applicable. The observations therein read as follows: "By technical services, we mean in this context services requiring expertise in technology. By consultancy services, we mean in this context advisory services. The category of technical and consultancy services are to some extent overlapping because a consultancy service could also be technical service. However, the category of consultancy services also includes an advisory service, whether or not expertise in technology is required to perform it." 35. In this context, a reference to the decision in C.I.T. V. Bharti Cellular Limited and others [(2009) 319 ITR 139] , would be apposite. In the said case, while dealing with the concept of "consultancy services", the High Court of Delhi has observed thus: "Similarly, the word "consultancy" has been defined in the said Dictionary as "the work or position of a consultant; a department of consultants." "Consultant" itself has been defined, inter alia, as "a person who gives professional advice or services in a specialized field." It is obvious that the word "consultant" is a derivative of the word "consult" which entails deliberations, consideration, conferring with someone, conferring about or upon a matter. Consult has also been defined in the said Dictionary as "ask advice for, seek counsel or a professional opinion from; refer to (a source of information); seek permission or approval from for a proposed action". It is obvious that the service of consultancy also necessarily entails human intervention. The consultant, who provides the consultancy service, has to be a human being. A machine cannot be regarded as a consultant." 36. In this context, we may fruitfully refer to the dictionary meaning of consultation in Blacks Law Dictionary, Eighth Edition. The word consultation has been defined as an act of asking the advice or opinion of someone (such as a lawyer). It means a meeting in which a party consults or confers and eventually it results in human interaction that leads to rendering of advice. 37. As the factual matrix in the case at hand, would exposit the NRC had acted as a consultant. It had the skill, acumen and knowledge in the specialized field i.e. preparation of a scheme for required finances and to tie-up required loans. The nature of activities undertaken by the NRC has earlier been referred to by us. The nature of service referred by the NRC, can be said with certainty would come within the ambit and sweep of the term consultancy service and, therefore, it has been rightly held that the tax at source should have been deducted as the amount paid as fee could be taxable under the head fee for technical service. Once the tax is payable paid the grant of No Objection Certificate was not legally permissible. Ergo, the judgment and order passed by the High Court are absolutely impregnable.

0[ds]28. Coming to the instant case, it is evident that fee which has been named as "success fee" by the assessee has been paid to the NRC. It is to be seen whether the payment made to the non-resident would be covered under the expression "fee for technical service" as contained in Explanation (2) to Section 9(1)(vii) of the Act. The said expression means any consideration, whether lumpsum or periodical in rendering managerial, technical or consultancy services. It excludes consideration paid for any construction, assembling, mining or like projects undertaken by the non-resident that is the recipient or consideration which would be taxable in the hands of the non-recipient or non-resident under the head "salaries". In the case at hand, the said exceptions are not attracted. What is required to be scrutinized is that the appellant had intended and desired to utilize expert services of qualified and experience professional who could prepare a scheme for raising requisite finances and tie-up loans for the power projects. As the company did not find any professional in India, it had approached the consultant NRC located in Switzerland, who offered their services. Their services rendered included, inter alia, financial structure and security package to be offered to the lender, study of various lending alternatives for the local and foreign borrowings, making assessment of expert credit agencies world-wide and obtaining commercial bank support on the most competitive terms, assisting the appellant company in loan negotiations and documentations with the lenders, structuring, negotiating and closing financing for the project in a coordinated and expeditious manner.Pursuant to the aforesaid exercises carried out by the NRC, the company was successful in availing loan/financial assistance in India from the Industrial Development Bank of India (IDBI) which acted as a lead financier for the rupee loan requirement. For foreign currency loan requirement, the appellant approached International Finance Corporation, Washington D.C., USA and was successful. In this backdrop, "success fee" of Rs.5.4 crores was paid to the NRC.33. In this factual score, the expression, managerial, technical or consultancy service, are to be appreciated. The said expressions have not been defined in the Act, and, therefore, it is obligatory on our part to examine how the said expressions are used and understood by the persons engaged in business. The general and common usage of the said words has to be understood at common parlance.As the factual matrix in the case at hand, would exposit the NRC had acted as a consultant. It had the skill, acumen and knowledge in the specialized field i.e. preparation of a scheme for required finances and to tie-up required loans. The nature of activities undertaken by the NRC has earlier been referred to by us. The nature of service referred by the NRC, can be said with certainty would come within the ambit and sweep of the term consultancy service and, therefore, it has been rightly held that the tax at source should have been deducted as the amount paid as fee could be taxable under the head fee for technical service. Once the tax is payable paid the grant of No Objection Certificate was not legally permissible. Ergo, the judgment and order passed by the High Court are absolutely impregnable.

### 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: It reads as follows: "We propose the following scope of services to be performed by ABB PTF:Assisting GVK Industries Limited ("GVK") in putting together the financial structure and security package to be offered to the lenders;Evaluating the pros and cons of various lending alternatives, both for the local and the foreign borrowings;Developing a comprehensive financial model to evaluate the project and to perform various sensivity studies;Preparing a preliminary information Memorandum to be used as the basis for placing the foreign and local debt;Accessing Export Credit Agencies world wide obtaining commercial bank support on the most comprehensive terms;Assisting GVK in loan negotiations and documentation with lendors; andStructuring, negotiating and closing the financing for this project in a coordinated and expeditious manner.We propose a compensation structure based only on success. As an exception, ABB PTF does not propose either any retainers or any reimbursement for travel and other expenses incurred by ABB PTF.The success fee will be 0.75% of the total debt, payable at financial closing." 30. The said letter was placed before the Board of Directors of the appellant company in its meeting held on August 21, 1993. The relevant part of the resolution passed by the Board is extracted hereinbelow: ".....It was explained to the Directors that ABB-PTFs scope of service for the project include:Developing a comprehensive financial model;Tying up the rupee/foreign currency loan requirements of the project;Assessing Export Credit Agencies worldwide and obtaining commercial banks support on the most competitive terms;Assisting GVK in loan negotiations and documentation with lenders.For the above scope of service ABB PTF would be paid a fee of 0.75% of the loan amount which is payable only on successful financial closing. The Directors while approving this arrangement, advised that ABB-PTF should also be involved in the public issue of the company." 31. From the aforesaid two documents, it is clear as crystal that the obligation of the NRC was to: (i) Develop comprehensive financial model to tie-up the rupee and foreign currency loan requirements of the project.(ii) Assist expert credit agencies world-wide and obtain commercial bank support on the most competitive terms.(iii) Assist the appellant company in loan negotiations and documentation with the lenders. 32. Pursuant to the aforesaid exercises carried out by the NRC, the company was successful in availing loan/financial assistance in India from the Industrial Development Bank of India (IDBI) which acted as a lead financier for the rupee loan requirement. For foreign currency loan requirement, the appellant approached International Finance Corporation, Washington D.C., USA and was successful. In this backdrop, "success fee" of Rs.5.4 crores was paid to the NRC.33. In this factual score, the expression, managerial, technical or consultancy service, are to be appreciated. The said expressions have not been defined in the Act, and, therefore, it is obligatory on our part to examine how the said expressions are used and understood by the persons engaged in business. The general and common usage of the said words has to be understood at common parlance. 34. In the case at hand, we are concerned with the expression "consultancy services". In this regard, a reference to the decision by the authority for advance ruling In Re. P.No. 28 of 1999 [1999) 242 ITR 280], would be applicable. The observations therein read as follows: "By technical services, we mean in this context services requiring expertise in technology. By consultancy services, we mean in this context advisory services. The category of technical and consultancy services are to some extent overlapping because a consultancy service could also be technical service. However, the category of consultancy services also includes an advisory service, whether or not expertise in technology is required to perform it." 35. In this context, a reference to the decision in C.I.T. V. Bharti Cellular Limited and others [(2009) 319 ITR 139] , would be apposite. In the said case, while dealing with the concept of "consultancy services", the High Court of Delhi has observed thus: "Similarly, the word "consultancy" has been defined in the said Dictionary as "the work or position of a consultant; a department of consultants." "Consultant" itself has been defined, inter alia, as "a person who gives professional advice or services in a specialized field." It is obvious that the word "consultant" is a derivative of the word "consult" which entails deliberations, consideration, conferring with someone, conferring about or upon a matter. Consult has also been defined in the said Dictionary as "ask advice for, seek counsel or a professional opinion from; refer to (a source of information); seek permission or approval from for a proposed action". It is obvious that the service of consultancy also necessarily entails human intervention. The consultant, who provides the consultancy service, has to be a human being. A machine cannot be regarded as a consultant." 36. In this context, we may fruitfully refer to the dictionary meaning of consultation in Blacks Law Dictionary, Eighth Edition. The word consultation has been defined as an act of asking the advice or opinion of someone (such as a lawyer). It means a meeting in which a party consults or confers and eventually it results in human interaction that leads to rendering of advice. 37. As the factual matrix in the case at hand, would exposit the NRC had acted as a consultant. It had the skill, acumen and knowledge in the specialized field i.e. preparation of a scheme for required finances and to tie-up required loans. The nature of activities undertaken by the NRC has earlier been referred to by us. The nature of service referred by the NRC, can be said with certainty would come within the ambit and sweep of the term consultancy service and, therefore, it has been rightly held that the tax at source should have been deducted as the amount paid as fee could be taxable under the head fee for technical service. Once the tax is payable paid the grant of No Objection Certificate was not legally permissible. Ergo, the judgment and order passed by the High Court are absolutely impregnable. ### Response: 0 ### Explanation: 28. Coming to the instant case, it is evident that fee which has been named as "success fee" by the assessee has been paid to the NRC. It is to be seen whether the payment made to the non-resident would be covered under the expression "fee for technical service" as contained in Explanation (2) to Section 9(1)(vii) of the Act. The said expression means any consideration, whether lumpsum or periodical in rendering managerial, technical or consultancy services. It excludes consideration paid for any construction, assembling, mining or like projects undertaken by the non-resident that is the recipient or consideration which would be taxable in the hands of the non-recipient or non-resident under the head "salaries". In the case at hand, the said exceptions are not attracted. What is required to be scrutinized is that the appellant had intended and desired to utilize expert services of qualified and experience professional who could prepare a scheme for raising requisite finances and tie-up loans for the power projects. As the company did not find any professional in India, it had approached the consultant NRC located in Switzerland, who offered their services. Their services rendered included, inter alia, financial structure and security package to be offered to the lender, study of various lending alternatives for the local and foreign borrowings, making assessment of expert credit agencies world-wide and obtaining commercial bank support on the most competitive terms, assisting the appellant company in loan negotiations and documentations with the lenders, structuring, negotiating and closing financing for the project in a coordinated and expeditious manner.Pursuant to the aforesaid exercises carried out by the NRC, the company was successful in availing loan/financial assistance in India from the Industrial Development Bank of India (IDBI) which acted as a lead financier for the rupee loan requirement. For foreign currency loan requirement, the appellant approached International Finance Corporation, Washington D.C., USA and was successful. In this backdrop, "success fee" of Rs.5.4 crores was paid to the NRC.33. In this factual score, the expression, managerial, technical or consultancy service, are to be appreciated. The said expressions have not been defined in the Act, and, therefore, it is obligatory on our part to examine how the said expressions are used and understood by the persons engaged in business. The general and common usage of the said words has to be understood at common parlance.As the factual matrix in the case at hand, would exposit the NRC had acted as a consultant. It had the skill, acumen and knowledge in the specialized field i.e. preparation of a scheme for required finances and to tie-up required loans. The nature of activities undertaken by the NRC has earlier been referred to by us. The nature of service referred by the NRC, can be said with certainty would come within the ambit and sweep of the term consultancy service and, therefore, it has been rightly held that the tax at source should have been deducted as the amount paid as fee could be taxable under the head fee for technical service. Once the tax is payable paid the grant of No Objection Certificate was not legally permissible. Ergo, the judgment and order passed by the High Court are absolutely impregnable.

Evergreen Land Mark Pvt. Ltd Vs. John Tinson & Company Pvt. Ltd. & Anr

that undisputedly during the pendency of the arbitration proceedings, the appellant itself had paid a substantial amount towards rentals of the two rented premises. That an amount of Rs. 87,64,133.76/- has been paid towards rentals for the period from October, 2020 to March, 2021 and July, 2021 to December, 2021. The appellant had also incurred other over head expenses, TDS dues, electricity and water charges. That even during the lockdown period, the appellant paid wages to its employees. Therefore, it will be too harsh on the appellant to pay the entire rental amount for the period between March, 2020 to December, 2021, as per the order passed by the learned Arbitral Tribunal confirmed by the High Court is the submission of the learned counsel for the appellant. 4. The present appeal is opposed by Ms. Shyel Trehan, learned counsel appearing on behalf of the respondents. It is contended that in the facts and circumstances of the case no error has been committed by the learned Arbitral Tribunal in directing the appellant to deposit the entire amount which is admittedly due and payable by the appellant. It is pointed out that on one hand, the appellant has continued to remain in possession of the leased properties and at the same time, he is not paying the rental amount. It is submitted that therefore, the learned Tribunal has rightly passed an order by way of an interim measure directing the appellant to deposit the rental amount due and payable under the lease agreement. 4.1 According to learned counsel for the respondents neither the principles applicable under Order XXXVIII Rule 5 nor Order XXXIX Rule 1 are appliable in case of a direction issued by way of an interim measure, as in the instant case, directing the lessee to deposit the rental amount due and payable while the lessee is continued to be in possession. 4.2 It is further submitted that in the present case the principles of force majeure would not apply as the appellant – lessee continued to remain in possession of the leased premises. It is submitted that none of the decisions relied upon by the counsel appearing on behalf of the appellant, is applicable. 4.3 It is pointed out that as rightly observed by the High Court, the business of the appellant may have been impacted due to the outbreak of Covid--19 pandemic but that may not absolve the appellant from its contractual obligations to pay the lease rent. It is submitted that so long the appellant continues to occupy the premises, the liability of the appellant to pay the rental amount continues. It is urged that no error has been committed by the Arbitral Tribunal by directing the appellant to deposit the rental amount for the period between March, 2020 and December, 2021 and the same is rightly confirmed by the High Court. 5. We have heard learned counsel appearing on behalf of the respective parties at length. 6. At the outset, it is required to be noted that the dispute is with respect to the rental amount for the period between March, 2020 to December, 2021, for which the Arbitral Tribunal has directed the appellant to deposit while passing the order by way of an interim measure on the applications under Section 17 of the Arbitration Act. The liability to pay the lease rental for the period between March, 2020 to December, 2021 is seriously disputed by the appellant by invoking the force majeure principle contained in clause 29 of the lease agreement. It is the case on behalf of the appellant that for a substantial period there was a total closure due to lockdown and for the remaining period the appellant was allowed with 50% capacity and therefore, the force majeure principle contained in clause 29 shall be applicable. When the same was submitted before the Arbitral Tribunal, no opinion, even a prima facie opinion on the aforesaid aspect was given by the Arbitral Tribunal. In para 39, it is observed that it would not be fair at this stage of the proceedings, where evidence is yet to be adduced by the parties in support their rival contentions on the issues that arise, to record any definitive opinion on the import and effect of the force majeure clause (clause no. 29) contained in the lease deed. Therefore, applicability of the force majeure principle contained in clause 29 is yet to be considered by the Arbitral Tribunal at the time of final adjudication. Hence, the liability to pay the rentals for the period during lockdown is yet to be adjudicated upon and considered by the Tribunal. Therefore, no order could have been passed by the Tribunal by way of interim measure on the applications filed under Section 17 of the Arbitration Act in a case where there is a serious dispute with respect to the liability of the rental amounts to be paid, which is yet to be adjudicated upon and/or considered by the Arbitral Tribunal. Thus, no such order for deposit by way of an interim measure on applications under Section 17 of the Arbitration Act could have been passed by the Tribunal. However, at the same time, the aforesaid can be considered only for the period of complete closure due to lockdown. As per the available record, there was complete closure for the period between 22.03.2020 to 09.09.2020; for the period between 19.04.2021 to 28.06.2021 and for the period between 11.01.2022 to 27.01.2022 and for the remaining period the appellant was allowed to run the Restro/Bar with 50% capacity. The appellant will therefore have to deposit the entire rental amount except the period for which there was complete closure due to lockdown. As the applicability of force majeure principle (clause 29) is yet to be considered at least, for the period during the complete closure, it would not be justified to direct the appellant to deposit the rental amount for the said period of complete closure by way of an interim measure, pending final adjudication.

1[ds]6. At the outset, it is required to be noted that the dispute is with respect to the rental amount for the period between March, 2020 to December, 2021, for which the Arbitral Tribunal has directed the appellant to deposit while passing the order by way of an interim measure on the applications under Section 17 of the Arbitration Act. The liability to pay the lease rental for the period between March, 2020 to December, 2021 is seriously disputed by the appellant by invoking the force majeure principle contained in clause 29 of the lease agreement. It is the case on behalf of the appellant that for a substantial period there was a total closure due to lockdown and for the remaining period the appellant was allowed with 50% capacity and therefore, the force majeure principle contained in clause 29 shall be applicable. When the same was submitted before the Arbitral Tribunal, no opinion, even a prima facie opinion on the aforesaid aspect was given by the Arbitral Tribunal. In para 39, it is observed that it would not be fair at this stage of the proceedings, where evidence is yet to be adduced by the parties in support their rival contentions on the issues that arise, to record any definitive opinion on the import and effect of the force majeure clause (clause no. 29) contained in the lease deed. Therefore, applicability of the force majeure principle contained in clause 29 is yet to be considered by the Arbitral Tribunal at the time of final adjudication. Hence, the liability to pay the rentals for the period during lockdown is yet to be adjudicated upon and considered by the Tribunal. Therefore, no order could have been passed by the Tribunal by way of interim measure on the applications filed under Section 17 of the Arbitration Act in a case where there is a serious dispute with respect to the liability of the rental amounts to be paid, which is yet to be adjudicated upon and/or considered by the Arbitral Tribunal. Thus, no such order for deposit by way of an interim measure on applications under Section 17 of the Arbitration Act could have been passed by the Tribunal. However, at the same time, the aforesaid can be considered only for the period of complete closure due to lockdown. As per the available record, there was complete closure for the period between 22.03.2020 to 09.09.2020; for the period between 19.04.2021 to 28.06.2021 and for the period between 11.01.2022 to 27.01.2022 and for the remaining period the appellant was allowed to run the Restro/Bar with 50% capacity. The appellant will therefore have to deposit the entire rental amount except the period for which there was complete closure due to lockdown. As the applicability of force majeure principle (clause 29) is yet to be considered at least, for the period during the complete closure, it would not be justified to direct the appellant to deposit the rental amount for the said period of complete closure by way of an interim measure, pending final adjudication.

### 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: that undisputedly during the pendency of the arbitration proceedings, the appellant itself had paid a substantial amount towards rentals of the two rented premises. That an amount of Rs. 87,64,133.76/- has been paid towards rentals for the period from October, 2020 to March, 2021 and July, 2021 to December, 2021. The appellant had also incurred other over head expenses, TDS dues, electricity and water charges. That even during the lockdown period, the appellant paid wages to its employees. Therefore, it will be too harsh on the appellant to pay the entire rental amount for the period between March, 2020 to December, 2021, as per the order passed by the learned Arbitral Tribunal confirmed by the High Court is the submission of the learned counsel for the appellant. 4. The present appeal is opposed by Ms. Shyel Trehan, learned counsel appearing on behalf of the respondents. It is contended that in the facts and circumstances of the case no error has been committed by the learned Arbitral Tribunal in directing the appellant to deposit the entire amount which is admittedly due and payable by the appellant. It is pointed out that on one hand, the appellant has continued to remain in possession of the leased properties and at the same time, he is not paying the rental amount. It is submitted that therefore, the learned Tribunal has rightly passed an order by way of an interim measure directing the appellant to deposit the rental amount due and payable under the lease agreement. 4.1 According to learned counsel for the respondents neither the principles applicable under Order XXXVIII Rule 5 nor Order XXXIX Rule 1 are appliable in case of a direction issued by way of an interim measure, as in the instant case, directing the lessee to deposit the rental amount due and payable while the lessee is continued to be in possession. 4.2 It is further submitted that in the present case the principles of force majeure would not apply as the appellant – lessee continued to remain in possession of the leased premises. It is submitted that none of the decisions relied upon by the counsel appearing on behalf of the appellant, is applicable. 4.3 It is pointed out that as rightly observed by the High Court, the business of the appellant may have been impacted due to the outbreak of Covid--19 pandemic but that may not absolve the appellant from its contractual obligations to pay the lease rent. It is submitted that so long the appellant continues to occupy the premises, the liability of the appellant to pay the rental amount continues. It is urged that no error has been committed by the Arbitral Tribunal by directing the appellant to deposit the rental amount for the period between March, 2020 and December, 2021 and the same is rightly confirmed by the High Court. 5. We have heard learned counsel appearing on behalf of the respective parties at length. 6. At the outset, it is required to be noted that the dispute is with respect to the rental amount for the period between March, 2020 to December, 2021, for which the Arbitral Tribunal has directed the appellant to deposit while passing the order by way of an interim measure on the applications under Section 17 of the Arbitration Act. The liability to pay the lease rental for the period between March, 2020 to December, 2021 is seriously disputed by the appellant by invoking the force majeure principle contained in clause 29 of the lease agreement. It is the case on behalf of the appellant that for a substantial period there was a total closure due to lockdown and for the remaining period the appellant was allowed with 50% capacity and therefore, the force majeure principle contained in clause 29 shall be applicable. When the same was submitted before the Arbitral Tribunal, no opinion, even a prima facie opinion on the aforesaid aspect was given by the Arbitral Tribunal. In para 39, it is observed that it would not be fair at this stage of the proceedings, where evidence is yet to be adduced by the parties in support their rival contentions on the issues that arise, to record any definitive opinion on the import and effect of the force majeure clause (clause no. 29) contained in the lease deed. Therefore, applicability of the force majeure principle contained in clause 29 is yet to be considered by the Arbitral Tribunal at the time of final adjudication. Hence, the liability to pay the rentals for the period during lockdown is yet to be adjudicated upon and considered by the Tribunal. Therefore, no order could have been passed by the Tribunal by way of interim measure on the applications filed under Section 17 of the Arbitration Act in a case where there is a serious dispute with respect to the liability of the rental amounts to be paid, which is yet to be adjudicated upon and/or considered by the Arbitral Tribunal. Thus, no such order for deposit by way of an interim measure on applications under Section 17 of the Arbitration Act could have been passed by the Tribunal. However, at the same time, the aforesaid can be considered only for the period of complete closure due to lockdown. As per the available record, there was complete closure for the period between 22.03.2020 to 09.09.2020; for the period between 19.04.2021 to 28.06.2021 and for the period between 11.01.2022 to 27.01.2022 and for the remaining period the appellant was allowed to run the Restro/Bar with 50% capacity. The appellant will therefore have to deposit the entire rental amount except the period for which there was complete closure due to lockdown. As the applicability of force majeure principle (clause 29) is yet to be considered at least, for the period during the complete closure, it would not be justified to direct the appellant to deposit the rental amount for the said period of complete closure by way of an interim measure, pending final adjudication. ### Response: 1 ### Explanation: 6. At the outset, it is required to be noted that the dispute is with respect to the rental amount for the period between March, 2020 to December, 2021, for which the Arbitral Tribunal has directed the appellant to deposit while passing the order by way of an interim measure on the applications under Section 17 of the Arbitration Act. The liability to pay the lease rental for the period between March, 2020 to December, 2021 is seriously disputed by the appellant by invoking the force majeure principle contained in clause 29 of the lease agreement. It is the case on behalf of the appellant that for a substantial period there was a total closure due to lockdown and for the remaining period the appellant was allowed with 50% capacity and therefore, the force majeure principle contained in clause 29 shall be applicable. When the same was submitted before the Arbitral Tribunal, no opinion, even a prima facie opinion on the aforesaid aspect was given by the Arbitral Tribunal. In para 39, it is observed that it would not be fair at this stage of the proceedings, where evidence is yet to be adduced by the parties in support their rival contentions on the issues that arise, to record any definitive opinion on the import and effect of the force majeure clause (clause no. 29) contained in the lease deed. Therefore, applicability of the force majeure principle contained in clause 29 is yet to be considered by the Arbitral Tribunal at the time of final adjudication. Hence, the liability to pay the rentals for the period during lockdown is yet to be adjudicated upon and considered by the Tribunal. Therefore, no order could have been passed by the Tribunal by way of interim measure on the applications filed under Section 17 of the Arbitration Act in a case where there is a serious dispute with respect to the liability of the rental amounts to be paid, which is yet to be adjudicated upon and/or considered by the Arbitral Tribunal. Thus, no such order for deposit by way of an interim measure on applications under Section 17 of the Arbitration Act could have been passed by the Tribunal. However, at the same time, the aforesaid can be considered only for the period of complete closure due to lockdown. As per the available record, there was complete closure for the period between 22.03.2020 to 09.09.2020; for the period between 19.04.2021 to 28.06.2021 and for the period between 11.01.2022 to 27.01.2022 and for the remaining period the appellant was allowed to run the Restro/Bar with 50% capacity. The appellant will therefore have to deposit the entire rental amount except the period for which there was complete closure due to lockdown. As the applicability of force majeure principle (clause 29) is yet to be considered at least, for the period during the complete closure, it would not be justified to direct the appellant to deposit the rental amount for the said period of complete closure by way of an interim measure, pending final adjudication.

UNION OF INDIA Vs. M/S K.C.SHARMA AND CO

the learned counsel on both sides, we have perused the material on record. 11. In this case we are not concerned with the correctness of the judgment and decree dated 28.09.1989 passed in the proceedings under Sections 30 and 31 of the Act. In the suit filed in Suit No.203 of 2005 a declaration is sought to the effect that the judgment and decree dated 28.09.1989 is obtained by playing fraud. In support of their case the only pleading was that there was no lease in fact and same was created by creating resolution in collusion with the ex-Pradhan of Panchayat. From the material and evidence on record we are in agreement with the view taken by the High Court. In view of the rival claims for compensation matter was referred under Sections 30 and 31 of the Act and it was held that respondents are entitled to compensation to the extent of 87% whereas Gaon Sabha was held entitled only to the extent of 13%. The said judgment has become final. Same was not questioned in any appeal. Without filing any appeal against the judgment and decree dated 28.09.1989, a separate suit is filed mainly on the ground that the said judgment and decree is obtained by fraud. From the material placed and evidence produced, it is clear that the land in question was banjar land having shora and Gram Panchayat wanted to give the said land on lease to make the same fit for cultivation by removing shora. Such proposal was agreed to by all the members of Gaon Sabha and proposal as such was sent to Dy. Director, Panchayat for approval. The Dy. Director of Panchayat has approved the same by deciding that the minimum bid should be for Rs.75/- per acre. Only after receipt of such approval from the Dy. Director, Panchayat, land was auctioned on 04.04.1981 for grant of leasehold rights. In the auction conducted there were as many as six bidders and bid of the respondent was the highest which was at Rs.89/- per acre and was accepted. Even such acceptance of proposals was again sent to Dy. Director for approval and the Dy. Director vide letter dated 16.04.1981 approved the acceptance of the bid in favour of the respondent for a period of five years. Thereafter the respondent was put in possession and he continued in possession by paying bid amount to the Gram Panchayat. The revenue records produced also reveal that the name of the respondent was entered as possessor and cultivator. In the light of such documentary evidence it cannot be said that lease was obtained by the respondents in collusion with ex-Pradhan. It is to be noted that it was not an act of ex-Pradhan of the Gaon Sabha and from the stage of proposal same was approved by the Dy. Director, only thereafter by conducting open auction respondents were granted lease. 12. Though the learned Additional Solicitor General appearing for the appellants has relied on several judgments in support of her plea that as the judgment and decree was obtained by fraud same is a nullity and vitiated, but in a given case whether such decree was obtained by fraud or not, is a matter which is to be judged with reference to pleadings and the evidence on record. When the judgment and decree is assailed only on the ground that lease was created in collusion with the ex-Pradhan, as the same is contrary to evidence, the only plea of the respondents was rightly not accepted by the High Court. As at every stage the proceedings for grant of lease were approved by the competent authority/Dy. Director, Panchayat, as such it cannot be said respondents have obtained lease in collusion with ex-Pradhan of the Panchayat. Except such a vague plea, there were no particulars how the fraud was played. It is fairly well settled that fraud has to be pleaded and proved. More so, when a judgment and decree passed earlier by the competent court is questioned, it is necessary to plead alleged fraud by necessary particulars and same has to be proved by cogent evidence. There cannot be any inference contrary to record. As the evidence on record discloses that fraud, as pleaded, was not established, in absence of any necessary pleading giving particulars of fraud, we are of the view that no case is made out to interfere with the well reasoned judgment of the High Court. The case law in this regard submitted by the learned ASG for the appellants would not render any assistance to support their plea. Further cases referred in the case of Associated Hotels and C.M. Beena also will not come to the rescue of the case of the appellants in any manner. As it is clear from the evidence that the respondents were put in possession and they continued in possession by cultivating the land the said judgments would not render any assistance in support of the case of the appellants. On the other hand in the case of Maneklal Mansukhbhai 10 relied on by learned senior counsel for the respondents it is clearly held by this Court that defence under Section 53A of the Transfer of Property Act, 1882 is available to a person who has agreement of lease in his favour though no lease has been executed and registered. Similar proposition is also approved in the judgment of this Court in the case of Hamzabi 11 wherein this Court has held that Section 53A of the Transfer of Property Act, 1882 protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. As it is clear that respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease said case law supports the case of the respondents. 13. For the aforesaid reasons, we do not find any merit in these appeals so as to interfere with the impugned judgment.

0[ds]11. In this case we are not concerned with the correctness of the judgment and decree dated 28.09.1989 passed in the proceedings under Sections 30 and 31 of the Act. In the suit filed in Suit No.203 of 2005 a declaration is sought to the effect that the judgment and decree dated 28.09.1989 is obtained by playing fraud. In support of their case the only pleading was that there was no lease in fact and same was created by creating resolution in collusion with the ex-Pradhan of Panchayat. From the material and evidence on record we are in agreement with the view taken by the High Court. In view of the rival claims for compensation matter was referred under Sections 30 and 31 of the Act and it was held that respondents are entitled to compensation to the extent of 87% whereas Gaon Sabha was held entitled only to the extent of 13%. The said judgment has become final. Same was not questioned in any appeal. Without filing any appeal against the judgment and decree dated 28.09.1989, a separate suit is filed mainly on the ground that the said judgment and decree is obtained by fraud. From the material placed and evidence produced, it is clear that the land in question was banjar land having shora and Gram Panchayat wanted to give the said land on lease to make the same fit for cultivation by removing shora. Such proposal was agreed to by all the members of Gaon Sabha and proposal as such was sent to Dy. Director, Panchayat for approval. The Dy. Director of Panchayat has approved the same by deciding that the minimum bid should be for Rs.75/- per acre. Only after receipt of such approval from the Dy. Director, Panchayat, land was auctioned on 04.04.1981 for grant of leasehold rights. In the auction conducted there were as many as six bidders and bid of the respondent was the highest which was at Rs.89/- per acre and was accepted. Even such acceptance of proposals was again sent to Dy. Director for approval and the Dy. Director vide letter dated 16.04.1981 approved the acceptance of the bid in favour of the respondent for a period of five years. Thereafter the respondent was put in possession and he continued in possession by paying bid amount to the Gram Panchayat. The revenue records produced also reveal that the name of the respondent was entered as possessor and cultivator. In the light of such documentary evidence it cannot be said that lease was obtained by the respondents in collusion with ex-Pradhan. It is to be noted that it was not an act of ex-Pradhan of the Gaon Sabha and from the stage of proposal same was approved by the Dy. Director, only thereafter by conducting open auction respondents were granted lease.13. For the aforesaid reasons, we do not find any merit in these appeals so as to interfere with the impugned judgment.12. Though the learned Additional Solicitor General appearing for the appellants has relied on several judgments in support of her plea that as the judgment and decree was obtained by fraud same is a nullity and vitiated, but in a given case whether such decree was obtained by fraud or not, is a matter which is to be judged with reference to pleadings and the evidence on record. When the judgment and decree is assailed only on the ground that lease was created in collusion with the ex-Pradhan, as the same is contrary to evidence, the only plea of the respondents was rightly not accepted by the High Court. As at every stage the proceedings for grant of lease were approved by the competent authority/Dy. Director, Panchayat, as such it cannot be said respondents have obtained lease in collusion with ex-Pradhan of the Panchayat. Except such a vague plea, there were no particulars how the fraud was played. It is fairly well settled that fraud has to be pleaded and proved. More so, when a judgment and decree passed earlier by the competent court is questioned, it is necessary to plead alleged fraud by necessary particulars and same has to be proved by cogent evidence. There cannot be any inference contrary to record. As the evidence on record discloses that fraud, as pleaded, was not established, in absence of any necessary pleading giving particulars of fraud, we are of the view that no case is made out to interfere with the well reasoned judgment of the High Court. The case law in this regard submitted by the learned ASG for the appellants would not render any assistance to support their plea. Further cases referred in the case of Associated Hotelsand C.M. Beena also will not come to the rescue of the case of the appellants in any manner. As it is clear from the evidence that the respondents were put in possession and they continued in possession by cultivating the land the said judgments would not render any assistance in support of the case of the appellants. On the other hand in the case of Maneklal Mansukhbhai 10 relied on by learned senior counsel for the respondents it is clearly held by this Court that defence under Section 53A of the Transfer of Property Act, 1882 is available to a person who has agreement of lease in his favour though no lease has been executed and registered. Similar proposition is also approved in the judgment of this Court in the case of Hamzabi 11 wherein this Court has held that Section 53A of the Transfer of Property Act, 1882 protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. As it is clear that respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease said case law supports the case of the respondents.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: the learned counsel on both sides, we have perused the material on record. 11. In this case we are not concerned with the correctness of the judgment and decree dated 28.09.1989 passed in the proceedings under Sections 30 and 31 of the Act. In the suit filed in Suit No.203 of 2005 a declaration is sought to the effect that the judgment and decree dated 28.09.1989 is obtained by playing fraud. In support of their case the only pleading was that there was no lease in fact and same was created by creating resolution in collusion with the ex-Pradhan of Panchayat. From the material and evidence on record we are in agreement with the view taken by the High Court. In view of the rival claims for compensation matter was referred under Sections 30 and 31 of the Act and it was held that respondents are entitled to compensation to the extent of 87% whereas Gaon Sabha was held entitled only to the extent of 13%. The said judgment has become final. Same was not questioned in any appeal. Without filing any appeal against the judgment and decree dated 28.09.1989, a separate suit is filed mainly on the ground that the said judgment and decree is obtained by fraud. From the material placed and evidence produced, it is clear that the land in question was banjar land having shora and Gram Panchayat wanted to give the said land on lease to make the same fit for cultivation by removing shora. Such proposal was agreed to by all the members of Gaon Sabha and proposal as such was sent to Dy. Director, Panchayat for approval. The Dy. Director of Panchayat has approved the same by deciding that the minimum bid should be for Rs.75/- per acre. Only after receipt of such approval from the Dy. Director, Panchayat, land was auctioned on 04.04.1981 for grant of leasehold rights. In the auction conducted there were as many as six bidders and bid of the respondent was the highest which was at Rs.89/- per acre and was accepted. Even such acceptance of proposals was again sent to Dy. Director for approval and the Dy. Director vide letter dated 16.04.1981 approved the acceptance of the bid in favour of the respondent for a period of five years. Thereafter the respondent was put in possession and he continued in possession by paying bid amount to the Gram Panchayat. The revenue records produced also reveal that the name of the respondent was entered as possessor and cultivator. In the light of such documentary evidence it cannot be said that lease was obtained by the respondents in collusion with ex-Pradhan. It is to be noted that it was not an act of ex-Pradhan of the Gaon Sabha and from the stage of proposal same was approved by the Dy. Director, only thereafter by conducting open auction respondents were granted lease. 12. Though the learned Additional Solicitor General appearing for the appellants has relied on several judgments in support of her plea that as the judgment and decree was obtained by fraud same is a nullity and vitiated, but in a given case whether such decree was obtained by fraud or not, is a matter which is to be judged with reference to pleadings and the evidence on record. When the judgment and decree is assailed only on the ground that lease was created in collusion with the ex-Pradhan, as the same is contrary to evidence, the only plea of the respondents was rightly not accepted by the High Court. As at every stage the proceedings for grant of lease were approved by the competent authority/Dy. Director, Panchayat, as such it cannot be said respondents have obtained lease in collusion with ex-Pradhan of the Panchayat. Except such a vague plea, there were no particulars how the fraud was played. It is fairly well settled that fraud has to be pleaded and proved. More so, when a judgment and decree passed earlier by the competent court is questioned, it is necessary to plead alleged fraud by necessary particulars and same has to be proved by cogent evidence. There cannot be any inference contrary to record. As the evidence on record discloses that fraud, as pleaded, was not established, in absence of any necessary pleading giving particulars of fraud, we are of the view that no case is made out to interfere with the well reasoned judgment of the High Court. The case law in this regard submitted by the learned ASG for the appellants would not render any assistance to support their plea. Further cases referred in the case of Associated Hotels and C.M. Beena also will not come to the rescue of the case of the appellants in any manner. As it is clear from the evidence that the respondents were put in possession and they continued in possession by cultivating the land the said judgments would not render any assistance in support of the case of the appellants. On the other hand in the case of Maneklal Mansukhbhai 10 relied on by learned senior counsel for the respondents it is clearly held by this Court that defence under Section 53A of the Transfer of Property Act, 1882 is available to a person who has agreement of lease in his favour though no lease has been executed and registered. Similar proposition is also approved in the judgment of this Court in the case of Hamzabi 11 wherein this Court has held that Section 53A of the Transfer of Property Act, 1882 protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. As it is clear that respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease said case law supports the case of the respondents. 13. For the aforesaid reasons, we do not find any merit in these appeals so as to interfere with the impugned judgment. ### Response: 0 ### Explanation: 11. In this case we are not concerned with the correctness of the judgment and decree dated 28.09.1989 passed in the proceedings under Sections 30 and 31 of the Act. In the suit filed in Suit No.203 of 2005 a declaration is sought to the effect that the judgment and decree dated 28.09.1989 is obtained by playing fraud. In support of their case the only pleading was that there was no lease in fact and same was created by creating resolution in collusion with the ex-Pradhan of Panchayat. From the material and evidence on record we are in agreement with the view taken by the High Court. In view of the rival claims for compensation matter was referred under Sections 30 and 31 of the Act and it was held that respondents are entitled to compensation to the extent of 87% whereas Gaon Sabha was held entitled only to the extent of 13%. The said judgment has become final. Same was not questioned in any appeal. Without filing any appeal against the judgment and decree dated 28.09.1989, a separate suit is filed mainly on the ground that the said judgment and decree is obtained by fraud. From the material placed and evidence produced, it is clear that the land in question was banjar land having shora and Gram Panchayat wanted to give the said land on lease to make the same fit for cultivation by removing shora. Such proposal was agreed to by all the members of Gaon Sabha and proposal as such was sent to Dy. Director, Panchayat for approval. The Dy. Director of Panchayat has approved the same by deciding that the minimum bid should be for Rs.75/- per acre. Only after receipt of such approval from the Dy. Director, Panchayat, land was auctioned on 04.04.1981 for grant of leasehold rights. In the auction conducted there were as many as six bidders and bid of the respondent was the highest which was at Rs.89/- per acre and was accepted. Even such acceptance of proposals was again sent to Dy. Director for approval and the Dy. Director vide letter dated 16.04.1981 approved the acceptance of the bid in favour of the respondent for a period of five years. Thereafter the respondent was put in possession and he continued in possession by paying bid amount to the Gram Panchayat. The revenue records produced also reveal that the name of the respondent was entered as possessor and cultivator. In the light of such documentary evidence it cannot be said that lease was obtained by the respondents in collusion with ex-Pradhan. It is to be noted that it was not an act of ex-Pradhan of the Gaon Sabha and from the stage of proposal same was approved by the Dy. Director, only thereafter by conducting open auction respondents were granted lease.13. For the aforesaid reasons, we do not find any merit in these appeals so as to interfere with the impugned judgment.12. Though the learned Additional Solicitor General appearing for the appellants has relied on several judgments in support of her plea that as the judgment and decree was obtained by fraud same is a nullity and vitiated, but in a given case whether such decree was obtained by fraud or not, is a matter which is to be judged with reference to pleadings and the evidence on record. When the judgment and decree is assailed only on the ground that lease was created in collusion with the ex-Pradhan, as the same is contrary to evidence, the only plea of the respondents was rightly not accepted by the High Court. As at every stage the proceedings for grant of lease were approved by the competent authority/Dy. Director, Panchayat, as such it cannot be said respondents have obtained lease in collusion with ex-Pradhan of the Panchayat. Except such a vague plea, there were no particulars how the fraud was played. It is fairly well settled that fraud has to be pleaded and proved. More so, when a judgment and decree passed earlier by the competent court is questioned, it is necessary to plead alleged fraud by necessary particulars and same has to be proved by cogent evidence. There cannot be any inference contrary to record. As the evidence on record discloses that fraud, as pleaded, was not established, in absence of any necessary pleading giving particulars of fraud, we are of the view that no case is made out to interfere with the well reasoned judgment of the High Court. The case law in this regard submitted by the learned ASG for the appellants would not render any assistance to support their plea. Further cases referred in the case of Associated Hotelsand C.M. Beena also will not come to the rescue of the case of the appellants in any manner. As it is clear from the evidence that the respondents were put in possession and they continued in possession by cultivating the land the said judgments would not render any assistance in support of the case of the appellants. On the other hand in the case of Maneklal Mansukhbhai 10 relied on by learned senior counsel for the respondents it is clearly held by this Court that defence under Section 53A of the Transfer of Property Act, 1882 is available to a person who has agreement of lease in his favour though no lease has been executed and registered. Similar proposition is also approved in the judgment of this Court in the case of Hamzabi 11 wherein this Court has held that Section 53A of the Transfer of Property Act, 1882 protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. As it is clear that respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease said case law supports the case of the respondents.

Union Of India Vs. M/S. Orient Enterprises &Anr

(supra) this Court has laid down that a writ petition under Article 226 of the Constitution solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. This Court has made a distinction between a direction for refund given by way of consequential order in a case where the legality of the assessment is questioned and a case where the petition is only for the purpose of seeking refund. It has been observed:- "We do not consider it proper to extend the principle justifying the consequential order directing the refund of amount illegally realised, when the order under which the amount had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Article 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders, exercise their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right." The Court has emphasised that there was no legal right in the appellant who had filed the writ petition to claim the refund under the relevant statute.7. In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of the law laid down by this Court in Suganmal (supra) a writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not, in our opinion, be maintained. The decisions on which reliance has been placed by Shri Rawal were cases where the legality of the orders requiring payment of tax or duty were challenged and the High Court in exercise of its jurisdiction under Article 226 of the Constitution, while setting aside the said orders, has directed the refund of the amount so collected with interest. The direction for payment of interest in these cases was by way of consequential relief along with the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondents before the High Court is dismissed. No order as to costs.Civil Appeal No. 914/92.8. Elephanta Oil & Vanaspati Industries, respondent No. 1 herein, was earlier known as M/s. Jain Sudh Vanaspati Ltd. The said respondent had imported inedible Beef tallow. The Collector of Customs, Bombay, after issuing show cause notice to the respondent passed the order dated May 28, 1998 whereby he held that the goods imported by the respondent were liable for confiscation as the import was contrary to the provisions of the Import Policy and gave option to the respondents to redeem the same on payment of redemption fine of Rs. 1,09,60,000/-. The respondent deposited the said redemption fine and obtained the delivery of goods. The appeal filed by the respondent-company against the said order of the Collector was allowed by the Tribunal by judgment dated February 14, 1990. Special Leave Petitions Nos. 14605 and 14606/90 filed by the Revenue against the said judgment of the Tribunal were dismissed by this Court by order dated November 19, 1990. The amount of Rs. 1,09,60,000/- which was deposited by the respondent-company was refunded to them in two instalments on January 29, 1991 and March 6, 1991. Thereafter on May 31, 1991, the writ petition which has given rise to this appeal was filed by the respondents in the Delhi High Court. In the said writ petition the respondents sought the relief of payment of interest on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till the date of refund @ Rs. 17.5% per annum or on such rate of interest not less than 12% per annum. The said writ petition of the respondents has been allowed by the High Court by the impugned judgment dated November 11, 1991 and the High Court has directed the appellants to pay to the respondents interest @ Rs. 17.5% per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded.9. While dealing with Civil Appeal No. 3374/91 we have held that a writ petition seeking relief of interest in respect of the amount deposited towards redemption charges under an adjudication order which amount had been refunded after the said order was set aside could not be maintained under Article 226 of the Constitution of India.

1[ds]6. In Suganmal (supra) this Court has laid down that a writ petition under Article 226 of the Constitution solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. This Court has made a distinction between a direction for refund given by way of consequential order in a case where the legality of the assessment is questioned and a case where the petition is only for the purpose of seeking refund. It has beendo not consider it proper to extend the principle justifying the consequential order directing the refund of amount illegally realised, when the order under which the amount had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Article 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders, exercise their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims aCourt has emphasised that there was no legal right in the appellant who had filed the writ petition to claim the refund under the relevant statute.7. In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of the law laid down by this Court in Suganmal (supra) a writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not, in our opinion, be maintained. The decisions on which reliance has been placed by Shri Rawal were cases where the legality of the orders requiring payment of tax or duty were challenged and the High Court in exercise of its jurisdiction under Article 226 of the Constitution, while setting aside the said orders, has directed the refund of the amount so collected with interest. The direction for payment of interest in these cases was by way of consequential relief along with the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondents before the High Court is dismissed. No order as to costs.Civil Appeal No. 914/92.8. Elephanta Oil & Vanaspati Industries, respondent No. 1 herein, was earlier known as M/s. Jain Sudh Vanaspati Ltd. The said respondent had imported inedible Beef tallow. The Collector of Customs, Bombay, after issuing show cause notice to the respondent passed the order dated May 28, 1998 whereby he held that the goods imported by the respondent were liable for confiscation as the import was contrary to the provisions of the Import Policy and gave option to the respondents to redeem the same on payment of redemption fine of Rs. 1,09,60,000/-. The respondent deposited the said redemption fine and obtained the delivery of goods. The appeal filed by the respondent-company against the said order of the Collector was allowed by the Tribunal by judgment dated February 14, 1990. Special Leave Petitions Nos. 14605 and 14606/90 filed by the Revenue against the said judgment of the Tribunal were dismissed by this Court by order dated November 19, 1990. The amount of Rs. 1,09,60,000/- which was deposited by the respondent-company was refunded to them in two instalments on January 29, 1991 and March 6, 1991. Thereafter on May 31, 1991, the writ petition which has given rise to this appeal was filed by the respondents in the Delhi High Court. In the said writ petition the respondents sought the relief of payment of interest on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till the date of refund @ Rs. 17.5% per annum or on such rate of interest not less than 12% per annum. The said writ petition of the respondents has been allowed by the High Court by the impugned judgment dated November 11, 1991 and the High Court has directed the appellants to pay to the respondents interest @ Rs. 17.5% per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded.9. While dealing with Civil Appeal No. 3374/91 we have held that a writ petition seeking relief of interest in respect of the amount deposited towards redemption charges under an adjudication order which amount had been refunded after the said order was set aside could not be maintained under Article 226 of the Constitution of India.

### 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: (supra) this Court has laid down that a writ petition under Article 226 of the Constitution solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. This Court has made a distinction between a direction for refund given by way of consequential order in a case where the legality of the assessment is questioned and a case where the petition is only for the purpose of seeking refund. It has been observed:- "We do not consider it proper to extend the principle justifying the consequential order directing the refund of amount illegally realised, when the order under which the amount had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Article 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders, exercise their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right." The Court has emphasised that there was no legal right in the appellant who had filed the writ petition to claim the refund under the relevant statute.7. In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of the law laid down by this Court in Suganmal (supra) a writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not, in our opinion, be maintained. The decisions on which reliance has been placed by Shri Rawal were cases where the legality of the orders requiring payment of tax or duty were challenged and the High Court in exercise of its jurisdiction under Article 226 of the Constitution, while setting aside the said orders, has directed the refund of the amount so collected with interest. The direction for payment of interest in these cases was by way of consequential relief along with the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondents before the High Court is dismissed. No order as to costs.Civil Appeal No. 914/92.8. Elephanta Oil & Vanaspati Industries, respondent No. 1 herein, was earlier known as M/s. Jain Sudh Vanaspati Ltd. The said respondent had imported inedible Beef tallow. The Collector of Customs, Bombay, after issuing show cause notice to the respondent passed the order dated May 28, 1998 whereby he held that the goods imported by the respondent were liable for confiscation as the import was contrary to the provisions of the Import Policy and gave option to the respondents to redeem the same on payment of redemption fine of Rs. 1,09,60,000/-. The respondent deposited the said redemption fine and obtained the delivery of goods. The appeal filed by the respondent-company against the said order of the Collector was allowed by the Tribunal by judgment dated February 14, 1990. Special Leave Petitions Nos. 14605 and 14606/90 filed by the Revenue against the said judgment of the Tribunal were dismissed by this Court by order dated November 19, 1990. The amount of Rs. 1,09,60,000/- which was deposited by the respondent-company was refunded to them in two instalments on January 29, 1991 and March 6, 1991. Thereafter on May 31, 1991, the writ petition which has given rise to this appeal was filed by the respondents in the Delhi High Court. In the said writ petition the respondents sought the relief of payment of interest on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till the date of refund @ Rs. 17.5% per annum or on such rate of interest not less than 12% per annum. The said writ petition of the respondents has been allowed by the High Court by the impugned judgment dated November 11, 1991 and the High Court has directed the appellants to pay to the respondents interest @ Rs. 17.5% per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded.9. While dealing with Civil Appeal No. 3374/91 we have held that a writ petition seeking relief of interest in respect of the amount deposited towards redemption charges under an adjudication order which amount had been refunded after the said order was set aside could not be maintained under Article 226 of the Constitution of India. ### Response: 1 ### Explanation: 6. In Suganmal (supra) this Court has laid down that a writ petition under Article 226 of the Constitution solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. This Court has made a distinction between a direction for refund given by way of consequential order in a case where the legality of the assessment is questioned and a case where the petition is only for the purpose of seeking refund. It has beendo not consider it proper to extend the principle justifying the consequential order directing the refund of amount illegally realised, when the order under which the amount had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Article 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders, exercise their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims aCourt has emphasised that there was no legal right in the appellant who had filed the writ petition to claim the refund under the relevant statute.7. In the present case also till the insertion of Section 27-A in the Act by Act 22 of 1995 there was no right entitling payment of interest on delayed refund under the Act. Such a right was conferred for the first time by the said provision. Act 22 of 1995 also inserted Section 28-AA which provides for payment of interest on delayed payment of duty by a person who is liable to pay the duty. Thus at relevant time there was no statutory right entitling the respondents to payment of interest on delayed refund and the writ petition filed by them was not for the enforcement of a legal right available to them under any statute. The claim for interest was in the nature of compensation for wrongful retention by the appellants of money that was collected from the respondents by way of customs duty, redemption fine and penalty. In view of the law laid down by this Court in Suganmal (supra) a writ petition seeking the relief of payment of interest on delayed refund of the amount so collected could not, in our opinion, be maintained. The decisions on which reliance has been placed by Shri Rawal were cases where the legality of the orders requiring payment of tax or duty were challenged and the High Court in exercise of its jurisdiction under Article 226 of the Constitution, while setting aside the said orders, has directed the refund of the amount so collected with interest. The direction for payment of interest in these cases was by way of consequential relief along with the main relief of setting aside the order imposing the tax or duty. Those cases stand on a different footing and have no application to the present case. The appeal is, therefore, allowed, the impugned judgment of the High Court is set aside and the writ petition filed by the respondents before the High Court is dismissed. No order as to costs.Civil Appeal No. 914/92.8. Elephanta Oil & Vanaspati Industries, respondent No. 1 herein, was earlier known as M/s. Jain Sudh Vanaspati Ltd. The said respondent had imported inedible Beef tallow. The Collector of Customs, Bombay, after issuing show cause notice to the respondent passed the order dated May 28, 1998 whereby he held that the goods imported by the respondent were liable for confiscation as the import was contrary to the provisions of the Import Policy and gave option to the respondents to redeem the same on payment of redemption fine of Rs. 1,09,60,000/-. The respondent deposited the said redemption fine and obtained the delivery of goods. The appeal filed by the respondent-company against the said order of the Collector was allowed by the Tribunal by judgment dated February 14, 1990. Special Leave Petitions Nos. 14605 and 14606/90 filed by the Revenue against the said judgment of the Tribunal were dismissed by this Court by order dated November 19, 1990. The amount of Rs. 1,09,60,000/- which was deposited by the respondent-company was refunded to them in two instalments on January 29, 1991 and March 6, 1991. Thereafter on May 31, 1991, the writ petition which has given rise to this appeal was filed by the respondents in the Delhi High Court. In the said writ petition the respondents sought the relief of payment of interest on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till the date of refund @ Rs. 17.5% per annum or on such rate of interest not less than 12% per annum. The said writ petition of the respondents has been allowed by the High Court by the impugned judgment dated November 11, 1991 and the High Court has directed the appellants to pay to the respondents interest @ Rs. 17.5% per annum on the amount of Rs. 1,09,60,000/- from the date of deposit of the said amount till it was refunded.9. While dealing with Civil Appeal No. 3374/91 we have held that a writ petition seeking relief of interest in respect of the amount deposited towards redemption charges under an adjudication order which amount had been refunded after the said order was set aside could not be maintained under Article 226 of the Constitution of India.

Kishinchand Chellaram & Others Vs. Commissioner of Income Tax, Central Bombay

did not on that view arise for decision. Against the order of the High Court these four appeals have been preferred by the assessees.6. The only question material to these appeals which was argued by the assessees before the Tribunal was whether it was competent to the company by a subsequent resolution to reverse an earlier resolution declaring the dividend. The Tribunal held that the earlier resolution could not be reversed by a subsequent resolution, and therefore what was paid and received as divided could not by a subsequent resolution of the company be treated as paid otherwise than as dividend. The High Court held that the assessments were properly made by the Income Tax Officer. They observed that the assessment of an assessee for each year is self-contained and subsequent events cannot justify modification of the assess meet.7. Section 16(2) provided (in so far as it is material) that "for the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him............." It is common ground that on July 15, 1944, dividend was declared by a resolution of the company and the amounts payable to the assessees were, in fact, credited on September 29, 1944, in the accounts maintained by the company to each of the shareholders as dividend. The amounts were therefore declared as dividend, treated as dividend and received by the assessees as dividend. The assessees included the dividends so credited to their accounts in the returns,. It may he assumed that the company failed to provide for payment of tax before declaring dividend and that after providing for payment of tax the net profits of the company may not have been sufficient to justify declaration of dividend at 60% of the value of the shares. On that assumption it may be inferred that the dividend or a part thereof was in truth paid out of the capital of company. Payment of dividend otherwise than out of profits of the wear, or other undistributed profits was at the material time prohibited by Art. 97 of Table A of the Companies Act. 1913, as amended by Act, XXXII of 1936 read with S. 17(2)of the Act and therefore such payment may be regarded as unlawful. If the Directors of a company have deliberately paid or negligently been instrumental in paying dividend out of capital they may have, in an action by the company - or if the company is being would up at the instance of the Liquidator - to compensate the company for loss occasioned by their wrongful or negligent conduct. (In re Union Bank of Allahabad I. L.R. 47 All. 669: (AIR 1925 All 519). In this case we are not concerned with the validity of the distribution of dividend, or the liability of the directors arising out of improper distribution of dividend. We are concerned with the true character of the payment made on September 29, 1944, to the assessees. If dividend is declared and the amount is credited or paid to the shareholders as dividend can the character of the credit or payment be altered by a subsequent resolution so as to alter the incidence of tax which attaches to that amount?8. By virtue of S.16(2) the liability to pay tax attaches as soon as dividend is paid, credited or distributed or deemed to have been paid, credited or distributed to the shareholders and the income tax Act contains no provision for altering the incidence of liability to pay tax on the dividend, merely because it is found that in declaring dividend and paying it the company violated a prohibition relating to payment of dividend in the Indian Companies Act.9. It is not necessary to consider in this case whether the shareholders may be compelled by the company to refund the amount improperly paid as dividend out of capital. Even if the shareholders agree to refund the amounts received by them as dividend the original character of the receipt as dividend is nor thereby altered. In ascertaining whether liability to pay Income-tax on dividend arose, a resolution of company whereby payments made to the share-holders as dividend are to be treated as loans cannot retrospectively alter the character of the payments and thereby exempt it from liability which has already attached thereto.10. Before this Court two contentions were raised by counsel for the assessees: (1) that on the amount received by each of the assessees tax was not exigible because it was not dividend at all, and (2) that what was declared and paid as dividend ceased to be such by virtue of the subsequent resolution. The first plea was not raised before the Tribunal, and on the question as framed it did not arise for decision on a reference under S. 66 of the Indian Income-tax Act. The jurisdiction of the High Court under S. 66 being advisory, they were concerned to give their opinion on questions which fairly arisen out of the order of the Tribunal and were in fact raised and referred. The questions whether the payment made by the Company was not in the nature of dividend not having fairly arisen out of the order of the Tribunal it cannot be raised in this Court as it could not in the High Court. In any even, we are of the opinion that payment made as dividend by a company to its shareholders does not lose that character merely because it is paid out of capital. Under the Income tax Act liability to pay tax attaches as soon as dividend is paid, credited or distributed or is so declared. The Act does not contemplate an enquiry whether the dividend is properly paid, credited or distributed before liability to pay the tax attached thereto. The answer to the second contention for reasons already set out by us must be in the negative.

0[ds]7. Section 16(2) provided (in so far as it is material) that "for the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him............." It is common ground that on July 15, 1944, dividend was declared by a resolution of the company and the amounts payable to the assessees were, in fact, credited on September 29, 1944, in the accounts maintained by the company to each of the shareholders as dividend. The amounts were therefore declared as dividend, treated as dividend and received by the assessees as dividend. The assessees included the dividends so credited to their accounts in the returns,. It may he assumed that the company failed to provide for payment of tax before declaring dividend and that after providing for payment of tax the net profits of the company may not have been sufficient to justify declaration of dividend at 60% of the value of the shares. On that assumption it may be inferred that the dividend or a part thereof was in truth paid out of the capital of company. Payment of dividend otherwise than out of profits of the wear, or other undistributed profits was at the material time prohibited by Art. 97 of Table A of the Companies Act. 1913, as amended by Act, XXXII of 1936 read with S. 17(2)of the Act and therefore such payment may be regarded as unlawful. If the Directors of a company have deliberately paid or negligently been instrumental in paying dividend out of capital they may have, in an action by the company - or if the company is being would up at the instance of the Liquidator - to compensate the company for loss occasioned by their wrongful or negligent conduct. (In re Union Bank of Allahabad I. L.R. 47 All. 669: (AIR 1925 All 519). In this case we are not concerned with the validity of the distribution of dividend, or the liability of the directors arising out of improper distribution of dividend. We are concerned with the true character of the payment made on September 29, 1944, to the assessees. If dividend is declared and the amount is credited or paid to the shareholders as dividend can the character of the credit or payment be altered by a subsequent resolution so as to alter the incidence of tax which attaches to that amount?8. By virtue of S.16(2) the liability to pay tax attaches as soon as dividend is paid, credited or distributed or deemed to have been paid, credited or distributed to the shareholders and the income tax Act contains no provision for altering the incidence of liability to pay tax on the dividend, merely because it is found that in declaring dividend and paying it the company violated a prohibition relating to payment of dividend in the Indian Companies Act.9. It is not necessary to consider in this case whether the shareholders may be compelled by the company to refund the amount improperly paid as dividend out of capital. Even if the shareholders agree to refund the amounts received by them as dividend the original character of the receipt as dividend is nor thereby altered. In ascertaining whether liability to pay Income-tax on dividend arose, a resolution of company whereby payments made to the share-holders as dividend are to be treated as loans cannot retrospectively alter the character of the payments and thereby exempt it from liability which has already attachedany even, we are of the opinion that payment made as dividend by a company to its shareholders does not lose that character merely because it is paid out of capital. Under the Income tax Act liability to pay tax attaches as soon as dividend is paid, credited or distributed or is so declared. The Act does not contemplate an enquiry whether the dividend is properly paid, credited or distributed before liability to pay the tax attachedanswer to the second contention for reasons already set out by us must be in the negative.

### 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: did not on that view arise for decision. Against the order of the High Court these four appeals have been preferred by the assessees.6. The only question material to these appeals which was argued by the assessees before the Tribunal was whether it was competent to the company by a subsequent resolution to reverse an earlier resolution declaring the dividend. The Tribunal held that the earlier resolution could not be reversed by a subsequent resolution, and therefore what was paid and received as divided could not by a subsequent resolution of the company be treated as paid otherwise than as dividend. The High Court held that the assessments were properly made by the Income Tax Officer. They observed that the assessment of an assessee for each year is self-contained and subsequent events cannot justify modification of the assess meet.7. Section 16(2) provided (in so far as it is material) that "for the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him............." It is common ground that on July 15, 1944, dividend was declared by a resolution of the company and the amounts payable to the assessees were, in fact, credited on September 29, 1944, in the accounts maintained by the company to each of the shareholders as dividend. The amounts were therefore declared as dividend, treated as dividend and received by the assessees as dividend. The assessees included the dividends so credited to their accounts in the returns,. It may he assumed that the company failed to provide for payment of tax before declaring dividend and that after providing for payment of tax the net profits of the company may not have been sufficient to justify declaration of dividend at 60% of the value of the shares. On that assumption it may be inferred that the dividend or a part thereof was in truth paid out of the capital of company. Payment of dividend otherwise than out of profits of the wear, or other undistributed profits was at the material time prohibited by Art. 97 of Table A of the Companies Act. 1913, as amended by Act, XXXII of 1936 read with S. 17(2)of the Act and therefore such payment may be regarded as unlawful. If the Directors of a company have deliberately paid or negligently been instrumental in paying dividend out of capital they may have, in an action by the company - or if the company is being would up at the instance of the Liquidator - to compensate the company for loss occasioned by their wrongful or negligent conduct. (In re Union Bank of Allahabad I. L.R. 47 All. 669: (AIR 1925 All 519). In this case we are not concerned with the validity of the distribution of dividend, or the liability of the directors arising out of improper distribution of dividend. We are concerned with the true character of the payment made on September 29, 1944, to the assessees. If dividend is declared and the amount is credited or paid to the shareholders as dividend can the character of the credit or payment be altered by a subsequent resolution so as to alter the incidence of tax which attaches to that amount?8. By virtue of S.16(2) the liability to pay tax attaches as soon as dividend is paid, credited or distributed or deemed to have been paid, credited or distributed to the shareholders and the income tax Act contains no provision for altering the incidence of liability to pay tax on the dividend, merely because it is found that in declaring dividend and paying it the company violated a prohibition relating to payment of dividend in the Indian Companies Act.9. It is not necessary to consider in this case whether the shareholders may be compelled by the company to refund the amount improperly paid as dividend out of capital. Even if the shareholders agree to refund the amounts received by them as dividend the original character of the receipt as dividend is nor thereby altered. In ascertaining whether liability to pay Income-tax on dividend arose, a resolution of company whereby payments made to the share-holders as dividend are to be treated as loans cannot retrospectively alter the character of the payments and thereby exempt it from liability which has already attached thereto.10. Before this Court two contentions were raised by counsel for the assessees: (1) that on the amount received by each of the assessees tax was not exigible because it was not dividend at all, and (2) that what was declared and paid as dividend ceased to be such by virtue of the subsequent resolution. The first plea was not raised before the Tribunal, and on the question as framed it did not arise for decision on a reference under S. 66 of the Indian Income-tax Act. The jurisdiction of the High Court under S. 66 being advisory, they were concerned to give their opinion on questions which fairly arisen out of the order of the Tribunal and were in fact raised and referred. The questions whether the payment made by the Company was not in the nature of dividend not having fairly arisen out of the order of the Tribunal it cannot be raised in this Court as it could not in the High Court. In any even, we are of the opinion that payment made as dividend by a company to its shareholders does not lose that character merely because it is paid out of capital. Under the Income tax Act liability to pay tax attaches as soon as dividend is paid, credited or distributed or is so declared. The Act does not contemplate an enquiry whether the dividend is properly paid, credited or distributed before liability to pay the tax attached thereto. The answer to the second contention for reasons already set out by us must be in the negative. ### Response: 0 ### Explanation: 7. Section 16(2) provided (in so far as it is material) that "for the purposes of inclusion in the total income of an assessee any dividend shall be deemed to be income of the previous year in which it is paid, credited or distributed or deemed to have been paid, credited or distributed to him............." It is common ground that on July 15, 1944, dividend was declared by a resolution of the company and the amounts payable to the assessees were, in fact, credited on September 29, 1944, in the accounts maintained by the company to each of the shareholders as dividend. The amounts were therefore declared as dividend, treated as dividend and received by the assessees as dividend. The assessees included the dividends so credited to their accounts in the returns,. It may he assumed that the company failed to provide for payment of tax before declaring dividend and that after providing for payment of tax the net profits of the company may not have been sufficient to justify declaration of dividend at 60% of the value of the shares. On that assumption it may be inferred that the dividend or a part thereof was in truth paid out of the capital of company. Payment of dividend otherwise than out of profits of the wear, or other undistributed profits was at the material time prohibited by Art. 97 of Table A of the Companies Act. 1913, as amended by Act, XXXII of 1936 read with S. 17(2)of the Act and therefore such payment may be regarded as unlawful. If the Directors of a company have deliberately paid or negligently been instrumental in paying dividend out of capital they may have, in an action by the company - or if the company is being would up at the instance of the Liquidator - to compensate the company for loss occasioned by their wrongful or negligent conduct. (In re Union Bank of Allahabad I. L.R. 47 All. 669: (AIR 1925 All 519). In this case we are not concerned with the validity of the distribution of dividend, or the liability of the directors arising out of improper distribution of dividend. We are concerned with the true character of the payment made on September 29, 1944, to the assessees. If dividend is declared and the amount is credited or paid to the shareholders as dividend can the character of the credit or payment be altered by a subsequent resolution so as to alter the incidence of tax which attaches to that amount?8. By virtue of S.16(2) the liability to pay tax attaches as soon as dividend is paid, credited or distributed or deemed to have been paid, credited or distributed to the shareholders and the income tax Act contains no provision for altering the incidence of liability to pay tax on the dividend, merely because it is found that in declaring dividend and paying it the company violated a prohibition relating to payment of dividend in the Indian Companies Act.9. It is not necessary to consider in this case whether the shareholders may be compelled by the company to refund the amount improperly paid as dividend out of capital. Even if the shareholders agree to refund the amounts received by them as dividend the original character of the receipt as dividend is nor thereby altered. In ascertaining whether liability to pay Income-tax on dividend arose, a resolution of company whereby payments made to the share-holders as dividend are to be treated as loans cannot retrospectively alter the character of the payments and thereby exempt it from liability which has already attachedany even, we are of the opinion that payment made as dividend by a company to its shareholders does not lose that character merely because it is paid out of capital. Under the Income tax Act liability to pay tax attaches as soon as dividend is paid, credited or distributed or is so declared. The Act does not contemplate an enquiry whether the dividend is properly paid, credited or distributed before liability to pay the tax attachedanswer to the second contention for reasons already set out by us must be in the negative.

Godrej and Boyce Manufacturing Company Limited Vs. Rameshwar P. Gawade

Civil Appeal No 976 of 2020 1. Leave granted. 2. This appeal arises from the judgment of a learned Single Judge of the High Court of Judicature at Bombay dated 12 March 2019. The High Court rejected the writ petition filed by the appellant under Article 226 of the Constitution of India assailing an interim order of the Industrial Court at Satara dated 25 January 2019 by which the transfer of the respondent from Shirwal to Ahmedabad was stayed. 3. The respondent was appointed on 18 July 2012 as a Senior Technical Staff Associate and had been posted at Shirwal. Clause 8 (a) of the letter of appointment specifically stipulates that his services can be transferred to any of the divisions, establishments or project sites of the employer at any location in India. The respondent was transferred on 2 May 2018 from the Plant at Shirwal to the establishment of the employer at Ahmedabad. The order of transfer was challenged by filing a complaint of unfair labour practices before the Industrial Court at Satara under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971. 4. Notice was served on the appellant on 5 May 2018 for appearance before the Industrial Court on the same day. Admittedly, no hearing took place before the Industrial Court on 5 May 2018. However, on 6 May 2018, which was a Sunday, an intimation was received by the Advocate appearing on behalf of the appellant telephonically from the office of Industrial Court, stating that the case would be heard on the said day. An ad-interim order was passed on 6 May 2018 by the Industrial Court directing the parties to maintain status quo until replies were filed. 5. By its order dated 25 January 2019, the Industrial Court stayed the order of transfer. The Industrial Court observed that it was not prepared to accept the case of the appellant that the transfer was on account of business exigencies since it was not believable that no one else apart from the complainant could perform the work at the Ahmedabad unit. Moreover, the Court observed that no specific request had been received from the Ahmedabad location for the transfer of an employee. Since the respondent did not join services at Ahmedabad after the order of status quo, it was not shown that the business function had been hampered. On these grounds, the order of transfer was stayed. 6. The High Court has declined to interfere with the interim order of the Industrial Court. 7. Notice was issued in these proceedings on 5 August 2019 when the order of the Industrial Court was stayed by this Court. 8. From the material which has emerged from the record, it is evident that the services of the workmen are transferable. The grounds which have weighed with the Industrial Court in holding that prima facie a case of victimisation has been made out contain no germane reasons in support of the finding. The Industrial Court has proceeded on the basis of surmises. A prima facie case of victimisation or mala fides has to be established on the basis of material to the satisfaction of the Industrial Court.

1[ds]8. From the material which has emerged from the record, it is evident that the services of the workmen are transferable. The grounds which have weighed with the Industrial Court in holding that prima facie a case of victimisation has been made out contain no germane reasons in support of the finding. The Industrial Court has proceeded on the basis of surmises. A prima facie case of victimisation or mala fides has to be established on the basis of material to the satisfaction of the Industrial Court.

### 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: Civil Appeal No 976 of 2020 1. Leave granted. 2. This appeal arises from the judgment of a learned Single Judge of the High Court of Judicature at Bombay dated 12 March 2019. The High Court rejected the writ petition filed by the appellant under Article 226 of the Constitution of India assailing an interim order of the Industrial Court at Satara dated 25 January 2019 by which the transfer of the respondent from Shirwal to Ahmedabad was stayed. 3. The respondent was appointed on 18 July 2012 as a Senior Technical Staff Associate and had been posted at Shirwal. Clause 8 (a) of the letter of appointment specifically stipulates that his services can be transferred to any of the divisions, establishments or project sites of the employer at any location in India. The respondent was transferred on 2 May 2018 from the Plant at Shirwal to the establishment of the employer at Ahmedabad. The order of transfer was challenged by filing a complaint of unfair labour practices before the Industrial Court at Satara under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act 1971. 4. Notice was served on the appellant on 5 May 2018 for appearance before the Industrial Court on the same day. Admittedly, no hearing took place before the Industrial Court on 5 May 2018. However, on 6 May 2018, which was a Sunday, an intimation was received by the Advocate appearing on behalf of the appellant telephonically from the office of Industrial Court, stating that the case would be heard on the said day. An ad-interim order was passed on 6 May 2018 by the Industrial Court directing the parties to maintain status quo until replies were filed. 5. By its order dated 25 January 2019, the Industrial Court stayed the order of transfer. The Industrial Court observed that it was not prepared to accept the case of the appellant that the transfer was on account of business exigencies since it was not believable that no one else apart from the complainant could perform the work at the Ahmedabad unit. Moreover, the Court observed that no specific request had been received from the Ahmedabad location for the transfer of an employee. Since the respondent did not join services at Ahmedabad after the order of status quo, it was not shown that the business function had been hampered. On these grounds, the order of transfer was stayed. 6. The High Court has declined to interfere with the interim order of the Industrial Court. 7. Notice was issued in these proceedings on 5 August 2019 when the order of the Industrial Court was stayed by this Court. 8. From the material which has emerged from the record, it is evident that the services of the workmen are transferable. The grounds which have weighed with the Industrial Court in holding that prima facie a case of victimisation has been made out contain no germane reasons in support of the finding. The Industrial Court has proceeded on the basis of surmises. A prima facie case of victimisation or mala fides has to be established on the basis of material to the satisfaction of the Industrial Court. ### Response: 1 ### Explanation: 8. From the material which has emerged from the record, it is evident that the services of the workmen are transferable. The grounds which have weighed with the Industrial Court in holding that prima facie a case of victimisation has been made out contain no germane reasons in support of the finding. The Industrial Court has proceeded on the basis of surmises. A prima facie case of victimisation or mala fides has to be established on the basis of material to the satisfaction of the Industrial Court.

Bharath Metha Vs. State By Inspector Of Police Chennai

of Rectified Spirit Rules. High Court also noted that though an order had been passed for releasing the vehicle in favour of respondent No. 2, he had not taken custody of the same though the order was passed on 23.1.2001. The High Court also noted that since the respondent No.2 was registered as owner of the vehicle and appellant was only the financier, the vehicle could not be released as prayed for. Accordingly, as noted above, the criminal revision petition was dismissed. 4. Learned counsel for the appellant submitted that in the certificate of registration there is clearly an endorsement to the effect that the vehicle was hired under the hire purchase agreement. It was also clearly endorsed that the hirer had entered into hire purchase agreement with Subham Credits represented by the appellant. 5. Learned counsel for the State clearly stated that though an order was passed permitting to respondent No.2 that release of the vehicle by executing bond of Rs.1,00,000/- with two sureties of like sum and other condition that he shall not alienate or encumber or alter the vehicle and shall produce the vehicle as and when required by the trial court, the said condition has not been complied with. 6. It is to be noted that respondent No. 2 did not appear before the High Court in the connected proceedings. 7. The nature of hire purchase agreement has been noted by this Court in Charanjit Singh Chadha v. Sudhir Mehra (2001(7) SCC 417). At page 421 it was noted as follows: “5. Hire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire-purchase scheme gained in popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into the picture. The finance company would buy the goods from the dealer and let them to the customer under hire-purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect instalments directly from the customer. Under hire-purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire-purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.6. Though in India, Parliament has passed the Hire Purchase Act, 1972, the same has not been notified in the Official Gazette by the Central Government so far. An initial notification was issued and the same was withdrawn later. The rules relating to hire-purchase agreements are delineated by the decisions of higher courts. There are a series of decisions of this Court explaining the nature of the hire-purchase agreement and mostly these decisions were rendered when the question arose whether there was a sale so as to attract payment of tax under the Sales Tax Act.7. In Damodar Valley Corpn. v. State of Bihar (AIR 1961 SC 440 ) this Court took the view that a mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question may arise as to what exactly were the rights and obligations of the parties to the original contract.8. In K.L. Johar & Co. v. CTO (AIR 1965 SC 1082 ) this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired." 8. The scope and ambit of Section 451 Cr.P.C. was highlighted by this Court in Sunderbhai Ambalal Desai v. State of Gujarat (2002(10) SCC 283).9. Undisputedly, in the Registration Certificate the name of the financier has been indicated and the factum that the vehicle was subject to such an agreement was also noted. In the agreement, appellant is described as owner, but respondent no.2 as hirer. It is noticed that the respondent No.2 had applied for the release of the vehicle and the High Court had directed the release of vehicle on certain conditions. Undisputedly, those conditions have not been fulfilled. The vehicle is, therefore, lying with the seizing authorities for nearly eight years now. In view of the factual position highlighted above, we direct release of the vehicle in favour of the appellant subject to fulfillment of the conditions which were stipulated for the respondent No.2.10.

1[ds]7. The nature of hire purchase agreement has been noted by this Court in Charanjit Singh Chadha v. Sudhir Mehra (2001(7) SCC 417). At page 421 it was noted asHire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire-purchase scheme gained in popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into the picture. The finance company would buy the goods from the dealer and let them to the customer under hire-purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect instalments directly from the customer. Under hire-purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire-purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.6. Though in India, Parliament has passed the Hire Purchase Act, 1972, the same has not been notified in the Official Gazette by the Central Government so far. An initial notification was issued and the same was withdrawn later. The rules relating to hire-purchase agreements are delineated by the decisions of higher courts. There are a series of decisions of this Court explaining the nature of the hire-purchase agreement and mostly these decisions were rendered when the question arose whether there was a sale so as to attract payment of tax under the Sales Tax Act.7. In Damodar Valley Corpn. v. State of Bihar (AIR 1961 SC 440 ) this Court took the view that a mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question may arise as to what exactly were the rights and obligations of the parties to the original contract.8. In K.L. Johar & Co. v. CTO (AIR 1965 SC 1082 ) this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired.The scope and ambit of Section 451 Cr.P.C. was highlighted by this Court in Sunderbhai Ambalal Desai v. State of Gujarat (2002(10) SCC 283).9. Undisputedly, in the Registration Certificate the name of the financier has been indicated and the factum that the vehicle was subject to such an agreement was also noted. In the agreement, appellant is described as owner, but respondent no.2 as hirer. It is noticed that the respondent No.2 had applied for the release of the vehicle and the High Court had directed the release of vehicle on certain conditions. Undisputedly, those conditions have not been fulfilled. The vehicle is, therefore, lying with the seizing authorities for nearly eight years now. In view of the factual position highlighted above, we direct release of the vehicle in favour of the appellant subject to fulfillment of the conditions which were stipulated for the respondent No.2.

### 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 Rectified Spirit Rules. High Court also noted that though an order had been passed for releasing the vehicle in favour of respondent No. 2, he had not taken custody of the same though the order was passed on 23.1.2001. The High Court also noted that since the respondent No.2 was registered as owner of the vehicle and appellant was only the financier, the vehicle could not be released as prayed for. Accordingly, as noted above, the criminal revision petition was dismissed. 4. Learned counsel for the appellant submitted that in the certificate of registration there is clearly an endorsement to the effect that the vehicle was hired under the hire purchase agreement. It was also clearly endorsed that the hirer had entered into hire purchase agreement with Subham Credits represented by the appellant. 5. Learned counsel for the State clearly stated that though an order was passed permitting to respondent No.2 that release of the vehicle by executing bond of Rs.1,00,000/- with two sureties of like sum and other condition that he shall not alienate or encumber or alter the vehicle and shall produce the vehicle as and when required by the trial court, the said condition has not been complied with. 6. It is to be noted that respondent No. 2 did not appear before the High Court in the connected proceedings. 7. The nature of hire purchase agreement has been noted by this Court in Charanjit Singh Chadha v. Sudhir Mehra (2001(7) SCC 417). At page 421 it was noted as follows: “5. Hire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire-purchase scheme gained in popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into the picture. The finance company would buy the goods from the dealer and let them to the customer under hire-purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect instalments directly from the customer. Under hire-purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire-purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.6. Though in India, Parliament has passed the Hire Purchase Act, 1972, the same has not been notified in the Official Gazette by the Central Government so far. An initial notification was issued and the same was withdrawn later. The rules relating to hire-purchase agreements are delineated by the decisions of higher courts. There are a series of decisions of this Court explaining the nature of the hire-purchase agreement and mostly these decisions were rendered when the question arose whether there was a sale so as to attract payment of tax under the Sales Tax Act.7. In Damodar Valley Corpn. v. State of Bihar (AIR 1961 SC 440 ) this Court took the view that a mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question may arise as to what exactly were the rights and obligations of the parties to the original contract.8. In K.L. Johar & Co. v. CTO (AIR 1965 SC 1082 ) this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired." 8. The scope and ambit of Section 451 Cr.P.C. was highlighted by this Court in Sunderbhai Ambalal Desai v. State of Gujarat (2002(10) SCC 283).9. Undisputedly, in the Registration Certificate the name of the financier has been indicated and the factum that the vehicle was subject to such an agreement was also noted. In the agreement, appellant is described as owner, but respondent no.2 as hirer. It is noticed that the respondent No.2 had applied for the release of the vehicle and the High Court had directed the release of vehicle on certain conditions. Undisputedly, those conditions have not been fulfilled. The vehicle is, therefore, lying with the seizing authorities for nearly eight years now. In view of the factual position highlighted above, we direct release of the vehicle in favour of the appellant subject to fulfillment of the conditions which were stipulated for the respondent No.2.10. ### Response: 1 ### Explanation: 7. The nature of hire purchase agreement has been noted by this Court in Charanjit Singh Chadha v. Sudhir Mehra (2001(7) SCC 417). At page 421 it was noted asHire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire-purchase scheme gained in popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into the picture. The finance company would buy the goods from the dealer and let them to the customer under hire-purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect instalments directly from the customer. Under hire-purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire-purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.6. Though in India, Parliament has passed the Hire Purchase Act, 1972, the same has not been notified in the Official Gazette by the Central Government so far. An initial notification was issued and the same was withdrawn later. The rules relating to hire-purchase agreements are delineated by the decisions of higher courts. There are a series of decisions of this Court explaining the nature of the hire-purchase agreement and mostly these decisions were rendered when the question arose whether there was a sale so as to attract payment of tax under the Sales Tax Act.7. In Damodar Valley Corpn. v. State of Bihar (AIR 1961 SC 440 ) this Court took the view that a mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question may arise as to what exactly were the rights and obligations of the parties to the original contract.8. In K.L. Johar & Co. v. CTO (AIR 1965 SC 1082 ) this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied and the option is exercised a sale takes place of the goods which till then had been hired.The scope and ambit of Section 451 Cr.P.C. was highlighted by this Court in Sunderbhai Ambalal Desai v. State of Gujarat (2002(10) SCC 283).9. Undisputedly, in the Registration Certificate the name of the financier has been indicated and the factum that the vehicle was subject to such an agreement was also noted. In the agreement, appellant is described as owner, but respondent no.2 as hirer. It is noticed that the respondent No.2 had applied for the release of the vehicle and the High Court had directed the release of vehicle on certain conditions. Undisputedly, those conditions have not been fulfilled. The vehicle is, therefore, lying with the seizing authorities for nearly eight years now. In view of the factual position highlighted above, we direct release of the vehicle in favour of the appellant subject to fulfillment of the conditions which were stipulated for the respondent No.2.

Mitsui Steamship Co. Ltd Vs. C.I.T. West Bengal, Ii Calcutta

business, profession or vocation" or "Income from other sources, for the assessment year commencing on the 1st day of April, 1957 or any subsequent assessment year of any sum paid on account of wealth tax."To this section also an explanation was added saying :"Explanation - For the purposes of this section, "wealth-tax" shall have the same meaning as is assigned to it in the Explanation to sub-clause (iia) of clause (a) of Section 40 of the principal Act."Section 5 of the Amendment Act contains a saving clause to which it is not necessary to refer for the purpose of these appeals.9. We have mentioned earlier the assessment years concerned in the instant appeals. The question is, what is the effect of the Income-tax (Amendment) Act, 1972 on these appeals. The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Companys case. 84 ITR 735 = (AIR 1972 SC 1880 ) that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth tax to the list of amounts not deductible in computing the assessees income from business. Therefore, any amount paid by the assessee on account of a tax, other than the wealth tax on his business assets would be outside the scope of the Amendment Act and would continue to be governed by the law laid down in Indian Aluminium Companys case, 84 ITR 735 = (AIR 1972 SC 1880 ). The explanation to the new sub-cl. (iia) inserted in Section 40 of the Income-tax Act, 1961 which Section 4 of the Amendment Act adopts for the purposes of that section, defines "wealth tax" to include, inter alia besides wealth tax chargeable under the Wealth Tax Act, 1957, "any tax of a similar character chargeable under any law in force in any country outside India". The only contention raised before us on behalf of the revenue was that the nature of the tax paid by the assessees in Japan on their business assets is similar to the wealth tax payable under the Wealth Tax Act, 1957. This leads to a comparison of the two statutes. Wealth Tax Act, 1957 and the Local Tax Law of Japan, to find out whether they are of a similar character.The supplementary statement of case drawn up by the Tribunal pursuant to an order of this Court dated Apri1 11, 1973 discloses that the assets belonging to the appellants with which we are concerned in these appeals were all used by them in their business during the relevant previous years and also that the payment of tax under the Japanese law was incidental to the carrying on of the business of the assessees.10. From an examination of the provisions contained in Book Four of the Japanese Statute, it appears to us that there is a basic difference between the Wealth Tax Act, 1957 and the Local Tax Law of Japan. Wealth Tax in India is charged on the net wealth of the assessee. Net wealth as defined in Section 2 (m) of the Wealth Tax Act, 1957 means broadly, the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts. With certain exceptions, owed by him. Generally speaking by the value of an asset, other than cash, is meant its market value. Assets has been defined in clause (e) of Section 2 of the Act as including property of every description. Moveable or immovable, with certain specified exemptions. Wealth Tax in India is a national tax charged by the Central Government. The municipa1 property tax in Japan is imposed on property as defined in Article 341 (1). In this definition, Property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in Article 341 (4), inter alia, as assets other than land and house which can be used for business purpose, but these assets again exclude all depreciable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down that the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets the city town and village in which the principal port of anchorage or regular keeping place is located shall be the city, town or village authorised to impose the municipal property tax Further, it appears that under the Japanese law tax is charged at the standard rate of 1.4 per cent on the value of the Property computed in the manner laid down in the statute providing the taxable basis, and in certain special cases it may go up to 2.5 per cent., which is the maximum; in India, the rates of wealth tax vary increasing progressively with the amount of net wealth of the assessee.11. The broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth tax in India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located, The wealth tax is a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws. as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts.

1[ds]The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Companys case. 84 ITR 735 = (AIR 1972 SC 1880 ) that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth tax to the list of amounts not deductible in computing the assessees income from business. Therefore, any amount paid by the assessee on account of a tax, other than the wealth tax on his business assets would be outside the scope of the Amendment Act and would continue to be governed by the law laid down in Indian Aluminium Companys case, 84 ITR 735 = (AIR 1972 SC 1880 ). The explanation to the new sub-cl. (iia) inserted in Section 40 ofthe Income-tax Act, 1961 which Section 4 of the Amendment Act adopts for the purposes of that section, defines "wealth tax" to include, inter alia besides wealth tax chargeable underthe Wealth Tax Act, 1957, "any tax of a similar character chargeable under any law in force in any country outside India".From an examination of the provisions contained in Book Four of the Japanese Statute, it appears to us that there is a basic difference betweenthe Wealth Tax Act, 1957 and the Local Tax Law of Japan. Wealth Tax in India is charged on the net wealth of the assessee. Net wealth as defined in Section 2 (m) ofthe Wealth Tax Act, 1957 means broadly, the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts. With certain exceptions, owed by him. Generally speaking by the value of an asset, other than cash, is meant its market value. Assets has been defined in clause (e) of Section 2 of the Act as including property of every description. Moveable or immovable, with certain specified exemptions. Wealth Tax in India is a national tax charged by the Central Government. The municipa1 property tax in Japan is imposed on property as defined in Article 341 (1). In this definition, Property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in Article 341 (4), inter alia, as assets other than land and house which can be used for business purpose, but these assets again exclude all depreciable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down that the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets the city town and village in which the principal port of anchorage or regular keeping place is located shall be the city, town or village authorised to impose the municipal property tax Further, it appears that under the Japanese law tax is charged at the standard rate of 1.4 per cent on the value of the Property computed in the manner laid down in the statute providing the taxable basis, and in certain special cases it may go up to 2.5 per cent., which is the maximum; in India, the rates of wealth tax vary increasing progressively with the amount of net wealth of the assessee.11. The broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth tax in India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located, The wealth tax is a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws. as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts.

### 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: business, profession or vocation" or "Income from other sources, for the assessment year commencing on the 1st day of April, 1957 or any subsequent assessment year of any sum paid on account of wealth tax."To this section also an explanation was added saying :"Explanation - For the purposes of this section, "wealth-tax" shall have the same meaning as is assigned to it in the Explanation to sub-clause (iia) of clause (a) of Section 40 of the principal Act."Section 5 of the Amendment Act contains a saving clause to which it is not necessary to refer for the purpose of these appeals.9. We have mentioned earlier the assessment years concerned in the instant appeals. The question is, what is the effect of the Income-tax (Amendment) Act, 1972 on these appeals. The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Companys case. 84 ITR 735 = (AIR 1972 SC 1880 ) that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth tax to the list of amounts not deductible in computing the assessees income from business. Therefore, any amount paid by the assessee on account of a tax, other than the wealth tax on his business assets would be outside the scope of the Amendment Act and would continue to be governed by the law laid down in Indian Aluminium Companys case, 84 ITR 735 = (AIR 1972 SC 1880 ). The explanation to the new sub-cl. (iia) inserted in Section 40 of the Income-tax Act, 1961 which Section 4 of the Amendment Act adopts for the purposes of that section, defines "wealth tax" to include, inter alia besides wealth tax chargeable under the Wealth Tax Act, 1957, "any tax of a similar character chargeable under any law in force in any country outside India". The only contention raised before us on behalf of the revenue was that the nature of the tax paid by the assessees in Japan on their business assets is similar to the wealth tax payable under the Wealth Tax Act, 1957. This leads to a comparison of the two statutes. Wealth Tax Act, 1957 and the Local Tax Law of Japan, to find out whether they are of a similar character.The supplementary statement of case drawn up by the Tribunal pursuant to an order of this Court dated Apri1 11, 1973 discloses that the assets belonging to the appellants with which we are concerned in these appeals were all used by them in their business during the relevant previous years and also that the payment of tax under the Japanese law was incidental to the carrying on of the business of the assessees.10. From an examination of the provisions contained in Book Four of the Japanese Statute, it appears to us that there is a basic difference between the Wealth Tax Act, 1957 and the Local Tax Law of Japan. Wealth Tax in India is charged on the net wealth of the assessee. Net wealth as defined in Section 2 (m) of the Wealth Tax Act, 1957 means broadly, the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts. With certain exceptions, owed by him. Generally speaking by the value of an asset, other than cash, is meant its market value. Assets has been defined in clause (e) of Section 2 of the Act as including property of every description. Moveable or immovable, with certain specified exemptions. Wealth Tax in India is a national tax charged by the Central Government. The municipa1 property tax in Japan is imposed on property as defined in Article 341 (1). In this definition, Property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in Article 341 (4), inter alia, as assets other than land and house which can be used for business purpose, but these assets again exclude all depreciable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down that the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets the city town and village in which the principal port of anchorage or regular keeping place is located shall be the city, town or village authorised to impose the municipal property tax Further, it appears that under the Japanese law tax is charged at the standard rate of 1.4 per cent on the value of the Property computed in the manner laid down in the statute providing the taxable basis, and in certain special cases it may go up to 2.5 per cent., which is the maximum; in India, the rates of wealth tax vary increasing progressively with the amount of net wealth of the assessee.11. The broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth tax in India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located, The wealth tax is a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws. as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts. ### Response: 1 ### Explanation: The amendments introduced do not appear to touch the principle laid down in Indian Aluminium Companys case. 84 ITR 735 = (AIR 1972 SC 1880 ) that when a person has a dual capacity of a trader-cum-owner, and he pays tax in respect of property which is used for the purpose of trade, the payment must be taken to be in the capacity of a trader. The Amendment Act only adds the sum paid on account of wealth tax to the list of amounts not deductible in computing the assessees income from business. Therefore, any amount paid by the assessee on account of a tax, other than the wealth tax on his business assets would be outside the scope of the Amendment Act and would continue to be governed by the law laid down in Indian Aluminium Companys case, 84 ITR 735 = (AIR 1972 SC 1880 ). The explanation to the new sub-cl. (iia) inserted in Section 40 ofthe Income-tax Act, 1961 which Section 4 of the Amendment Act adopts for the purposes of that section, defines "wealth tax" to include, inter alia besides wealth tax chargeable underthe Wealth Tax Act, 1957, "any tax of a similar character chargeable under any law in force in any country outside India".From an examination of the provisions contained in Book Four of the Japanese Statute, it appears to us that there is a basic difference betweenthe Wealth Tax Act, 1957 and the Local Tax Law of Japan. Wealth Tax in India is charged on the net wealth of the assessee. Net wealth as defined in Section 2 (m) ofthe Wealth Tax Act, 1957 means broadly, the aggregate value of all the assets, wherever located, belonging to the assessee minus the total amount of the debts. With certain exceptions, owed by him. Generally speaking by the value of an asset, other than cash, is meant its market value. Assets has been defined in clause (e) of Section 2 of the Act as including property of every description. Moveable or immovable, with certain specified exemptions. Wealth Tax in India is a national tax charged by the Central Government. The municipa1 property tax in Japan is imposed on property as defined in Article 341 (1). In this definition, Property includes only land, houses and depreciable assets and not property of every description. Depreciable assets has been defined in Article 341 (4), inter alia, as assets other than land and house which can be used for business purpose, but these assets again exclude all depreciable intangible property and property which are the objects of other taxes like automobiles, bicycles and carts. Article 342 lays down that the municipal property tax shall be imposed on property by the city, town or village in which the property concerned is located and provides that with respect to vessels, vehicles and other objects similar in nature which are included in depreciable assets the city town and village in which the principal port of anchorage or regular keeping place is located shall be the city, town or village authorised to impose the municipal property tax Further, it appears that under the Japanese law tax is charged at the standard rate of 1.4 per cent on the value of the Property computed in the manner laid down in the statute providing the taxable basis, and in certain special cases it may go up to 2.5 per cent., which is the maximum; in India, the rates of wealth tax vary increasing progressively with the amount of net wealth of the assessee.11. The broad features of the two statutes we have noted above reveal their basic dissimilarity. Unlike the wealth tax in India, the municipal property tax of Japan is a local tax imposed on certain specified properties by the city, town or village in which the properties are located, The wealth tax is a national tax chargeable on the net wealth of a person with certain specified exemptions. The difference in the manner of determination of the taxable basis of the properties and the rates of taxation emphasize the basic difference between the two taxes. Of course, there are certain points of similarity between the two laws. as there must be, both being taxing statutes, but these similarities do not remove the fundamental difference in the aim, object and the basic structure of the two Acts.

RAMESH PARSRAM MALANI AND ORS Vs. THE STATE OF TELANGANA REPRESENTED BY THE DISTRICT COLLECTOR AND ORS

additional allotment and his belated claim was totally false, fabricated and arose out of an ulterior motive. 35. Another argument was raised that the expression package deal is not the expression used in the communication dated May 24, 1980 though such expression was used in the communication dated March 5, 1962 by the Central Government and/or in the communication dated March 23, 1963 when communicating with Punjab Government. We find that the lack of use of expression package deal will not change the nature of transfer which is in terms of Section 16 of the Act with the date of transfer specified as June 1, 1980 in terms of Rule 34 of the Rules. The transfer of land forming part of compensation pool is contemplated by Section 16 of the Act, when it provides that for the custody, management and disposal of the compensation pool, the Central Government constitute such authority or corporation. Thus, if the Central Government could transfer land forming part of the compensation pool to a corporation, then it could very well transfer land to a State Government. 36. The Punjab Act is to regulate transfer of land for allotment to displaced persons after vesting of surplus land with the State Government of Punjab. Such Act is only to regulate and provide for procedure for allotment of surplus evacuee land. 37. In fact, the Act was repealed by the Displaced Persons Claims and Other Laws Repeal Act, 2005. One of the objects of the Repeal Act is as under: 2. The major works of claims compensation and rehabilitation more or less had been completed by the year end of 1970. Subsequently, the erstwhile Ministry of Labour and Rehabilitation (Department of Rehabilitation) which was responsible for the aforesaid rehabilitation work also concluded that only a limited number of acquired evacuee urban and agricultural lands or properties had remained to be disposed of and the expenditure which was being incurred for the purpose was out of proportion to the volume of work and the receipts from their disposal… 3. Subsequent to the transfer of the ownership of the Central Government on the undisposed evacuee properties to the State Governments concerned, it was reported by the State Governments that a large number of claims under the aforesaid Acts are being continued to be filed in the various courts under the aforesaid Acts. It has further been brought to the notice of the Central Government that a number of persons unconnected with the claimants posing as their legal heirs are presenting repeated demands for lands. Examinations have revealed that in most of such cases the claimants under the temptation to grab more lands, have managed to obtain bogus and excess allotments. It therefore had become difficult for the State Governments to retrieve the Government lands and properties worth crores of rupees from the hands of unscrupulous persons. 38. The Government of India clarified on September 22, 2008 that the proceedings pending under the Act before the repeal have to be decided under the relevant laws. It was communicated as under: 3. The matter has, therefore, been considered in detail by the Ministry of Home Affairs, in consultation with the Ministry of Law & Justice and after ascertaining the ground situation from some of the State Governments/UT s concerned. Pursuant thereto, and in order to remove ambiguity and doubts which appear to have been created, it is clarified that the enactment of the displaced persons claims and other laws repeal Act 2005 would not affect disposal of the following categories of cases and the State Government/UT s may, therefore, take action as appropriate, to settle them under the relevant State Laws or the General Clauses Act: 3.1. Unsatisfied verified claims filed under the Displaced Persons (Claims) Act, 1950 in which right has accrued or has been acquired and which were pending as on 06.09.2005, the date on which the Displaced Persons (Compensation & Rehabilitation) Act, 1954 and other related Acts were repealed. xx xx xx 5. As regards revival of the authorities prescribed under the repealed Acts, it is clarified that since the subject stands transferred to the State Governments, action for settlement of pending matters, can be taken by the authorities prescribed under any state laws that may have been enacted or in any other manner as considered appropriate and it may not be necessary to revive the authorities prescribed under the repealed acts. 39. It is, thereafter, another communication was addressed by the Government of India on November 17, 2016 subsequent to an order passed by this Court in Union of India v. International Sindhi Panchayats & Ors. Civil Appeal No. 6079 of 2010 on April 28, 2014 that the cases and proceedings which were pending on the date of repeal of the Act will be decided in terms of the provisions of the Act. It was communicated as under: 2. Considering the above judgment passed by the Honble Supreme Court on the issue, this Ministry, in consultation with Ministry of Law & Justice has decided to request all the State Governments/UT s to continue to decide the pending cases and proceedings which were pending on the date of the repeal of the said Acts, and deal with the residuary works of administration, management and disposal of acquired evacuee properties (forming part of Compensation Pool) transferred to the State Governments/UT s, under the un-repealed Displaced Persons (Compensation & Rehabilitation) Act, 1954 and other related Acts as per the provisions of Section 6 of the General Clauses Act, 1897. 40. Mr. Sibal has strongly relied upon the order passed by this Court in International Sindhi Panchayats. The said order is that the cases and proceedings pending on the date of repeal shall be decided under the provisions of the Act. The said order is not helpful to the issue raised in respect of the right of the Central Government for allotment of land after the same was transferred to State of Andhra Pradesh on May 24, 1980 w.e.f. June 1, 1980.

0[ds]24. All evacuee property in terms of notification issued by the Central Government from time to time in terms of Section 12 of the Act forms part of compensation pool under Section 14 of the Act. Section 16 of the Act empowers the Central Government to take such measures as is considered necessary or expedient for the custody, management and disposal of compensation pool. The Circular dated May 23, 1980 relates to administration, management and disposal of compensation which is in terms of Section 16 of the Act. Section 16(2)(b) of the Act empowers the Central Government to constitute such authority or corporation for the purposes of sub-section (1) i.e. custody, management and disposal of compensation pool. The Central Government is competent to constitute any authority or corporation for the same purpose. Therefore, the transfer of land forming part of compensation pool to the State Government has legislative sanction in terms of Section 16(2)(b) of the Act25. Once the power of disposal has been conferred upon the State Government, and the manner of transfer stands crystalized in the circular, the expression disposal of land by the State Government will include transfer of title to the purchaser as the State Government could transfer only that much right which the owner i.e. the Central Government had. Therefore, disposal of land would mean transfer of land free from all encumbrances by the State Government except to the extent of 15% of the realised value as the share of contribution to the Central Government. It is between the Central Government and the State Government to regulate the transfer between them. The management and disposal of land to the State Government is in terms of Section 16 of the Act26. It is wholly immaterial that the language of letter issued by the Central Government to the Government of Punjab in the year 1961 is different from the language of the letter issued to the Government of Andhra Pradesh. The purpose of both the communications is transfer of evacuee land to the State Governments to give effect to the provisions of the Act for consideration which was lumpsum in the State of Punjab and on percentage basis in the State of Andhra Pradesh but the transfer of land is complete as far as Central Government is concerned28. The argument raised by Mr. Sibal that the Central Government has notified the authorities to give effect to the provisions of the Act, therefore, the Central Government has retained control and administration of the evacuee property, is misconceived. The land forming part of the compensation pool was transferred to the State Government and the officers of the State Government were entrusted with the functions of Managing Officer or Settlement Commissioner, as the case may be. The allotment of all evacuee land is governed by the Act, therefore, the officers competent to make allotment are the Managing Officers, whereas power of appeal and revision are to be exercised by the Settlement Commissioner or the Chief Settlement Commissioner. Such notifications facilitate the exercise of powers under the Act by the officers of the State Government in respect of land which stood transferred to the State Government. The CCLA in terms of the scheme of the Act has no power to make allotment of land as he exercises the appellate or revisional jurisdiction as a delegate of the Central Government. The power of allotment is vested with the Managing Officer only in terms of Section 17 of the Act29. The allotment was made by the CCLA as a delegatee of the Central Government. The Settlement Commissioner had no power to make allotment of land falling in compensation pool either before May 23, 1980 or thereafter. Since the land stood transferred to the State Government, the CCLA as a delegatee of the Central Government, could not deal with the land forming part of compensation pool which stood transferred to the State Government30. On this ground alone, the allotment made in favour of the appellant on February 26, 2003 cannot be sustained in view of the Division Bench judgment of Punjab and Haryana High Court in Ram Chander, as approved by this Court in Pala Singh. We find that the Central Government or its delegatee could not allot land after the same was transferred to the State as a part of the package deal31. However, we are unable to agree with the High Court that transfer of land to the State Government takes such transferred land out of compensation pool. The land transferred to the State Government continues to be part of compensation pool but it is required to be disposed of by the Officers of the State who have been conferred the powers of the Managing Officer or of the Settlement Commissioner for the settlement of the displaced persons alone. It is only after the displaced persons are settled, the State Government may utilize the land for other purposes32. We do not find any merit in the argument that there is no time limit for allotment of land to make good the verified claim. Rule 86 of the Rules will come into play if the displaced person has not raised any claim within the time period prescribed under Section 4 of the Act i.e. June 30, 1955 but once a claim has been filed by a displaced person, the successor-in-interest steps into his shoes and was required to raise his grievance in respect of allotment of lesser area or any other grievance arising out of a quasi-judicial order passed by the Regional Settlement Commissioner in the manner prescribed by the Act. Since the predecessor-in-interest of the appellant has not raised any grievance during his life time and for more than 13 years after his death by the appellant, therefore, the appellant cannot be permitted to agitate the issues which have attained finality. Rule 86 of the Rules is not a perennial source of allotment by the successor-in-interest but operates in respect of a successor-in-interest by a displaced person who has not filed claim during his life time of a displaced person before June 30, 1955. The successor-in-interest is also required to file claim before the date fixed by Section 4 of the Act33. The argument that the appellant is entitled to equivalent land as is the verified claim is untenable. The verified claim is verification of the claim of the displaced person in respect of his property in West Pakistan. The entitlement of allotment out of compensation pool is contained in Rule 51 of the Rules. Rule 51 of the Rules provides for the land which is to be allotted in lieu of area abandoned. In respect of 83 acres of area abandoned, the entitlement is 45.8¾ acres as per the Appendix XIV. Therefore, the father of the appellant could at best claim the remaining 4 acres but had to raise a claim by seeking his remedy against the order passed by the Regional Settlement Commissioner on April 29, 1954 or March 24, 1956. Rule 51 of the Rules will be applicable if the land is not available and the competent authority decides to allot land in bits and parts. The order of allotment does not show that the allotting authority reserved any right for allotment of the remaining land, therefore, the claim of the appellant stood satisfied in its entirety when the allotment was made under the Act in the year 195435. Another argument was raised that the expression package deal is not the expression used in the communication dated May 24, 1980 though such expression was used in the communication dated March 5, 1962 by the Central Government and/or in the communication dated March 23, 1963 when communicating with Punjab Government. We find that the lack of use of expression package deal will not change the nature of transfer which is in terms of Section 16 of the Act with the date of transfer specified as June 1, 1980 in terms of Rule 34 of the Rules. The transfer of land forming part of compensation pool is contemplated by Section 16 of the Act, when it provides that for the custody, management and disposal of the compensation pool, the Central Government constitute such authority or corporation. Thus, if the Central Government could transfer land forming part of the compensation pool to a corporation, then it could very well transfer land to a State Government40. Mr. Sibal has strongly relied upon the order passed by this Court in International Sindhi Panchayats. The said order is that the cases and proceedings pending on the date of repeal shall be decided under the provisions of the Act. The said order is not helpful to the issue raised in respect of the right of the Central Government for allotment of land after the same was transferred to State of Andhra Pradesh on May 24, 1980 w.e.f. June 1, 1980.

### 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: additional allotment and his belated claim was totally false, fabricated and arose out of an ulterior motive. 35. Another argument was raised that the expression package deal is not the expression used in the communication dated May 24, 1980 though such expression was used in the communication dated March 5, 1962 by the Central Government and/or in the communication dated March 23, 1963 when communicating with Punjab Government. We find that the lack of use of expression package deal will not change the nature of transfer which is in terms of Section 16 of the Act with the date of transfer specified as June 1, 1980 in terms of Rule 34 of the Rules. The transfer of land forming part of compensation pool is contemplated by Section 16 of the Act, when it provides that for the custody, management and disposal of the compensation pool, the Central Government constitute such authority or corporation. Thus, if the Central Government could transfer land forming part of the compensation pool to a corporation, then it could very well transfer land to a State Government. 36. The Punjab Act is to regulate transfer of land for allotment to displaced persons after vesting of surplus land with the State Government of Punjab. Such Act is only to regulate and provide for procedure for allotment of surplus evacuee land. 37. In fact, the Act was repealed by the Displaced Persons Claims and Other Laws Repeal Act, 2005. One of the objects of the Repeal Act is as under: 2. The major works of claims compensation and rehabilitation more or less had been completed by the year end of 1970. Subsequently, the erstwhile Ministry of Labour and Rehabilitation (Department of Rehabilitation) which was responsible for the aforesaid rehabilitation work also concluded that only a limited number of acquired evacuee urban and agricultural lands or properties had remained to be disposed of and the expenditure which was being incurred for the purpose was out of proportion to the volume of work and the receipts from their disposal… 3. Subsequent to the transfer of the ownership of the Central Government on the undisposed evacuee properties to the State Governments concerned, it was reported by the State Governments that a large number of claims under the aforesaid Acts are being continued to be filed in the various courts under the aforesaid Acts. It has further been brought to the notice of the Central Government that a number of persons unconnected with the claimants posing as their legal heirs are presenting repeated demands for lands. Examinations have revealed that in most of such cases the claimants under the temptation to grab more lands, have managed to obtain bogus and excess allotments. It therefore had become difficult for the State Governments to retrieve the Government lands and properties worth crores of rupees from the hands of unscrupulous persons. 38. The Government of India clarified on September 22, 2008 that the proceedings pending under the Act before the repeal have to be decided under the relevant laws. It was communicated as under: 3. The matter has, therefore, been considered in detail by the Ministry of Home Affairs, in consultation with the Ministry of Law & Justice and after ascertaining the ground situation from some of the State Governments/UT s concerned. Pursuant thereto, and in order to remove ambiguity and doubts which appear to have been created, it is clarified that the enactment of the displaced persons claims and other laws repeal Act 2005 would not affect disposal of the following categories of cases and the State Government/UT s may, therefore, take action as appropriate, to settle them under the relevant State Laws or the General Clauses Act: 3.1. Unsatisfied verified claims filed under the Displaced Persons (Claims) Act, 1950 in which right has accrued or has been acquired and which were pending as on 06.09.2005, the date on which the Displaced Persons (Compensation & Rehabilitation) Act, 1954 and other related Acts were repealed. xx xx xx 5. As regards revival of the authorities prescribed under the repealed Acts, it is clarified that since the subject stands transferred to the State Governments, action for settlement of pending matters, can be taken by the authorities prescribed under any state laws that may have been enacted or in any other manner as considered appropriate and it may not be necessary to revive the authorities prescribed under the repealed acts. 39. It is, thereafter, another communication was addressed by the Government of India on November 17, 2016 subsequent to an order passed by this Court in Union of India v. International Sindhi Panchayats & Ors. Civil Appeal No. 6079 of 2010 on April 28, 2014 that the cases and proceedings which were pending on the date of repeal of the Act will be decided in terms of the provisions of the Act. It was communicated as under: 2. Considering the above judgment passed by the Honble Supreme Court on the issue, this Ministry, in consultation with Ministry of Law & Justice has decided to request all the State Governments/UT s to continue to decide the pending cases and proceedings which were pending on the date of the repeal of the said Acts, and deal with the residuary works of administration, management and disposal of acquired evacuee properties (forming part of Compensation Pool) transferred to the State Governments/UT s, under the un-repealed Displaced Persons (Compensation & Rehabilitation) Act, 1954 and other related Acts as per the provisions of Section 6 of the General Clauses Act, 1897. 40. Mr. Sibal has strongly relied upon the order passed by this Court in International Sindhi Panchayats. The said order is that the cases and proceedings pending on the date of repeal shall be decided under the provisions of the Act. The said order is not helpful to the issue raised in respect of the right of the Central Government for allotment of land after the same was transferred to State of Andhra Pradesh on May 24, 1980 w.e.f. June 1, 1980. ### Response: 0 ### Explanation: are the Managing Officers, whereas power of appeal and revision are to be exercised by the Settlement Commissioner or the Chief Settlement Commissioner. Such notifications facilitate the exercise of powers under the Act by the officers of the State Government in respect of land which stood transferred to the State Government. The CCLA in terms of the scheme of the Act has no power to make allotment of land as he exercises the appellate or revisional jurisdiction as a delegate of the Central Government. The power of allotment is vested with the Managing Officer only in terms of Section 17 of the Act29. The allotment was made by the CCLA as a delegatee of the Central Government. The Settlement Commissioner had no power to make allotment of land falling in compensation pool either before May 23, 1980 or thereafter. Since the land stood transferred to the State Government, the CCLA as a delegatee of the Central Government, could not deal with the land forming part of compensation pool which stood transferred to the State Government30. On this ground alone, the allotment made in favour of the appellant on February 26, 2003 cannot be sustained in view of the Division Bench judgment of Punjab and Haryana High Court in Ram Chander, as approved by this Court in Pala Singh. We find that the Central Government or its delegatee could not allot land after the same was transferred to the State as a part of the package deal31. However, we are unable to agree with the High Court that transfer of land to the State Government takes such transferred land out of compensation pool. The land transferred to the State Government continues to be part of compensation pool but it is required to be disposed of by the Officers of the State who have been conferred the powers of the Managing Officer or of the Settlement Commissioner for the settlement of the displaced persons alone. It is only after the displaced persons are settled, the State Government may utilize the land for other purposes32. We do not find any merit in the argument that there is no time limit for allotment of land to make good the verified claim. Rule 86 of the Rules will come into play if the displaced person has not raised any claim within the time period prescribed under Section 4 of the Act i.e. June 30, 1955 but once a claim has been filed by a displaced person, the successor-in-interest steps into his shoes and was required to raise his grievance in respect of allotment of lesser area or any other grievance arising out of a quasi-judicial order passed by the Regional Settlement Commissioner in the manner prescribed by the Act. Since the predecessor-in-interest of the appellant has not raised any grievance during his life time and for more than 13 years after his death by the appellant, therefore, the appellant cannot be permitted to agitate the issues which have attained finality. Rule 86 of the Rules is not a perennial source of allotment by the successor-in-interest but operates in respect of a successor-in-interest by a displaced person who has not filed claim during his life time of a displaced person before June 30, 1955. The successor-in-interest is also required to file claim before the date fixed by Section 4 of the Act33. The argument that the appellant is entitled to equivalent land as is the verified claim is untenable. The verified claim is verification of the claim of the displaced person in respect of his property in West Pakistan. The entitlement of allotment out of compensation pool is contained in Rule 51 of the Rules. Rule 51 of the Rules provides for the land which is to be allotted in lieu of area abandoned. In respect of 83 acres of area abandoned, the entitlement is 45.8¾ acres as per the Appendix XIV. Therefore, the father of the appellant could at best claim the remaining 4 acres but had to raise a claim by seeking his remedy against the order passed by the Regional Settlement Commissioner on April 29, 1954 or March 24, 1956. Rule 51 of the Rules will be applicable if the land is not available and the competent authority decides to allot land in bits and parts. The order of allotment does not show that the allotting authority reserved any right for allotment of the remaining land, therefore, the claim of the appellant stood satisfied in its entirety when the allotment was made under the Act in the year 195435. Another argument was raised that the expression package deal is not the expression used in the communication dated May 24, 1980 though such expression was used in the communication dated March 5, 1962 by the Central Government and/or in the communication dated March 23, 1963 when communicating with Punjab Government. We find that the lack of use of expression package deal will not change the nature of transfer which is in terms of Section 16 of the Act with the date of transfer specified as June 1, 1980 in terms of Rule 34 of the Rules. The transfer of land forming part of compensation pool is contemplated by Section 16 of the Act, when it provides that for the custody, management and disposal of the compensation pool, the Central Government constitute such authority or corporation. Thus, if the Central Government could transfer land forming part of the compensation pool to a corporation, then it could very well transfer land to a State Government40. Mr. Sibal has strongly relied upon the order passed by this Court in International Sindhi Panchayats. The said order is that the cases and proceedings pending on the date of repeal shall be decided under the provisions of the Act. The said order is not helpful to the issue raised in respect of the right of the Central Government for allotment of land after the same was transferred to State of Andhra Pradesh on May 24, 1980 w.e.f. June 1, 1980.

Keshav Mills Ltd Vs. Commissioner Of Income-Tax, Bombay

not when the entry is made. If the system is properly employed, the entry is made as soon as the right to receive the price arises and so for all practical purposes that is the date ordinarily referred to, but a man cannot manipulate the amount of his tax by choosing to enter or not to enter items which ought to be entered on a particular date, as and when he pleases.37. Now the Rs. 4 lakhs odd represents actual receipts but that is not what is taxable when the computation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which arise out of these transactions do not, on my view, escape tax because the profits accrue or arise in the taxable territories. But the figure on which the tax is to be computed is not the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have not been given. I am of course assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were not, then the Income-tax authorities have bower to tax income which, for one reason or another, has escaped assessment.38. Turning to the Rs. 12 lakhs. We know that the figure entered in the books relating to these transactions was Rs.13,41,744. I am not clear whether that was entered in the accounting year with which we are concerned, though I gathered that that was the case. The actual receipts, which followed later, amounted to only Rs. 12,68,480. In my opinion if anything is computable for the purposes of tax, it is the former figure (assuming all the entries are in the accounting year) and not the latter. But in order to determine whether the profits on these transactions are taxable at all, we must examine the transactions.39. In these cases the sales were to merchants resident in Ahmedabad. But according to the assessees affidavit"in respect of buyers from Ahmedabad, the applicant Mills have no account of such buyers. The price is debited to the account of the mid Jagmohandas Ramanlal and Company and credited to the sales account in the books of the applicant,"And later, Jagmohandas"discharges its debts by making payments to the applicants from time to time towards the balance in their said account in the books of the applicant mills. The said amounts are paid by the said firm by paying the same to the credit of the applicant Mills with British Indian Banks or Shroffs."40. Now it is evident from this that Jagmohandas and Company do not merely guarantee payment by the Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee company. So little do the buyers matter that their transactions are not even reflected in the accounts. All we have is Jagmohandas. It does not, in my opinion, matter whether the actual buyers retrained primarily and legally responsible to the assessee or not. The fact remains that in practice Jagmohandas and Company actually met the obligations of the buyers and discharged their liabilities to the assessee. It is equally clear that Jagmohandas and Company must have recouped themselves in some way from the buyers. The question is how. If the whole of the transactions recurred outside British India and the buyers or their agents went to Petlad and received the goods there and paid Jagmohandas and Company outside British India, then I am clear that the profits and gains did not accrue or arise in British India, simply because the goods were ultimately brought there. But if Jagmohandas and Company or their agents were paid in British India, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs case. If Jagmohandas and Company were the actual agents of the assessee as were the Banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were not the agents in the strict sense of the term, then I am of opinion that S. 42 would be attracted because at the very least there would be a "business connection", provided of course the payments were made in the taxable territories.41. Now, here again, I am looking to what was actually done in order to determine what the rights were, for it is evident that what was done in pursuance of some agreement, express or implied, between the parties which agreement regulated their rights, and those rights in turn determine the place where the profits accrued or arose, or must, because of S. 42, be deemed to have accrued or arisen.42. In my view, the question referred by the Income-tax Appellate Tribunal in its statement of the case does not reflect the true position because it concentrates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessees income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what would have happened in circumstances which are not material in this case because of the mercantile system of accounting which was employed.43. As regards the High Court. The learned judges reframed the question and answered it without sending the case back to the Income-tax Appellate Tribunal for a further statement of the case. That was not strictly proper. But, in my opinion, the reframed questions suffer from the same defect.44. In my opinion, the case should be sent back to the Income-tax Appellate Tribunal for a reframing of the questions along the lines I have indicated and for a further statement of the case.45.

0[ds]In regard to the item of Rs. 4,40,878 even though the amounts of the sales bills were debited in the first instance by the company to the accounts of the respective merchants in the books of account at Petlad the relative railway receipts were sent by the company to banks or Shroffs in British India together with drafts or hundies in connection with the same with instructions that delivery of the railway receipts should be given to the respective merchants against payment and the amounts of the sales bills were thus paid by the respective merchants to the banks or Shroffs in British India and were transmitted under the instructions of the company by the banks and Shroffs in British India to the company at Petlad. Prima facie, therefore, the amounts of the sales bills in both the cases whether they were paid to Messrs. Jagmohandas Ramanlal and Co. or to the banks or shroffs through whom the railway receipts were negotiated were paid by the merchants in British India and were received by Messrs. Jagmohandas Ramanlal and Co. and the banks or Shroffs on behalf of the company in British India. The receipt of these amounts thus fell within S. 4(1) (a) of the Act and the profits or gains of this business thus were received in British India by or on behalf of the company.The mercantile system of accounting or what is otherwise known as the double entry system is opposed to the cash system of book keeping under which a record is kept of actual cash receipts and actual cash payments, entries being made only when money is actually collected or disbursed. That system brings into credit what is due, immediately it becomes legally due and before it is actually received and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed. The profits or gains of the business which are thus credited are not realised but having been earned are treated as received though in fact there is nothing more than an accrual or arising of the profits at that stage. They are book profits. Receipt being not the sole test of chargeability and profits and gains that have accrued or arisen or are deemed to have accrued or arisen being also liable to be charged for income-tax the assessability of these profits which are thus credited in the books of account arises not because they are received but because they have accrued or arisen.It is clear that under these circumstances there is no receipt of the moneys at all, either actual or constructive, in cash or in kind, by actual payment or by adjustment or settlement of accounts. There is also no scope for the argument that even though these sums may not be said to be either actually or constructively received they should be "deemed to be received." The expression "deemed to be received " only means deemed by the provisions of the Act to be received. The phrase statutory receipt might be conveniently employed to cover income which is "deemed to be received," and instances of such statutory receipts are to be found in the provisions of theis true that the words used in S. 4 (1) (a) relate to the first receipt after the accrual of the income. Once it is received by the party entitled to it, in respect of any subsequent dealing with the said amount it cannot be said to be "received" as income on that occasion.Mr. Kolah pressed into service the argument based on S. 13 of the Act that the mercantile system of accounting regularly adopted by the assessee was obligatory on the income-tax authorities for computation of his income. While agreeing generally with that submission in case of residents, we doubt whether that position would be available to a non-resident, who maintains his books of account outside British India according to the mercantile system. The Section would only be relevant where the total profits of the assessee have to be computed, in which event he would be entitled to claim that they should be computed according to the system of accounts maintained by him. But the Section would hardly be relevant where stray items of income are caught in taxable territories as received in taxable territories by a non-resident. The entries in the present case were not in merely to prove that the sale proceeds were received outside British India where the entries were made. That contention, however could not be sustained, as S. 4 (1) (a) is concerned with cases of actual receipt and not with cases of paper receipts.20. Having regard to the observations made above, we have come to the conclusion that the High Court was right in holding that the two sums of Rs. 12,68,480 and Rs. 4,40,878 were the sale proceeds of the goods sold and delivered by the appellant to merchants in British India, that they were received by Messrs. Jagmohandas Ramanlal and Co. and by the banks and Shroffs through whom the railway receipts were negotiated, on behalf of the appellant in British India, that they were liable to tax under S. 4 (1)(a) of the Act as having been received in British India on its behalf, that there is nothing either in the facts and circumstances of the case or in law why they should be exempted from such liability, that the answers given to the questions which were ultimately considered by the High Court were correct, and the appellant was rightly held liable for the tax on these two amounts subject to all just deductions and allowances. The appeal, therefore, fails and must stand dismissed with costs.Now in the present case, the method of accounting was the mercantile system. The essential difference between this and the cash basis system is that in the latter actual receipts and disbursements are taken into account. In the former, sums which are due to the business are entered on the credit side immediately they are legally due and before they are actually received end expenditures are entered the moment a legal liability to pay arises and before the actual disbursements. The Profit or loss at the end of the accounting year is therefore based, not on a difference between what was actually received and what was actually paid out, but on the difference between the right to receive and the liability to pay. I find it impossible in such a case to say that the taxation is on income, or profits and gains which were "received." It can only be on profits which "accrued" or "arose" to the assessee in the accountingwere the goods in the present caseif there are no books, the profits on such a transaction would accrue in the place where the money is to be paid and the good are to be handed over. I cannot see how that can alter by reason of the method of accounting employed. Accordingly, I agree that the method of accounting adopted by the assessee cannot affect the substance of the transactions between the parties or affect their nature. The rights and liabilities of the parties inter se cannot be made to depend on the way in which one of them chooses to keep its books. But that is not the case when we come to the question of taxation for income-tax purposes. There the method of accounting is vital. But even there the substance of the transaction must be viewed, for the substance cannot alter by a mere method of accounting. It is evident that if the assessee had been resident in British India and these transactions had been omitted from the books, the sums which ought to have been entered would be taxable as items which had escaped assessment even if there had been no actual receipts in that or in any following year. Therefore, it is not the entry in the books which attracts the taxation but the profits on the transaction itself, and which the mercantile system is used the profits arise when the right to receive them accrues and not when the entry is made. If the system is properly employed, the entry is made as soon as the right to receive the price arises and so for all practical purposes that is the date ordinarily referred to, but a man cannot manipulate the amount of his tax by choosing to enter or not to enter items which ought to be entered on a particular date, as and when he pleases.Now the Rs. 4 lakhs odd represents actual receipts but that is not what is taxable when the computation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which arise out of these transactions do not, on my view, escape tax because the profits accrue or arise in the taxable territories. But the figure on which the tax is to be computed is not the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have not been given. I am of course assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were not, then the Income-tax authorities have bower to tax income which, for one reason or another, has escaped assessment.Now it is evident from this that Jagmohandas and Company do not merely guarantee payment by the Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee company. So little do the buyers matter that their transactions are not even reflected in the accounts. All we have is Jagmohandas. It does not, in my opinion, matter whether the actual buyers retrained primarily and legally responsible to the assessee or not. The fact remains that in practice Jagmohandas and Company actually met the obligations of the buyers and discharged their liabilities to the assessee. It is equally clear that Jagmohandas and Company must have recouped themselves in some way from the buyers. The question is how. If the whole of the transactions recurred outside British India and the buyers or their agents went to Petlad and received the goods there and paid Jagmohandas and Company outside British India, then I am clear that the profits and gains did not accrue or arise in British India, simply because the goods were ultimately brought there. But if Jagmohandas and Company or their agents were paid in British India, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs case. If Jagmohandas and Company were the actual agents of the assessee as were the Banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were not the agents in the strict sense of the term, then I am of opinion that S. 42 would be attracted because at the very least there would be a "business connection", provided of course the payments were made in the taxable territories.In my view, the question referred by the Income-tax Appellate Tribunal in its statement of the case does not reflect the true position because it concentrates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessees income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what would have happened in circumstances which are not material in this case because of the mercantile system of accounting which was employed.43. As regards the High Court. The learned judges reframed the question and answered it without sending the case back to the Income-tax Appellate Tribunal for a further statement of the case. That was not strictly proper. But, in my opinion, the reframed questions suffer from the same defect.In my opinion, the case should be sent back to the Income-tax Appellate Tribunal for a reframing of the questions along the lines I have indicated and for a further statement of the case.

### 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: not when the entry is made. If the system is properly employed, the entry is made as soon as the right to receive the price arises and so for all practical purposes that is the date ordinarily referred to, but a man cannot manipulate the amount of his tax by choosing to enter or not to enter items which ought to be entered on a particular date, as and when he pleases.37. Now the Rs. 4 lakhs odd represents actual receipts but that is not what is taxable when the computation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which arise out of these transactions do not, on my view, escape tax because the profits accrue or arise in the taxable territories. But the figure on which the tax is to be computed is not the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have not been given. I am of course assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were not, then the Income-tax authorities have bower to tax income which, for one reason or another, has escaped assessment.38. Turning to the Rs. 12 lakhs. We know that the figure entered in the books relating to these transactions was Rs.13,41,744. I am not clear whether that was entered in the accounting year with which we are concerned, though I gathered that that was the case. The actual receipts, which followed later, amounted to only Rs. 12,68,480. In my opinion if anything is computable for the purposes of tax, it is the former figure (assuming all the entries are in the accounting year) and not the latter. But in order to determine whether the profits on these transactions are taxable at all, we must examine the transactions.39. In these cases the sales were to merchants resident in Ahmedabad. But according to the assessees affidavit"in respect of buyers from Ahmedabad, the applicant Mills have no account of such buyers. The price is debited to the account of the mid Jagmohandas Ramanlal and Company and credited to the sales account in the books of the applicant,"And later, Jagmohandas"discharges its debts by making payments to the applicants from time to time towards the balance in their said account in the books of the applicant mills. The said amounts are paid by the said firm by paying the same to the credit of the applicant Mills with British Indian Banks or Shroffs."40. Now it is evident from this that Jagmohandas and Company do not merely guarantee payment by the Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee company. So little do the buyers matter that their transactions are not even reflected in the accounts. All we have is Jagmohandas. It does not, in my opinion, matter whether the actual buyers retrained primarily and legally responsible to the assessee or not. The fact remains that in practice Jagmohandas and Company actually met the obligations of the buyers and discharged their liabilities to the assessee. It is equally clear that Jagmohandas and Company must have recouped themselves in some way from the buyers. The question is how. If the whole of the transactions recurred outside British India and the buyers or their agents went to Petlad and received the goods there and paid Jagmohandas and Company outside British India, then I am clear that the profits and gains did not accrue or arise in British India, simply because the goods were ultimately brought there. But if Jagmohandas and Company or their agents were paid in British India, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs case. If Jagmohandas and Company were the actual agents of the assessee as were the Banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were not the agents in the strict sense of the term, then I am of opinion that S. 42 would be attracted because at the very least there would be a "business connection", provided of course the payments were made in the taxable territories.41. Now, here again, I am looking to what was actually done in order to determine what the rights were, for it is evident that what was done in pursuance of some agreement, express or implied, between the parties which agreement regulated their rights, and those rights in turn determine the place where the profits accrued or arose, or must, because of S. 42, be deemed to have accrued or arisen.42. In my view, the question referred by the Income-tax Appellate Tribunal in its statement of the case does not reflect the true position because it concentrates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessees income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what would have happened in circumstances which are not material in this case because of the mercantile system of accounting which was employed.43. As regards the High Court. The learned judges reframed the question and answered it without sending the case back to the Income-tax Appellate Tribunal for a further statement of the case. That was not strictly proper. But, in my opinion, the reframed questions suffer from the same defect.44. In my opinion, the case should be sent back to the Income-tax Appellate Tribunal for a reframing of the questions along the lines I have indicated and for a further statement of the case.45. ### Response: 0 ### Explanation: difference between the right to receive and the liability to pay. I find it impossible in such a case to say that the taxation is on income, or profits and gains which were "received." It can only be on profits which "accrued" or "arose" to the assessee in the accountingwere the goods in the present caseif there are no books, the profits on such a transaction would accrue in the place where the money is to be paid and the good are to be handed over. I cannot see how that can alter by reason of the method of accounting employed. Accordingly, I agree that the method of accounting adopted by the assessee cannot affect the substance of the transactions between the parties or affect their nature. The rights and liabilities of the parties inter se cannot be made to depend on the way in which one of them chooses to keep its books. But that is not the case when we come to the question of taxation for income-tax purposes. There the method of accounting is vital. But even there the substance of the transaction must be viewed, for the substance cannot alter by a mere method of accounting. It is evident that if the assessee had been resident in British India and these transactions had been omitted from the books, the sums which ought to have been entered would be taxable as items which had escaped assessment even if there had been no actual receipts in that or in any following year. Therefore, it is not the entry in the books which attracts the taxation but the profits on the transaction itself, and which the mercantile system is used the profits arise when the right to receive them accrues and not when the entry is made. If the system is properly employed, the entry is made as soon as the right to receive the price arises and so for all practical purposes that is the date ordinarily referred to, but a man cannot manipulate the amount of his tax by choosing to enter or not to enter items which ought to be entered on a particular date, as and when he pleases.Now the Rs. 4 lakhs odd represents actual receipts but that is not what is taxable when the computation is based on the mercantile system. What should be taxed, or rather taken into account for the purposes of taxation, are the figures entered in the accounting year as the sale price of the various transactions which the Rs. 4 lakhs represent. The profits which arise out of these transactions do not, on my view, escape tax because the profits accrue or arise in the taxable territories. But the figure on which the tax is to be computed is not the 4 lakhs odd which represent the actual receipts but another figure which unfortunately we have not been given. I am of course assuming that the figures were duly entered in the books at the proper time in accordance with the mercantile system of accounting. If they were not, then the Income-tax authorities have bower to tax income which, for one reason or another, has escaped assessment.Now it is evident from this that Jagmohandas and Company do not merely guarantee payment by the Ahmedabad buyers but actually make the payments, or the equivalent of payments, to the assessee company. So little do the buyers matter that their transactions are not even reflected in the accounts. All we have is Jagmohandas. It does not, in my opinion, matter whether the actual buyers retrained primarily and legally responsible to the assessee or not. The fact remains that in practice Jagmohandas and Company actually met the obligations of the buyers and discharged their liabilities to the assessee. It is equally clear that Jagmohandas and Company must have recouped themselves in some way from the buyers. The question is how. If the whole of the transactions recurred outside British India and the buyers or their agents went to Petlad and received the goods there and paid Jagmohandas and Company outside British India, then I am clear that the profits and gains did not accrue or arise in British India, simply because the goods were ultimately brought there. But if Jagmohandas and Company or their agents were paid in British India, the profits and gains, in my opinion, arose there in the same way as in the 4 lakhs case. If Jagmohandas and Company were the actual agents of the assessee as were the Banks in the other case, and the payments were made in the taxable territories, then the accrual and arising was direct. If, however, they were not the agents in the strict sense of the term, then I am of opinion that S. 42 would be attracted because at the very least there would be a "business connection", provided of course the payments were made in the taxable territories.In my view, the question referred by the Income-tax Appellate Tribunal in its statement of the case does not reflect the true position because it concentrates on the actual receipts. If the cash basis system of accounting was germane here, then I would agree that the Rs. 4,40,878 was part of the assessees income in British India, and so also in the other case, provided the payments were made in British India. But it is misleading to enquire what would have happened in circumstances which are not material in this case because of the mercantile system of accounting which was employed.43. As regards the High Court. The learned judges reframed the question and answered it without sending the case back to the Income-tax Appellate Tribunal for a further statement of the case. That was not strictly proper. But, in my opinion, the reframed questions suffer from the same defect.In my opinion, the case should be sent back to the Income-tax Appellate Tribunal for a reframing of the questions along the lines I have indicated and for a further statement of the case.

Kanu Biswas Vs. State Of West Bengal

the community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different."7. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, according to the dictum laid down in the above case, is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ?8. The principle enunciated above has been followed by this Court in the case of Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) , and Nandlal Roy alias Honda Dulal Roy alias Pagla v. State of West Bengal (W.P. No. 15 of 1972, decided on April 11, 1972) ((1972) 2 SCC 524 ). In the light of what has been observed above, we have no doubt that each one of the incidents of September 26, 1971 and November 4, 1971, was prejudicial to the maintenance of public order. When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train the act of the miscreants affects not only the passengers who are deprived of their valuables but also the other passengers who watch the whole thing in fear as helpless spectators. There is bound to be consequent terror and panic amongst the travelling public. Likewise, attack directed against a police party on the platform of a railway station by exploding bombs is bound to create panic and confusion among the passengers at the railway station. The acts in question in the very nature of things would adversely affect the even tempo of the life of the community and cause a general disturbance of public tranquillity.9. Reference has been made on behalf of the petitioner to the case of Sudhir Kumar Saha v. Commissioner of Police, Calcutta and Another ((1970) 3 SCR 360 : (1970) 1 SCC 149 ). The petitioner in that case along with others committed various acts on three occasions. On the first occasion he attacked the people of a locality with a knife and by hurling bottles at them. On the other two occasions he attacked the people of another locality of hurling bombs at them. It was held that the incidents were not interlinked and could not have prejudiced the maintenance of public order.10. As against the above solitary decision, Mr. Chakravarti on behalf of the respondent-State has referred to the principle laid down in the case of Arun Ghosh v. State of West Bengal (supra), as well as in the case of Nagendra Nath Mondal v. State of West Bengal (supra). Apart from those two cases, we find that in the case of Tapan Kumar Mukherjee and Others v. State of West Bengal (AIR 1972 SC 840 : 1972 Cri LJ 657), the allegation against the detenu was that he along with other associates committed robbery in respect of a fan and a watch at the point of dagger in a running train, and this created disturbance of public order. Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This contention was repelled and it was observed that the innocent passengers would be terror-stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on a shop. The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed. The above ground was held by this Court to be germane to the disturbance of public order, In the case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station area and the adjoining locality. It was held that the activity of the petitioner created not merely a question of the maintenance law and order but created a disturbance which would be comprehended by the expression "order publique". The detention order was consequently upheld.11. In S.K. Kedar v. State of West Bengal (W.P. No. 35 of 1972, decided on May 2, 1972) ((1970) 3 SCR 360 : (1970) 1 SCC 149 ), the allegation against the detenu was that he and his associates while removing railway material charged bombs ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self-defence. The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld.12. The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Other v. State of West Bengal (supra). The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order. The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order.

0[ds]10. As against the above solitary decision, Mr. Chakravarti on behalf of the respondent-State has referred to the principle laid down in the case of Arun Ghosh v. State of West Bengal (supra), as well as in the case of Nagendra Nath Mondal v. State of West Bengal (supra). Apart from those two cases, we find that in the case of Tapan Kumar Mukherjee and Others v. State of West Bengal (AIR 1972 SC 840 : 1972 Cri LJ 657), the allegation against the detenu was that he along with other associates committed robbery in respect of a fan and a watch at the point of dagger in a running train, and this created disturbance of public order. Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This contention was repelled and it was observed that the innocent passengers would be terror-stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on a shop. The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed. The above ground was held by this Court to be germane to the disturbance of public order, In the case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station area and the adjoining locality. It was held that the activity of the petitioner created not merely a question of the maintenance law and order but created a disturbance which would be comprehended by the expression "order publique". The detention order was consequently upheld.11. In S.K. Kedar v. State of West Bengal (W.P. No. 35 of 1972, decided on May 2, 1972) ((1970) 3 SCR 360 : (1970) 1 SCC 149 ), the allegation against the detenu was that he and his associates while removing railway material charged bombs ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self-defence. The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld.12. The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Other v. State of West Bengal (supra). The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order. The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order.

### 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 community and incite them to make further breaches of the law and order and to subvert the public order. An act by itself is not determinant of its own gravity. In its quality it may not differ from another but in its potentiality it may be very different."7. The question whether a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance of the public order, according to the dictum laid down in the above case, is a question of degree and the extent of the reach of the act upon the society. Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order. The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ?8. The principle enunciated above has been followed by this Court in the case of Nagendra Nath Mondal v. State of West Bengal ((1972) 1 SCC 498.) , and Nandlal Roy alias Honda Dulal Roy alias Pagla v. State of West Bengal (W.P. No. 15 of 1972, decided on April 11, 1972) ((1972) 2 SCC 524 ). In the light of what has been observed above, we have no doubt that each one of the incidents of September 26, 1971 and November 4, 1971, was prejudicial to the maintenance of public order. When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train the act of the miscreants affects not only the passengers who are deprived of their valuables but also the other passengers who watch the whole thing in fear as helpless spectators. There is bound to be consequent terror and panic amongst the travelling public. Likewise, attack directed against a police party on the platform of a railway station by exploding bombs is bound to create panic and confusion among the passengers at the railway station. The acts in question in the very nature of things would adversely affect the even tempo of the life of the community and cause a general disturbance of public tranquillity.9. Reference has been made on behalf of the petitioner to the case of Sudhir Kumar Saha v. Commissioner of Police, Calcutta and Another ((1970) 3 SCR 360 : (1970) 1 SCC 149 ). The petitioner in that case along with others committed various acts on three occasions. On the first occasion he attacked the people of a locality with a knife and by hurling bottles at them. On the other two occasions he attacked the people of another locality of hurling bombs at them. It was held that the incidents were not interlinked and could not have prejudiced the maintenance of public order.10. As against the above solitary decision, Mr. Chakravarti on behalf of the respondent-State has referred to the principle laid down in the case of Arun Ghosh v. State of West Bengal (supra), as well as in the case of Nagendra Nath Mondal v. State of West Bengal (supra). Apart from those two cases, we find that in the case of Tapan Kumar Mukherjee and Others v. State of West Bengal (AIR 1972 SC 840 : 1972 Cri LJ 657), the allegation against the detenu was that he along with other associates committed robbery in respect of a fan and a watch at the point of dagger in a running train, and this created disturbance of public order. Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This contention was repelled and it was observed that the innocent passengers would be terror-stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on a shop. The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed. The above ground was held by this Court to be germane to the disturbance of public order, In the case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station area and the adjoining locality. It was held that the activity of the petitioner created not merely a question of the maintenance law and order but created a disturbance which would be comprehended by the expression "order publique". The detention order was consequently upheld.11. In S.K. Kedar v. State of West Bengal (W.P. No. 35 of 1972, decided on May 2, 1972) ((1970) 3 SCR 360 : (1970) 1 SCC 149 ), the allegation against the detenu was that he and his associates while removing railway material charged bombs ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self-defence. The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld.12. The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Other v. State of West Bengal (supra). The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order. The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order. ### Response: 0 ### Explanation: 10. As against the above solitary decision, Mr. Chakravarti on behalf of the respondent-State has referred to the principle laid down in the case of Arun Ghosh v. State of West Bengal (supra), as well as in the case of Nagendra Nath Mondal v. State of West Bengal (supra). Apart from those two cases, we find that in the case of Tapan Kumar Mukherjee and Others v. State of West Bengal (AIR 1972 SC 840 : 1972 Cri LJ 657), the allegation against the detenu was that he along with other associates committed robbery in respect of a fan and a watch at the point of dagger in a running train, and this created disturbance of public order. Contention was raised that the act of the detenu and his associates related only to law and order and not to public order. This contention was repelled and it was observed that the innocent passengers would be terror-stricken by the acts of the detenu and his associates. Another incident which was referred to in that case related to throwing of bombs on a shop. The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed. The above ground was held by this Court to be germane to the disturbance of public order, In the case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force. One member of the Railway Protection Force was injured. The explosion of the bombs was stated to have created panic in the station area and the adjoining locality. It was held that the activity of the petitioner created not merely a question of the maintenance law and order but created a disturbance which would be comprehended by the expression "order publique". The detention order was consequently upheld.11. In S.K. Kedar v. State of West Bengal (W.P. No. 35 of 1972, decided on May 2, 1972) ((1970) 3 SCR 360 : (1970) 1 SCC 149 ), the allegation against the detenu was that he and his associates while removing railway material charged bombs ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self-defence. The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld.12. The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Other v. State of West Bengal (supra). The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order. The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order.

UNION OF INDIA Vs. ASSOCIATION OF UNIFIED TELECOM SERVICE PROVIDERS OF INDIA

to enable interest to be charged on the accrued rate on the interest component of the capitalised sum for the succeeding period. Interest, once capitalised, sheds its colour of interest and becomes a part of the principal to become a debt as has been observed thus: 36. The English decisions and the decisions of this Court and almost all the High Courts of the country have noticed and approved long-established banking practice of charging interest at reasonable rates on periodical rests and capitalising the same on remaining unpaid. Such a practice is prevalent and also recognised in non-banking moneylending transactions. The legislature has stepped in from time to time to relieve the debtors from hardship whenever it has found the practice of charging compound interest and its capitalisation to be oppressive and hence needing to be curbed. The practice is permissible, legal and judicially upheld excepting when superseded by legislation. There is nothing wrong in the parties voluntarily entering into transactions, evidenced by deeds incorporating covenant or stipulation for payment of compound interest at reasonable rates, and authorising the creditor to capitalise the interest on remaining unpaid so as to enable interest being charged at the agreed rate on the interest component of the capitalised sum for the succeeding period. Interest once capitalised, sheds its colour of being interest and becomes a part of the principal to bind the debtor/borrower. 44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other places in Section 34(1) where the expression has been used qualified by the adjective such, that is to say, as such principal sum. Recognition of the method of capitalisation of interest to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long-established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalising the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of the use of the money, and which it would have made if the debtor had paid the amount of interest on the date due, the creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar v. Narayana Ayyar, AIR 143 Mad 157, the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalised with the principal sum actually advanced, so as to become an amalgam of principal in such cases where it is permissible or obligatory for the court to hold so. Where the principal sum (on the date of suit) has been so adjudged, the same shall be treated as principal sum for the purpose of such principal sum — the expression employed later in Section 34 CPC. The expression principal sum cannot be given different meanings at different places in the language of same section, i.e. Section 34 CPC. (emphasis supplied) 196. Concerning penal interest, this Court in Central Bank of India v. Ravindra (supra) has observed that the penalty is founded on the doctrine of penal action. Penal interest can be charged only once for one period of default, and therefore cannot be permitted to be capitalised. 55. (1) Though interest can be capitalised on the analogy that the interest falling due on the accrued date and remaining unpaid, partakes the character of amount advanced on that date, yet penal interest, which is charged by way of penalty for non-payment, cannot be capitalised. Further interest i.e. interest on interest, whether simple, compound or penal, cannot be claimed on the amount of penal interest. Penal interest cannot be capitalised. It will be opposed to public policy. 197. It is not levy of penal interest, which is involved in the instant case. Thus, based on the decision mentioned above, we find that when there is contractual stipulation, the interest can be levied and compounded. 198. Resultantly, we are of the considered opinion that interest and penalty have rightly been levied. Once an amount of shortfall has not been paid, it has to carry 50% of the penalty on defaulted amount, as agreed. Thus, we find no substance in the submission that interest, penalty, and interest on penalty cannot be realised. It is as per the agreement. In the facts and circumstances, we find no ground to reduce the same, considering the nature of untenable objections raised on behalf of the licensees, which were in fact either barred by res judicata or constructive res judicata but as this Court had remitted the matter to TDSAT to find that demand was based on proper interpretation of licence. Matter was remitted after giving finding on inclusion of the various heads in the definition of gross revenue. Even as per the case of licensees they were not validly included in definition, now reprobating that, stand has been taken that they did not form part of revenue which is not permissible. No litigant can be permitted to reap fruits on such inconsistent and untenable stands and litigate for decades in several rounds which is not so uncommon but is disturbing scenario projected in very many cases. We have examined the matter upon merits and then aforesaid conclusion indicates frivolous nature of objections.

0[ds]44. When we consider the submissions as observed there was a paradigm shift in Telecom Policy of 1999 from the fixed licence fee to the revenue sharing basis regime, which was advantageous to the Telecom Service Providers. Under the new regime, the Central Government shared the privilege under section 4 of the Indian Telegraph Act with the TSPs. It came as a relief against the high licence fee, which used to be charged under the 1999 policy. The migration package contained the stipulation as to no dispute to be raised as to working out sharing of revenue. Experts were consulted in the field of accountancy, and it was their advice that the actual figures should be simple and objective to evolve a system of revenue sharing that does not become as arduous one and litigative, had been evolved. Revenue has been defined in a broad, comprehensive, and inclusive manner not to pose problems of interpretation and to protect from the accounting jugglery. Gross revenue has been defined to be inclusive of specific items mentioned in clause 19.1 and any other miscellaneous revenue, without any set-off for related items of expense, etc. All the licensees accepted the migration package and have signed the agreements. It has turned out to be a substantial financial booster in favour of the licensees as is apparent from figures of the gross revenue earned by them mentioned above. When under a contract signed by the parties, gross revenue and AGR have been given the meaning coupled with the format and the annexures which form part of the contract. Format is contained in appendix to Annexure-II which is part of the agreement in which requisite information has to be furnished. The meaning in clause 19 of the gross revenue and the format mentioned above have to prevail45. No doubt about it that the accounts have to be maintained as per the AS-9 regime prevalent at the relevant time. The definition of the contract has to prevail and not what is generally revenue, as defined in AS-946. The question as to what constitute Gross Revenue has been agitated, though concluded in earlier decision in 2011, by the TSPs. again by raising the submission that we have to follow the definition of revenue as defined in AS-9, it would be the revenue as generated by activities under the licence; whereas the definition of gross revenue includes the income from non-licensing activities also as part of the gross revenue, which we have to discard56. The accounting standards are mandatory to be followed by the companies, and DOT has admitted in the counter affidavit of 11.7.2003 in Petition 7 of 2003 that the definition of the term revenue in the agreement is in line with AS-9 under the accounting standards. Thus, they cannot approbate and reprobate. Thus, identification of revenue would come within the purview of gross revenue, is the sole test that it should conform with the definition of revenue as provided in AS-9, and the golden thread is the phrase arising in the course of the ordinary activities of the enterprise59. Thus, as per licensees the miscellaneous revenue has to be revenue as defined in AS-9. The miscellaneous revenue only serves the purpose of capturing such other revenue that satisfies common characteristics of the preceding word61. The submission raised for adopting fair valuation method relying on S.K. Synthetics (supra) is based upon misconception of method applicable to A.S-9. The argument is crafted to get rid of AS-9 and the definition of gross revenue in the agreement. We have to consider valuation method of accounting standards which are laid time to time to find an answer to the submission. The ICAI issued the AS-9 revenue recognition standard in the year 1985. In the initial years, it was recommendatory for only Level-I enterprises but was made mandatory for all enterprises from 1.4.1983. The meaning of enterprise is as defined in section 3 of the Companies Act, 1956. The IND AS-18 regime has been introduced later on. In AS-9, revenue recognition is at nominal value; whereas IND AS-18, the revenue recognition is at a fair value. The barter transactions are included in Ind AS-18, whereas this aspect is not covered in AS-9. In AS-9 revenue recognition, interest income is recognised on a time proportion basis, whereas in Ind AS-18, interest income is recognised using an effective interest rate method. AS-9 recognises revenue as per the completed service method or percentage completion method, whereas Ind AS-18 only recognises revenue as per the percentage of completion method. Thus, there is a fundamental difference. The fair value concept has no place in AS-9 as per which the accounts are to be maintained and submitted for determination of gross revenue. AS-9 revenue recognition regime states that the amount of revenue shall be measured by the gross inflow of cash, receivables, or other consideration received. There is no concept of fair valuation. Thus, the submission raised based on a fair valuation method based on the decision in J.K. Industries v. Union of India (supra) cannot be accepted as the decision is on consideration of different accounting standard which adopts fair valuation method i.e., Ind AS-18 and not relevant for the AS-9 accounting standard62. The submission is wholly devoid of substance. It is not only barred by the principle of constructive res judicata but also indicates that the licensees are raising the similar objections which they have raised earlier and were not entertained by this Court and were rejected. Again precisely, the same attempt is made by submitting; revenue should be taken as defined in AS-9, not in Clause 19.1 of the agreement, submission runs contrary to the decision of the Court, as held in para 48 of the 2011 judgment, which operates as res judicata inter se parties. The meaning of revenue is apparent that it has to be gross revenue, and the licence fee would be a percentage of the same. Thus, the licensees have made a futile attempt to submit that the revenue to be considered would be derived from the activities under the licence; whereas it has been held in 2011 that the revenue from activities beyond the licence have to be included in adjusted gross revenue, is binding63. Even otherwise, on merit, the submission raised is baseless. The contractual definition of gross revenue is binding. This Court has observed that it was open for the licensee not to undertake activities for which they do not require licence under section 4 of the Telegraph Act and transfer these activities to any other firm or company. However, they cannot avoid the consequences of the contractual definition which has been accepted by the parties, and they are bound to make payment of licence fee on the basis of gross revenue, which would be the total revenue of the licensing company. As the Government has not accepted the TRAIs recommendations, the decision of the Central Government on the point of definition of adjusted gross revenue was final and binding. This Court has also held that TRAI and tribunal had no jurisdiction to decide on the validity of the definition of adjusted gross revenue under the licence agreement and to exclude certain items of revenue which were included in the definition of gross revenue in the licence agreement between the licensor and licensee. The tribunal had no jurisdiction to exclude certain items on the ground of the validity of the definition of adjusted gross revenue. The finding of the tribunal in the order dated 7.7.2006 insofar as it decided that the revenue realised by the licensee from activities beyond the licence to be excluded from adjusted gross revenue in the licence agreement is without jurisdiction and is a nullity. The matter was sent back to TDSAT for computation of adjusted gross revenue. It was also observed if a dispute is raised that computation is not following licence agreement, the tribunal has to go into facts and material on which demand is raised and to decide demand is following the licence agreement and in particular, the definition of adjusted gross revenue. It can also interpret the terms and conditions of the licence agreement. The tribunal did not go into the facts and material relating to the demand as to the particular licence. The tribunal can go into the question of whether the demand is under the licence agreement and in particular, the definition of adjusted gross revenue64. Under clause 20.6, certification of accounts by auditors appointed under the Companies Act is stipulated under the licence. The preparation of accounts under clause 22 of the licence agreement is an independent head. The definition of gross revenue given under the agreement in Clause 19.1 and that is the total revenue. In our considered opinion, when there is a contractual definition as to what would be the gross revenue that would be the revenue and also the total revenue, the revenue as mentioned in the mode of accounting AS- 9 cannot govern the definition. The general definition of revenue in the mode of accounting cannot govern the contractual definition of gross revenue65. As per clause 20.4, a licensee must make quarterly payment in the prescribed format as Annexure-II showing the computation of revenue and licence fee payable. The Format is part of the licence and is independent of accounting standards and is in tune with the definition of gross revenue, and is the basis for the calculation of licence fee. It is only for uniformity that the account has to be maintained as per accounting standards AS-9 which are prescribed from time to time. Once the licensee provides the details to the Government in format Annexure-II along with accounts certified by the auditor, the reconciliation has to take place. The accounting standard AS-9 is relevant only for whether the figure given by the licensee as to gross revenue is maintained in proper manner once gross revenue is ascertained, then after certain deductions, adjusted gross revenue has to be worked out. The accounting standard provided in AS-9 cannot override the definition of gross revenue, which is the total revenue for licence and the finding in Union of India v. AUSPI (2011) in this regard is final, binding, and operative. The accounting standard AS-9 makes it clear that same is in the form of guidelines, it is not comprehensive and does not supersede the practice of accounting. It only lays down a system in which accounts have to be maintained. Accounting standards make it clear that it does not provide for a straight-jacket formula for accounting but merely provide for guidelines to maintain the account books in systematic manner66. Though the definition of revenue given in clause 4.1 of AS-9 cannot govern the contract, the contractual definition of gross revenue which is the gross revenue under Clause 19.1 and total revenue for the purpose of the agreement for which an independent definition has been carved out under the statutory power while parting with the privilege under section 4 by the Central Government, once the contract has been entered into, the definition of gross revenue is binding, and the licensees cannot try to wriggle out of the decision by making impermissible attempts to depart from it. The plea is barred by res judicata, and on merits the objection is wholly untenable. The definition of revenue in clause 4.1 of AS-9 provides that the revenue is the gross inflow of cash, receivables, or other consideration arising in the course of the ordinary activities. When the revenue in AS-9 is the gross inflow of cash and the amount which is receivable, not the amount received, which is realised or other consideration arising, can also be taken into consideration as per accounting standard AS-9. The definition of revenue in AS-9 rather than supporting the cause of the licensees defeats the same. They cannot bank upon the expression in clause 4.1 in the course of ordinary activities of an enterprise is only to be included in gross revenue as that is what has been expressly negated in Union of India v. AUSPI (2011). Given the definition of gross revenue, the same includes revenue from activities beyond the licence. Explanation to clause 5 of AS-9 also makes it clear that the agreement between the parties would determine the amount of revenue arising on a transaction67. Section 211 of the Companies Act, 1956 deals with the obligation of the company to comply with accounting standards. In case they do not comply, it has to be disclosed in its profit and loss account, the deviation, reasons for such deviation, and financial effect. Sections 211(3A) and 211(3B) are quoted hereunder:211 (3A) Every profit and loss account and balance-sheet of the company shall comply with the accounting standards. (3B) Whether the profit and loss account and the balance- sheet of the company do not comply with the accounting standards, such companies shall disclose in its profit and loss account and balance-sheet, the following, namely:(a) the deviation from the accounting standards;(a) the reasons for such deviation; and(b) the financial effect, if any, arising due to such deviation68. Thus, it is apparent that accounting standard AS-9 is a method to maintain accounts and, deviation if made, has to be reflected separately69. Prayer made in Petition No.7/2003 filed by AUSPI v. Union of India was to declare that gross revenue can only relate to revenue directly arising out of telecom operations licensed under section 4 of the Indian Telegraph Act, and items indicated in the DOT letter dated 26.7.2001 including interest income and the dividend income, value of rebates, discounts, free calls and reimbursement from the USO fund, etc. ought not to be excluded in the adjusted gross revenues. It was also prayed that revenue share on interest income and other incomes be set aside70. In Petition No.82/2005, demand was dated 28.3.2003 and 13.7.2004, etc. and refund on account of wrongful application and implementation of gross revenue and adjusted gross revenue was sought along with interest. Prayer was made that licence fee or WPC charges on any non-telecom revenue, i.e., the revenues which are not derived from the licensed activities under the licence/revenues which do not relate to or do not have a direct nexus to the establishment, maintenance and working of Telegraph, cannot be levied. DOT cannot collect what is not revenue. Prayer was also made to direct DOT to calculate adjusted gross revenue on a realisation basis and not accrual basis, and not to include any notional revenue/income in the adjusted gross revenue. Prayer was made to direct DOT to modify the definitions of gross revenue and also adjusted gross revenue, bring them in conformity with the migration package. Prayer was also made to suitably modify the format of statement of gross revenue, adjusted gross revenue and licence fee in accordance with the correct definitions, and to strike down the definitions of gross revenue, and adjusted gross revenue contained in DOTs licence amendment dated 11.4.2001 as being unfair, unjust, unreasonable and arbitrary71. Thus, it is apparent that right from the beginning, the licensees were aware of the precise terms and conditions and their obligations as contained in the letter dated 26.7.2001and purport of the definitions of gross revenue and adjusted gross revenue. Notional revenue has to be charged. The order of TDSAT excluding certain items of revenue, which were included in the definition of AGR by declaring the definition of gross revenue to be invalid, was set aside by this Court in Union of India v. AUSPI (supra) and this Court held that items are to be included in definition of gross revenue74. In our opinion, the rule mentioned above of contra proferentem does not apply to the present case as there is no ambiguity or doubt in the definition of gross revenue in the agreement76. The definition of gross revenue is crystal clear in the agreement. How the adjusted gross revenue to be arrived at is also evident. It cannot be submitted that the revenue has not been defined in the contract. Once the gross revenue is defined, one cannot depart from it and the very meaning is to be given to the revenue for the agreement. Overall revenue, has to be taken into account for determination of licence fees without set off, as provided in the agreement. The same was defined to simplify it to rule out the litigation, disputes, and accounting myriads. The submission raised that the term revenue has to be interpreted as the consideration payable in keeping with commercial and financial parlance is what is intended to be avoided. Raising of such submission is a futile attempt that has been made to wriggle out of the definition of gross revenue, which has been held to be binding in the previous judgment in Union of India v. AUSPI (2011). The submission that the contract recognises the applicability of accounting standards, in our opinion, it is only to maintain books of accounts. To a certain extent, it cannot be disputed that to have clarity, uniformity, and definitiveness; the accounting standards lay down guidelines with respect to financial terms. However, when the financial terms in the agreement are clear in the form of definition of gross revenue governed by Clause 19.1 of the agreement, the definition of Accounting Standard-9 cannot supersede it which is a general one79. Submission though attractive, but is again an attempt by taking a rigmarole to get rid of the definition of gross revenue. Earlier the validity of definition was questioned to confine the meaning of gross revenue how the revenue is sought to be confined to activities under the licence by way of AS-9. The reliance has been placed on statement made by DOT in the reply filed in 2003 that the definition of gross revenue is in line with AS-9, it is by way of explaining and cannot have the effect of changing the definition of gross revenue given in the agreement. The definition in agreement is unambiguous, clear, and beyond the pale of doubt, and there is no confusion in the definition of gross revenue, which is the basis for realisation of the licence fee. Licensees have made a futile attempt to wriggle out of the definition in an indirect method, which was rejected directly in the decision of 2011 between the parties and it was held that these very heads form part of gross revenue83. In our considered opinion, it cannot be said that DOT has taken inconsistent stands at different stages of the same litigation. Their stand is apparent that the gross revenue has been clearly defined in the agreement. Parties have agreed to various inclusions in the agreement and have willingly switched over to revenue- sharing regime under the 1999 policy and same is apparent from the stand and the reliefs prayed in the petitions filed in 2003 and 2005 extracted above. The licensees were aware of items specifically included in the agreement. TSPs agreed to interpretation and accepted it as held by this Court in 2011 judgment. Licensees are taking inconsistent stands, earlier they have taken the stand that all these items concerning which disputes have been raised, had been included illegally in the definition of gross revenue, the definition may be declared ultra vires, invalid, and be struck down. They have also contended that revenue from activities under the licence cannot be included in gross revenue, which submission has been negated by this Court in 2011, it was held that the gross revenue would include the revenue generated from non-licensing activities. Licensees cannot be permitted to approbate and reprobate and to take inconsistent stands that they are not included in gross revenue as per AS-9. The stand taken rather than buttressing the submissions raised by them, counters and militates against their own interest and paves the way in favour of DOT84. A submission has been raised that the definition of gross revenue is not exhaustive. It only includes those streams which are specifically included in the definition of AGR. If it is an inclusive definition of AGR, and all receipts were ipso facto part of AGR, then there was no occasion to further provide in clause 2.2 (b)(ii) that the revenue from value-added services was to be treated as part of AGR. Further, the licensee was obliged to maintain separate account for service defined in Annexure 1 to the licence in clause 55 to mean service in a licensed service area. By the fact that separate provision is made for value-added services, a separate account has to be maintained as per clauses 22.1, 22.2 and 22.3 that is for arriving at the figure of revenue and step in aid, to clarify how the licensee has to operate, that would not change the definition of gross revenue which is the meaning of revenue itself is apparent, same is gross inflow of the cash, and the amount which is receivable as provided in AS-9 also. Thus, the submission raised that the definition is not wide, cannot be accepted, and stands repelled. Clauses 22.1, 22.2 and 22.3 cast obligation upon the licensee to draw, keep and furnish independent accounts for the service. Under clauses 22.1 and 22.2, the licensee has to maintain records quarterly. Accounts have to be audited and can be called for by the licensor or the TRAI, as provided in Clause 22.3. The format of gross revenue is supportive of definition of gross revenue as defined in the agreement. Clause 22 is a rider upon the licensee to maintain the records of activities and other matters such as financial position as enumerated therein85. Clause 18.1 of the agreement has also been pressed into service. The submission raised that a single company may hold 5 licences for 5 different service areas; the AGR as suggested by the DOT, cannot be followed as it may end up in paying the licence fee at the rate of 5 times. As the licence fee cannot be charged more than once, there is no room to entertain the submission. It is not what is contemplated in the definition. While computing the licence fee, the gross revenue has to be taken into consideration under a particular licence for which it is being determined. The argument had been raised on a hypothetical basis without foundational facts to raise the same is thus, liable to be and is rejected at the threshold86. DOT has urged that the Central Government has exclusive privilege under section 4 of the Telegraph Act; thus, it is bound to get the best price for natural resources. To part with the exclusive privilege under the revenue sharing regime is extremely beneficial to the licensees. Thus, the State must get the price for its valuable right as mandated under Article 14. In our opinion, there is no doubt that the State is a trustee of the natural resources and is obliged to hold it for the benefit of the citizens but also to ensure equal distribution to sub-serve the common good as observed under Article 39 of the Constitution of India in Re : Natural Resources Allocation, 2012 (10) SCC 1. The Government being the sole repository of all the resources in the country, also has the exclusive power to determine the licence conditions at which it parts with the exclusive right to the resources. Government has to make an effort to get the best price for its valuable rights and cannot throw them away, and there would be no arbitrariness in the same as observed in State of Orissa & Ors. v. Harinarayan Jaiswal & Ors., (1972) 2 SCC 36 , thus:13. Even apart from the power conferred on the Government under Sections 22 and 29, we fail to see how the power retained by the Government under clause (6) of its order, dated January 6, 1971, can be considered as unconstitutional. As held by this Court in Cooverjee B. Bharucha case, one of the important purpose of selling the exclusive right to sell liquor in wholesale or retail is to raise revenue. Excise revenue forms an important part of every States revenue. The Government is the guardian of the finances of the State. It is expected to protect the financial interest of the State. Hence quite naturally, the Legislature has empowered the Government to see that there is no leakage in its revenue. It is for the Government to decide whether the price offered in an auction sale is adequate. While accepting or rejecting a bid, it is merely performing an executive function. The correctness of its conclusion is not open to judicial review. We fail to see how the plea of contravention of Article 19(1)(g) or Article 14 can arise in these cases. The Governments power to sell the exclusive privileges set out in Section 22 was not denied. It was also not disputed that those privileges could be sold by public auction. Public auctions are held to get the best possible price. Once these aspects are recognised, there appears to be no basis for contending that the owner of the privileges in question who had offered to sell them cannot decline to accept the highest bid if he thinks that the price offered is inadequate. There is no concluded contract till the bid is accepted. Before there was a concluded contract, it was open to the bidders to withdraw their bids — see Union of India v. Bhimsen Walaiti Ram , (1970) 2 SCR 594. By merely giving bids, the bidders had not acquired any vested rights. The fact that the Government was the seller does not change the legal position once its exclusive right to deal with those privileges is conceded. If the Government is the exclusive owner of those privileges, reliance on Article 19(1)( g ) or Article 14 becomes irrelevant. Citizens cannot have any fundamental right to trade or carry on business in the properties or rights belonging to the Government—nor can there be any infringement of Article 14, if the Government tries to get the best available price for its valuable rights. …88. A licence granted under section 4(1) is in the nature of a contractDOT has relied upon Khardah Company Ltd. v. Raymond & Co. (India) Pvt. Ltd., 1963 (3) SCR 183 in which it has been observed that once a contract has been reduced to writing, terms have to be ascertained from the agreement. It may be relevant to look into the circumstances in case need arises, which resulted in the inclusion of the definition of AGR in the licence agreement. The deliberations were held with the licensees, experts, and then finally migration package, revenue sharing regime is being consented to, was worked out in which the definition of adjusted gross revenue as a part of the financial condition of the licence is mentioned. As to the provisions of gross revenue there had been consensus ad idem between the parties. The licensees are bound by it as they have executed the licence agreement. A party is free to enter into a contract with a State, there is no compulsion, it is voluntary on both sides and binding and cannot be termed to be unfair as observed in Assistant Excise Commissioner & Ors. v. Issac Peters & Ors. (1994) 4 SCC 104 , thus:In re: Discount and Commissions:106. When we consider the rival submissions it has been mentioned in the communication dated 26.7.2001 that the interest income, dividend income, value of rebates, discounts, free calls, and reimbursement from the USO funds have to be included in the adjusted gross revenue. Consequently, a prayer was made to set aside the communication dated 26.7.2001 in Petition No.7 of 2003. Prayer has not been granted on the ground that the Government has not accepted the recommendations of TRAI and the decision of the Government is final, binding and conclusive as has been held by this Court in AUSPI (2011). Finding has been recorded that parties have agreed to aforesaid position as reflected in communication dated 26.7.2001107. When we ponder on the definition of gross revenue in clause 19.1 of the licence agreement, it is apparent that the gross revenue has to be taken into consideration without any set-off for related items of expense. Thus, the gross amount, as per the definition, is the gross revenue, without set-off, is to be taken into consideration including the discounts given. Parties understood right from the beginning that the gross revenue does not exclude discounts, commissions, rebate etc. and specific challenge made to the same had not been accepted in 2011. Now once again by the circuitous method, impermissible attempt has been made to re-write the definition of gross revenue. The definition of gross revenue is independent of AS-9 as the definition of revenue in AS-9 cannot govern the definition in Clause 19.1 of the licence agreement. What has been defined in AS-9 is revenue, whereas, for a licence fee, gross revenue is the revenue. It would be greatest fallacy to say that while gross revenue has been defined in Clause 19.1 of agreement, revenue has not been defined in the licence agreement. What has been defined as gross revenue is in fact broader definition of revenue and has to be taken as definition of revenue for licence agreement. An attempt has made to wriggle out of the rigour of the definition of gross revenue by banking upon the definition of revenue in AS-9 is to scuttle the effect of the previous decision in Union of India v. AUSPI (2011). Gross revenue as defined in agreement cannot be diluted in any manner whatsoever based on the submission mentioned above, as AS-9 is only for method of accounting and specific definition of revenue i.e., gross revenue under the licence agreement has to prevail. In our considered opinion, gross revenue is the revenue has been held in 2011 judgment finding is binding on parties for determination of license fees under the licence agreement and the definition of revenue in AS-9 cannot govern. Reliance upon the affidavit filed on behalf of DOT is wholly misconceived. What is the meaning of the definition of gross revenue has been finally settled inter parties vide 2011 judgment. Thus, there is no scope to entertain the misconceived submission. Though artistically designed with ingenuity, however, the same is misconceived one on in-depth scrutiny108. The submission was raised on behalf of the licensees relying upon J.K. Industries (supra) that fair value has to be taken into consideration to reduce discounts etc. The concept of fair value is not the basis of Accounting Standard-9. Fair value is the operating concept of IND AS-18. In AS-9, revenue recognition is at nominal value and that the fundamental difference between the two accounting standards. Thus, the nominal value has to be taken as the one which is relevant for AS-9. Under the AS-9 regime, the revenue recognition shall be measured as the gross inflow of cash, receivables, or other consideration received. There is no concept of fair valuation under AS- 9109. With the advent of modern technology, the mode of business transactions has changed. The number of online purchases and sales has been continually growing, and the techniques to retain clients online are being utilised. Unlike sales promotion schemes in the case of off-line transactions, the online transactions of sales carry cash back rewards, discount coupons, and reward points. The incentives may include cash coupons, discount coupons, cash discounts, cash- back and credit points, etc. The various incentives affect the amount of revenue to be recognised. Under IND AS-18 Revenue or IND AS-115, Revenue from Contracts with Customers states that revenue shall be measured at the fair value of the consideration received or receivable after taking into account the number of various incentives provided to the customers114. The trade discounts cannot be deducted from the gross revenue merely on the ground that they represent a reduction of cost. The reliance by the licensees on the Guidance Note filed that discounts are reduction granted by a supplier from the list price of goods or services is of no avail owing to the definition of the gross revenue. Set off of trade discounts is not permissible under Clause 19.1 of agreement against revenue as expenses are not permitted to be netted up115. Concerning cash discount, it is apparent that cash discount may be used in various methods. It is an incentive for customers. The customer makes payment after deducting amount of cash discount, if eligible for availing of the same as per the agreement between the entity and the customer. Under AS-9, revenue is recognised at the gross amount and cash discount is regarded as an expense when the seller receives the payment net off discount is not permissible. For example, if A has sold goods to Z for Rs.1000 on 90 days credit period, but if Z pays within 50 days, a cash discount of 10% shall be provided by A. It is reasonably sure that Z to pay the amount within 15 days. In the AS regime, the revenue has to be recorded at Rs.1000, and when Z pays Rs.900, the amount of cash discount of Rs.100 will be recognised as an expense. That is the effect of the revenue to be recognised as a gross amount under AS-9. Concerning the volume-based discount, under the AS-9 regime, revenue is recognised at the gross amount received or receivable from the customers. However, the value of trade discounts and volume rebates received cannot be deducted from the gross revenue owing to the definition in clause 19.1. The subscribers discount can also be in the form of free calls, some free minutes SMS value116. DOT has rightly asked for the licence fee on the notional revenue of free calls, SMS, VAS minutes/data. When these amounts admittedly are reflected in the invoice raised on the subscriber as memorandum, it is the gross revenue. It forms part of the gross revenue and cannot be deducted. That is what was intended by carving out the definition to make it free from litigation and accounting jugglery and to free determination of licence fee from the clutches of accounting jugglery117. The discounts allowed on international roaming, commission, and discount allowed to distributors on sale of pre-paid vouchers form part of the gross revenue and cannot be deducted by placing reliance on the definition of revenue and certain notes of AS-9 standards; whereas they are explicitly included in the definition of gross revenue118. As to pre-paid options, the format of statement of revenue and licence fee contained in Appendix II to Annexure-II provides in the case of pre-paid options, sale of pre-paid SIM cards including full value of components charged therein. Revenue from mobile community phone service including full value of all components charged therein has to be considered, revenue from franchisees/re-sellers including all commissions and discounts, etc. have to form part of the gross revenue. How the parties have understood and agreed to pay the gross revenue is apparent from the correspondence and letter date 22.7.2001 and the ultimate definition mentioned in the licence agreement Clause 19.1 and rejection of TRAIs recommendations by the Government119. The TDSAT has erred in holding that if the discounts are in the form of reduced billing, no addition to be made in the gross revenue. It would mean violating the definition of gross revenue where no set-off is permitted. It is rightly submitted by DOT that discounts over and above the agreed charges are part of overall commercial strategy to enhance the business, and hence, these discounts are like expenses. Expenses are not permitted to be net off under clause 19.1 from the gross revenue under the licence agreement. Similarly, the TDSAT has erred in holding and giving a finding concerning commission and discounts if the invoice is at a discounted price, which is at Rs.90 instead of Rs.100. For the same reason, the finding of TDSAT is not sustainable120. The TDSAT has rejected the case of the licensees. Where the bill is for a higher amount and the discount is in the form of volume discount given separately, the billed amount should be taken as the revenue, and the discount may be treated as an expense. That part of the finding is not disturbed. However, for all discounts and commissions allowed on international roaming, and to distributors on sale of pre-paid vouchers, trade discounts, subscribers discounts, and volume rebates form part of gross revenue121. It has also been submitted on behalf of the licensees that offering discounts is frequently used to increase business in the long run/term. These are inevitable as there were 8 to 10 operators operating in the same geography at highly competitive prices. Discounts help to survive and grow business and augment revenue. Thus it is in the nature of expense for earning the profit and by this method it is admitted that business has grown and there is an increase in revenue, hence the same being part of the commercial strategy to enhance the business, it has to be treated in the nature of expense and cannot be deducted from gross revenue122. Thus, we have no hesitation to reject the claim for various forms of discounts, commissions, pre-paid vouchers, goodwill waiver etc., raised on behalf of the licensees and set aside the finding of the TDSAT to the extent it is contrary to the stand taken by DOT, and we hold that all discounts and commission etc. as discussed form part of the gross revenue for the purpose of payment of licence feeIn re: Gains arising out of Foreign Exchange Fluctuations:127. When we consider the rival submissions, it is apparent that there can be realised as well as unrealised foreign exchange gains/losses which may differ depending on whether or not the transaction has been completed by the end of the accounting period. The realised gains or losses are the gains or losses that have been achieved. It means that the customer has already settled the invoice before the close of the accounting period. For example, to say a customer purchased items worth $1000 from a foreign seller based abroad, and the invoice is valued at $1100 at the invoice rate. When customer settles the invoice after a few days, say four weeks, after the date invoice was sent, and the invoice is valued at $1200 when converted to US dollars at the current exchange rate. It means that the seller will have a realised gain of $100. The foreign currency gain is recorded in the income section of the income statement. Unrealised gain or loss results when the invoice is settled, but in case the customer fails to pay the invoice by the close of the accounting period. The seller calculates the gains or losses that would be earned if the customer paid the invoice at the end of the accounting period. While preparing a financial statement, a transaction will be recorded as an unrealised loss of $100 in case the value of the invoice was $200. On the last date of the accounting period, the invoice is valued at $100. Thus, the unrealised loss will be of $100. The unrealised gain or loss is recorded in the balance-sheet. When preparing the actual financial statement, companies are required to report the transaction in the home currency to make it easy to understand all the financial reports. It means that all transactions carried out in foreign currency must be converted to the home currency at the current exchange rate when the business recognises the transaction. The exchange difference which arises on reporting the mandatory items at the rate different from the ones at which they are recorded initially, must be recognised rate as an income or an expense. Thus, gain from foreign exchange fluctuation is to be taken in the calculation of AGR, and that is the actual revenue and cannot be ignored128. Similarly, gain from foreign exchange fluctuation should be added on accrual basis. If later on, the amount has to be spent on the purchase of equipment or settling roaming charges in foreign currency, that is also a gain and results in economic benefit and has to be accounted for while working out the gross revenue as a decrease in liability would be gain. Whatever may be the expenditure, whether it has increased or decreased, must be accounted for as it forms part of the gross revenue129. In the definition of gross revenue, any other miscellaneous revenue is included, and when once the item has to be shown in the balance-sheet or profit and loss account, obviously, it has to be accounted for gross revenue, even as a notional figure. Once the amount is receivable, it has to be taken as part of gross revenue. The finding to the contrary recorded by the TDSAT is thus liable to be set aside. Whether the amount is paid for the purchase of equipment, it has to be accounted for and must be accounted for as per the value spent on the date of the banking transaction, which cannot be ignored. Thus, the gains from foreign exchange fluctuations have to be added in the computation of gross revenue, otherwise, the benefit which is accruing will be ignored. Where profit or loss arises on account of appreciation of foreign currency, such gain or loss has to form part of profit from the business or loss. Whether it is profit or loss on account of trading or on account of asset, it has to form part of profit and loss account, thus, it has to account for gross revenue. The fluctuation in the foreign currency has to be accounted for in the account at the time when the amount is received or at the end of the accounting year. Thus, there is no escape from the conclusion that forex gain has to be accounted for as part of gross revenue. When loss can be claimed as an expenditure, profit or gain due to fluctuations in the rate of foreign exchange has also to be accounted for towards gross receipt, which is gross revenueIn re: Monetary Gains on Sale of Shares:131. Given the definition of gross revenue in the licence agreement, every amount which is more than the book value of the current asset and comes to licensee company, has to be considered for calculation of gross revenue without netting off. Thus, the reasons given by the tribunal that any gain over and above the net book value, that is, when the sale proceeds are less than the original purchase cost but more than the net worth of the assets, has to be excluded from the gross revenue, cannot be accepted. The gross revenue for the current year has to be worked out based on the value of the capital assets. Gross revenue for any year is considered in light of the opening statement and also closing statement at the end of the year. What is gain over and above the book value in the year in question, has to be taken into consideration towards gross revenue received. Submission to the contrary raised on behalf of the licensees cannot be accepted. We are not able to accept the submission that the money collected on the sale of shares etc. is not like revenue receipt but is a capital receipt. The gain from the sale of capital asset including increase over and above net book value and scrap and not the entire proceeds are to be taken as revenue in calculation of the gross revenue without netting off and should be on accrual basis, is unobjectionably within the ken of definition of gross revenue. To say in case e.g., gain for AGR will accrue when the sale proceeds or the current disposition value of the goods is Rs.60, and if it is sold at Rs.70, in that case, there will be a gain of Rs.10. That shall be taken as a gain for AGR calculation. The result would be the same in case the value of an asset worth Rs.100 has depreciated to book value worth Rs.60 and is sold at Rs.70, as urged on behalf of DOT, Rs. 10 will form part of gross revenue. For what purpose and head the income tax would be leviable, is not the question for our consideration132. The submission raised that the sale of shares is not an ordinary business activity, as provided in Para 4.1 of AS-9. Even Para 3(i) of AS- 9 which excludes from the ambit of revenue any realised or unrealised gains resulting from disposal of non-current assets, i.e. appreciation in the value of fixed assets. Again, a futile attempt has been made to get rid of the definition of gross revenue, and confusion is sought to be created by ordinary business activity, which is the expression used in Para 4.1 of AS-9. In contrast, the definition of gross revenue in clause 19.1 includes gross revenue from non-licensed activities also. Thus, the submission is wholly sans substance and stands repelled. Finding to the contrary recorded by TDSAT considering the initial cost is set aside. It has to be seen as book value as on date of sale. The stand of TDSAT is approved in this regard in regard to assets/scrap, shares etcIn re: Insurance claim in respect of capital assets:133. Where an asset is destroyed, and the insurance claim is received for more than its book value. The difference between the insurance claim received and the book value is treated as revenue by the DOT for computing AGR. The dispute was not raised initially by the licensees, while the order in the year 2007 came to be passed. It has been raised after this Court has remitted the case to the TDSAT in the year 2011. The TDSAT has held that if the asset destroyed is replaced immediately and the claim received is more than the actual cost of replacing the equipment, the difference would be taken as income; and in a case where the asset destroyed is not replaced immediately, the gain to the extent more than the gross book value is considered as income. The asset has appreciated over time, then insurance claim received more than the total cost, though being real gain, is not treated as revenue for clause 19.1 of the licence agreementIn case the insurance claim received is more than the book value, it is to be treated as revenue. According to the definition in clause 19.1, the gross inflow of cash for the current year, over and above the book value, is to be treated gross revenue. There is no need to make any classification as to when an asset is destroyed and replaced later on. The insurance claim received more than depreciated book value has to be recorded in the profit and loss account under any other income, that too constitutes a gain, therefore, it will form part of the gross revenue in the calculation without netting off and on accrual basis. To say if the revenue to form part of gross revenue will be treated only when the insurance claim received is more than the book value. Therefore, the excess amount received over and above the book value shall be taken as revenue for calculation of gross revenue. For the use of accounting, the gain from the insurance claim, the bifurcation made by the contingencies, was uncalled for and cannot be culled out from the definition of gross revenue, which was to simplify the procedure of assessment of licence fee. What is the meaning to be given to the word immediately would differ from case to case and determination of licence fee. The cost of replacement also depends upon various factors. An old asset may be replaced by a brand new one of the higher prices. For an accounting of gain from the insurance claim, the methodology classification adopted by DOT is not found to be proper and is not in tune with the definition of gross revenue135. It is submitted on behalf of the licensees that the amount received towards insurance claim is for indemnification towards loss of capital asset to compensate for the loss. The decision in Vania Silk Mills v. C.I.T. Ahmedabad, (supra) has been pressed into service wherein it has been held that while paying for the loss, the insurance company compensates for the loss. The insurance claim is not the value of the damage to property but only takes into consideration the amount required to restore it to its original condition. Insurance contracts are for indemnification. Therefore, it is submitted that the claims are not as revenue136. The submission raised on behalf of the licensees cannot be accepted as the insurance claim over and above the book value is considered as revenue and not the value of the capital asset as there is an inflow of cash received. It is accounted for in the profit and loss account. It has to form part of the gross revenue as defined in clause 19.1. The artificial bifurcation of insurance claim made by the TDSAT cannot be accepted and is contrary to contractual definition of gross revenue. The finding of TDSAT to the extent it is contrary to revenue is set asideIn re: Amount of negative balance of pre-paid customer:137. The negative balance occurs when a pre-paid customer exhausts the available talk-time. TSPs as a matter of policy, sometimes provides the customer with a small amount of loan talk-time as it may deem fit, say of the value of Rs.10 or Rs.20. The utilisation of this talk-time results in negative balance in the account of the pre-paid customer. The balance is recovered from the subsequent re-charge made by the customer. In case where the customer fails to re-charge the fresh top- up amount, the balance remains negative in the pre-paid account of the customer. The pre-paid vouchers are sold for a price for which the customer gets a fixed duration of talk-time/usage of the service. When it is exhausted, and long talk-time is used, it results in a negative balance. The TDSAT has held that the negative balance cannot be taken into account for computation of gross revenue as it is notional revenue, which is neither billed nor received. It is not due to the fault of the licensee, and the licensee does not gain anything from such usage beyond the permitted duration for the amount received by it138. The case set up by DOT is that the negative balance is communicated to the customer and also shown in the account. It is billed on accrual basis and becomes part of gross revenue. In case it is not realised, the same has the effect of bad debt, which is not allowed as a deduction as per the definition of gross revenue. In case it is not counted towards the gross revenue, it may encourage the licensee to give discounts increasing their gross revenue by such incentive and not paying the licence fee to the public exchequer139. It is apparent that the amount of negative balance is a business strategy, and the amount is adjusted in case re-charge is opted. Otherwise also, it is billed and reflected on accrual basis in the account of the customer. Though it has to form part of gross revenue for determination of licence fee under clause 19.1, the number of calls at the full value have to be measured without any discounts or incentive of such business strategy. It is a part of revenue. It cannot be deducted from the gross revenue to be worked out as per the definition of gross revenue under AS-9. Thus, the finding of the TDSAT cannot be said to align with the meaning of gross revenue in factual aspects of the case and is set asideIn re: Reimbursement of the infrastructure operating expenses144. The stand of DOT is that the interpretation is expressly contrary to clause 19.1, which categorically includes revenue from permissible sharing infrastructure. The definition of gross revenue does not permit differentiation between the reimbursement of expenses and rent for the usage of the facility. By the interpretation of TDSAT, accounting jugglery would take place, and the licensee will try to derive maximum reimbursement of infrastructure operating expenses under the category of reimbursement of expenditure rather than under the rent category. The company may form cartel and put up a common expenditure in the type of reimbursement of the cost it would give a chance for netting off the expenditure against revenue, which is prohibited in clause 19.1145. In the definition of gross revenue, the item sharing of infrastructure facility is explicitly mentioned. In the format in Appendix 2 to Annexure-II also, the entire amount is required to be shown. It has been specifically mentioned that there cannot be any setting off of the amount of gross revenue, and the entire money received has to be treated as the gross revenue for the determination of licence fee. It is not the determination of profit. The gross revenue carries a different definition, and the intendment is clear to prevent disputes. Thus the entire amount received by the licensee on account of sharing of passive infrastructure has to be counted in the gross revenue while working out AGR. Thus, the finding to the contrary recorded by the TDSAT is set asideIn re: Waiver of late fee149. In case the late fee is attracted, it has to be counted towards gross revenue without setting off, and if the operator waives it off, it has the same effect of discount being given to the customer which cannot be allowed as no deduction (net off) is allowed under clause 19.1. When once the late fee amount is billed and the amount is not paid within the due date, and the late fee is attracted, merely non- realisation of the same for any reason, cannot be excluded from the part of gross revenue as per its definition. Gross revenue has to be taken whether it is received or not, and netting off is not allowed under clause 19.1. Once the amount has been billed, it is for the licensee to realise it. There cannot be any justification for excluding late fee from the gross revenue. In case money is lost by the service provider, the same losses cannot be excluded from the AGR for the determination of licence fee150. Late free is included explicitly in the definition of gross revenue. As such, it has to be computed as part of gross revenue. Merely by waiver, it cannot be ousted from the purview of gross revenue once it becomes leviable. Thus, the finding of the TDSAT is not sustainable and is set asideIn re: Gains from roaming charges and PSTN pass-through charges154. Clause 19.2 makes it clear that detailed call charges paid to other eligible telecommunication service providers within India shall be excluded from gross revenue. Similarly, roaming revenues passed on to other eligible/ineligible service providers are also excluded. In that case, they must be actually passed over to the licensees in different service areas. Only then it can be excluded from gross revenue and not otherwise156. In the impugned order, the tribunal has held that the revenue from operating FCC 214 licence arises not from the licence granted by DOT but by FCC. Hence, this inflow cannot be taken as part of AGR unless the DOT can establish that there is technical, managerial and financial interconnection interlacing and synergy between companys operations in the USA and India the gross revenue from the services of 214 FCC licence is reflected in the companys accounts157. The stand of the DOT is that if this is permitted, every TSP/licensee in India would have branch offices in other parts of the world and would treat majority of the international income of the licensee as having been generated in the branch office outside the country and would not take it into account from calculation of gross revenue for payment of licence fee. It could not be said that the situation would not affect the profitability of the company since the revenue is generated in the branch office of the company but will affect the calculation of gross revenue as only a repatriated amount would be taken for calculation. Relying on the observations made by this Court in Union of India v. AUSPI (2011) at Para 49 in which this Court has held that in such a scenario, the business can be transferred to a separate legal entity to avoid the branch offices revenue to be clubbed with the main office. The income of the subsidiaries has to be included in the case of Bharti Airtel, it has separate subsidiaries, which are separate legal entities in and outside India, and the income generated from such subsidiaries are not considered or included while computing the adjusted gross revenue of Bharti Airtel. Since BILGO is a branch of Bharti Airtel and not a separate legal entity, because of the previous decision of 2011, the business for which no licence is required, should be transferred to a separate legal entity to avoid computation of gross revenue, if not due it has to be part of gross revenue158. In our opinion, para 49 of the judgment of 2011 takes care of the submission. Once there is a branch, maybe based abroad, its income and the activity of the branch may not require any licence since licensee is undertaking the activity, and the definition of adjusted gross revenue activities includes revenue beyond the licence. The same has to be included in the gross revenue. The submission stands concluded by the previous decision, and we find no merit in the submission159. The finding recorded by the TDSAT, to the extent it is contrary to the DOT, based upon certain conditions, is set asideIn re: Non-refundable Deposits160. It is permissible for the licensee to accept deposits from its customers, which at times are non-refundable but are used to provide discounts on the bills raised. Concerning non-refundable deposits, the claim was not pressed by the learned counsel appearing on behalf of DOT before the tribunal. However, we find that the concession given by the learned counsel on behalf of DOT concerning non-refundable deposits is palpably incorrect161. We had put learned counsel for the parties at notice during the hearing as to the correctness of the finding recorded by the tribunal based on the concession, which was prima facie incorrect. We have heard learned counsel for the parties on the issue whether non- refundable deposit forms part of the revenue of the licensee162. Appendix II to Annexure-II of the licence agreement: Item No.5, in Section D of the format, is an entry concerning non-refundable deposits from subscribers. It has to be included as per the format in the statement of the gross revenue. The definition of gross revenue is wide enough to cover non-refundable deposits as non-refundable deposits are revenue earned from licensed activities. Non-refundable deposits are to be treated as accrued in the profit and loss account as per Annexure III of the licence agreement. It is apparent that non- refundable deposits are in fact revenue received in advance from the subscribers. Even if they are used for discount etc. in the bills, they form part of revenue. Licensees themselves treat non-refundable deposits as income under section 80 IA (2a) of the Income-tax Act. Be that as it may. The finding recorded by the TDSAT concerning non- refundable deposits not being part of the revenue based upon wrong concession made by the learned counsel appearing for the DOT, is as a result of this is liable to be set-aside. It was expected of the TDSAT to consider the concession following law, as such cases cannot be decided and ought not to be decided on the basis of prima facie incorrect concession of the counsel, it has to be legally tested. In case any admission is made, its correctness has to be examinedIn re: Licence fee demand where spectrum is not granted163. Concerning demand of licence fee in the circle where the licensee was not granted spectrum: When the spectrum itself has not been issued, licence activity has not come into play, no revenue is generated. TDSAT has held that the demands of licence fee based on other activities, are bad, unreasonable, invalid, and unsustainable. During the period in question, the UAS licence came bundled with the spectrum, and it is evident that without a spectrum, the licensee could not work out the licence. The finding recorded by the TDSAT is appropriate. Once there is no activity under a licence, merely on the basis that the licence has been issued, no revenue earned, it cannot be shared. Still, there is no activity under the licence, i.e., based on non- licensed activities, the revenue sharing could not have been asked. It would be an unreasonable and unconscionable bargain to pass on such a liability. We agree with finding recorded by TDSAT in the case of Videocon & S. TelIn re: Income from interest and dividend164. Argument has also been raised concerning interest income and dividend income. Since these items are expressly included in the definition of gross revenue in clause 19.1. There is no scope to entertain the submission concerning the exclusion of interest and dividend from gross revenue. Whatever, interest and dividend earned from the licensing and non-licensing activities, have to form part of gross revenue for determination of licence feeIn re: Bad-debts written off165. The bad debts written off are not allowed as a deduction by the DOT while computing adjusted gross revenue, bad debt is written off when recovered subsequently, it cannot be added to the gross revenue. The TDSAT in the impugned order, has observed as under:Licensees submit that if a bad debt, that is written off is later on recovered, it is required to be reported to the DoT, this, according to the licensees, that bad debts written off may be allowed as deductions from revenue but as and when those are recovered subsequently those should be added on to revenue. The submission is not acceptable but it needs to be clarified that when any bad debt written of is recovered finally, it may not be charged to license fee again as that would result in double charging of license fee on the same revenue166. TDSAT has not accepted the submission of the licensees. However, at the same time, it has safeguarded the interest of the licensees. In case it is realised later on, it may not be charged again. It should be charged only once. We find the finding to be appropriate. No case for interference in the findings recorded by the TDSAT is made outIn re: Liability written off167. The TDSAT has observed as under:Take the example of a company that makes a provision for retirement benefits for the amount. For income tax, it will be considered as an expense, but no discount from income will be allowed for the sum for determining the license fee. If such a liability is written off on a future date and shown accordingly in the profit and loss statement it surely cannot be brought to charge for a second time for computing licence feeNo objection has been raised on behalf of DOT to the said findings168. DOT submits that the reasoning is correctIt is presented on behalf of the licensees that notional revenue cannot be included in the revenue of the company based on provisional liability being finalised by actual liability. The amount kept as provisional liability cannot be treated as income. In our opinion, TDSAT has rightly held that if it is to be considered as an expenditure, liability has to be treated as an expense, and no discount on the income will be allowed for the sum for determining the licence fee. It cannot be charged for the second time for computation of licence fee169. In Rajputana Trading Co. Ltd. v. Commissioner of Income Tax, West Bengal-I, (1982) 2 SCC 775 , it has been observed that once liability is written off, it has to be added as income from the business under section 10(2A) and such income should be given some local habitation or name170. Hence, we hold that it is to be treated as an expense, and discount cannot be allowed for determining the licence feeHowever, TDSAT could not have undertaken this exercise head-wiseIn re: Inter-corporate loan171. Certain licensees have raised the loan being holding companies for the subsidiaries from various banks and financial institutions. In turn, this amount is given to the subsidiaries for their day-to-day operations. On this amount, the subsidiaries pay interest at the SBI Prime Lending Rates (PLR) every quarter, which in turn is paid by the holding company to the banks/financial institutions. DOT seeks to include the interest received from the subsidiaries companies in the revenue of the holding company. The TDSAT has included the income from interest on inter-corporate loan as part of gross revenueIt is submitted on behalf of licensees that as the holding company only performs the function for the subsidiary company and the interest amount is only reimbursement of the amount paid to the bank, it cannot be included in the gross revenue. As such, it does not form part of gross revenue172. The submission has no legs to stand, and it is apparent from the definition of gross revenue in clause 19.1 that income from interest is to be included in the gross revenue. Thus, the submission is baseless. By the fact that the holding company gives loan to the subsidiary company and recovers interest from subsidiaries, is good enough to make it a part of gross revenue173. Thus, interest income from inter-corporate loan has to be included in the gross revenue for working out the licence feeIn re: Revenue under IP-1 Registration

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: to enable interest to be charged on the accrued rate on the interest component of the capitalised sum for the succeeding period. Interest, once capitalised, sheds its colour of interest and becomes a part of the principal to become a debt as has been observed thus: 36. The English decisions and the decisions of this Court and almost all the High Courts of the country have noticed and approved long-established banking practice of charging interest at reasonable rates on periodical rests and capitalising the same on remaining unpaid. Such a practice is prevalent and also recognised in non-banking moneylending transactions. The legislature has stepped in from time to time to relieve the debtors from hardship whenever it has found the practice of charging compound interest and its capitalisation to be oppressive and hence needing to be curbed. The practice is permissible, legal and judicially upheld excepting when superseded by legislation. There is nothing wrong in the parties voluntarily entering into transactions, evidenced by deeds incorporating covenant or stipulation for payment of compound interest at reasonable rates, and authorising the creditor to capitalise the interest on remaining unpaid so as to enable interest being charged at the agreed rate on the interest component of the capitalised sum for the succeeding period. Interest once capitalised, sheds its colour of being interest and becomes a part of the principal to bind the debtor/borrower. 44. We are of the opinion that the meaning assigned to the expression the principal sum adjudged should continue to be assigned to principal sum at such other places in Section 34(1) where the expression has been used qualified by the adjective such, that is to say, as such principal sum. Recognition of the method of capitalisation of interest to make it a part of the principal consistently with the contract between the parties or established banking practice does not offend the sense of reason, justice and equity. As we have noticed, such a system has a long-established practice and a series of judicial precedents upholding the same. Secondly, the underlying principle as noticed in several decided cases is that when interest is debited to the account of the borrower on periodical rests, it is debited because of it having fallen due on that day. Nothing prevents the borrower from paying the amount of interest on the date it falls due. If the amount of interest is paid there will be no occasion for capitalising the amount of interest and converting it into principal. If the interest is not paid on the date due, from that date the creditor is deprived of the use of the money, and which it would have made if the debtor had paid the amount of interest on the date due, the creditor needs to be compensated for deprivation. As held in Pazhaniappa Mudaliar v. Narayana Ayyar, AIR 143 Mad 157, the fact situation is analogous to one as if the creditor has advanced money to the borrower equivalent to the amount of interest debited. We are, therefore, of the opinion that the expression the principal sum adjudged may include the amount of interest, charged on periodical rests, and capitalised with the principal sum actually advanced, so as to become an amalgam of principal in such cases where it is permissible or obligatory for the court to hold so. Where the principal sum (on the date of suit) has been so adjudged, the same shall be treated as principal sum for the purpose of such principal sum — the expression employed later in Section 34 CPC. The expression principal sum cannot be given different meanings at different places in the language of same section, i.e. Section 34 CPC. (emphasis supplied) 196. Concerning penal interest, this Court in Central Bank of India v. Ravindra (supra) has observed that the penalty is founded on the doctrine of penal action. Penal interest can be charged only once for one period of default, and therefore cannot be permitted to be capitalised. 55. (1) Though interest can be capitalised on the analogy that the interest falling due on the accrued date and remaining unpaid, partakes the character of amount advanced on that date, yet penal interest, which is charged by way of penalty for non-payment, cannot be capitalised. Further interest i.e. interest on interest, whether simple, compound or penal, cannot be claimed on the amount of penal interest. Penal interest cannot be capitalised. It will be opposed to public policy. 197. It is not levy of penal interest, which is involved in the instant case. Thus, based on the decision mentioned above, we find that when there is contractual stipulation, the interest can be levied and compounded. 198. Resultantly, we are of the considered opinion that interest and penalty have rightly been levied. Once an amount of shortfall has not been paid, it has to carry 50% of the penalty on defaulted amount, as agreed. Thus, we find no substance in the submission that interest, penalty, and interest on penalty cannot be realised. It is as per the agreement. In the facts and circumstances, we find no ground to reduce the same, considering the nature of untenable objections raised on behalf of the licensees, which were in fact either barred by res judicata or constructive res judicata but as this Court had remitted the matter to TDSAT to find that demand was based on proper interpretation of licence. Matter was remitted after giving finding on inclusion of the various heads in the definition of gross revenue. Even as per the case of licensees they were not validly included in definition, now reprobating that, stand has been taken that they did not form part of revenue which is not permissible. No litigant can be permitted to reap fruits on such inconsistent and untenable stands and litigate for decades in several rounds which is not so uncommon but is disturbing scenario projected in very many cases. We have examined the matter upon merits and then aforesaid conclusion indicates frivolous nature of objections. ### Response: 0 ### Explanation: incorrect concession of the counsel, it has to be legally tested. In case any admission is made, its correctness has to be examinedIn re: Licence fee demand where spectrum is not granted163. Concerning demand of licence fee in the circle where the licensee was not granted spectrum: When the spectrum itself has not been issued, licence activity has not come into play, no revenue is generated. TDSAT has held that the demands of licence fee based on other activities, are bad, unreasonable, invalid, and unsustainable. During the period in question, the UAS licence came bundled with the spectrum, and it is evident that without a spectrum, the licensee could not work out the licence. The finding recorded by the TDSAT is appropriate. Once there is no activity under a licence, merely on the basis that the licence has been issued, no revenue earned, it cannot be shared. Still, there is no activity under the licence, i.e., based on non- licensed activities, the revenue sharing could not have been asked. It would be an unreasonable and unconscionable bargain to pass on such a liability. We agree with finding recorded by TDSAT in the case of Videocon & S. TelIn re: Income from interest and dividend164. Argument has also been raised concerning interest income and dividend income. Since these items are expressly included in the definition of gross revenue in clause 19.1. There is no scope to entertain the submission concerning the exclusion of interest and dividend from gross revenue. Whatever, interest and dividend earned from the licensing and non-licensing activities, have to form part of gross revenue for determination of licence feeIn re: Bad-debts written off165. The bad debts written off are not allowed as a deduction by the DOT while computing adjusted gross revenue, bad debt is written off when recovered subsequently, it cannot be added to the gross revenue. The TDSAT in the impugned order, has observed as under:Licensees submit that if a bad debt, that is written off is later on recovered, it is required to be reported to the DoT, this, according to the licensees, that bad debts written off may be allowed as deductions from revenue but as and when those are recovered subsequently those should be added on to revenue. The submission is not acceptable but it needs to be clarified that when any bad debt written of is recovered finally, it may not be charged to license fee again as that would result in double charging of license fee on the same revenue166. TDSAT has not accepted the submission of the licensees. However, at the same time, it has safeguarded the interest of the licensees. In case it is realised later on, it may not be charged again. It should be charged only once. We find the finding to be appropriate. No case for interference in the findings recorded by the TDSAT is made outIn re: Liability written off167. The TDSAT has observed as under:Take the example of a company that makes a provision for retirement benefits for the amount. For income tax, it will be considered as an expense, but no discount from income will be allowed for the sum for determining the license fee. If such a liability is written off on a future date and shown accordingly in the profit and loss statement it surely cannot be brought to charge for a second time for computing licence feeNo objection has been raised on behalf of DOT to the said findings168. DOT submits that the reasoning is correctIt is presented on behalf of the licensees that notional revenue cannot be included in the revenue of the company based on provisional liability being finalised by actual liability. The amount kept as provisional liability cannot be treated as income. In our opinion, TDSAT has rightly held that if it is to be considered as an expenditure, liability has to be treated as an expense, and no discount on the income will be allowed for the sum for determining the licence fee. It cannot be charged for the second time for computation of licence fee169. In Rajputana Trading Co. Ltd. v. Commissioner of Income Tax, West Bengal-I, (1982) 2 SCC 775 , it has been observed that once liability is written off, it has to be added as income from the business under section 10(2A) and such income should be given some local habitation or name170. Hence, we hold that it is to be treated as an expense, and discount cannot be allowed for determining the licence feeHowever, TDSAT could not have undertaken this exercise head-wiseIn re: Inter-corporate loan171. Certain licensees have raised the loan being holding companies for the subsidiaries from various banks and financial institutions. In turn, this amount is given to the subsidiaries for their day-to-day operations. On this amount, the subsidiaries pay interest at the SBI Prime Lending Rates (PLR) every quarter, which in turn is paid by the holding company to the banks/financial institutions. DOT seeks to include the interest received from the subsidiaries companies in the revenue of the holding company. The TDSAT has included the income from interest on inter-corporate loan as part of gross revenueIt is submitted on behalf of licensees that as the holding company only performs the function for the subsidiary company and the interest amount is only reimbursement of the amount paid to the bank, it cannot be included in the gross revenue. As such, it does not form part of gross revenue172. The submission has no legs to stand, and it is apparent from the definition of gross revenue in clause 19.1 that income from interest is to be included in the gross revenue. Thus, the submission is baseless. By the fact that the holding company gives loan to the subsidiary company and recovers interest from subsidiaries, is good enough to make it a part of gross revenue173. Thus, interest income from inter-corporate loan has to be included in the gross revenue for working out the licence feeIn re: Revenue under IP-1 Registration

THE SECRETARY, CENTRAL BOARD OF DIRECT TAXES AND OTHERS Vs. B. SHYAM SUNDER

for scrutiny Wards 2(c) Reward for search and seizure work 2(d) Reward for best officers at Tribunal. 2. The scheme sets out the quantum of reward, stage of its payment and persons entitled to receive the award amount. It further stipulates that all cases of grant of reward would be examined and approved by competent committees which were constituted. Rule 7 of the scheme, inter alia, provides that the reward shall be payable to the Government servants upto the level of Assistant Commissioner of Income Tax depending on the contribution made by them as a team as well as individually with regard to collection of intelligence, surveillance, effecting seizures and framing of assessments etc. and due credit will be given to the staff employed in investigation and/or prosecution work resulting in conviction of persons involved. It further provides that the competent committee will decide the manner in which the reward due will be shared between the eligible officers and staff and that the reward will be purely an ex-gratia payment and the competent committees discretion shall be final. 3. The respondent as an assessing officer completed the assessment of an assessee M/s. Anand Samrat Company, Secunderabad for the assessment year 1983-84 by passing assessment order dated 26/27th March, 1986 u/s 143(3) of the Income Tax Act, 1961. In respect of this assessee and its partners, a search had been carried out in July 1982 resulting in seizure of assets and number of incriminating documents. It seems that after annualizing the seized material and details gathered by the Intelligence Wing, an appraisal report was prepared by the Assistant Director of Inspection (Investigation) and it was forwarded to the assessing officer along with the seized material. On 6th May, 1985 a return was filed by the assessee for the year 1983-84 which was the year relevant for the search action. The respondent completed the assessment. The total additional income brought to tax after giving effect to the order of the Income Tax Appellate Tribunal was over Rs.12,00,000/-. According to the appellants, the additions made in the assessment order were based on either the seized material or the report given by the Investigation Wing. 4. In reply to his claim for reward, the respondent was informed in terms of communication dated 6th April, 1995 that his claim had been considered and he was not found fit for grant of reward under Rule 2(b) of the Reward Scheme, 1985. This was challenge by the respondent by filing before the Central Administrative Tribunal, Hyderabad an application u/s 14 of the Administrative Tribunal Act, 1985. According to the respondent all the conditions laid down in the scheme had bene satisfied for grant of reward to him under Rule 2(b) of the Reward Scheme, 1985 and denial thereof the him was illegal and arbitrary. 5. The stand of the appellant before the Tribunal was that payment under the scheme was purely ex-gratia and the discretion of the Committee deciding the matter was final and could not be questioned. On merits, it was submitted that the respondent was not entitled to the grant of the reward under the scheme as the assessment was made on the basis of documents and material seized in the search operation by a team of officers and that was dealt with in Rule 2(c) of the scheme and also that no contribution was made by the respondent. The respondent was not a member of the team which had conducted search and seizure operation. 6. The Tribunal, by order under challenge, allowed the application of the respondent and directed the appellants to grant him the award as prayed by the respondent in accordance with the scales prescribed by the department under the scheme. 7. The objection that the discretion of the Committee that the respondent was not entitled to the reward under the scheme could not be challenged before the Tribunal, was rejected by the Tribunal holding that the reward was part and parcel of service condition of an employee and it was aremuneration which formed part of service matter, and, therefore, the employee had right to challenge it. 8. We may note the learned counsel for the respondent frankly conceded that the claim of the respondent for the reward under the scheme does not fall under Rule 2(c). Admittedly, the respondent was not a member of the team which had conducted the search. Counsel, however, contends that the claim of the respondent clearly falls under Rule 2(b) and as all the conditions thereunder had been satisfied, the Tribunal rightly allowed the application of the respondent. We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable. 9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. u/s 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to service matters. Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex-gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex-gratia payment can be treated as remuneration of the Kind postulate by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in depth.

1[ds]We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable.9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. u/s 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to service matters. Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex-gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex-gratia payment can be treated as remuneration of the Kind postulate by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in depth.

### 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: for scrutiny Wards 2(c) Reward for search and seizure work 2(d) Reward for best officers at Tribunal. 2. The scheme sets out the quantum of reward, stage of its payment and persons entitled to receive the award amount. It further stipulates that all cases of grant of reward would be examined and approved by competent committees which were constituted. Rule 7 of the scheme, inter alia, provides that the reward shall be payable to the Government servants upto the level of Assistant Commissioner of Income Tax depending on the contribution made by them as a team as well as individually with regard to collection of intelligence, surveillance, effecting seizures and framing of assessments etc. and due credit will be given to the staff employed in investigation and/or prosecution work resulting in conviction of persons involved. It further provides that the competent committee will decide the manner in which the reward due will be shared between the eligible officers and staff and that the reward will be purely an ex-gratia payment and the competent committees discretion shall be final. 3. The respondent as an assessing officer completed the assessment of an assessee M/s. Anand Samrat Company, Secunderabad for the assessment year 1983-84 by passing assessment order dated 26/27th March, 1986 u/s 143(3) of the Income Tax Act, 1961. In respect of this assessee and its partners, a search had been carried out in July 1982 resulting in seizure of assets and number of incriminating documents. It seems that after annualizing the seized material and details gathered by the Intelligence Wing, an appraisal report was prepared by the Assistant Director of Inspection (Investigation) and it was forwarded to the assessing officer along with the seized material. On 6th May, 1985 a return was filed by the assessee for the year 1983-84 which was the year relevant for the search action. The respondent completed the assessment. The total additional income brought to tax after giving effect to the order of the Income Tax Appellate Tribunal was over Rs.12,00,000/-. According to the appellants, the additions made in the assessment order were based on either the seized material or the report given by the Investigation Wing. 4. In reply to his claim for reward, the respondent was informed in terms of communication dated 6th April, 1995 that his claim had been considered and he was not found fit for grant of reward under Rule 2(b) of the Reward Scheme, 1985. This was challenge by the respondent by filing before the Central Administrative Tribunal, Hyderabad an application u/s 14 of the Administrative Tribunal Act, 1985. According to the respondent all the conditions laid down in the scheme had bene satisfied for grant of reward to him under Rule 2(b) of the Reward Scheme, 1985 and denial thereof the him was illegal and arbitrary. 5. The stand of the appellant before the Tribunal was that payment under the scheme was purely ex-gratia and the discretion of the Committee deciding the matter was final and could not be questioned. On merits, it was submitted that the respondent was not entitled to the grant of the reward under the scheme as the assessment was made on the basis of documents and material seized in the search operation by a team of officers and that was dealt with in Rule 2(c) of the scheme and also that no contribution was made by the respondent. The respondent was not a member of the team which had conducted search and seizure operation. 6. The Tribunal, by order under challenge, allowed the application of the respondent and directed the appellants to grant him the award as prayed by the respondent in accordance with the scales prescribed by the department under the scheme. 7. The objection that the discretion of the Committee that the respondent was not entitled to the reward under the scheme could not be challenged before the Tribunal, was rejected by the Tribunal holding that the reward was part and parcel of service condition of an employee and it was aremuneration which formed part of service matter, and, therefore, the employee had right to challenge it. 8. We may note the learned counsel for the respondent frankly conceded that the claim of the respondent for the reward under the scheme does not fall under Rule 2(c). Admittedly, the respondent was not a member of the team which had conducted the search. Counsel, however, contends that the claim of the respondent clearly falls under Rule 2(b) and as all the conditions thereunder had been satisfied, the Tribunal rightly allowed the application of the respondent. We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable. 9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. u/s 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to service matters. Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex-gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex-gratia payment can be treated as remuneration of the Kind postulate by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in depth. ### Response: 1 ### Explanation: We do not agree. It has not been shown to us how the discretion of the Committee can be said to be illegal and arbitrary. It seems that the assessment was made on the basis of seized material and appraisal report of the Investigation Wing and that the Committee, whose discretion was final, was of the opinion that there was no contribution made by the respondent and he was not found fit for grant of reward under Rule 2(b). Undoubtedly, the case came before the respondent as assessing officer after search and seizure operation and if on these facts, the Committee decided that the respondent is not entitled to the grant of reward the discretion of the Committee cannot be faulted. Clearly, the Tribunals decision is wholly unsustainable.9. Even on the question of jurisdiction it seems that the matter was outside the purview of the Tribunal. u/s 14 of the Administrative Tribunal Act, 1985, the Tribunal has jurisdiction, power and authority in relation to service matters. Service matters include remuneration (including allowances), pension and other retirement benefits. The reward amount was purely ex-gratia payment. It is difficult to treat it as a condition of service. Further it is difficult to comprehend how such ex-gratia payment can be treated as remuneration of the Kind postulate by the Act. But in view of our decision on merits, we do not consider it necessary to examine this aspect in depth.

Dinesh Kumar Gupta Vs. United India Insurance Co. Ltd.

petitioner who obstructed the administration of justice so as to justify initiation of contempt proceedings against an officer who joined five years later on the ground that he had sought the case number and the date of the order which was to be implemented in order to forestall the same when in fact it was already not implemented for a long number of years which was more than four years prior to the appellants posting in the High Court. As already stated, an officer in the registry who joined approximately five years later prior to the interim order of stay which was passed, he cannot legitimately be hauled up for contempt merely on unfounded assumption and speculation that it was he who was instrumental in obstructing the administration of justice by ensuring that the order of stay may not be implemented. 17. As already observed, the first and foremost onus to communicate an order of stay is on the counsel or the party in whose favour the order was passed by obtaining a certified copy of the order passed by the court and although the registry is also required to communicate the order to the concerned Court where it is required to be implemented, the same essentially is in the nature of a formal communication and if the same had not been communicated by the erstwhile officers of the registry for any reason whatsoever, including an assumed motive of its non-implementation, a proceeding for contempt could have been initiated against an officer who was posted at the relevant time and had failed to communicate the order to the concerned Court which had to implement it. But, after an unusually long lapse of time, which in this case is more than four years, an officer like the appellant who subsequently joined the registry, cannot be attributed with an oblique motive of obstructing the cause of justice merely because he had sought the case number and date of the order of stay from the Registrar (Vigilance) in order to furnish a copy of the order which was required by the Registrar (Vigilance). In fact, when the Registrar (Vigilance) sought a copy of the interim order of stay, it was his duty to specify the case number and the date of the order as it cannot be expected that the copy of the order could be sent to the Registrar (Vigilance) without the case number or its date. In any view, it would be too far fetched to infer that the same was done to shield the learned Judge of the MACT Shri Bansal against whom vigilance enquiry was ordered, completely missing the relevant point that he had already superannuated two years earlier after which the learned Single Judge himself had ordered for closure of the vigilance enquiry against him. 18. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out u/s 2 (b) of the Contempt of Courts Act 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding. 19. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 : Supp. SCC 556 that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although, disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold him guilty unless the contempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment and this was the view expressed also in cases reported in AIR 1954 Patna 513, State of Bihar Vs. Rani Sonabati Kumari and AIR 1957 Patna 528, N. Bakshi Vs. O.K. Ghosh. 20. In the light of the aforesaid discussion, we are of the view that the learned single Judge inferred and assumed erroneously that the appellant had the intention to obstruct the administration of justice by being instrumental in ensuring that the interim order passed in 2001 may not be implemented oblivious of the fact that the appellant was posted in the registry of the High Court only four years later in 2005 and hence non-implementation of the interim order of stay cannot be attributed to the appellant to shield the Judge of the MACT, Jaipur who had retired way back in the year 2003 against whom the enquiry was ordered to be closed by the learned Single Judge himself. Thus, initiation of the contempt proceeding against the petitioner by the learned single Judge is based on a wholly wrong premise based on unsustainable and unfounded facts which cannot be treated sufficient material so as to initiate contempt proceeding in spite of absence of any degree of fault or misconduct or even unintentional disobedience to the order for the reasons assigned hereinbefore.

1[ds]12. On a scrutiny of the sequence of events narrated hereinbefore, we are clearly of the view in the first place that the contempt alleged against the appellant would not amount to a criminal contempt because the alleged contempt even if made out would clearly at the best be of a civil nature, which is evident from Section 2 of the Contempt of Courts Act 1971 which lays down as follows:(a) contempt of court means civil contempt or criminal contempt;(b) civil contempt means wilful disobedience to any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a court;(c) criminal contempt means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which(i) scandalizes or tends to scandalize, or lowers or tends to lower the authority of, any court; or(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;On perusal of the aforesaid provision enumerated under Section 2 quoted hereinbefore, it can clearly be inferred that the initiation of contempt proceeding against the petitioner even as it stands, would not give rise to a proceeding for criminal contempt and in any event the alleged contempt cannot be stretched beyond civil contempt under the prevailing facts and circumstances of the case discussed hereinbefore. Nevertheless, it would not be correct on behalf of the appellant to contend that the learned single Judge was not authorised to initiate contempt proceeding against the appellant merely because he was sitting in a single Bench although he might have been in a position to notice whether the alleged action at the instance of any party or anyone else who obstructed the cause of justice, amounted to contempt of Court of a civil or criminal nature and yet would be precluded from initiating suo moto contempt proceedings. The Contempt of Courts Act 1971 clearly postulates the existence of only the following preconditions before a person can be held to have committed civil contempt:(i) There must be a judgment or order or decree or direction or writ or other process of a court; orAn undertaking given to a court;(ii) The judgment etc. must be of the court and undertaking must have been given to a court;(iii) There must be a disobedience to such judgment, etc. or breach of such undertaking;(iv) The disobedience or breach, as the case may be, must be wilfulHence, it would not be right to contend that even though the learned single Judge might have found material which persuaded him to form an opinion that a contempt has been committed, yet the learned Judge had no authority or jurisdiction to initiate a proceeding for contempt against the person who indulged in such action. Thus we find no substance in the plea which has been raised on behalf of the appellant on this countIn our considered opinion, the answer clearly has to be in the negative in view of thed legal position reflected in a catena of decisions of this court that contempt of a civil nature can be held to have been made out only if there has been a wilful disobedience of the order and even though there may be disobedience, yet if the same does not reflect that it has been a conscious and wilful disobedience, a case for contempt cannot be held to have been made out. In fact, if an order is capable of more than one interpretation giving rise to variety of consequences,e of the same cannot be held to be wilful disobedience of the order so as to make out a case of contempt entailing the serious consequence including imposition of punishment. However, when the Courts are confronted with a question as to whether a given situation could be treated to be a case of wilful disobedience, or a case of a lame excuse, in order to subvert its compliance, howsoever articulate it may be, will obviously depend on the facts and circumstances of a particular case; but while deciding so, it would not be legally correct to be too speculative based on assumption as the Contempt of Courts Act 1971 clearly postulates and emphasizes that the ingredient of wilful disobedience must be there before anyone can be hauled up for the charge of contempt of a civil nature14. In view of the aforesaid legal position, when the facts of the instant case are analyzed, it is clear that the learned single Judge had passed an interim order of stay in favour of the Insurance Company against implementation of the award passed in favour of the claimant and the said order was not complied with even upto the year 2003 and the reason forn of the order of stay was not communicated by the registry of the High Court for which the appellantDeputy Registrar (Judicial) has been held to be instrumental. The learned single Judge further has taken note of the letter dated 22.12.2005 by which the appellanti Dinesh Kumar Gupta, who was functioning as Deputy Registrar (Judicial) on the said date had enquired about the case number and the date of the order which was required by the Registrar General (Vigilance) and the learned single Judge has initiated the contempt proceedings on the inference that it is the appellant who was instrumental due to which the interim order of stay passed by the learned single Judge way back on 22.3.2001 in S.B. Civil Writ Petition No. 1072 of 2001 was not implemented. If the learned single Judge had called the appellant with files and perused the same, he himself would have been satisfied that on the relevant date, the appellant was not Deputy Registrar and it was not necessary to initiate contempt proceeding against him15. However, we cannot lose sight of the most relevant and important fact that when the interim order of stay was passed on 22.03.2001 by the learned single Judge, it was first of all the duty of the counsel for the petitioner United India Insurance Company Ltd. or the petitioner Insurance Company itself to obtain a certified copy of the interim order of stay and then communicate the same to the Presiding Judge of the MACT who was Shri S.K. Bansal. The petitioner herein Shri Gupta admittedly was not functioning in the High Court in any capacity in the year 2001 or thereafter until 2005 and hence he cannot be attributed with an ulterior motive to scuttle or ensure that the interim order of stay may not be implemented as admittedly for several years thereafter, at least upto the year 2003, when the MACT Judge Shri Bansal superannuated, the petitioner was not even posted in the High Court as he was posted in the High Court, Jaipur Bench as Deputy Registrar (Judicial) for the first time in the year 2005. Hence, what transpired between the date of the order of interim stay passed in 2001 upto 2003 when the learned Judge, MACT Shri Bansal retired, no malafide or ulterior motive can at all be attributed to the appellant herein Shri Gupta so as to initiate a contempt proceeding against him. Therefore, even though the order was not complied, the reason or liability for itse cannot be fastened on the appellant hereinShri Gupta so as to justify initiation of contempt proceeding against him. Hence,e of the interim order of stay passed by the learned single Judge way back in the year 2001 which was passed much prior to 2005, when the appellant joined as Deputy Registrar (Judicial) in the High Court cannot be attributed to him. The appellant obviously could not have been expected to orally remember the particulars of each and every order passed by High Court on judicial side and sent to the registry, which was not implemented. Hence, if he wrote to the Registrar (Vigilance) seeking the case number of the pending matter as also the date of the stay order, the said letter cannot be treated to have been written with an intention to obstruct implementation of the interim order of stay which was passed four years earlier in the year 2001. Hence, it would be a wholly unfounded assumption, so as to infer that the appellant did so, to obviate or obstruct implementation of the stay order or forestall the same in any manner16. In our view, if the learned single Judge was of the view that the interim order of stay granted by the Court on 22.03.2001 in favour of the Insurance Company staying execution of the award of compensation in favour of the claimant was obstructed, the learned single Judge ought to have hauled up those officers in the registry for contempt who had been functioning in the registry at the relevant time and factually it was not correct for the learned Judge to assume that it was the petitioner who obstructed the administration of justice so as to justify initiation of contempt proceedings against an officer who joined five years later on the ground that he had sought the case number and the date of the order which was to be implemented in order to forestall the same when in fact it was already not implemented for a long number of years which was more than four years prior to the appellants posting in the High Court. As already stated, an officer in the registry who joined approximately five years later prior to the interim order of stay which was passed, he cannot legitimately be hauled up for contempt merely on unfounded assumption and speculation that it was he who was instrumental in obstructing the administration of justice by ensuring that the order of stay may not be implemented17. As already observed, the first and foremost onus to communicate an order of stay is on the counsel or the party in whose favour the order was passed by obtaining a certified copy of the order passed by the court and although the registry is also required to communicate the order to the concerned Court where it is required to be implemented, the same essentially is in the nature of a formal communication and if the same had not been communicated by the erstwhile officers of the registry for any reason whatsoever, including an assumed motive of its, a proceeding for contempt could have been initiated against an officer who was posted at the relevant time and had failed to communicate the order to the concerned Court which had to implement it. But, after an unusually long lapse of time, which in this case is more than four years, an officer like the appellant who subsequently joined the registry, cannot be attributed with an oblique motive of obstructing the cause of justice merely because he had sought the case number and date of the order of stay from the Registrar (Vigilance) in order to furnish a copy of the order which was required by the Registrar (Vigilance). In fact, when the Registrar (Vigilance) sought a copy of the interim order of stay, it was his duty to specify the case number and the date of the order as it cannot be expected that the copy of the order could be sent to the Registrar (Vigilance) without the case number or its date. In any view, it would be too far fetched to infer that the same was done to shield the learned Judge of the MACT Shri Bansal against whom vigilance enquiry was ordered, completely missing the relevant point that he had already superannuated two years earlier after which the learned Single Judge himself had ordered for closure of the vigilance enquiry against him18. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out u/s 2 (b) of the Contempt of Courts Act 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding19. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 : Supp. SCC 556 that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although, disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold him guilty unless the contempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment and this was the view expressed also in cases reported in AIR 1954 Patna 513, State of Bihar Vs. Rani Sonabati Kumari and AIR 1957 Patna 528, N. Bakshi Vs. O.K. Ghosh20. In the light of the aforesaid discussion, we are of the view that the learned single Judge inferred and assumed erroneously that the appellant had the intention to obstruct the administration of justice by being instrumental in ensuring that the interim order passed in 2001 may not be implemented oblivious of the fact that the appellant was posted in the registry of the High Court only four years later in 2005 and hencen of the interim order of stay cannot be attributed to the appellant to shield the Judge of the MACT, Jaipur who had retired way back in the year 2003 against whom the enquiry was ordered to be closed by the learned Single Judge himself. Thus, initiation of the contempt proceeding against the petitioner by the learned single Judge is based on a wholly wrong premise based on unsustainable and unfounded facts which cannot be treated sufficient material so as to initiate contempt proceeding in spite of absence of any degree of fault or misconduct or even unintentional disobedience to the order for the reasons assigned hereinbefore.

### 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: petitioner who obstructed the administration of justice so as to justify initiation of contempt proceedings against an officer who joined five years later on the ground that he had sought the case number and the date of the order which was to be implemented in order to forestall the same when in fact it was already not implemented for a long number of years which was more than four years prior to the appellants posting in the High Court. As already stated, an officer in the registry who joined approximately five years later prior to the interim order of stay which was passed, he cannot legitimately be hauled up for contempt merely on unfounded assumption and speculation that it was he who was instrumental in obstructing the administration of justice by ensuring that the order of stay may not be implemented. 17. As already observed, the first and foremost onus to communicate an order of stay is on the counsel or the party in whose favour the order was passed by obtaining a certified copy of the order passed by the court and although the registry is also required to communicate the order to the concerned Court where it is required to be implemented, the same essentially is in the nature of a formal communication and if the same had not been communicated by the erstwhile officers of the registry for any reason whatsoever, including an assumed motive of its non-implementation, a proceeding for contempt could have been initiated against an officer who was posted at the relevant time and had failed to communicate the order to the concerned Court which had to implement it. But, after an unusually long lapse of time, which in this case is more than four years, an officer like the appellant who subsequently joined the registry, cannot be attributed with an oblique motive of obstructing the cause of justice merely because he had sought the case number and date of the order of stay from the Registrar (Vigilance) in order to furnish a copy of the order which was required by the Registrar (Vigilance). In fact, when the Registrar (Vigilance) sought a copy of the interim order of stay, it was his duty to specify the case number and the date of the order as it cannot be expected that the copy of the order could be sent to the Registrar (Vigilance) without the case number or its date. In any view, it would be too far fetched to infer that the same was done to shield the learned Judge of the MACT Shri Bansal against whom vigilance enquiry was ordered, completely missing the relevant point that he had already superannuated two years earlier after which the learned Single Judge himself had ordered for closure of the vigilance enquiry against him. 18. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out u/s 2 (b) of the Contempt of Courts Act 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding. 19. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 : Supp. SCC 556 that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although, disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold him guilty unless the contempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment and this was the view expressed also in cases reported in AIR 1954 Patna 513, State of Bihar Vs. Rani Sonabati Kumari and AIR 1957 Patna 528, N. Bakshi Vs. O.K. Ghosh. 20. In the light of the aforesaid discussion, we are of the view that the learned single Judge inferred and assumed erroneously that the appellant had the intention to obstruct the administration of justice by being instrumental in ensuring that the interim order passed in 2001 may not be implemented oblivious of the fact that the appellant was posted in the registry of the High Court only four years later in 2005 and hence non-implementation of the interim order of stay cannot be attributed to the appellant to shield the Judge of the MACT, Jaipur who had retired way back in the year 2003 against whom the enquiry was ordered to be closed by the learned Single Judge himself. Thus, initiation of the contempt proceeding against the petitioner by the learned single Judge is based on a wholly wrong premise based on unsustainable and unfounded facts which cannot be treated sufficient material so as to initiate contempt proceeding in spite of absence of any degree of fault or misconduct or even unintentional disobedience to the order for the reasons assigned hereinbefore. ### Response: 1 ### Explanation: to assume that it was the petitioner who obstructed the administration of justice so as to justify initiation of contempt proceedings against an officer who joined five years later on the ground that he had sought the case number and the date of the order which was to be implemented in order to forestall the same when in fact it was already not implemented for a long number of years which was more than four years prior to the appellants posting in the High Court. As already stated, an officer in the registry who joined approximately five years later prior to the interim order of stay which was passed, he cannot legitimately be hauled up for contempt merely on unfounded assumption and speculation that it was he who was instrumental in obstructing the administration of justice by ensuring that the order of stay may not be implemented17. As already observed, the first and foremost onus to communicate an order of stay is on the counsel or the party in whose favour the order was passed by obtaining a certified copy of the order passed by the court and although the registry is also required to communicate the order to the concerned Court where it is required to be implemented, the same essentially is in the nature of a formal communication and if the same had not been communicated by the erstwhile officers of the registry for any reason whatsoever, including an assumed motive of its, a proceeding for contempt could have been initiated against an officer who was posted at the relevant time and had failed to communicate the order to the concerned Court which had to implement it. But, after an unusually long lapse of time, which in this case is more than four years, an officer like the appellant who subsequently joined the registry, cannot be attributed with an oblique motive of obstructing the cause of justice merely because he had sought the case number and date of the order of stay from the Registrar (Vigilance) in order to furnish a copy of the order which was required by the Registrar (Vigilance). In fact, when the Registrar (Vigilance) sought a copy of the interim order of stay, it was his duty to specify the case number and the date of the order as it cannot be expected that the copy of the order could be sent to the Registrar (Vigilance) without the case number or its date. In any view, it would be too far fetched to infer that the same was done to shield the learned Judge of the MACT Shri Bansal against whom vigilance enquiry was ordered, completely missing the relevant point that he had already superannuated two years earlier after which the learned Single Judge himself had ordered for closure of the vigilance enquiry against him18. Besides this, it would also not be correct to overlook or ignore an important statutory ingredient of contempt of a civil nature given out u/s 2 (b) of the Contempt of Courts Act 1971 that the disobedience to the order alleging contempt has to satisfy the test that it is a wilful disobedience to the order. Bearing this important factor in mind, it is relevant to note that a proceeding for civil contempt would not lie if the order alleged to have been disobeyed itself provides scope for reasonable or rational interpretation of an order or circumstance which is the factual position in the instant matter. It would equally not be correct to infer that a party although acting due to misapprehension of the correct legal position and in good faith without any motive to defeat or defy the order of the Court, should be viewed as a serious ground so as to give rise to a contempt proceeding19. To reinforce the aforesaid legal position further, it would be relevant and appropriate to take into consideration the settled legal position as reflected in the judgment and order delivered in the matter of Ahmad Ali Vs. Supdt., District Jail, AIR 1987 SC 1491 : Supp. SCC 556 that mere unintentional disobedience is not enough to hold anyone guilty of contempt and although, disobedience might have been established, absence of wilful disobedience on the part of the contemnor, will not hold him guilty unless the contempt involves a degree of fault or misconduct. Thus, accidental or unintentional disobedience is not sufficient to justify one for holding guilty of contempt. It is further relevant to bear in mind the settled law on the law of contempt that casual or accidental or unintentional acts of disobedience under the circumstances which negate any suggestion of contumacy, would amount to a contempt in theory only and does not render the contemnor liable to punishment and this was the view expressed also in cases reported in AIR 1954 Patna 513, State of Bihar Vs. Rani Sonabati Kumari and AIR 1957 Patna 528, N. Bakshi Vs. O.K. Ghosh20. In the light of the aforesaid discussion, we are of the view that the learned single Judge inferred and assumed erroneously that the appellant had the intention to obstruct the administration of justice by being instrumental in ensuring that the interim order passed in 2001 may not be implemented oblivious of the fact that the appellant was posted in the registry of the High Court only four years later in 2005 and hencen of the interim order of stay cannot be attributed to the appellant to shield the Judge of the MACT, Jaipur who had retired way back in the year 2003 against whom the enquiry was ordered to be closed by the learned Single Judge himself. Thus, initiation of the contempt proceeding against the petitioner by the learned single Judge is based on a wholly wrong premise based on unsustainable and unfounded facts which cannot be treated sufficient material so as to initiate contempt proceeding in spite of absence of any degree of fault or misconduct or even unintentional disobedience to the order for the reasons assigned hereinbefore.

Municipal Committee, Khurari Vs. Dhannalal Sethi & Ors

goods by rail.4. Counsel for the Committee, however, urged that the view taken by the High Court was erroneous and that if the rules regarding refund were read together, it would be clear that a person claiming refund would not be entitled to it unless he has followed the procedure thereunder prescribed. To appreciate this contention it would be necessary to turn to those rules. The rules dealing with refund of octroi are Rr 27 to 43. Rule 27 provides that on exportation of dutiable goods outside the municipal limits an exporter shall be entitled to a refund equal to 7/8th of the duty paid on them at the time of their import. We do not detain ourselves on the proviso to this rule as it is not relevant for the purposes of this appeal. The object of Rule 27 is clear, viz. that in case of dutiable goods the Committee has to refund to the person who has exported them 7/8th of the duty paid thereon at the time when they were brought into the municipal limits. The rule does not require such an exporter to produce receipts of payment of duty levied at the time of their entry. Obviously, the Committee was wrong in insisting upon respondents 1 and 2 to produce receipts before they could he granted the refund, no could it justify its demand that respondents 1 and 2 should prove that duty had been paid on the said goods at the time of their entry as the rule does not lay down any such obligation on the exporter. Rules 28 to33 are not relevant and need not, therefore, be set out. Rule 34 provides that an application for refund is to be made in the prescribed form and that the exporter after filling in the particulars has to present his application at the office appointed for that purpose. Rules 36 to 39 provide an elaborate procedure to be followed at the time of exportation. Rule 35 provides that on receipt of an application for refund, the Octroi Officer must satisfy himself that the goods brought for export agree with those mentioned in the application and if satisfied, he must prepare a challan showing the amount of refund and hand it over to the exporter who then shall take the goods beyond the municipal limits. Under Rule 36, the exporter has to present the challan in which the refund amount is calculated at the exit post within the time prescribed which shall not exceed twelve hours from the examination of the goods under Rule 35 to their exportation. Under Rule 37, the Muharir has to check the goods at the exit post and ascertain that the goods agreed with those mentioned in the challan and then issue a certificate to the exporter on which the refund would be paid to him. Rule 38 provides that where the goods are not presented at the out-post as provided by Rule 35, the exporter may get them verified by the officer who would then make an endorsement on the application and on such endorsement made the exporter would get the refund. Under Rule: 313 when goods are exported by rail, the exporter has to produce the railway receipt as well as the refund challan bearing the certificate of the Muharir at the exit post.5. It is clear from Rules 35 to 39 that they lay down the procedure for claiming refund. Counsel for the Committee therefore, appears to be right in his contention that an exporter desiring to claim refund has to make his application at the time of exportation of the goods and in the manner prescribed in these rules. It appears also that there is considerable force in his contention that Rules 42 and 43 deal with only two categories of goods, viz., cloth and articles locally produced or manufactured and that Rule 43 is confined to those two kinds of goods only and, therefore, when it provides that no further proof of duty having been paid on them is required, it means that no proof of such payment other than the one mentioned in Rule 42 would be needed in respect of the said two categories of goods. In our view, Rule 43 has to be read in the context of Rule 42 and must, therefore, be read to mean that no further proof of payment other than the one mentioned in Rule 42 would be required in respect of those two classes of goods and, therefore, Rule 43 does not apply to other kinds of goods. The reason is that if Rule 43 is read in the manner in which the High Court has read it, it would render Rules 35 to 39 totally nugatory, a construction which a court having to construe these rules, would be loath to adopt.6. It would seem, therefore, that these rules do provide a procedure which an exporter wishing to claim refund has to follow. But the question is whether in a case where an exporter has not done so, is he disentitled from claiming the refund.The real difficulty in the way of the appellant Committee is that though the rules lay down a procedure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in Rules 35 to 39 would be disentitled to claim the refund. In the absence of such a provision coupled with the categorical language of Rule 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 to such a refund.We are, therefore of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court.

0[ds]5. It is clear from Rules 35 to 39 that they lay down the procedure for claiming refund. Counsel for the Committee therefore, appears to be right in his contention that an exporter desiring to claim refund has to make his application at the time of exportation of the goods and in the manner prescribed in these rules. It appears also that there is considerable force in his contention that Rules 42 and 43 deal with only two categories of goods, viz., cloth and articles locally produced or manufactured and that Rule 43 is confined to those two kinds of goods only and, therefore, when it provides that no further proof of duty having been paid on them is required, it means that no proof of such payment other than the one mentioned in Rule 42 would be needed in respect of the said two categories of goods. In our view, Rule 43 has to be read in the context of Rule 42 and must, therefore, be read to mean that no further proof of payment other than the one mentioned in Rule 42 would be required in respect of those two classes of goods and, therefore, Rule 43 does not apply to other kinds of goods. The reason is that if Rule 43 is read in the manner in which the High Court has read it, it would render Rules 35 to 39 totally nugatory, a construction which a court having to construe these rules, would be loath to adopt.6. It would seem, therefore, that these rules do provide a procedure which an exporter wishing to claim refund has to follow. But the question iswhether in a case where an exporter has not done so, is he disentitled from claiming thereal difficulty in the way of the appellant Committee is that though the rules lay down a procedure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in Rules 35 to 39 would be disentitled to claim the refund. In the absence of such a provision coupled with the categorical language of Rule 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 to such a refund.We are, therefore of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court.

### 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: goods by rail.4. Counsel for the Committee, however, urged that the view taken by the High Court was erroneous and that if the rules regarding refund were read together, it would be clear that a person claiming refund would not be entitled to it unless he has followed the procedure thereunder prescribed. To appreciate this contention it would be necessary to turn to those rules. The rules dealing with refund of octroi are Rr 27 to 43. Rule 27 provides that on exportation of dutiable goods outside the municipal limits an exporter shall be entitled to a refund equal to 7/8th of the duty paid on them at the time of their import. We do not detain ourselves on the proviso to this rule as it is not relevant for the purposes of this appeal. The object of Rule 27 is clear, viz. that in case of dutiable goods the Committee has to refund to the person who has exported them 7/8th of the duty paid thereon at the time when they were brought into the municipal limits. The rule does not require such an exporter to produce receipts of payment of duty levied at the time of their entry. Obviously, the Committee was wrong in insisting upon respondents 1 and 2 to produce receipts before they could he granted the refund, no could it justify its demand that respondents 1 and 2 should prove that duty had been paid on the said goods at the time of their entry as the rule does not lay down any such obligation on the exporter. Rules 28 to33 are not relevant and need not, therefore, be set out. Rule 34 provides that an application for refund is to be made in the prescribed form and that the exporter after filling in the particulars has to present his application at the office appointed for that purpose. Rules 36 to 39 provide an elaborate procedure to be followed at the time of exportation. Rule 35 provides that on receipt of an application for refund, the Octroi Officer must satisfy himself that the goods brought for export agree with those mentioned in the application and if satisfied, he must prepare a challan showing the amount of refund and hand it over to the exporter who then shall take the goods beyond the municipal limits. Under Rule 36, the exporter has to present the challan in which the refund amount is calculated at the exit post within the time prescribed which shall not exceed twelve hours from the examination of the goods under Rule 35 to their exportation. Under Rule 37, the Muharir has to check the goods at the exit post and ascertain that the goods agreed with those mentioned in the challan and then issue a certificate to the exporter on which the refund would be paid to him. Rule 38 provides that where the goods are not presented at the out-post as provided by Rule 35, the exporter may get them verified by the officer who would then make an endorsement on the application and on such endorsement made the exporter would get the refund. Under Rule: 313 when goods are exported by rail, the exporter has to produce the railway receipt as well as the refund challan bearing the certificate of the Muharir at the exit post.5. It is clear from Rules 35 to 39 that they lay down the procedure for claiming refund. Counsel for the Committee therefore, appears to be right in his contention that an exporter desiring to claim refund has to make his application at the time of exportation of the goods and in the manner prescribed in these rules. It appears also that there is considerable force in his contention that Rules 42 and 43 deal with only two categories of goods, viz., cloth and articles locally produced or manufactured and that Rule 43 is confined to those two kinds of goods only and, therefore, when it provides that no further proof of duty having been paid on them is required, it means that no proof of such payment other than the one mentioned in Rule 42 would be needed in respect of the said two categories of goods. In our view, Rule 43 has to be read in the context of Rule 42 and must, therefore, be read to mean that no further proof of payment other than the one mentioned in Rule 42 would be required in respect of those two classes of goods and, therefore, Rule 43 does not apply to other kinds of goods. The reason is that if Rule 43 is read in the manner in which the High Court has read it, it would render Rules 35 to 39 totally nugatory, a construction which a court having to construe these rules, would be loath to adopt.6. It would seem, therefore, that these rules do provide a procedure which an exporter wishing to claim refund has to follow. But the question is whether in a case where an exporter has not done so, is he disentitled from claiming the refund.The real difficulty in the way of the appellant Committee is that though the rules lay down a procedure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in Rules 35 to 39 would be disentitled to claim the refund. In the absence of such a provision coupled with the categorical language of Rule 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 to such a refund.We are, therefore of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court. ### Response: 0 ### Explanation: 5. It is clear from Rules 35 to 39 that they lay down the procedure for claiming refund. Counsel for the Committee therefore, appears to be right in his contention that an exporter desiring to claim refund has to make his application at the time of exportation of the goods and in the manner prescribed in these rules. It appears also that there is considerable force in his contention that Rules 42 and 43 deal with only two categories of goods, viz., cloth and articles locally produced or manufactured and that Rule 43 is confined to those two kinds of goods only and, therefore, when it provides that no further proof of duty having been paid on them is required, it means that no proof of such payment other than the one mentioned in Rule 42 would be needed in respect of the said two categories of goods. In our view, Rule 43 has to be read in the context of Rule 42 and must, therefore, be read to mean that no further proof of payment other than the one mentioned in Rule 42 would be required in respect of those two classes of goods and, therefore, Rule 43 does not apply to other kinds of goods. The reason is that if Rule 43 is read in the manner in which the High Court has read it, it would render Rules 35 to 39 totally nugatory, a construction which a court having to construe these rules, would be loath to adopt.6. It would seem, therefore, that these rules do provide a procedure which an exporter wishing to claim refund has to follow. But the question iswhether in a case where an exporter has not done so, is he disentitled from claiming thereal difficulty in the way of the appellant Committee is that though the rules lay down a procedure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in Rules 35 to 39 would be disentitled to claim the refund. In the absence of such a provision coupled with the categorical language of Rule 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 to such a refund.We are, therefore of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court.

State Of Jammu & Kashmir Vs. Triloki Nath Khosa & Ors

service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again.47. Roshan Lals case (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) is thus no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot be classified for purposes of promotion on a basis other than the one that they were drawn from different sources. In the instant case, classification rests fairly and squarely on the consideration of educational qualifications: Graduates alone shall go into the higher post, no matter whether they were appointed as Assistant Engineers directly or by promotion. The discrimination therefore is not in relation to the source of recruitment as in Roshan Lals case.48. It is relevant, though inconclusive, that the very Bench which decided Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) held about a fortnight later in Narsing Raos case, (1968) 1 SCR 407 = (AIR 1968 SC 349 ) that higher educational qualifications are a relevant consideration for fixing a higher pay scale and therefore Matriculate Tracers could be given a higher scale than non-matriculate Tracers though their duties were identical. Logically, if persons recruited to a common cadre can be classified for purposes of pay on the basis of their educational qualifications, there could be no impediment in classifying them on the same basis for purposes of promotion. The ratio of Roshan Lals case can at best be an impediment in favouring persons drawn from one source as against those drawn from another for the reason merely that they are drawn from different sources.49. There is an aspect of Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) which may not be ignored. The Union of India had contended by its counter-affidavit therein that the reorganization of the service was made with a view to obtaining a better and more technically trained class of Train Examiners which had become necessary on account of the acquisition of modern types of Rolling Stock, complicated designs of carriages and wagons and greater speed of trains under the dieselisation and electrification programmes. This contention, though mentioned in the affidavit, was not placed before the Court as is transparent from the judgment. What its impact would have been on the ultimate conclusion need not be speculated, for it is enough for understanding the true ratio of the judgment to say that the case was decided on the sole basis that persons recruited from different sources were classified according as whether they were appointed directly or by promotion. That is why the key passage cited by us from the judgment winds up by saying that the "case falls within the principle of....the decision....in Mervyn v. Collector50. In (1966) 3 SCR 600 = (AIR 1967 SC 52 ). no question arose in regard to the validity of a classification. The question there was whether a rotational system for fixing seniority was discriminatory if the recruitment was partly by promotion and partly directly. It was held that there is no inherent vice in such a system if the service is composed in fixed proposition of direct recruits and promotees. The rotational system could therefore be adopted in fixing seniority in the cadre of Appraisers to which recruitment was in actual practice made directly and by promotion in the ratio of 50:50. But different considerations were held to arise when the same system was applied for fixing seniority in the cadre of Principal Appraisers because there was only one source from which the Principal Appraisers were drawn, namely Appraisers. The ratio of the judgment is: "The rotational system cannot..... apply when there is only one source of recruitment. This is the principle within which Roshan Lals case was expressed to fall. Neither the one nor the other of the two cases was concerned with the question which arises for consideration before us. The classification of which we have to determine the validity is not made in relation to the source of recruitment, Therefore cases like Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ), Mervyn Continhos (1966) 3 SCR 600 = (AIR 1967 SC 52 ) and Pandits (AIR 1972 SC 252 ) fall in a class apart. The case last mentioned is a typical instance of that class, where directly appointed Mamlatdars were accorded a favoured treatment qua the promotee Mamlatdars in the matter of promotion to the post of Deputy Collector. Mamlatdars, whether appointed directly or by promotion, constituted one class and therefore it was held that no reservation could be made in favour of the directly appointed Mamlatdars for promotion to the cadre of Deputy Collectors.51.We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld.But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed-follows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity?52.

1[ds]While striking a balance between the long hunger for equal chance of the lowlier and the disturbing concern of the community for higher standards of performance, the State should not jettison the germinal principle of equality altogether. The dilemma of democracy is as to how to avoid validating the abolition of the difference between the good and the bad in the name of equality and putting to sleep the constitutional command for expanding the areas of equal treatment for the weaker ones with the dope of special qualifications measured by expensive and exotic degrees. These are perhaps meta-judicial matters left to the other branches of Government, but the Court must hold the Executive within the leading strings of egalitarian constitutionalism and correct, by judicial review, episodes or subtle and shady classification grossly violative of equal justice. That is the heart of the matter. That is the note that rings through the first three fundamental rights the people have given to themselves.5. Mini-classifications based on micro-distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality. If in this case Government had prescribed that only those degree holders who had secured over 70% marks could become Chief Engineers and those with 60% alone be eligible to be Superintending Engineers or that foreign degrees would be preferred we would have unhesitatingly voided it.6. The role of classification may well recede in the long run, and the finer emphasis on broader equalities implicit in the concluding thought of the leading judgment will abide. The decision in this case should not - and does not - imply that by an undue accent on qualifications the Administration can cut back on the larger tryst of equalitarianism or may hijack the founding and fighting faith of social justice into the enemy camp of intellectual domination by an elite. The court, in extreme cases, has to be the sentinel on the qui-vive.Thus, it is no part of the appellants burden to justify the classification or to establish its constitutionality.Formal education may not always produce excellence but a classification founded on variant educational qualifications is, for purposes of promotion to the post of Executive Engineer, to say the least, not unjust on the face of it and the onus therefore cannot shift from where it originally lay.26. Respondents have assailed the classification in the clearest terms but their challenge is purely doctrinaire Academic or technical qualification can be germane only at the time of initial recruitment; for purposes of promotion efficiency and experience alone must count - this is the content of their challenge. The challenge, at best, reflects the respondents opinion on promotional opportunities in public services and one may assume that if the roles were reversed, respondents would be interested in implementing their point of view.But we cannot sit in appeal over the legislative judgment with a view to finding out whether on a comparative evaluation of rival theories touching the question of promotion, the theory advocated by the respondents is not to be preferred. Classification is primarily for the legislature or for the statutory authority charged with the duty of framing the terms and conditions of service; and if, looked at from the standpoint of the authority making it, the classification is found to rest on a reasonable basis, it has to be upheld.27.Our reason for saying this is to emphasize that the respondents ought to have furnished particulars as to why, according to them, the classification between diploma-holders and degree-holders is not based on a rational consideration having nexus with the object sought to be achieved. In order to establish that the protection of the equal opportunity clause has been denied to them, it is not enough for the respondents to say that they have been treated differently, from others, not even enough that a differential treatment has been accorded to them in comparison with others similarly circumstanced. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis. It was therefore incumbent on the respondents to plead and show that the classification of Assistant Engineers into those who hold diplomas and those who hold degrees is unreasonable and bears no rational nexus with its purported object.Rather than do this, the respondents contended themselves by propounding an abstract theory that educational qualifications are germane at the stage of initial recruitment only.It is transparent from this analysis that till about 1968 there was a dearth of Engineering graduates. In 1962. the ratio between graduates and diploma-holders was 1:2. In 1968, it became almost 2:1 and in 1970 the position remained more or less unchanged. The appellants were entitled to take into account this spurt in the availability of persons with higher educational qualifications for manning next higher post of promotion. In fact, it may not be overlooked, that even under the recruitment rules of 1949 graduates in Civil Engineering were alone eligible for direct appointment as Assistant Engineers in the Kashmir Engineering Service. Only departmental promotions could be made from amongst diploma-holders and that too if they had put in 5 years service in the cadre of Supervisors. There is therefore no substance in the contention that the record sheds no light on why a change was thought necessary in a system that had stood the test of time. In 1968 itself when there was a proliferation in the ranks of graduates, an attempt was made which was later rectified, to offer a higher incentive to graduates by the placement of a qualification bar. We are not called upon to adjudge its validity for reasons already mentioned but it is obvious that the impact of the changing pattern had to receive its due recognition.s argument, as presented, is attractive but it assumes in the Court a right of scrutiny somewhat wider than is generally recognised. Article 16 of the Constitution which ensures to all citizen equality of opportunity in matters relating to employment is but an instance or incident of the guarantee of equality contained in Article 14. The concept of equal opportunity undoubtedly permeates the whole spectrum of an individuals employment from appointment through promotion and termination to the payment of gratuity and pension. But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment.Since the constitutional code of equality and equal opportunity is a charter for equals equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another.Judged from this point of view, it seems to us impossible to accept the respondents submission that the classification of Assistant Engineers into Degree-holders and Diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellant, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment.This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere presence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend.The seniority list of January 1, 1971 shows how very unreal the argument is that the qualification rule not having been extended to the higher echelons of service, it can bear no nexus with the attainment of administrative efficiency in a comparatively lower hierarchy of Assistant Engineers. On Jan 1, 1971 which was soon after the publication of the 1970 rules there were 6 persons in the cadre of Superintending Engineers all of whom except one, are graduates. The one at the top is an L.E.E. but he entered service in 1939 and must now be quite on the verge of retirement. There is therefore but slender chance, that a non-graduate could climb into the top position of a Chief Engineer, which post can, under the rules of 1970, be filled only by promotion from amongst Superintending Engineers. Promotion to the cadre of Superintending Engineers can be made only from amongst Executive Engineers and the Seniority list shows that out of 22 Executive Engineers, 19 are graduates and only 3 are diploma-holders. Out of the 19, the first 15 according to seniority are all graduates so that the chances of a diploma-holder being promoted as a Superintending Engineer are fairly remote. With the new rules coming into force, all Executive Engineers will after October 12, 1970, be appointed from amongst graduates in the rank of Assistant Engineers and therefore the cadre of Executive Engineers will soon consist of graduates exclusively. The Governor was entitled to give weight to these practical considerations and to restrict the operation of the impugned rule to cases where their application was imperative. Dealing with practical exigencies, a rule-making authority may be guided by the realities of life, just as the legislature, while making a classification "is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be theThus, all that Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) lays down is that direct recruits and promotees lose their birthmarks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals onceare therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld.t we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed-follows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity?

### 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: service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals once again.47. Roshan Lals case (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) is thus no authority for the proposition that if direct recruits and promotees are integrated into one class, they cannot be classified for purposes of promotion on a basis other than the one that they were drawn from different sources. In the instant case, classification rests fairly and squarely on the consideration of educational qualifications: Graduates alone shall go into the higher post, no matter whether they were appointed as Assistant Engineers directly or by promotion. The discrimination therefore is not in relation to the source of recruitment as in Roshan Lals case.48. It is relevant, though inconclusive, that the very Bench which decided Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) held about a fortnight later in Narsing Raos case, (1968) 1 SCR 407 = (AIR 1968 SC 349 ) that higher educational qualifications are a relevant consideration for fixing a higher pay scale and therefore Matriculate Tracers could be given a higher scale than non-matriculate Tracers though their duties were identical. Logically, if persons recruited to a common cadre can be classified for purposes of pay on the basis of their educational qualifications, there could be no impediment in classifying them on the same basis for purposes of promotion. The ratio of Roshan Lals case can at best be an impediment in favouring persons drawn from one source as against those drawn from another for the reason merely that they are drawn from different sources.49. There is an aspect of Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) which may not be ignored. The Union of India had contended by its counter-affidavit therein that the reorganization of the service was made with a view to obtaining a better and more technically trained class of Train Examiners which had become necessary on account of the acquisition of modern types of Rolling Stock, complicated designs of carriages and wagons and greater speed of trains under the dieselisation and electrification programmes. This contention, though mentioned in the affidavit, was not placed before the Court as is transparent from the judgment. What its impact would have been on the ultimate conclusion need not be speculated, for it is enough for understanding the true ratio of the judgment to say that the case was decided on the sole basis that persons recruited from different sources were classified according as whether they were appointed directly or by promotion. That is why the key passage cited by us from the judgment winds up by saying that the "case falls within the principle of....the decision....in Mervyn v. Collector50. In (1966) 3 SCR 600 = (AIR 1967 SC 52 ). no question arose in regard to the validity of a classification. The question there was whether a rotational system for fixing seniority was discriminatory if the recruitment was partly by promotion and partly directly. It was held that there is no inherent vice in such a system if the service is composed in fixed proposition of direct recruits and promotees. The rotational system could therefore be adopted in fixing seniority in the cadre of Appraisers to which recruitment was in actual practice made directly and by promotion in the ratio of 50:50. But different considerations were held to arise when the same system was applied for fixing seniority in the cadre of Principal Appraisers because there was only one source from which the Principal Appraisers were drawn, namely Appraisers. The ratio of the judgment is: "The rotational system cannot..... apply when there is only one source of recruitment. This is the principle within which Roshan Lals case was expressed to fall. Neither the one nor the other of the two cases was concerned with the question which arises for consideration before us. The classification of which we have to determine the validity is not made in relation to the source of recruitment, Therefore cases like Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ), Mervyn Continhos (1966) 3 SCR 600 = (AIR 1967 SC 52 ) and Pandits (AIR 1972 SC 252 ) fall in a class apart. The case last mentioned is a typical instance of that class, where directly appointed Mamlatdars were accorded a favoured treatment qua the promotee Mamlatdars in the matter of promotion to the post of Deputy Collector. Mamlatdars, whether appointed directly or by promotion, constituted one class and therefore it was held that no reservation could be made in favour of the directly appointed Mamlatdars for promotion to the cadre of Deputy Collectors.51.We are therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld.But we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed-follows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity?52. ### Response: 1 ### Explanation: the cadre of Supervisors. There is therefore no substance in the contention that the record sheds no light on why a change was thought necessary in a system that had stood the test of time. In 1968 itself when there was a proliferation in the ranks of graduates, an attempt was made which was later rectified, to offer a higher incentive to graduates by the placement of a qualification bar. We are not called upon to adjudge its validity for reasons already mentioned but it is obvious that the impact of the changing pattern had to receive its due recognition.s argument, as presented, is attractive but it assumes in the Court a right of scrutiny somewhat wider than is generally recognised. Article 16 of the Constitution which ensures to all citizen equality of opportunity in matters relating to employment is but an instance or incident of the guarantee of equality contained in Article 14. The concept of equal opportunity undoubtedly permeates the whole spectrum of an individuals employment from appointment through promotion and termination to the payment of gratuity and pension. But the concept of equality has an inherent limitation arising from the very nature of the constitutional guarantee. Equality is for equals. That is to say that those who are similarly circumstanced are entitled to an equal treatment.Since the constitutional code of equality and equal opportunity is a charter for equals equality of opportunity in matters of promotion means an equal promotional opportunity for persons who fall, substantially, within the same class. A classification of employees can therefore be made for first identifying and then distinguishing members of one class from those of another.Judged from this point of view, it seems to us impossible to accept the respondents submission that the classification of Assistant Engineers into Degree-holders and Diploma-holders rests on any unreal or unreasonable basis. The classification, according to the appellant, was made with a view to achieving administrative efficiency in the Engineering services. If this be the object, the classification is clearly correlated to it for higher educational qualifications are at least presumptive evidence of a higher mental equipment.This is not to suggest that administrative efficiency can be achieved only through the medium of those possessing comparatively higher educational qualifications but that is beside the point. What is relevant is that the object to be achieved here is not a mere presence for an indiscriminate imposition of inequalities and the classification cannot be characterized as arbitrary or absurd. That is the farthest that judicial scrutiny can extend.The seniority list of January 1, 1971 shows how very unreal the argument is that the qualification rule not having been extended to the higher echelons of service, it can bear no nexus with the attainment of administrative efficiency in a comparatively lower hierarchy of Assistant Engineers. On Jan 1, 1971 which was soon after the publication of the 1970 rules there were 6 persons in the cadre of Superintending Engineers all of whom except one, are graduates. The one at the top is an L.E.E. but he entered service in 1939 and must now be quite on the verge of retirement. There is therefore but slender chance, that a non-graduate could climb into the top position of a Chief Engineer, which post can, under the rules of 1970, be filled only by promotion from amongst Superintending Engineers. Promotion to the cadre of Superintending Engineers can be made only from amongst Executive Engineers and the Seniority list shows that out of 22 Executive Engineers, 19 are graduates and only 3 are diploma-holders. Out of the 19, the first 15 according to seniority are all graduates so that the chances of a diploma-holder being promoted as a Superintending Engineer are fairly remote. With the new rules coming into force, all Executive Engineers will after October 12, 1970, be appointed from amongst graduates in the rank of Assistant Engineers and therefore the cadre of Executive Engineers will soon consist of graduates exclusively. The Governor was entitled to give weight to these practical considerations and to restrict the operation of the impugned rule to cases where their application was imperative. Dealing with practical exigencies, a rule-making authority may be guided by the realities of life, just as the legislature, while making a classification "is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be theThus, all that Roshan Lals case, (1968) 1 SCR 185 = (AIR 1967 SC 1889 ) lays down is that direct recruits and promotees lose their birthmarks on fusion into a common stream of service and they cannot thereafter be treated differently by reference to the consideration that they were recruited from different sources. Their genetic blemishes disappear once they are integrated into a common class and cannot be revived so as to make equals unequals onceare therefore of the opinion that though persons appointed directly and by promotion were integrated into a common class of Assistant Engineers, they could, for purposes of promotion to the cadre of Executive Engineers, be classified on the basis of educational qualifications. The rule providing that graduates shall be eligible for such promotion to the exclusion of diploma-holders does not violate Articles 14 and 16 of the Constitution and must be upheld.t we hope that this judgment will not be construed as a charter for making minute and microcosmic classifications. Excellence is, or ought to be, the goal of all good government and excellence and equality are not friendly bed-follows. A pragmatic approach has therefore to be adopted in order to harmonize the requirements of public services with the aspirations of public servants. But let us not evolve, through imperceptible extensions, a theory of classification which may subvert, perhaps submerge, the precious guarantee of equality. The eminent spirit of an ideal society is equality and so we must not be left to ask in wonderment: what after all is the operational residue of equality and equal opportunity?

V G Jagdishan Vs. M/s. Indofos Industries Limited

Judge and the Division Bench of the High Court and direct the Labour Court, Delhi to decide and dispose of the case at the earliest. 5. As per the office report, service is not complete on sole respondent No. 1 and as per the post tracking report, notice has not been delivered to respondent No. 1 with postal remarks as Addressee left without instructions. However, the present Special Leave Petition (SLP) is of the year 2016 and for the reasons hereinbelow, we see no reasons to interfere with the order passed by the High Court. We proceed further with the SLP ex-parte so far as sole respondent No. 1 is concerned. 6. The question which is posed for the consideration of this Court is, whether, the Labour Court, Delhi would have territorial jurisdiction to decide the case or the Labour Court, Ghaziabad would have territorial jurisdiction to decide the case. 6.1 From the findings recorded by the Labour Court, Delhi and the learned Single Judge and the Division Bench of the High Court, it is not much in dispute that the workman was employed as a driver at Ghaziabad office. He was working at the Ghaziabad. His services were retrenched at Ghaziabad. All throughout during the employment, the workman stayed and worked at Ghaziabad. Only after the retrenchment/termination the workman shifted to Delhi from where he served a demand notice at Head Office of the Management situated at Delhi. Merely because the workman after termination/retrenchment shifted to Delhi and sent a demand notice from Delhi and the Head Office of the Management was at Delhi, it cannot be said that a part cause of action has arisen at Delhi. Considering the facts that the workman was employed at Ghaziabad; was working at Ghaziabad and his services were terminated at Ghaziabad, the facts being undisputed, only the Ghaziabad Court would have territorial jurisdiction to decide the case. As such the issue involved in the present case is no longer res integra in view of the decision of this Court in the case of Eastern Coalfields Ltd. and Ors. Vs. Kalyan Banerjee; (2008) 3 SCC 456 . In the case of Eastern Coalfields Ltd. (supra) the workman was employed in Mugma area in the district of Dhanbad, Jharkhand. His services were terminated at Mugma. However, the workman filed a writ petition before the Calcutta High Court. On a preliminary objection taken the Calcutta High Court held that since the workman was serving at Mugma area under the General Manager of the area which is the State of Jharkhand, the Calcutta High Court had no jurisdiction. Affirming the aforesaid decision, this Court held that the entire cause of action arose in Mugma area within the State of Jharkhand and only because the head office of the company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court particularly when the head office had nothing to do with the order of punishment passed against the workman. In the present case also, the workman was employed at Ghaziabad; he was working at Ghaziabad and his services were also terminated at Ghaziabad by the office at Ghaziabad where he was employed. 6.2 Now, so far as the reliance placed upon the decision of this Court in the case of Singareni Collieries Co. Ltd. (supra) is concerned, apart from the fact that the same is not applicable to the facts of the case on hand, it is required to be noted that the order passed by this Court in the said case was a consent order and the order was passed in exercise of power under Article 142 of the Constitution of India and the question of law was left open. Therefore, no reliance can have been placed on the said decision. 6.3 Now, as far as the decision of this Court in the case of Bikash Bhushan Ghosh (supra) is concerned, on facts, the said decision also is not applicable to the facts of the case on hand. That was a case where it was specifically found that the part cause of action had arisen at both places. In the present case as observed, it cannot be said that any part cause of action has arisen at Delhi. 6.4 Reliance placed upon the decision of this Court in the case of Nandram (supra) is also of no assistance to the appellant. Again, on facts, the said decision is not applicable to the facts of the case on hand. That was also a case where it was found that part cause of action had arisen in both the places, namely, Pondicherry and Aurangabad. Therefore, it was found on facts that both, the Labour Courts at Pondicherry and Aurangabad had the jurisdiction to deal with the matter and therefore, the Labour Court at Aurangabad was well within its jurisdiction to consider the complaint. 6.5 In the case of D.P. Maheshwari (supra) is pressed into service by learned Senior Advocate appearing on behalf of the appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance.

0[ds]5. As per the office report, service is not complete on sole respondent No. 1 and as per the post tracking report, notice has not been delivered to respondent No. 1 with postal remarks as Addressee left without instructions. However, the present Special Leave Petition (SLP) is of the year 2016 and for the reasons hereinbelow, we see no reasons to interfere with the order passed by the High Court. We proceed further with the SLP ex-parte so far as sole respondent No. 1 is concerned.6.1 From the findings recorded by the Labour Court, Delhi and the learned Single Judge and the Division Bench of the High Court, it is not much in dispute that the workman was employed as a driver at Ghaziabad office. He was working at the Ghaziabad. His services were retrenched at Ghaziabad. All throughout during the employment, the workman stayed and worked at Ghaziabad. Only after the retrenchment/termination the workman shifted to Delhi from where he served a demand notice at Head Office of the Management situated at Delhi. Merely because the workman after termination/retrenchment shifted to Delhi and sent a demand notice from Delhi and the Head Office of the Management was at Delhi, it cannot be said that a part cause of action has arisen at Delhi. Considering the facts that the workman was employed at Ghaziabad; was working at Ghaziabad and his services were terminated at Ghaziabad, the facts being undisputed, only the Ghaziabad Court would have territorial jurisdiction to decide the case. As such the issue involved in the present case is no longer res integra in view of the decision of this Court in the case of Eastern Coalfields Ltd. and Ors. Vs. Kalyan Banerjee; (2008) 3 SCC 456 . In the case of Eastern Coalfields Ltd. (supra) the workman was employed in Mugma area in the district of Dhanbad, Jharkhand. His services were terminated at Mugma. However, the workman filed a writ petition before the Calcutta High Court. On a preliminary objection taken the Calcutta High Court held that since the workman was serving at Mugma area under the General Manager of the area which is the State of Jharkhand, the Calcutta High Court had no jurisdiction. Affirming the aforesaid decision, this Court held that the entire cause of action arose in Mugma area within the State of Jharkhand and only because the head office of the company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court particularly when the head office had nothing to do with the order of punishment passed against the workman. In the present case also, the workman was employed at Ghaziabad; he was working at Ghaziabad and his services were also terminated at Ghaziabad by the office at Ghaziabad where he was employed.6.2 Now, so far as the reliance placed upon the decision of this Court in the case of Singareni Collieries Co. Ltd. (supra) is concerned, apart from the fact that the same is not applicable to the facts of the case on hand, it is required to be noted that the order passed by this Court in the said case was a consent order and the order was passed in exercise of power under Article 142 of the Constitution of India and the question of law was left open. Therefore, no reliance can have been placed on the said decision.6.3 Now, as far as the decision of this Court in the case of Bikash Bhushan Ghosh (supra) is concerned, on facts, the said decision also is not applicable to the facts of the case on hand. That was a case where it was specifically found that the part cause of action had arisen at both places. In the present case as observed, it cannot be said that any part cause of action has arisen at Delhi.6.4 Reliance placed upon the decision of this Court in the case of Nandram (supra) is also of no assistance to the appellant. Again, on facts, the said decision is not applicable to the facts of the case on hand. That was also a case where it was found that part cause of action had arisen in both the places, namely, Pondicherry and Aurangabad. Therefore, it was found on facts that both, the Labour Courts at Pondicherry and Aurangabad had the jurisdiction to deal with the matter and therefore, the Labour Court at Aurangabad was well within its jurisdiction to consider the complaint.6.5 In the case of D.P. Maheshwari (supra) is pressed into service by learned Senior Advocate appearing on behalf of the appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance.

### 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: Judge and the Division Bench of the High Court and direct the Labour Court, Delhi to decide and dispose of the case at the earliest. 5. As per the office report, service is not complete on sole respondent No. 1 and as per the post tracking report, notice has not been delivered to respondent No. 1 with postal remarks as Addressee left without instructions. However, the present Special Leave Petition (SLP) is of the year 2016 and for the reasons hereinbelow, we see no reasons to interfere with the order passed by the High Court. We proceed further with the SLP ex-parte so far as sole respondent No. 1 is concerned. 6. The question which is posed for the consideration of this Court is, whether, the Labour Court, Delhi would have territorial jurisdiction to decide the case or the Labour Court, Ghaziabad would have territorial jurisdiction to decide the case. 6.1 From the findings recorded by the Labour Court, Delhi and the learned Single Judge and the Division Bench of the High Court, it is not much in dispute that the workman was employed as a driver at Ghaziabad office. He was working at the Ghaziabad. His services were retrenched at Ghaziabad. All throughout during the employment, the workman stayed and worked at Ghaziabad. Only after the retrenchment/termination the workman shifted to Delhi from where he served a demand notice at Head Office of the Management situated at Delhi. Merely because the workman after termination/retrenchment shifted to Delhi and sent a demand notice from Delhi and the Head Office of the Management was at Delhi, it cannot be said that a part cause of action has arisen at Delhi. Considering the facts that the workman was employed at Ghaziabad; was working at Ghaziabad and his services were terminated at Ghaziabad, the facts being undisputed, only the Ghaziabad Court would have territorial jurisdiction to decide the case. As such the issue involved in the present case is no longer res integra in view of the decision of this Court in the case of Eastern Coalfields Ltd. and Ors. Vs. Kalyan Banerjee; (2008) 3 SCC 456 . In the case of Eastern Coalfields Ltd. (supra) the workman was employed in Mugma area in the district of Dhanbad, Jharkhand. His services were terminated at Mugma. However, the workman filed a writ petition before the Calcutta High Court. On a preliminary objection taken the Calcutta High Court held that since the workman was serving at Mugma area under the General Manager of the area which is the State of Jharkhand, the Calcutta High Court had no jurisdiction. Affirming the aforesaid decision, this Court held that the entire cause of action arose in Mugma area within the State of Jharkhand and only because the head office of the company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court particularly when the head office had nothing to do with the order of punishment passed against the workman. In the present case also, the workman was employed at Ghaziabad; he was working at Ghaziabad and his services were also terminated at Ghaziabad by the office at Ghaziabad where he was employed. 6.2 Now, so far as the reliance placed upon the decision of this Court in the case of Singareni Collieries Co. Ltd. (supra) is concerned, apart from the fact that the same is not applicable to the facts of the case on hand, it is required to be noted that the order passed by this Court in the said case was a consent order and the order was passed in exercise of power under Article 142 of the Constitution of India and the question of law was left open. Therefore, no reliance can have been placed on the said decision. 6.3 Now, as far as the decision of this Court in the case of Bikash Bhushan Ghosh (supra) is concerned, on facts, the said decision also is not applicable to the facts of the case on hand. That was a case where it was specifically found that the part cause of action had arisen at both places. In the present case as observed, it cannot be said that any part cause of action has arisen at Delhi. 6.4 Reliance placed upon the decision of this Court in the case of Nandram (supra) is also of no assistance to the appellant. Again, on facts, the said decision is not applicable to the facts of the case on hand. That was also a case where it was found that part cause of action had arisen in both the places, namely, Pondicherry and Aurangabad. Therefore, it was found on facts that both, the Labour Courts at Pondicherry and Aurangabad had the jurisdiction to deal with the matter and therefore, the Labour Court at Aurangabad was well within its jurisdiction to consider the complaint. 6.5 In the case of D.P. Maheshwari (supra) is pressed into service by learned Senior Advocate appearing on behalf of the appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance. ### Response: 0 ### Explanation: 5. As per the office report, service is not complete on sole respondent No. 1 and as per the post tracking report, notice has not been delivered to respondent No. 1 with postal remarks as Addressee left without instructions. However, the present Special Leave Petition (SLP) is of the year 2016 and for the reasons hereinbelow, we see no reasons to interfere with the order passed by the High Court. We proceed further with the SLP ex-parte so far as sole respondent No. 1 is concerned.6.1 From the findings recorded by the Labour Court, Delhi and the learned Single Judge and the Division Bench of the High Court, it is not much in dispute that the workman was employed as a driver at Ghaziabad office. He was working at the Ghaziabad. His services were retrenched at Ghaziabad. All throughout during the employment, the workman stayed and worked at Ghaziabad. Only after the retrenchment/termination the workman shifted to Delhi from where he served a demand notice at Head Office of the Management situated at Delhi. Merely because the workman after termination/retrenchment shifted to Delhi and sent a demand notice from Delhi and the Head Office of the Management was at Delhi, it cannot be said that a part cause of action has arisen at Delhi. Considering the facts that the workman was employed at Ghaziabad; was working at Ghaziabad and his services were terminated at Ghaziabad, the facts being undisputed, only the Ghaziabad Court would have territorial jurisdiction to decide the case. As such the issue involved in the present case is no longer res integra in view of the decision of this Court in the case of Eastern Coalfields Ltd. and Ors. Vs. Kalyan Banerjee; (2008) 3 SCC 456 . In the case of Eastern Coalfields Ltd. (supra) the workman was employed in Mugma area in the district of Dhanbad, Jharkhand. His services were terminated at Mugma. However, the workman filed a writ petition before the Calcutta High Court. On a preliminary objection taken the Calcutta High Court held that since the workman was serving at Mugma area under the General Manager of the area which is the State of Jharkhand, the Calcutta High Court had no jurisdiction. Affirming the aforesaid decision, this Court held that the entire cause of action arose in Mugma area within the State of Jharkhand and only because the head office of the company was situated in the State of West Bengal, the same by itself will not confer any jurisdiction upon the Calcutta High Court particularly when the head office had nothing to do with the order of punishment passed against the workman. In the present case also, the workman was employed at Ghaziabad; he was working at Ghaziabad and his services were also terminated at Ghaziabad by the office at Ghaziabad where he was employed.6.2 Now, so far as the reliance placed upon the decision of this Court in the case of Singareni Collieries Co. Ltd. (supra) is concerned, apart from the fact that the same is not applicable to the facts of the case on hand, it is required to be noted that the order passed by this Court in the said case was a consent order and the order was passed in exercise of power under Article 142 of the Constitution of India and the question of law was left open. Therefore, no reliance can have been placed on the said decision.6.3 Now, as far as the decision of this Court in the case of Bikash Bhushan Ghosh (supra) is concerned, on facts, the said decision also is not applicable to the facts of the case on hand. That was a case where it was specifically found that the part cause of action had arisen at both places. In the present case as observed, it cannot be said that any part cause of action has arisen at Delhi.6.4 Reliance placed upon the decision of this Court in the case of Nandram (supra) is also of no assistance to the appellant. Again, on facts, the said decision is not applicable to the facts of the case on hand. That was also a case where it was found that part cause of action had arisen in both the places, namely, Pondicherry and Aurangabad. Therefore, it was found on facts that both, the Labour Courts at Pondicherry and Aurangabad had the jurisdiction to deal with the matter and therefore, the Labour Court at Aurangabad was well within its jurisdiction to consider the complaint.6.5 In the case of D.P. Maheshwari (supra) is pressed into service by learned Senior Advocate appearing on behalf of the appellant in support of the submission that the Labour Court ought not to have given the decision only on preliminary issue and ought to have disposed of all the issues, whether preliminary or otherwise at the same time. On facts the said decision is not applicable to the facts of the case on hand. In the aforesaid decision no absolute proposition of law was laid down by this Court that even the issue touching the jurisdiction of the court cannot be decided by the court as a preliminary issue and the court has to dispose of all the issues, whether preliminary or otherwise, at the same time. When the issue touches the question of territorial jurisdiction, as far as possible the same shall have to be decided first as preliminary issue. Therefore, in the present case, the Labour Court did not commit any error in deciding the issue with respect to the territorial jurisdiction as a preliminary issue in the first instance.

Municipal Council Of Jodhpur Vs. M/S. Parekh Authmobilies Ltd

of the pleadings, according to Shri Bhandari, would make it clear that these were not suspended or withdrawn. Reference was made to paragraphs 6 and 7 of the reply to the writ petition at p. 116 of the paper book to the effect that it was the case of the appellant that facilities provided to the Indian Oil Corporation were never stopped and this submission has been repeated several times. It was further submitted that when current account facility has been provided, there is no question of payment of octroi at the time of entry of petroleum, products. On the other hand, the octroi tax is paid at the time of settlement of periodical account, say after every month. Thus, question of complying with Rule 6 or Rule 9 of the said Rules does not arise as they apply when octroi tax is paid at the time of entry of goods. In fact, the account of petroleum products imported and exported is kept by delivery of entry passes and transport passes by Indian Oil Corporation at octroi outpost, which passes are given by Municipal Council. In fact, it is obligatory duty, according to counsel, of Municipal Council to provide entry passes and transport passes to Indian Oil Corporation which have been provided current account facilities. The delivery of entry passes and transport passes is only to facilitate settlement of octroi account on goods which have been retained in municipal area for use and consumption. If municipality does not provide transport passes, it cannot take advantage of its own default, according to Shri Bhandari. It is obligatory duty of municipality, it was urged, to provide transport and entry passes to companies and persons who have been provided current account facilities. In any way, even if transport passes are not given by the Municipal Council, the quantity exported can be ascertained by other means also 20. In the present case, there is no dispute regarding diesel exported to Dangiawas from Jodhpur Municipality. The Municipal Council has not refuted in its reply in paragraph 11 at p. 117 of the paper book, the quantity of petroleum products exported to Dangiawas as mentioned in Schedule A (p. 104 of paper book) from July 25, 1975 to date of writ petition. The Municipal Council gave an undertaking to refund the octroi tax charged from the petitioner on the diesel exported to Dangiawas outside the limits of Municipal Council, Jodhpur as will be clear from the order of the learned Single Judge dated February 7, 1976. It was also stated that the Division Bench vide its order dated April 1, 1977 has already ordered that respondent 2 would deposit the octroi tax on diesel exported to Dangiawas. Thus, the octroi tax which became due on diesel exported to Dangiawas from April 1, 1977 up to date is being deposited in the bank account and there is no dispute regarding quantity of diesel exported to Dangiawas. Thus, it appears to us that the controversy raised by Municipal Council referring to cancellation of transport passes is unfounded. The object of the transport passes was to ascertain the quantity of diesel exported to Dangiawas. There appears to be no dispute regarding quantity of diesel exported to Dangiawas from July 25, 1975. The Depot Superintendent of Indian Oil Corporation, Jodhpur had disposed that current account facilities to Indian Oil Corporation is being continued till today. It was stated that the octroi as paid periodically on settlement of account between Municipal Council and Indian Oil Corporation and not at the time of entry of petroleum products. It appears that the contention that cancellation of transport passes is equivalent to cancellation of current account facilities, made on behalf of the appellant, is incorrect. A perusal of Section 133 would show that current account facility is provided by substantive section, whereas Rule 13 of the said Rules is procedure provided with the object of providing facility of settlement account of payment of octroi tax. In other words, according to Rule 13 (4), octroi tax is charged on quantity mentioned in entry passes minus the quantity mentioned in transport passes, i.e., on quantity of pertroleum products used or consumed within the municipal limits of Jodhpur Municipality. It is also unsustainable, according to Shri Bhandari to contend that M/s. Parekh Automobiles has recovered octroi tax from consumers. It has been asserted in the writ petition on oath as well as before this Court on filing affidavit that no octroi was recovered by M/s. Parekh Automobiles from consumers. On the other hand, it is the case of M/s. Parekh automobiles that it had to pay octroi taxes out of commission which it received from Indian Oil Corporation on sale of diesel. This fact, according to Shri Bhandari was never refuted by the Municipal Council or the Indian Oil corporation. Thus there is no question of unjust enrichment, and as such M/s. Parekh Automobiles is entitled to octroi tax which was recovered from it and which is lying deposited in separate bank account by the Indian Oil Corporation as per order of Division Bench dated April 1, 1977 up to date. For period before April 1, 1977, the Municipal Council has already given an undertaking to refund octroi tax. 21. Pleadings in this case and the averment are rather confusing. On the consideration of all the facts and the circumstances of the case, we are of the opinion that the principles of the aforesaid two decisions of this Court have been correctly applied by the High Court in the facts and the circumstances of the case. The octroi duty is, therefore, not chargeable on the transactions mentioned herein. We are further of the opinion that in view of the confused state of the pleadings and averment, it is not possible to hold that current account facilities were withdrawn or cancelled. If that is the position, then there is no question that the High Court was right in the order it passed and the direction it gave. 22.

0[ds]We are, however, unable to accept these contents. If the goods were brought within the municipal limits for the purpose of sale (sale means pausing of the title to the purchaser), then different considerations might have appliedBut in view of the facts of this case, the title passed to the goods outside the municipal limits even in respect of the petroleum products which were sold within the municipal limits. It was contended by Shri Sorabjee that Rule 13 had no application. Shri Sorabjee drew our attention to certain paragraphs of the writ petition, in particular to paragraph 18(b) where it was stated that it is obligatory for respondent 1 to grant respondent 2 transport passes and it had no jurisdiction to withdraw that facility. It was submitted with reference to that and other paragraphs that it was the case of respondent 1 that facility was withdrawn and suspended and prayer was made for restoration of that facility. It was, therefore, submitted on behalf of the appellant that in the absence of facilities being granted under Rule 13, it was incumbent on the parties to make a declaration under Rule 9 of the said Rules. As no such declarations had admittedly been made, Rule 9(2) of the said Rules was attracted. Accordingly, the goods in the present case were to be treated as having been brought within the municipal limits for consumption, use or sale therein and as such liable for octroi duty, according to the appellant. Therefore, Shri Sorabjee submitted that this appeal should only be confined to the applicability of Rule 9(2) of the said RulesIn the present case, there is no dispute regarding diesel exported to Dangiawas from Jodhpur Municipality. The Municipal Council has not refuted in its reply in paragraph 11 at p. 117 of the paper book, the quantity of petroleum products exported to Dangiawas as mentioned in Schedule A (p. 104 of paper book) from July 25, 1975 to date of writ petition. The Municipal Council gave an undertaking to refund the octroi tax charged from the petitioner on the diesel exported to Dangiawas outside the limits of Municipal Council, Jodhpur as will be clear from the order of the learned Single Judge dated February 7,1976.It wasalso stated that the Division Bench vide its order dated April 1, 1977 has already ordered that respondent 2 would deposit the octroi tax on diesel exported to Dangiawas. Thus, the octroi tax which became due on diesel exported to Dangiawas from April 1, 1977 up to date is being deposited in the bank account and there is no dispute regarding quantity of diesel exported to Dangiawas. Thus, it appears to us that the controversy raised by Municipal Council referring to cancellation of transport passes is unfounded. The object of the transport passes was to ascertain the quantity of diesel exported to Dangiawas. There appears to be no dispute regarding quantity of diesel exported to Dangiawas from July 25, 1975. The Depot Superintendent of Indian Oil Corporation, Jodhpur had disposed that current account facilities to Indian Oil Corporation is being continued till today.It wasstated that the octroi as paid periodically on settlement of account between Municipal Council and Indian Oil Corporation and not at the time of entry of petroleum products. It appears that the contention that cancellation of transport passes is equivalent to cancellation of current account facilities, made on behalf of the appellant, is incorrect. A perusal of Section 133 would show that current account facility is provided by substantive section, whereas Rule 13 of the said Rules is procedure provided with the object of providing facility of settlement account of payment of octroi tax. In other words, according to Rule 13 (4), octroi tax is charged on quantity mentioned in entry passes minus the quantity mentioned in transport passes, i.e., on quantity of pertroleum products used or consumed within the municipal limits of Jodhpur Municipality. It is also unsustainable, according to Shri Bhandari to contend that M/s. Parekh Automobiles has recovered octroi tax from consumers. It has been asserted in the writ petition on oath as well as before this Court on filing affidavit that no octroi was recovered by M/s. Parekh Automobiles from consumers. On the other hand, it is the case of M/s. Parekh automobiles that it had to pay octroi taxes out of commission which it received from Indian Oil Corporation on sale of diesel. This fact, according to Shri Bhandari was never refuted by the Municipal Council or the Indian Oil corporation. Thus there is no question of unjust enrichment, and as such M/s. Parekh Automobiles is entitled to octroi tax which was recovered from it and which is lying deposited in separate bank account by the Indian Oil Corporation as per order of Division Bench dated April 1, 1977 up to date. For period before April 1, 1977, the Municipal Council has already given an undertaking to refund octroi taxPleadings in this case and the averment are rather confusing. On the consideration of all the facts and the circumstances of the case, we are of the opinion that the principles of the aforesaid two decisions of this Court have been correctly applied by the High Court in the facts and the circumstances of the case. The octroi duty is, therefore, not chargeable on the transactions mentioned herein. We are further of the opinion that in view of the confused state of the pleadings and averment, it is not possible to hold that current account facilities were withdrawn or cancelled. If that is the position, then there is no question that the High Court was right in the order it passed and the direction it gaveChapter II of the Rules provide for the manner of assessment and collection of octroi duty. Rules 3 to 5 provide for the establishment of octroi outposts with powers to the inspecting staff to stop the vehicles at the outposts. Rule 6 lay down that no goods liable payment of octroi shall, except as otherwise provided in these rules, be brought within the municipal limits until the octroi duty leviable in respect of such goods has been paid at the octroi outposts. Where goods arrive at an octroi outpost, they may be coming in either for consumption, use or sale within the municipal limits or for transpiration outside those limits, whether immediately or after a period of time. If they have come in merely for the purpose of transportation, they are not liable to pay octroi duty. If, therefore, became necessary to make a detailed provision as to the manner of assessment and collection of duty having regard to this consideration. That is why Rule 9 requires every person bringing goods with the municipal limits to make a declaration as to what the goods are intended for. If however, the goods are intended for immediate or eventual transportation outside the municipality, a written declaration should be filed by the importer. In respect of goods declared intended for immediate transportation, thee of the octroi outpost receives by way of deposit such amount as may be equivalent to the duty payable thereon and issues a transit pass to the importer. The importer should transport the goods outside the municipal limits within a period not exceeding eight hours (which can be extended to 24 hours at the most). On such transportation being effected, the amount of octroi deposited in respect of the goods so transported is returned to the importer and the transit pass taken back. This is the procedure envisaged in Rule 11. (Certain refinements in procedure in the case of travelling agents is provided for in RulesA andB with which we are not concerned). Where, however, the goods are not immediately to be transported outside the municipal limits but are to be temporarily detained within the municipal limit and eventually transported outside the municipal limits, Rule 12 is attracted. In the case of such goods they have to be sent to a bonded warehouse. The goods may be withdrawn from time to time either on payment of octroi in the event of their being consumed, used or sold within the municipal limits or without any payment of octroi duty in case of their being transported outside the municipal limits. This procedure is outlined in Rules 12 and 16 to 22. But one important condition is that the maximum period for which the goods can be placed in the bonded warehouse is six months. If the goods are not removed within the said time limit, they are liable to be sold by public auction and the warehouse charges and octroi recovered from the sale proceeds. This is the normal procedure for the assessment and collection of octroi duty. It is in respect of this procedure that the declaration in Rule 9 becomes important. The terms of the declaration determine the incidence of the duty. Regarding the first category goods, mentioned in Rule 9(1) the collection of duty is immediate; regarding the second category, a deposit is demanded which can be refunded on transportation within a few hours; and in respect of the third, duty has to be paid unless the goods are transported outside the municipal limits within six monthsRule 13 however, contemplates a totally different scheme for the assessment and collection of octroi for the special type of cases envisaged therein. From the terms of Section 133, it would appear to be intended to cover mercantile firms or bodies which may be bringing goods into, or taking goods out of, the municipal limits frequently and, perhaps, also firms or bodies about whose capacity to pay the duty in due course the Municipal Board has confidence. These persons are given the facility of having a current account with the municipality and the amount of duty payable by such a person is determined and collected from time to time. Such an account is opened on the firm or body making such deposit or furnishing such security as the municipality may require, for the due discharge of its liabilities under the Act and the Rules. When this facilities provided, the procedure to be followed is set out in Rule 13, Here what is done is that the firm or body is given a books of entry passes and a book of transport passes from time to time. As and when the firm or body brings goods into the municipality, it is required to fills in one of the entry passes setting out the details of the goods which are being brought in under any particular consignment and present the same at octroi outpost of entry. After verifying that the details of the goods brought in tally with the details of the goods entered in the entry pass, the details are passed on the octroi Superintendent who debits is the account of the person concerned with the amount of octroi payable in respect of the goods listed in the pass. As and when the firm or body wishes to transport the goods out of the municipality, it fills up a transport pass containing the details of the goods proposed to be transported outside and presents it to the octroi outpost of exit. The officer at the outpost verifies that the goods mentioned in the pass and the goods sought to be transported tally with each other. Then the transport as duly certified by him is passed on to the Octroi Superintendent. The Octroi Superintendent, after verification, files the certificates of export separately in respect of each such body or firm. The amount of octroi payable in these cases is based on the total amount of octroi on the good shown by the entry passes less the goods transported out under the transport passes. In other worlds, in the case of persons who have the current account facilities, the duty is calculated on the basis of the total amount of goods that have come in as reduced by the total amount of the goods that have gone out, the balance being presumed to have been consumed, used or sold within the municipal limits. In order to ensure that there is a correspondence between the good that have come in and those that have gone out, the proviso toe (4) of Rule 13 provides that, in computing the octroi duty payable, the goods transported outside the municipal limits shall be lessened only if (a) such goods have not been sold within the municipal limits, and (b) they have been transported out of such limits within a period of six months from the data of their importA comparison of the above two sets of provision will make it clear that they are two independent and mutually exclusive modes of assessment and collection of duty. Under the cash system of payment, a declaration under Rule 9 is absolutely essential because of the official at the outpost will have to determine the mode of dealing with the goods on the basis of such declaration. The octroi duty has to be collected then and there in respect of the goods which are to be consumed, used or sold within the municipal limits; a depots has to be taken in respect of those goods which are intended to be immediately transported outside; and the rest of the goods on which the transportation is to be effected on a future time, have to be directed to a bonded warehouse. The mode of collection of duty in respect of a person having current account facilities, however, does not depend upon any such declaration or upon the mode of utilisation of the goods as indicated in such declaration, because, in the case of the current account holders, the duty payable in respect of the entirety of the goods brought in is straightway debited to his account on the basis of entry passes. The duty payable in respect of the goods transported outside is later on credited to his account on the basis of the transport passes. The difference is the amount of the duty payable by him and this is recovered from the person concerned from time to time either by adjustment out of the deposits earlier obtained from him or by other processes of recovery. The procedure as to issue of transit passes or storage in a warehouse are also irrelevant for the purpose of dealing with the goods under Rule 13It, therefore, appears, appears to me that High Court was fully justified in holding that the terms of Rules 6 and 9 have no reliance to the payment of duty in cases covered by the current account facility envisaged under Rule 13. The High Court was, therefore, right in holding that the present case cannot be brought within the terms of proviso to Rule 9(2) on the basis of a deemed consumption. Use or sale within the municipal limitsIt is true that the proviso toe (4) of Rule 13 also envisages the exclusion from levy of octroi duty only where the goods are not sold within the municipal limits. It may be contended that, in the present case, as the IOC had sold the goods within the municipal limits and the subsequent transport to Dangiawas, though effected by the IOC was really on behalf of the dealer the goods so transported and entered in the transport passes of the IOC should be excluded from dedication undere (4) of Rule 13. But this construction;, in my view, cannot be accepted. The expressions used in the proviso toe (4) cannot be interpreted differently from the words used in Section 104, on the basis of which chargeability to duty arises. If as we have held, there can be no octroi duty at all levied by the Jodhpur Municipality in respect of the good sold by the IOC within, but clearly intended to be transported for use or consumption outside, the municipal limits, then this statutory limitation cannot be defeated by interpreting the proviso in such a way as to make all goods sold within the municipality liable to duty even if the sale is in pursuance of a clear intention that the goods are to be dispatched outside. The terms of the proviso and the main section have to be read harmoniouslyThe result of the above discussion is that the present case is governed by the terms of Rules 13 and the IOC is entitled to go on paying octroi duty on the basis of the goods brought by it within the municipality less the goods transported outside the municipality even where the transport outside the municipality may be in pursuance of a sale within the municipality so long as such sale is in pursuance of an intention that the goods should be consumed or used outside the municipal limits. As we have already said, in cases where Rule 13 applies, Rule 9 is excluded and, therefore, the High Court rightly held the octroi charged on the IOC in respect of the impugned sales was not justifiedBefore concluding I wish to refer to three aspects. The first is as to whether even assuming that Rule 9 was applicable to a case where the current account facility has been provided, the terms of that rule can be read in such a manner as to militate against the very concept of octroi duty as explained in the Burmah Shell case ((1963) Supp 2 SCR 216 : AIR 1963 SC 906 ). A question may arise whether the terms of Rule 9(2) so interpreted would be intra vires the rule making power of the legislature. I express no opinion on this issue as I have already expressed my view that Rule 9 has no application to the present case. The second aspect, which I wish to touch upon, is a point sought to be raised on behalf of the appellant in the course of the present hearing that the current account facility granted to the IOC had been revoked. My learned brother has referred to the pleadings in this regard at great length and, as pointed out by him. The factual position is by no means clear. I do not think that the appellant should be permitted to raise at this stage a new plea when all along, in the earlier proceedings in the High Court, the case has proceeded on the footing that the IOC had been having and continues to have current account facilities. The third aspect to which I would like to make a reference is that we have principally passed our decision only on the facts in regard to the sales to Parekh Automobiles Ltd. We are told that there are a number of suits, other than those before us today, which are pending at various stages in which various pleas have been raised. I would only like to make it clear that we express no opinion regarding the factual position in those cases and those cases will have to be disposed of in the light of the legal position set out in our judgment. Except for the above clarifications I have nothing to add to what my learned brother Mukharji, J. has said and I respectfully agree with his conclusion that the appeals must fail and are dismissed.

### 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: of the pleadings, according to Shri Bhandari, would make it clear that these were not suspended or withdrawn. Reference was made to paragraphs 6 and 7 of the reply to the writ petition at p. 116 of the paper book to the effect that it was the case of the appellant that facilities provided to the Indian Oil Corporation were never stopped and this submission has been repeated several times. It was further submitted that when current account facility has been provided, there is no question of payment of octroi at the time of entry of petroleum, products. On the other hand, the octroi tax is paid at the time of settlement of periodical account, say after every month. Thus, question of complying with Rule 6 or Rule 9 of the said Rules does not arise as they apply when octroi tax is paid at the time of entry of goods. In fact, the account of petroleum products imported and exported is kept by delivery of entry passes and transport passes by Indian Oil Corporation at octroi outpost, which passes are given by Municipal Council. In fact, it is obligatory duty, according to counsel, of Municipal Council to provide entry passes and transport passes to Indian Oil Corporation which have been provided current account facilities. The delivery of entry passes and transport passes is only to facilitate settlement of octroi account on goods which have been retained in municipal area for use and consumption. If municipality does not provide transport passes, it cannot take advantage of its own default, according to Shri Bhandari. It is obligatory duty of municipality, it was urged, to provide transport and entry passes to companies and persons who have been provided current account facilities. In any way, even if transport passes are not given by the Municipal Council, the quantity exported can be ascertained by other means also 20. In the present case, there is no dispute regarding diesel exported to Dangiawas from Jodhpur Municipality. The Municipal Council has not refuted in its reply in paragraph 11 at p. 117 of the paper book, the quantity of petroleum products exported to Dangiawas as mentioned in Schedule A (p. 104 of paper book) from July 25, 1975 to date of writ petition. The Municipal Council gave an undertaking to refund the octroi tax charged from the petitioner on the diesel exported to Dangiawas outside the limits of Municipal Council, Jodhpur as will be clear from the order of the learned Single Judge dated February 7, 1976. It was also stated that the Division Bench vide its order dated April 1, 1977 has already ordered that respondent 2 would deposit the octroi tax on diesel exported to Dangiawas. Thus, the octroi tax which became due on diesel exported to Dangiawas from April 1, 1977 up to date is being deposited in the bank account and there is no dispute regarding quantity of diesel exported to Dangiawas. Thus, it appears to us that the controversy raised by Municipal Council referring to cancellation of transport passes is unfounded. The object of the transport passes was to ascertain the quantity of diesel exported to Dangiawas. There appears to be no dispute regarding quantity of diesel exported to Dangiawas from July 25, 1975. The Depot Superintendent of Indian Oil Corporation, Jodhpur had disposed that current account facilities to Indian Oil Corporation is being continued till today. It was stated that the octroi as paid periodically on settlement of account between Municipal Council and Indian Oil Corporation and not at the time of entry of petroleum products. It appears that the contention that cancellation of transport passes is equivalent to cancellation of current account facilities, made on behalf of the appellant, is incorrect. A perusal of Section 133 would show that current account facility is provided by substantive section, whereas Rule 13 of the said Rules is procedure provided with the object of providing facility of settlement account of payment of octroi tax. In other words, according to Rule 13 (4), octroi tax is charged on quantity mentioned in entry passes minus the quantity mentioned in transport passes, i.e., on quantity of pertroleum products used or consumed within the municipal limits of Jodhpur Municipality. It is also unsustainable, according to Shri Bhandari to contend that M/s. Parekh Automobiles has recovered octroi tax from consumers. It has been asserted in the writ petition on oath as well as before this Court on filing affidavit that no octroi was recovered by M/s. Parekh Automobiles from consumers. On the other hand, it is the case of M/s. Parekh automobiles that it had to pay octroi taxes out of commission which it received from Indian Oil Corporation on sale of diesel. This fact, according to Shri Bhandari was never refuted by the Municipal Council or the Indian Oil corporation. Thus there is no question of unjust enrichment, and as such M/s. Parekh Automobiles is entitled to octroi tax which was recovered from it and which is lying deposited in separate bank account by the Indian Oil Corporation as per order of Division Bench dated April 1, 1977 up to date. For period before April 1, 1977, the Municipal Council has already given an undertaking to refund octroi tax. 21. Pleadings in this case and the averment are rather confusing. On the consideration of all the facts and the circumstances of the case, we are of the opinion that the principles of the aforesaid two decisions of this Court have been correctly applied by the High Court in the facts and the circumstances of the case. The octroi duty is, therefore, not chargeable on the transactions mentioned herein. We are further of the opinion that in view of the confused state of the pleadings and averment, it is not possible to hold that current account facilities were withdrawn or cancelled. If that is the position, then there is no question that the High Court was right in the order it passed and the direction it gave. 22. ### Response: 0 ### Explanation: intended to be immediately transported outside; and the rest of the goods on which the transportation is to be effected on a future time, have to be directed to a bonded warehouse. The mode of collection of duty in respect of a person having current account facilities, however, does not depend upon any such declaration or upon the mode of utilisation of the goods as indicated in such declaration, because, in the case of the current account holders, the duty payable in respect of the entirety of the goods brought in is straightway debited to his account on the basis of entry passes. The duty payable in respect of the goods transported outside is later on credited to his account on the basis of the transport passes. The difference is the amount of the duty payable by him and this is recovered from the person concerned from time to time either by adjustment out of the deposits earlier obtained from him or by other processes of recovery. The procedure as to issue of transit passes or storage in a warehouse are also irrelevant for the purpose of dealing with the goods under Rule 13It, therefore, appears, appears to me that High Court was fully justified in holding that the terms of Rules 6 and 9 have no reliance to the payment of duty in cases covered by the current account facility envisaged under Rule 13. The High Court was, therefore, right in holding that the present case cannot be brought within the terms of proviso to Rule 9(2) on the basis of a deemed consumption. Use or sale within the municipal limitsIt is true that the proviso toe (4) of Rule 13 also envisages the exclusion from levy of octroi duty only where the goods are not sold within the municipal limits. It may be contended that, in the present case, as the IOC had sold the goods within the municipal limits and the subsequent transport to Dangiawas, though effected by the IOC was really on behalf of the dealer the goods so transported and entered in the transport passes of the IOC should be excluded from dedication undere (4) of Rule 13. But this construction;, in my view, cannot be accepted. The expressions used in the proviso toe (4) cannot be interpreted differently from the words used in Section 104, on the basis of which chargeability to duty arises. If as we have held, there can be no octroi duty at all levied by the Jodhpur Municipality in respect of the good sold by the IOC within, but clearly intended to be transported for use or consumption outside, the municipal limits, then this statutory limitation cannot be defeated by interpreting the proviso in such a way as to make all goods sold within the municipality liable to duty even if the sale is in pursuance of a clear intention that the goods are to be dispatched outside. The terms of the proviso and the main section have to be read harmoniouslyThe result of the above discussion is that the present case is governed by the terms of Rules 13 and the IOC is entitled to go on paying octroi duty on the basis of the goods brought by it within the municipality less the goods transported outside the municipality even where the transport outside the municipality may be in pursuance of a sale within the municipality so long as such sale is in pursuance of an intention that the goods should be consumed or used outside the municipal limits. As we have already said, in cases where Rule 13 applies, Rule 9 is excluded and, therefore, the High Court rightly held the octroi charged on the IOC in respect of the impugned sales was not justifiedBefore concluding I wish to refer to three aspects. The first is as to whether even assuming that Rule 9 was applicable to a case where the current account facility has been provided, the terms of that rule can be read in such a manner as to militate against the very concept of octroi duty as explained in the Burmah Shell case ((1963) Supp 2 SCR 216 : AIR 1963 SC 906 ). A question may arise whether the terms of Rule 9(2) so interpreted would be intra vires the rule making power of the legislature. I express no opinion on this issue as I have already expressed my view that Rule 9 has no application to the present case. The second aspect, which I wish to touch upon, is a point sought to be raised on behalf of the appellant in the course of the present hearing that the current account facility granted to the IOC had been revoked. My learned brother has referred to the pleadings in this regard at great length and, as pointed out by him. The factual position is by no means clear. I do not think that the appellant should be permitted to raise at this stage a new plea when all along, in the earlier proceedings in the High Court, the case has proceeded on the footing that the IOC had been having and continues to have current account facilities. The third aspect to which I would like to make a reference is that we have principally passed our decision only on the facts in regard to the sales to Parekh Automobiles Ltd. We are told that there are a number of suits, other than those before us today, which are pending at various stages in which various pleas have been raised. I would only like to make it clear that we express no opinion regarding the factual position in those cases and those cases will have to be disposed of in the light of the legal position set out in our judgment. Except for the above clarifications I have nothing to add to what my learned brother Mukharji, J. has said and I respectfully agree with his conclusion that the appeals must fail and are dismissed.

Devji @ Deviji Shivji Vs. Maganlal R. Athrana & Others

courts below how found concurrently that the sub-lease in question was taken by respondent No. 4 alone, the only point urged by Mr. Sarjoo Prasad in support of the appeal is that respondent No. 4 being a partner in the Saurashtra Coal Concern, all the partners of the firm are liable under the lease inasmuch as the firm admittedly came into possession of the demised colliery. He points out that even according to respondents 1 to 3, they came into possession of the demised colliery immediately after the execution of the sub-lease, and wants this court to infer from this that the partnership had already come into existence before the lease was obtained. This, however, has never been the case of the appellant in the courts below. The only case which he put forward was that the lease was taken by respondent No. 4 on behalf of all the respondents. In other words his case was that respondent No. 4 was a benamidar for the partnership firm. It is only this case which the respondents had to meet, and in our judgment, it would not be proper to permit the appellant to make out an entirely new case at this stage. Apart from that, S. 22 of the Indian Partnership Act, 1932, clearly provides that in order to bind a firm by an act or an instrument executed by a partner on behalf of the firm, and the act should be done or the instrument should be executed in the name of the firm, or in any other manner expressing or implying an intention to bind the firm. The sub-lease was not executed in the name of the firm, and it has been found by the courts below that respondent No. 4 in obtaining the lease, did not act on behalf of the firm. This in substance means that in obtaining the sub-lease, the parties to it did not intend to bind the firm by that transaction.7. In support of his contention, Mr. Sarjoo Prasad has strongly relied upon the decision in Karmali Abdulla Allarakia v. Karimji Jiwanji, ILR 39 Bom 261 at p. 274 : (AIR 1914 PC 132 at p. 134). That was a case in which the question for consideration was whether one of the two partners is 1iable upon a hundi drawn by one of the partners, though the hundi was not drawn in the name of the firm. The Privy Council, following the decision in Gouthwaite v. Dockworth, (1810) 12 East 421 held that the other partner would be liable though on the face of it the hundi did not purport to be on behalf of the firm. That decision, however, does not help the appellant, because while the transaction in connection with which the hundi was drawn, was admittedly a partnership transaction in the case before us, it has been found that the transaction, that is the taking of the sub-lease, was not on behalf of the partnership. The next case relied upon was Mathura Nath v.Bageswari Rani, 46 Cal LJ 362 : (AIR 1928 Cal 57). In that case, the question was whether the firm is liable for the money borrowed by one of its partners. The High Court pointed out that this is a question of fact and depends upon the facts and circumstances of each particular case. In that case also, it was found that the liability arose upon a contract entered into by one of the partners in connection with the partnership business. This case is, therefore, similar to the one just referred to above. The third case relied upon is P. Veeranna v. G. Veerabhadraswami, ILR 41 Mad 427 (AIR 1919 Mad 1140) (FB). In that case, the question was whether the fact that one of the several partners had authority to acknowledge liability to save limitation as against his partners, had to be established only by direct evidence or whether it could be inferred from the surrounding circumstances. The High Court held that it was permissible to establish the existence of authority from the surrounding circumstances. The case is thus of no assistance to the appellant. The next case relied upon was Lakshmishankar Devshankar v. Motiram Vishuram, 6 Bom LR 1106. There, it was held that where money borrowed by one partner in the name of firm but without the authority of the co-partners has been applied to paying off the debts of the firm, the lender is entitled in equity to repayment by the firm of the amount which he can show to have been so applied and the same rule extends to money bona fide borrowed and applied for any legitimate purposes of the firm. It is difficult to appreciate how this case advances the present matter further, because here, the sub-lease has not been obtained in the name of the firm. The last case relied upon was Gordhandas Chhotalal v. Raghuvirdasji Gangaramji, 34 Bom LR 1137 : (AIR 1932 Bom 539 ). That again is a case in which the firm was held to be bound by the debts contracted by the managing partner for the purposes of the factory run by the firm. All the partners were held liable, because the transaction was entered into by the managing partner for the purpose of the partnership business. This case is similar to the one just referred to above and is, therefore, of no assistance to the appellant.8. Mr. Sarjoo Prasad also referred to two other decisions in Ram Kinkar v. Satya Charan, AIR 1939 PC 14 and Raja Sri Sri Jyoti Prasad Singh v. Samuel Henry Seddon. ILR 19 Pat 433 at p. 459 : (AIR 1940 Pat 516 at p. 527). In these cases, the defendants sought to be made liable were assignees of a lease, but that is not the case here. Indeed, Mr. Sarjoo Prasad quite rightly, conceded that respondents 1 to 3 cannot be made liable upon the ground that there was a privity of estate between them and the appellant.

0[ds]This, however, has never been the case of the appellant in the courts below. The only case which he put forward was that the lease was taken by respondent No. 4 on behalf of all the respondents. In other words his case was that respondent No. 4 was a benamidar for the partnership firm. It is only this case which the respondents had to meet, and in our judgment, it would not be proper to permit the appellant to make out an entirely new case at this stage. Apart from that, S. 22 ofthe Indian Partnership Act, 1932, clearly provides that in order to bind a firm by an act or an instrument executed by a partner on behalf of the firm, and the act should be done or the instrument should be executed in the name of the firm, or in any other manner expressing or implying an intention to bind the firm. The sub-lease was not executed in the name of the firm, and it has been found by the courts below that respondent No. 4 in obtaining the lease, did not act on behalf of the firm. This in substance means that in obtaining the sub-lease, the parties to it did not intend to bind the firm by thatMr. Sarjoo Prasad quite rightly, conceded that respondents 1 to 3 cannot be made liable upon the ground that there was a privity of estate between them and the appellant.

### 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: courts below how found concurrently that the sub-lease in question was taken by respondent No. 4 alone, the only point urged by Mr. Sarjoo Prasad in support of the appeal is that respondent No. 4 being a partner in the Saurashtra Coal Concern, all the partners of the firm are liable under the lease inasmuch as the firm admittedly came into possession of the demised colliery. He points out that even according to respondents 1 to 3, they came into possession of the demised colliery immediately after the execution of the sub-lease, and wants this court to infer from this that the partnership had already come into existence before the lease was obtained. This, however, has never been the case of the appellant in the courts below. The only case which he put forward was that the lease was taken by respondent No. 4 on behalf of all the respondents. In other words his case was that respondent No. 4 was a benamidar for the partnership firm. It is only this case which the respondents had to meet, and in our judgment, it would not be proper to permit the appellant to make out an entirely new case at this stage. Apart from that, S. 22 of the Indian Partnership Act, 1932, clearly provides that in order to bind a firm by an act or an instrument executed by a partner on behalf of the firm, and the act should be done or the instrument should be executed in the name of the firm, or in any other manner expressing or implying an intention to bind the firm. The sub-lease was not executed in the name of the firm, and it has been found by the courts below that respondent No. 4 in obtaining the lease, did not act on behalf of the firm. This in substance means that in obtaining the sub-lease, the parties to it did not intend to bind the firm by that transaction.7. In support of his contention, Mr. Sarjoo Prasad has strongly relied upon the decision in Karmali Abdulla Allarakia v. Karimji Jiwanji, ILR 39 Bom 261 at p. 274 : (AIR 1914 PC 132 at p. 134). That was a case in which the question for consideration was whether one of the two partners is 1iable upon a hundi drawn by one of the partners, though the hundi was not drawn in the name of the firm. The Privy Council, following the decision in Gouthwaite v. Dockworth, (1810) 12 East 421 held that the other partner would be liable though on the face of it the hundi did not purport to be on behalf of the firm. That decision, however, does not help the appellant, because while the transaction in connection with which the hundi was drawn, was admittedly a partnership transaction in the case before us, it has been found that the transaction, that is the taking of the sub-lease, was not on behalf of the partnership. The next case relied upon was Mathura Nath v.Bageswari Rani, 46 Cal LJ 362 : (AIR 1928 Cal 57). In that case, the question was whether the firm is liable for the money borrowed by one of its partners. The High Court pointed out that this is a question of fact and depends upon the facts and circumstances of each particular case. In that case also, it was found that the liability arose upon a contract entered into by one of the partners in connection with the partnership business. This case is, therefore, similar to the one just referred to above. The third case relied upon is P. Veeranna v. G. Veerabhadraswami, ILR 41 Mad 427 (AIR 1919 Mad 1140) (FB). In that case, the question was whether the fact that one of the several partners had authority to acknowledge liability to save limitation as against his partners, had to be established only by direct evidence or whether it could be inferred from the surrounding circumstances. The High Court held that it was permissible to establish the existence of authority from the surrounding circumstances. The case is thus of no assistance to the appellant. The next case relied upon was Lakshmishankar Devshankar v. Motiram Vishuram, 6 Bom LR 1106. There, it was held that where money borrowed by one partner in the name of firm but without the authority of the co-partners has been applied to paying off the debts of the firm, the lender is entitled in equity to repayment by the firm of the amount which he can show to have been so applied and the same rule extends to money bona fide borrowed and applied for any legitimate purposes of the firm. It is difficult to appreciate how this case advances the present matter further, because here, the sub-lease has not been obtained in the name of the firm. The last case relied upon was Gordhandas Chhotalal v. Raghuvirdasji Gangaramji, 34 Bom LR 1137 : (AIR 1932 Bom 539 ). That again is a case in which the firm was held to be bound by the debts contracted by the managing partner for the purposes of the factory run by the firm. All the partners were held liable, because the transaction was entered into by the managing partner for the purpose of the partnership business. This case is similar to the one just referred to above and is, therefore, of no assistance to the appellant.8. Mr. Sarjoo Prasad also referred to two other decisions in Ram Kinkar v. Satya Charan, AIR 1939 PC 14 and Raja Sri Sri Jyoti Prasad Singh v. Samuel Henry Seddon. ILR 19 Pat 433 at p. 459 : (AIR 1940 Pat 516 at p. 527). In these cases, the defendants sought to be made liable were assignees of a lease, but that is not the case here. Indeed, Mr. Sarjoo Prasad quite rightly, conceded that respondents 1 to 3 cannot be made liable upon the ground that there was a privity of estate between them and the appellant. ### Response: 0 ### Explanation: This, however, has never been the case of the appellant in the courts below. The only case which he put forward was that the lease was taken by respondent No. 4 on behalf of all the respondents. In other words his case was that respondent No. 4 was a benamidar for the partnership firm. It is only this case which the respondents had to meet, and in our judgment, it would not be proper to permit the appellant to make out an entirely new case at this stage. Apart from that, S. 22 ofthe Indian Partnership Act, 1932, clearly provides that in order to bind a firm by an act or an instrument executed by a partner on behalf of the firm, and the act should be done or the instrument should be executed in the name of the firm, or in any other manner expressing or implying an intention to bind the firm. The sub-lease was not executed in the name of the firm, and it has been found by the courts below that respondent No. 4 in obtaining the lease, did not act on behalf of the firm. This in substance means that in obtaining the sub-lease, the parties to it did not intend to bind the firm by thatMr. Sarjoo Prasad quite rightly, conceded that respondents 1 to 3 cannot be made liable upon the ground that there was a privity of estate between them and the appellant.

Ram Babu Tiwari Vs. United India Insurance Co. Ltd.

any licence. Furthermore, it is beyond dispute that he had a licence only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7.2.1996. 16. What would be the effect of not having a licence for such a long period is the question. 17. Section 15 of the Motor Vehicles Act provides for renewal of a driving licence. Sub-section (1) of Section 15 and the first proviso appended thereto read as under : "Section 15.--Renewal of driving licences--(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, and the provisions of sub-section (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learners licence." 18. Sub-section (4) of Section 15 of the Act provides that where an application for the renewal of a driving licence is made more than 30 days after the date of its expiry, the fee payable for such renewal shall be such amount as may be prescribed by the Central Government. The second proviso appended thereto whereupon strong reliance has been placed by Mr. Gupta reads as under: "Provided further that if the application is made more than five years after the driving licence has ceased to be effective the licensing authority may refuse to renew the driving licence unless the applicant, undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of section 9." 19. It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured. The second proviso appended to sub-section (4) of Section 15 is of no assistance to the appellant. It merely enables the licensing authority to take a further test of competent driving and passing thereof to its satisfaction within the meaning of Sub-section (3) of Section 9. It does not say that the renewal would be automatic. It is, therefore, a case where a breech of the contract of insurance is established. This aspect of the matter has been considered by this Court in National Insurance Co. Ltd. v. Kusum Rai & Ors. [(2006) 4 SCC 250] holding: "11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence." It was furthermore held: "14. This Court in Swaran Singh4 clearly laid down that the liability of the Insurance Company vis-à-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle." It was opined: "16. In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not." 20. The principle laid down in Kusum Rai (supra) has been reiterated in Ishwar Chandra & Ors. v. Oriental Insurance Co. Ltd. & Ors. [(2007) 10 SCC 650] , referring to sub-section (1) of Section 15 of the Act, this Court stated the law, thus: "9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15 (1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident."

0[ds]12. In view of the aforementioned provisions, in the event a defence on the part of the insurance company that the vehicle involved in the accident was not being driven by a driver having a valid driving licence would be a valid one.The question as to whetherthe owner of a vehicle had taken care to inform himself as to whether the driver entrusted to drive the vehicle was having a licence ornot is essentially a question fact. However, in this case, it stands admitted that as on the date of accident, namely, on 27.1.1996, the driver did not hold any licence. Furthermore, it is beyond dispute that he had a licence only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7.2.1996.It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured. The second proviso appended to sub-section (4) of Section 15 is of no assistance to the appellant. It merely enables the licensing authority to take a further test of competent driving and passing thereof to its satisfaction within the meaning of Sub-section (3) of Section 9. It does not say that the renewal would be automatic. It is, therefore, a case where a breech of the contract of insurance is established.

### 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: any licence. Furthermore, it is beyond dispute that he had a licence only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7.2.1996. 16. What would be the effect of not having a licence for such a long period is the question. 17. Section 15 of the Motor Vehicles Act provides for renewal of a driving licence. Sub-section (1) of Section 15 and the first proviso appended thereto read as under : "Section 15.--Renewal of driving licences--(1) Any licensing authority may, on application made to it, renew a driving licence issued under the provisions of this Act with effect from the date of its expiry:Provided that in any case where the application for the renewal of a licence is made more than thirty days after the date of its expiry, the driving licence shall be renewed with effect from the date of its renewal:Provided further that where the application is for the renewal of a licence to drive a transport vehicle or where in any other case the applicant has attained the age of forty years, the same shall be accompanied by a medical certificate in the same form and in the same manner as is referred to in sub-section (3) of section 8, and the provisions of sub-section (4) of section 8 shall, so far as may be, apply in relation to every such case as they apply in relation to a learners licence." 18. Sub-section (4) of Section 15 of the Act provides that where an application for the renewal of a driving licence is made more than 30 days after the date of its expiry, the fee payable for such renewal shall be such amount as may be prescribed by the Central Government. The second proviso appended thereto whereupon strong reliance has been placed by Mr. Gupta reads as under: "Provided further that if the application is made more than five years after the driving licence has ceased to be effective the licensing authority may refuse to renew the driving licence unless the applicant, undergoes and passes to its satisfaction the test of competence to drive referred to in sub-section (3) of section 9." 19. It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured. The second proviso appended to sub-section (4) of Section 15 is of no assistance to the appellant. It merely enables the licensing authority to take a further test of competent driving and passing thereof to its satisfaction within the meaning of Sub-section (3) of Section 9. It does not say that the renewal would be automatic. It is, therefore, a case where a breech of the contract of insurance is established. This aspect of the matter has been considered by this Court in National Insurance Co. Ltd. v. Kusum Rai & Ors. [(2006) 4 SCC 250] holding: "11. It has not been disputed before us that the vehicle was being used as a taxi. It was, therefore, a commercial vehicle. The driver of the said vehicle, thus, was required to hold an appropriate licence therefor. Ram Lal who allegedly was driving the said vehicle at the relevant time, as noticed hereinbefore, was holder of a licence to drive a light motor vehicle only. He did not possess any licence to drive a commercial vehicle. Evidently, therefore, there was a breach of condition of the contract of insurance. The appellant, therefore, could raise the said defence." It was furthermore held: "14. This Court in Swaran Singh4 clearly laid down that the liability of the Insurance Company vis-à-vis the owner would depend upon several factors. The owner would be liable for payment of compensation in a case where the driver was not having a licence at all. It was the obligation on the part of the owner to take adequate care to see that the driver had an appropriate licence to drive the vehicle." It was opined: "16. In a case of this nature, therefore, the owner of a vehicle cannot contend that he has no liability to verify the fact as to whether the driver of the vehicle possessed a valid licence or not." 20. The principle laid down in Kusum Rai (supra) has been reiterated in Ishwar Chandra & Ors. v. Oriental Insurance Co. Ltd. & Ors. [(2007) 10 SCC 650] , referring to sub-section (1) of Section 15 of the Act, this Court stated the law, thus: "9. From a bare perusal of the said provision, it would appear that the licence is renewed in terms of the said Act and the rules framed thereunder. The proviso appended to Section 15 (1) of the Act in no uncertain terms states that whereas the original licence granted despite expiry remains valid for a period of 30 days from the date of expiry, if any application for renewal thereof is filed thereafter, the same would be renewed from the date of its renewal. The accident took place 28-4-1995. As on the said date, the renewal application had not been filed, the driver did not have a valid licence on the date when the vehicle met with the accident." ### Response: 0 ### Explanation: 12. In view of the aforementioned provisions, in the event a defence on the part of the insurance company that the vehicle involved in the accident was not being driven by a driver having a valid driving licence would be a valid one.The question as to whetherthe owner of a vehicle had taken care to inform himself as to whether the driver entrusted to drive the vehicle was having a licence ornot is essentially a question fact. However, in this case, it stands admitted that as on the date of accident, namely, on 27.1.1996, the driver did not hold any licence. Furthermore, it is beyond dispute that he had a licence only for one year and for about 3 years thereafter, he failed and neglected to renew his licence. His licence was renewed only on and from 7.2.1996.It is beyond any doubt or dispute that only in the event an application for renewal of licence is filed within a period 30 days from the date of expiry thereof, the same would be renewed automatically which means that even if an accident had taken place within the aforementioned period, the driver may be held to be possessing a valid licence. The proviso appended to sub-section (1) of Section 15, however, clearly states that the driving licence shall be renewed with effect from the date of its renewal in the event the application for renewal of a licence is made more than 30 days after the date of its expiry. It is, therefore, evident that as, on renewal of the licence on such terms, the driver of the vehicle cannot be said to be holding a valid licence, the insurer would not be liable to indemnify the insured. The second proviso appended to sub-section (4) of Section 15 is of no assistance to the appellant. It merely enables the licensing authority to take a further test of competent driving and passing thereof to its satisfaction within the meaning of Sub-section (3) of Section 9. It does not say that the renewal would be automatic. It is, therefore, a case where a breech of the contract of insurance is established.

Mohan Singh Vs. Subhash Chander Julka

the Slums Act had only granted permission with respect to a portion of the premises in dispute and, therefore, a decree for eviction by the Controller could not have been passed for the entire premises. In support of the contention, the learned counsel relied on a decision of this Court in Lal Chand v. Radha Kishan (AIR 1977 SC 789 , 795 : (1977) 2 SCC 88 , 97-8 (para 19)), where this Court observed as follows : (SCC pp. 97-8, para 19)The authorities under the Slum Clearance Act who are exclusively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata.A perusal of the observations made by this Court would clearly show that the question whether or not a competent authority under Section 19 of the Slums Act could grant partial permission was not at all raised or mooted in the case cited above. In fact, this Court proceeded on the footing that as the subsequent suit before the Controller was filed for a relief which was included in the larger relief for which the application before the competent authority of the Slums Act was made, the suit was barred by the principle of constructive res judicata. This point, however, does not arise in the present case because the counsel for the respondent has submitted that Section 19 does not contemplate or authorise a competent authority to grant partial permission. In view, however, of the finding of fact arrived at by the Controller on this question, which does not appear to have been disputed either before the Tribunal or the High Court, it is not necessary for us to go into the question whether or not the competent authority is empowered to give partial permission for eviction.5. It would appear that the plaintiff-respondent did seek eviction from the entire demised premises and not only from a portion of the premises which were rented out to the appellant, and which has already been described by us in the opening part of this judgment. Furthermore, this point was specially raised before the Controller was negatived by him. In this connection, the Controller observed as follows :The learned counsel for the respondent argued that no mention about the second floor premises are made in this judgment and therefore it should be presumed that no permission about the second floor is granted. It is not disputed that the permission was sought only for premises in dispute. The petitioner has obtained a photocopy of plan filed before the competent authority (slum) when the clerk of the competent authority (S) produced the relevant file in the court in pursuance to the summons. The photocopy of the plan is Ex. AW 2/1. In this plan, the barsati or the khoka of timber on the second floor is shown. Obviously, the petitioner applied for the permission to evict the respondent from the entire disputed premises including the khoka or barsati. The concluding sentence of the judgment quoted above has merely described the premises in respect of which the permission is granted. The whole judgment does not make any remarks meaning that the permission in respect of the part of the premises in question is withheld or refused. The omission of mention the barsati on the second floor is merely a clerical omission and it cannot be presumed that by that omission the competent authority (slum) intended to refuse the permission to evict the respondent from the Khoka.6. The Controller has rightly pointed out that a mere clerical omission of the barsati in the second floor would not have the effect of wiping out the extent of the permission granted by the Controller in respect of the premises in dispute. The Controller has also pointed out that it was not disputed before him that the permission was actually sought before the competent authority only for the premises in dispute. Furthermore, the respondent has filed a plan of the premises in dispute which was filed before the Rent Controller and the one filed before the competent authority under the Slums Act, and on a comparison of the two plans, we find that they are absolutely identical. In these circumstances, therefore, the order of the competent authority has to be read in the light of the pleadings before him and the map filed regarding the premises for which permission for eviction was sought. If the competent authority mentioned in its order that the permission is granted for a portion of the property, what it really meant was that as the ground floor was occupied by the respondent himself, the premises in dispute constituted only a portion of the entire property. The order of the competent authority, therefore, in the circumstances, must be clearly relatable to the premises in dispute which only was for consideration before him and the competent authority did not give any finding that he wanted to confine or restrict his order to a part of the premises by splitting the premises into two parts so as to grant permission in respect of one and not to the other. Thus, in view of the finding of fact given by the Rent Controller which has not been shown to be incorrect before us, it is not possible for us to hold that the competent authority had given permission only for a portion of the premises in dispute and not for the entire premises. In this view of the matter, the contention raised by the appellant must fail and is accordingly overruled.

0[ds]6. The Controller has rightly pointed out that a mere clerical omission of the barsati in the second floor would not have the effect of wiping out the extent of the permission granted by the Controller in respect of the premises in dispute. The Controller has also pointed out that it was not disputed before him that the permission was actually sought before the competent authority only for the premises in dispute. Furthermore, the respondent has filed a plan of the premises in dispute which was filed before the Rent Controller and the one filed before the competent authority under the Slums Act, and on a comparison of the two plans, we find that they are absolutely identical. In these circumstances, therefore, the order of the competent authority has to be read in the light of the pleadings before him and the map filed regarding the premises for which permission for eviction was sought. If the competent authority mentioned in its order that the permission is granted for a portion of the property, what it really meant was that as the ground floor was occupied by the respondent himself, the premises in dispute constituted only a portion of the entire property. The order of the competent authority, therefore, in the circumstances, must be clearly relatable to the premises in dispute which only was for consideration before him and the competent authority did not give any finding that he wanted to confine or restrict his order to a part of the premises by splitting the premises into two parts so as to grant permission in respect of one and not to the other. Thus, in view of the finding of fact given by the Rent Controller which has not been shown to be incorrect before us, it is not possible for us to hold that the competent authority had given permission only for a portion of the premises in dispute and not for the entire premises. In this view of the matter, the contention raised by the appellant must fail and is accordingly overruled.

### 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 Slums Act had only granted permission with respect to a portion of the premises in dispute and, therefore, a decree for eviction by the Controller could not have been passed for the entire premises. In support of the contention, the learned counsel relied on a decision of this Court in Lal Chand v. Radha Kishan (AIR 1977 SC 789 , 795 : (1977) 2 SCC 88 , 97-8 (para 19)), where this Court observed as follows : (SCC pp. 97-8, para 19)The authorities under the Slum Clearance Act who are exclusively invested with the power to determine whether a decree for eviction should be permitted to be executed and, if so, to what extent, had finally decided that question, refusing to allow the respondent to execute the decree in respect of the ground floor premises. By the present suit, the respondent is once again asking for the relief which was included in the larger relief sought by him in the application filed under the Slum Clearance Act and which was expressly denied to him. In the circumstances, the present suit is also barred by the principle of res judicata.A perusal of the observations made by this Court would clearly show that the question whether or not a competent authority under Section 19 of the Slums Act could grant partial permission was not at all raised or mooted in the case cited above. In fact, this Court proceeded on the footing that as the subsequent suit before the Controller was filed for a relief which was included in the larger relief for which the application before the competent authority of the Slums Act was made, the suit was barred by the principle of constructive res judicata. This point, however, does not arise in the present case because the counsel for the respondent has submitted that Section 19 does not contemplate or authorise a competent authority to grant partial permission. In view, however, of the finding of fact arrived at by the Controller on this question, which does not appear to have been disputed either before the Tribunal or the High Court, it is not necessary for us to go into the question whether or not the competent authority is empowered to give partial permission for eviction.5. It would appear that the plaintiff-respondent did seek eviction from the entire demised premises and not only from a portion of the premises which were rented out to the appellant, and which has already been described by us in the opening part of this judgment. Furthermore, this point was specially raised before the Controller was negatived by him. In this connection, the Controller observed as follows :The learned counsel for the respondent argued that no mention about the second floor premises are made in this judgment and therefore it should be presumed that no permission about the second floor is granted. It is not disputed that the permission was sought only for premises in dispute. The petitioner has obtained a photocopy of plan filed before the competent authority (slum) when the clerk of the competent authority (S) produced the relevant file in the court in pursuance to the summons. The photocopy of the plan is Ex. AW 2/1. In this plan, the barsati or the khoka of timber on the second floor is shown. Obviously, the petitioner applied for the permission to evict the respondent from the entire disputed premises including the khoka or barsati. The concluding sentence of the judgment quoted above has merely described the premises in respect of which the permission is granted. The whole judgment does not make any remarks meaning that the permission in respect of the part of the premises in question is withheld or refused. The omission of mention the barsati on the second floor is merely a clerical omission and it cannot be presumed that by that omission the competent authority (slum) intended to refuse the permission to evict the respondent from the Khoka.6. The Controller has rightly pointed out that a mere clerical omission of the barsati in the second floor would not have the effect of wiping out the extent of the permission granted by the Controller in respect of the premises in dispute. The Controller has also pointed out that it was not disputed before him that the permission was actually sought before the competent authority only for the premises in dispute. Furthermore, the respondent has filed a plan of the premises in dispute which was filed before the Rent Controller and the one filed before the competent authority under the Slums Act, and on a comparison of the two plans, we find that they are absolutely identical. In these circumstances, therefore, the order of the competent authority has to be read in the light of the pleadings before him and the map filed regarding the premises for which permission for eviction was sought. If the competent authority mentioned in its order that the permission is granted for a portion of the property, what it really meant was that as the ground floor was occupied by the respondent himself, the premises in dispute constituted only a portion of the entire property. The order of the competent authority, therefore, in the circumstances, must be clearly relatable to the premises in dispute which only was for consideration before him and the competent authority did not give any finding that he wanted to confine or restrict his order to a part of the premises by splitting the premises into two parts so as to grant permission in respect of one and not to the other. Thus, in view of the finding of fact given by the Rent Controller which has not been shown to be incorrect before us, it is not possible for us to hold that the competent authority had given permission only for a portion of the premises in dispute and not for the entire premises. In this view of the matter, the contention raised by the appellant must fail and is accordingly overruled. ### Response: 0 ### Explanation: 6. The Controller has rightly pointed out that a mere clerical omission of the barsati in the second floor would not have the effect of wiping out the extent of the permission granted by the Controller in respect of the premises in dispute. The Controller has also pointed out that it was not disputed before him that the permission was actually sought before the competent authority only for the premises in dispute. Furthermore, the respondent has filed a plan of the premises in dispute which was filed before the Rent Controller and the one filed before the competent authority under the Slums Act, and on a comparison of the two plans, we find that they are absolutely identical. In these circumstances, therefore, the order of the competent authority has to be read in the light of the pleadings before him and the map filed regarding the premises for which permission for eviction was sought. If the competent authority mentioned in its order that the permission is granted for a portion of the property, what it really meant was that as the ground floor was occupied by the respondent himself, the premises in dispute constituted only a portion of the entire property. The order of the competent authority, therefore, in the circumstances, must be clearly relatable to the premises in dispute which only was for consideration before him and the competent authority did not give any finding that he wanted to confine or restrict his order to a part of the premises by splitting the premises into two parts so as to grant permission in respect of one and not to the other. Thus, in view of the finding of fact given by the Rent Controller which has not been shown to be incorrect before us, it is not possible for us to hold that the competent authority had given permission only for a portion of the premises in dispute and not for the entire premises. In this view of the matter, the contention raised by the appellant must fail and is accordingly overruled.

State Of Himachal Pradesh & Anr Vs. Union Of India & Ors. Etc

same date, their seniority shall be determined by the Excise and Taxation Commissioner whose decision shall be final.17. The contention of the appellants is that under their conditions of service when they were allocated to Himachal Pradesh on the appointed date 1 November, 1966 in the former State of Punjab. In accordance with the directions of the Central Government contained in the letter dated 14 February, 1967 the appellants contend that the date of substantive appointment, viz., 1 April, 1966 is therefore to be considered for seniority as well as promotion. For promotion the appellants contended that Class III-A Punjab Rules provided three years continuous service as Inspector to be sufficient. Confirmed Inspectors. In this background the appellants contend that the seniority list wrongly shows that appellant No. 1 was placed along with the Excise Inspectors and in the other seniority list all Inspectors of Punjab were equated with Sub-Inspectors of Himachal Pradesh. Further, it is contended that Sub-Inspectors of Himachal Pradesh who were unconfirmed were made senior to the appellants.18. On behalf of the State it was contended that the employees of Himachal Pradesh could be given the same benefit of Inspectors by varying the conditions of service which were to their benefit and the sanction of the Central Government under Section 82(6) of the Act would not be required for that purpose. It is also said that the conditions of service which govern the appellants who were employees of the former State of Punjab were not varied to their disadvantage. This contention is utterly unsound. The seniority list has been prepared by giving the employees of Himachal Pradesh, the benefit of the date of upgradation as 1 April, 1966. The Government of India sanctioned the date 1 May, 1969. The State of Himachal Pradesh is not only setting at naught the direction but is giving a retrospective validation to the date of upgradation. That is a matter which changes the conditions of service of the appellants. The appellants are deprived of their continuous period of service. The appellants are deprived of their quota of promotion. The appellants were not heard with regard to equation of posts of Excise Inspectors and Taxation Inspectors. The appellants were not heard with regard to their seniority list.19. The appellants, therefore, rightly contend that the conditions of service applicable to them before the appointed day have been altered to their disadvantage without the previous approval of the Central Government. Again, if the State of Himachal Pradesh wants to equate Taxation Inspectors with Excise Inspectors the approval of the Central Government will be required because the appellants may represent their case of promotion quota under these Rules.20.The High Court correctly held that if the State Government wanted to alter the upgradation of the posts of Himachal Pradesh Sub-Inspectors with effect from 1 April, 1966, the sanction of the Central Government was to be obtained. The High Court rightly set aside the executive decision changing the date of promotion of Himachal Pradesh Sub-Inspectors from 1 May, 1969, to 1 April, 1966 and the seniority lists as well as the four promotions.21. The appellants contended that the directions given by the High Court with regard to preparation of seniority lists should be set aside. The directions given by the High Court were these. The appellants should be equated with the Inspectors of Himachal Pradesh and thereby the High Court held that all Inspectors of Himachal Pradesh should e taken as Excise and Taxation Inspectors and their cadre should be taken as joint. The second direction is that the date of continuous appointment in an equated post shall govern the seniority as provided in the letter dated 14 February, 1967 of the Central Government. The third direction is that specific approval of the Central Government is to be taken under section 82(6) of the Act is the date of promotion or upgradation from the post of Sub-Inspectors is fixed as 1 April, 1966. The fourth direction is that the Rules for promotion to the posts of Assistant Excise and Taxation Officers should be prepared and the same shall be finalised after getting the approval of the Central Government.22. The appellants main contention is that there were two distinct cadres of Inspectors in Himachal Pradesh before reorganisation, viz., one cadre of Taxation Inspectors and Sub-Inspectors and the other cadre of Excise Inspectors and Sub-Inspectors. The respondents on the other hand contended that there was one cadre in Himachal Pradesh. It was also the contention of the respondents that there was unification of cadres in Himachal Pradesh before the reorganisation of the State.23. If the State of Himachal Pradesh wishes to change the date of upgradation of Himachal Pradesh Sub-Inspectors to 1 April, 1966 the State Government cannot do so without sanction of the Central Government under Section 82(6) of the Act. If the State Government wishes to equate the appellants with the Inspectors of Himachal Pradesh the State of Himachal Pradesh will have to follow the provisions of the States Reorganisation Act in that behalf. The date of continuous appointment of the appellants and the respondents in the equated post will also have to be in compliance with the provisions of the States Reorganisation Act.24. All facts and circumstances affecting the service conditions of Inspectors of both the States will have to be placed by the State Government before the Central Government for decision of the Central Government whether it should give approval under Section 823(6) of the Act to upgradation of Sub-Inspectors of Himachal Pradesh with effect from 1 April, 1966.25. The direction given by the High Court that the State Government shall obtain approval of the Central Government under Section 82 (6) of the Act in regard to the date of promotion or upgradation of Sub-Inspectors is correct and upheld. The other direction given by the High Court that the Rules for promotion to the post of Excise and Taxation Inspectors shall be finalised after getting the approval of the Central Government is correct and upheld.

0[ds]This contention is utterly unsound. The seniority list has been prepared by giving the employees of Himachal Pradesh, the benefit of the date of upgradation as 1 April, 1966. The Government of India sanctioned the date 1 May, 1969. The State of Himachal Pradesh is not only setting at naught the direction but is giving a retrospective validation to the date of upgradation. That is a matter which changes the conditions of service of the appellants. The appellants are deprived of their continuous period of service. The appellants are deprived of their quota of promotion. The appellants were not heard with regard to equation of posts of Excise Inspectors and Taxation Inspectors. The appellants were not heard with regard to their seniority list.19. The appellants, therefore, rightly contend that the conditions of service applicable to them before the appointed day have been altered to their disadvantage without the previous approval of the Central Government. Again, if the State of Himachal Pradesh wants to equate Taxation Inspectors with Excise Inspectors the approval of the Central Government will be required because the appellants may represent their case of promotion quota under these Rules.20.The High Court correctly held that if the State Government wanted to alter the upgradation of the posts of Himachal Pradeshwith effect from 1 April, 1966, the sanction of the Central Government was to be obtained. The High Court rightly set aside the executive decision changing the date of promotion of Himachal Pradeshfrom 1 May, 1969, to 1 April, 1966 and the seniority lists as well as the four promotions.If the State of Himachal Pradesh wishes to change the date of upgradation of Himachal Pradeshto 1 April, 1966 the State Government cannot do so without sanction of the Central Government under Section 82(6) of the Act. If the State Government wishes to equate the appellants with the Inspectors of Himachal Pradesh the State of Himachal Pradesh will have to follow the provisions of the States Reorganisation Act in that behalf. The date of continuous appointment of the appellants and the respondents in the equated post will also have to be in compliance with the provisions of the States Reorganisation Act.24. All facts and circumstances affecting the service conditions of Inspectors of both the States will have to be placed by the State Government before the Central Government for decision of the Central Government whether it should give approval under Section 823(6) of the Act to upgradation ofof Himachal Pradesh with effect from 1 April, 1966.25. The direction given by the High Court that the State Government shall obtain approval of the Central Government under Section 82 (6) of the Act in regard to the date of promotion or upgradation ofis correct and upheld. The other direction given by the High Court that the Rules for promotion to the post of Excise and Taxation Inspectors shall be finalised after getting the approval of the Central Government is correct and upheld.

### 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: same date, their seniority shall be determined by the Excise and Taxation Commissioner whose decision shall be final.17. The contention of the appellants is that under their conditions of service when they were allocated to Himachal Pradesh on the appointed date 1 November, 1966 in the former State of Punjab. In accordance with the directions of the Central Government contained in the letter dated 14 February, 1967 the appellants contend that the date of substantive appointment, viz., 1 April, 1966 is therefore to be considered for seniority as well as promotion. For promotion the appellants contended that Class III-A Punjab Rules provided three years continuous service as Inspector to be sufficient. Confirmed Inspectors. In this background the appellants contend that the seniority list wrongly shows that appellant No. 1 was placed along with the Excise Inspectors and in the other seniority list all Inspectors of Punjab were equated with Sub-Inspectors of Himachal Pradesh. Further, it is contended that Sub-Inspectors of Himachal Pradesh who were unconfirmed were made senior to the appellants.18. On behalf of the State it was contended that the employees of Himachal Pradesh could be given the same benefit of Inspectors by varying the conditions of service which were to their benefit and the sanction of the Central Government under Section 82(6) of the Act would not be required for that purpose. It is also said that the conditions of service which govern the appellants who were employees of the former State of Punjab were not varied to their disadvantage. This contention is utterly unsound. The seniority list has been prepared by giving the employees of Himachal Pradesh, the benefit of the date of upgradation as 1 April, 1966. The Government of India sanctioned the date 1 May, 1969. The State of Himachal Pradesh is not only setting at naught the direction but is giving a retrospective validation to the date of upgradation. That is a matter which changes the conditions of service of the appellants. The appellants are deprived of their continuous period of service. The appellants are deprived of their quota of promotion. The appellants were not heard with regard to equation of posts of Excise Inspectors and Taxation Inspectors. The appellants were not heard with regard to their seniority list.19. The appellants, therefore, rightly contend that the conditions of service applicable to them before the appointed day have been altered to their disadvantage without the previous approval of the Central Government. Again, if the State of Himachal Pradesh wants to equate Taxation Inspectors with Excise Inspectors the approval of the Central Government will be required because the appellants may represent their case of promotion quota under these Rules.20.The High Court correctly held that if the State Government wanted to alter the upgradation of the posts of Himachal Pradesh Sub-Inspectors with effect from 1 April, 1966, the sanction of the Central Government was to be obtained. The High Court rightly set aside the executive decision changing the date of promotion of Himachal Pradesh Sub-Inspectors from 1 May, 1969, to 1 April, 1966 and the seniority lists as well as the four promotions.21. The appellants contended that the directions given by the High Court with regard to preparation of seniority lists should be set aside. The directions given by the High Court were these. The appellants should be equated with the Inspectors of Himachal Pradesh and thereby the High Court held that all Inspectors of Himachal Pradesh should e taken as Excise and Taxation Inspectors and their cadre should be taken as joint. The second direction is that the date of continuous appointment in an equated post shall govern the seniority as provided in the letter dated 14 February, 1967 of the Central Government. The third direction is that specific approval of the Central Government is to be taken under section 82(6) of the Act is the date of promotion or upgradation from the post of Sub-Inspectors is fixed as 1 April, 1966. The fourth direction is that the Rules for promotion to the posts of Assistant Excise and Taxation Officers should be prepared and the same shall be finalised after getting the approval of the Central Government.22. The appellants main contention is that there were two distinct cadres of Inspectors in Himachal Pradesh before reorganisation, viz., one cadre of Taxation Inspectors and Sub-Inspectors and the other cadre of Excise Inspectors and Sub-Inspectors. The respondents on the other hand contended that there was one cadre in Himachal Pradesh. It was also the contention of the respondents that there was unification of cadres in Himachal Pradesh before the reorganisation of the State.23. If the State of Himachal Pradesh wishes to change the date of upgradation of Himachal Pradesh Sub-Inspectors to 1 April, 1966 the State Government cannot do so without sanction of the Central Government under Section 82(6) of the Act. If the State Government wishes to equate the appellants with the Inspectors of Himachal Pradesh the State of Himachal Pradesh will have to follow the provisions of the States Reorganisation Act in that behalf. The date of continuous appointment of the appellants and the respondents in the equated post will also have to be in compliance with the provisions of the States Reorganisation Act.24. All facts and circumstances affecting the service conditions of Inspectors of both the States will have to be placed by the State Government before the Central Government for decision of the Central Government whether it should give approval under Section 823(6) of the Act to upgradation of Sub-Inspectors of Himachal Pradesh with effect from 1 April, 1966.25. The direction given by the High Court that the State Government shall obtain approval of the Central Government under Section 82 (6) of the Act in regard to the date of promotion or upgradation of Sub-Inspectors is correct and upheld. The other direction given by the High Court that the Rules for promotion to the post of Excise and Taxation Inspectors shall be finalised after getting the approval of the Central Government is correct and upheld. ### Response: 0 ### Explanation: This contention is utterly unsound. The seniority list has been prepared by giving the employees of Himachal Pradesh, the benefit of the date of upgradation as 1 April, 1966. The Government of India sanctioned the date 1 May, 1969. The State of Himachal Pradesh is not only setting at naught the direction but is giving a retrospective validation to the date of upgradation. That is a matter which changes the conditions of service of the appellants. The appellants are deprived of their continuous period of service. The appellants are deprived of their quota of promotion. The appellants were not heard with regard to equation of posts of Excise Inspectors and Taxation Inspectors. The appellants were not heard with regard to their seniority list.19. The appellants, therefore, rightly contend that the conditions of service applicable to them before the appointed day have been altered to their disadvantage without the previous approval of the Central Government. Again, if the State of Himachal Pradesh wants to equate Taxation Inspectors with Excise Inspectors the approval of the Central Government will be required because the appellants may represent their case of promotion quota under these Rules.20.The High Court correctly held that if the State Government wanted to alter the upgradation of the posts of Himachal Pradeshwith effect from 1 April, 1966, the sanction of the Central Government was to be obtained. The High Court rightly set aside the executive decision changing the date of promotion of Himachal Pradeshfrom 1 May, 1969, to 1 April, 1966 and the seniority lists as well as the four promotions.If the State of Himachal Pradesh wishes to change the date of upgradation of Himachal Pradeshto 1 April, 1966 the State Government cannot do so without sanction of the Central Government under Section 82(6) of the Act. If the State Government wishes to equate the appellants with the Inspectors of Himachal Pradesh the State of Himachal Pradesh will have to follow the provisions of the States Reorganisation Act in that behalf. The date of continuous appointment of the appellants and the respondents in the equated post will also have to be in compliance with the provisions of the States Reorganisation Act.24. All facts and circumstances affecting the service conditions of Inspectors of both the States will have to be placed by the State Government before the Central Government for decision of the Central Government whether it should give approval under Section 823(6) of the Act to upgradation ofof Himachal Pradesh with effect from 1 April, 1966.25. The direction given by the High Court that the State Government shall obtain approval of the Central Government under Section 82 (6) of the Act in regard to the date of promotion or upgradation ofis correct and upheld. The other direction given by the High Court that the Rules for promotion to the post of Excise and Taxation Inspectors shall be finalised after getting the approval of the Central Government is correct and upheld.

Dhanraj Vs. New India Assurance Co. Ltd.

the facts are as follows. On 26th August 2000, the Appellant along with certain other person was travelling in his own Jeep. Around 6.30 A.M. the Jeep met with an accident. In the accident, the Appellant as well as the other passengers received injuries. A number of Claim Petitions came to be filed. The Appellant also filed a Claim Petition. 5. The Motor Accident Claims Tribunal (MACT) held the Driver of the Jeep responsible for the accident. In all the Claim Petition filed by the other passengers MACT directed that the Appellant (as the owner) as well as the Driver and Insurance Company were liable to pay compensation. In these Appeals, we are not concerned with those Petitions and the Orders thereon. 6. In the Claim Petition filed by the Petitioner, the Motor Accident Claims Tribunal directed the driver and the Insurance Company to pay compensation to the Petitioner. The Insurance Company filed an Appeal. That Appeal has been allowed by the impugned Judgment. It has been held that as the Petitioner was the owner of the vehicle the Insurance Company is not liable to pay him any compensation. 7. We have seen the Policy. It is a comprehensive policy. The question that arises is whether a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows:- 147. Requirement of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorized insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be insured by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. 8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd vs. Sunita Rathi & Ors. [1998 ACJ 121 ] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also. 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading Own damage is for covering liability towards personal injury. Under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance. 11. We, therefore, see no infirmity in the Judgment of the High Court. We see no reason to interfere. 12.

0[ds]In the case of Oriental Insurance Co. Ltd vs. Sunita Rathi & Ors. [1998 ACJ 121 ] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading Own damage is for covering liability towards personal injury. Under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance11. We, therefore, see no infirmity in the Judgment of the High Court. We see no reason to interfere.

### 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 facts are as follows. On 26th August 2000, the Appellant along with certain other person was travelling in his own Jeep. Around 6.30 A.M. the Jeep met with an accident. In the accident, the Appellant as well as the other passengers received injuries. A number of Claim Petitions came to be filed. The Appellant also filed a Claim Petition. 5. The Motor Accident Claims Tribunal (MACT) held the Driver of the Jeep responsible for the accident. In all the Claim Petition filed by the other passengers MACT directed that the Appellant (as the owner) as well as the Driver and Insurance Company were liable to pay compensation. In these Appeals, we are not concerned with those Petitions and the Orders thereon. 6. In the Claim Petition filed by the Petitioner, the Motor Accident Claims Tribunal directed the driver and the Insurance Company to pay compensation to the Petitioner. The Insurance Company filed an Appeal. That Appeal has been allowed by the impugned Judgment. It has been held that as the Petitioner was the owner of the vehicle the Insurance Company is not liable to pay him any compensation. 7. We have seen the Policy. It is a comprehensive policy. The question that arises is whether a comprehensive Policy would cover the risk of injury to the owner of the vehicle also. Section 147 of the Motor Vehicles Act, 1988 reads as follows:- 147. Requirement of policies and limits of liability.-(1) In order to comply with the requirements of this Chapter, a policy of insurance must be a policy which- (a) is issued by a person who is an authorized insurer; or (b) insurer the person or classes of persons specified in the policy to the extent specified in sub-section (2) - (i) against any liability which may be insured by him in respect of the death of or bodily injury to any person, including owner of the goods or his authorized representative carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle in a public place; (ii) against the death of or bodily injury to any passenger of a public service vehicle caused by or arising out of the use of the vehicle in a public place: Provided that a policy shall not be required- (i) to cover liability in respect of the death, arising out of and in the course of his employment, of the employee of a person insured by the policy or in respect of bodily injury sustained by such an employee arising out of and in the course of his employment other than a liability arising under the Workmens Compensation Act, 1923 (8 of 1923) in respect of the death of or bodily injury to, any such employee- (a) engaged in driving the vehicle, or (b) if it is a public service vehicle engaged as conductor of the vehicle or in examining tickets on the vehicle, or (c) if it is a goods carriage, being carried in the vehicle, or (ii) to cover any contractual liability. Explanation-For the removal of doubts, it is hereby declared that the death of or bodily injury to any person or damage to any property of a third party shall be deemed to have been caused by or to have arisen out of, the use of a vehicle in a public place notwithstanding that the person who is dead or injured or the property which is damaged was not in a public place at the time of the accident, if the act or omission which led to the accident occurred in a public place. (2) Subject to the proviso to sub-section (1), a policy of insurance referred to in sub-section (1), shall cover any liability incurred in respect of any accident, up to the following limits, namely:- (a) save as provided in clause (b), the amount of liability incurred; (b) in respect of damage to any property of a third party, a limit of rupees six thousand: Provided that any policy of insurance issued with any limited liability and in force, immediately before the commencement of this Act, shall continue to be effective for a period of four months after such commencement or till the date of expiry of such policy whichever is earlier. 8. Thus, an insurance policy covers the liability incurred by the insured in respect of death of or bodily injury to any person (including an owner of the goods or his authorized representative) carried in the vehicle or damage to any property of a third party caused by or arising out of the use of the vehicle. Section 147 does not require an Insurance Company to assume risk for death or bodily injury to the owner of the vehicle. 9. In the case of Oriental Insurance Co. Ltd vs. Sunita Rathi & Ors. [1998 ACJ 121 ] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also. 10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading Own damage is for covering liability towards personal injury. Under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance. 11. We, therefore, see no infirmity in the Judgment of the High Court. We see no reason to interfere. 12. ### Response: 0 ### Explanation: In the case of Oriental Insurance Co. Ltd vs. Sunita Rathi & Ors. [1998 ACJ 121 ] it has been held that the liability of an Insurance Company is only for the purpose of indemnifying the insured against liabilities incurred towards third person or in respect of damages to property. Thus, where the insured i.e. an owner of the vehicle has no liability to a third party the Insurance Company has no liability also10. In this case, it has not been shown that the policy covered any risk for injury to the owner himself. We are unable to accept the contention that the premium of Rs.4,989/- paid under the heading Own damage is for covering liability towards personal injury. Under the heading Own damage, the words premium on vehicle and non-electrical accessories appear. It is thus clear that this premium is towards damage to the vehicle and not for injury to the person of the owner. An owner of a vehicle can only claim provided a personal accident insurance has been taken out. In this case, there is no such insurance11. We, therefore, see no infirmity in the Judgment of the High Court. We see no reason to interfere.