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Babulal Swarupchand Shah Vs. South Satara (Fixed Delivery) Merchant'S Association Limited & Another

have got into anothers possession in consequence of some unlawful dealings between them, the true owner can never be allowed to recover those goods by an action. The necessity of such a principle to the interests and advancement of public policy is certainly not obvious. The suggestion that it exists is not, in our opinion, supported by authority. It would indeed be astonishing if (to take one instance) a person in the position of the defendant in Pearce v. Brooks, (1866) 1 Ex 213 supposing that she had converted the plaintiffs broughman to her own use, were to be permitted, in the supposed interests of public policy, to keep it or the proceeds of its sale for her own benefit. The principle which is in truth followed by the Courts is that stated by Lord Mansfield, that no claim founded on an illegal contract will be enforced, and for this purpose the words illegal contract must now be understood in the wide sense which we have already indicated, and no technical meaning must be ascribed to the words founded on an illegal contract; the form of the pleadings is by no means conclusive. More modern illustrations of the principle on which the Courts act are Scott v. Brown, Doering, McNab and Co., 1892-2 QB 724 and Alexander v. Rayson 1936-1 KB 169. But as Lindley, L. J., said at P. 729, in the former of the cases just cited :"Any rights which he (plaintiff) may have irrespective of his illegal contract will, of course, be recognised and enforced".13. The defendant seeks naturally to rely on the observations in Harry Parker Ltd. v. Monson (1940) 2 KB 590 : (1940) 4 All ER 199 at p. 203 :-"With regard to the second contention, I can see no difference in principle between the case of a principal, seeking to recover money handed to an agent for an illegal purpose and that of one principal seeking to recover money paid by him to another principal in pursuance of an illegal contract. In neither case will the Court assist the parties, whether the claim be to obtain money paid for an unfulfilled or partly fulfilled illegal purpose or by way of damages for breach of an illegal contract".Assuming that the rule should apply between principal and agent it is consistent with the rule as stated by Lord Mansfield in (1775) 1 Cowp 341. This case cannot help the defendant since in that case the amount sought to be recovered was given to the agent for an illegal contract and what a party himself could not do he could not do through the agent and, therefore, the rule applied. See Sykes v. Beadon, (1879) 11 Ch D 170.14. He also relies on the case in Goswami Shri Purushotamji Maharaj v. B. Robb, ILR 8 Bom 398. It appears that the defendant had paid the cess for several years except for the years 1875, 1876 and 1877. It also appears from the judgment that the defendant did not agree to be the agent of the plaintiff but the amount was levied from the supposed agent by way of compulsion and it is with reference to these facts that it was observed that the object of the agreement was of such a nature that, if permitted, it would defeat the provisions of Act XIX of 1844. The amount was being held by the defendants themselves against whom payment was to be enforced. The case, therefore, has no application.15. This Court has in Shivram Govind v. Viswanath Govind, 58 Bom LR 154: ILR (1956) Bom 185, considered the question. It is there said"as the claim against the defendant was not based on the illegality of the contract which had already been acted upon, the defendant was bound to pay the plaintiffs share to him".We are of the view that where the cause of action is not founded either on the illegal contract or on its breach, the partys right to possess his own chattels will be enforced against those who without any right detain the same or convert it to their own use even if it appears either from the pleadings or evidence led at the trial that they have come in possession of the defendants as a result of an illegal transaction.There can be no doubt that there are occasional exceptions to this rule, as suggested in Bowmakers case, 1944-2 All ER 579 at p. 583.16.The question whether or not the rule applies as between principal and agent is a much wider question.In the case of Haji Habib Haji Pir Mohamed v. Bhikamchand Jankilal Shop,in AIR 1954 Nag 306 each of the learned Judges have given strong reasons for the opposing views though they agreed to dismiss the appeal on another ground. We do not decide that question as in this case it is clearly not necessary to do so, since we are of the view on the above reasoning that the rule in question does not apply to the facts of this case. The Court below was clearly in error in holding that the plaintiff could not succeed, on the authority of this case.17. It is also argued that in this case all the members had not made payments in the company and until all the payments were made the plaintiff can have no right to recover the amount. Now, the plaint shows that three of the members had not made the payments. The rules of the company provide that if the amount due from debtor-members were not paid to the defendant No. 1 by the time provided then such members had to be declared defaulters. But it does not appear anywhere in the rule that unless those amounts were collected the creditor members would not be paid; if that is so, it stands to reason to hold that the creditor members would receive their amounts after deduction pro rata, which the company was bound to pay them. There is no substance in this argument either.

1[ds]Now, this company was formed with an avowed purpose of regulating the dealing in forward transactions in several commodities. As such it had framed certain rules. The rules of the company show that the members parties who had made transactions with each other had to meet and settle their liabilities and after settling the liability of each other they had to fill up certain documents provided by the company. The rule also specifically provides that after filling up the forms and giving them to the Clearing agent, i.e. the Company defendant No. 1, the debtor members had to pay up the amount to the company within a fixed time as provided. It also further provides that the company after deducting a commission of one anna per rupee should distribute the amount to the creditor members towards their dues from the debtors-members. From the evidence also it appears that the transactions were entered into directly by the members with each other and the procedure which we have referred to above was thereafter followed in settling the transactions as has been admitted by the Chairman of the defendant No. 1-company, in his evidence. He says that after the clearing rate was declared, the creditor members and the debtor members concerned had to adjust their accounts and the balance was to be struck amongst them, and thereafter C form was filled in. Form D, however, was filled in by the debtor-members and submitted to their creditor members but form C was submitted to the Clearing Agent (the company) by the Creditor members. He has also further stated that after 12 Oclock on Monday the amount due was to be deposited with the clearing agent by the debtor members. That also is the case of the plaintiff. It is clear, therefore, that the agency of the defendant No. 1 was limited only to the extent of the collection of the amounts due from each of the members and after deduction of its commission payment to the creditor members, who were entitled to collect the amount from these debtor members. The company had nothing to do with the actual transactions themselves which were entered into by the members directly, with each other nor even with the settlements. Even if therefore, the Transactions were illegal, the agency itself was notit is not necessary that there should be any formal agreement expressly made for the purpose. Rule 24 which we have referred to earlier and the evidence of the chairman, lead to only conclusion that the relationship between the defendant and the plaintiff was that of an agent and a principal and the defendant No. 1 was the agent of the plaintiff for receiving the amounts from other members of the company. There is no substance in the argument that the defendant No. 1 was not proved to be the agent of thethe case of the State of Bombay v. Virkumar Gulabchand, 54 Bom LR 883 : (AIR 1952 SC 335 ), the accused was prosecuted for the breach of the provisions of the Essential Supplies (Temporary Powers) Act, 1946 read with the Spices (Forward Contracts Prohibition) Order, 1944, relating to turmeric. The Additional City Magistrate, First Class at Sangli, held that the accused was guilty and sentenced him to imprisonment and fine. On appeal the Sessions Judge, South Satara at Sangli, relied upon a judgment of this Court and held that the transactions in turmeric were not controlled under the provisions of the Spices (Forward Contracts Prohibition) Order, 1944, and quashed the conviction of the accused. An appeal by the State to the High Court also failed. Thereafter an appeal by the State to the Supreme Court, succeeded, and it was there held that turmeric was an article of food and that the provisions of the Spices (Forward Contracts Prohibition) Order, 1944, in their application to turmeric were saved under the Essential Supplies (Temporary Powers) Act, 1946. It was under the authority of this judgment that forward transactions in turmeric are renderedthat the rule should apply between principal and agent it is consistent with the rule as stated by Lord Mansfield in (1775) 1 Cowp 341. This case cannot help the defendant since in that case the amount sought to be recovered was given to the agent for an illegal contract and what a party himself could not do he could not do through the agent and, therefore, the ruleare of the view that where the cause of action is not founded either on the illegal contract or on its breach, the partys right to possess his own chattels will be enforced against those who without any right detain the same or convert it to their own use even if it appears either from the pleadings or evidence led at the trial that they have come in possession of the defendants as a result of an illegal transaction.There can be no doubt that there are occasional exceptions to this rule, as suggested in Bowmakers case, 1944-2 All ER 579 at p. 583.16.The question whether or not the rule applies as between principal and agent is a much wider question.In the case of Haji Habib Haji Pir Mohamed v. Bhikamchand Jankilal Shop,in AIR 1954 Nag 306 each of the learned Judges have given strong reasons for the opposing views though they agreed to dismiss the appeal on another ground. We do not decide that question as in this case it is clearly not necessary to do so, since we are of the view on the above reasoning that the rule in question does not apply to the facts of this case. The Court below was clearly in error in holding that the plaintiff could not succeed, on the authority of this case.Now, the plaint shows that three of the members had not made the payments. The rules of the company provide that if the amount due from debtor-members were not paid to the defendant No. 1 by the time provided then such members had to be declared defaulters. But it does not appear anywhere in the rule that unless those amounts were collected the creditor members would not be paid; if that is so, it stands to reason to hold that the creditor members would receive their amounts after deduction pro rata, which the company was bound to pay them. There is no substance in this argument either.The plaintiff has claimed a sum of Rs. 804-15-0 as interest at 6 per cent per annum on the amount claimed by the plaintiff. In the plaint he founds this claim as damages. There is no agreement averred, to pay the interest as claimed by the plaintiff. Mr. Albal, however, relies on notices, Exs. 43, 44, 65 and 67, which are telegrams, informing the defendant No. 1 that it would be liable to pay damages if the amount was not paid. This is not enough to sustain a claim for interest. It does not state what the rate of interest would be nor the particulars of the period. Moreover, if any amount were to be given by way of damages the plaintiff has not shown what are the damages that he has suffered. In this view of the matter he is not entitled to receive any amount by way of interest from the defendant No. 1.20. So far as the defendant No. 2 is concerned he was made a clearing agent by the defendant-company. He was therefore, clearly a servant of the company. There can, therefore, be no personal relationship of agent and principal between him and the plaintiff, there being no privity. He had deposited the amount collected by him as clearing agent from the debtor members in the Bank to the credit of the defendant No.Clearly therefore, the plaintiff is not entitled to a decree against the defendant No. 2 at all.

### 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: have got into anothers possession in consequence of some unlawful dealings between them, the true owner can never be allowed to recover those goods by an action. The necessity of such a principle to the interests and advancement of public policy is certainly not obvious. The suggestion that it exists is not, in our opinion, supported by authority. It would indeed be astonishing if (to take one instance) a person in the position of the defendant in Pearce v. Brooks, (1866) 1 Ex 213 supposing that she had converted the plaintiffs broughman to her own use, were to be permitted, in the supposed interests of public policy, to keep it or the proceeds of its sale for her own benefit. The principle which is in truth followed by the Courts is that stated by Lord Mansfield, that no claim founded on an illegal contract will be enforced, and for this purpose the words illegal contract must now be understood in the wide sense which we have already indicated, and no technical meaning must be ascribed to the words founded on an illegal contract; the form of the pleadings is by no means conclusive. More modern illustrations of the principle on which the Courts act are Scott v. Brown, Doering, McNab and Co., 1892-2 QB 724 and Alexander v. Rayson 1936-1 KB 169. But as Lindley, L. J., said at P. 729, in the former of the cases just cited :"Any rights which he (plaintiff) may have irrespective of his illegal contract will, of course, be recognised and enforced".13. The defendant seeks naturally to rely on the observations in Harry Parker Ltd. v. Monson (1940) 2 KB 590 : (1940) 4 All ER 199 at p. 203 :-"With regard to the second contention, I can see no difference in principle between the case of a principal, seeking to recover money handed to an agent for an illegal purpose and that of one principal seeking to recover money paid by him to another principal in pursuance of an illegal contract. In neither case will the Court assist the parties, whether the claim be to obtain money paid for an unfulfilled or partly fulfilled illegal purpose or by way of damages for breach of an illegal contract".Assuming that the rule should apply between principal and agent it is consistent with the rule as stated by Lord Mansfield in (1775) 1 Cowp 341. This case cannot help the defendant since in that case the amount sought to be recovered was given to the agent for an illegal contract and what a party himself could not do he could not do through the agent and, therefore, the rule applied. See Sykes v. Beadon, (1879) 11 Ch D 170.14. He also relies on the case in Goswami Shri Purushotamji Maharaj v. B. Robb, ILR 8 Bom 398. It appears that the defendant had paid the cess for several years except for the years 1875, 1876 and 1877. It also appears from the judgment that the defendant did not agree to be the agent of the plaintiff but the amount was levied from the supposed agent by way of compulsion and it is with reference to these facts that it was observed that the object of the agreement was of such a nature that, if permitted, it would defeat the provisions of Act XIX of 1844. The amount was being held by the defendants themselves against whom payment was to be enforced. The case, therefore, has no application.15. This Court has in Shivram Govind v. Viswanath Govind, 58 Bom LR 154: ILR (1956) Bom 185, considered the question. It is there said"as the claim against the defendant was not based on the illegality of the contract which had already been acted upon, the defendant was bound to pay the plaintiffs share to him".We are of the view that where the cause of action is not founded either on the illegal contract or on its breach, the partys right to possess his own chattels will be enforced against those who without any right detain the same or convert it to their own use even if it appears either from the pleadings or evidence led at the trial that they have come in possession of the defendants as a result of an illegal transaction.There can be no doubt that there are occasional exceptions to this rule, as suggested in Bowmakers case, 1944-2 All ER 579 at p. 583.16.The question whether or not the rule applies as between principal and agent is a much wider question.In the case of Haji Habib Haji Pir Mohamed v. Bhikamchand Jankilal Shop,in AIR 1954 Nag 306 each of the learned Judges have given strong reasons for the opposing views though they agreed to dismiss the appeal on another ground. We do not decide that question as in this case it is clearly not necessary to do so, since we are of the view on the above reasoning that the rule in question does not apply to the facts of this case. The Court below was clearly in error in holding that the plaintiff could not succeed, on the authority of this case.17. It is also argued that in this case all the members had not made payments in the company and until all the payments were made the plaintiff can have no right to recover the amount. Now, the plaint shows that three of the members had not made the payments. The rules of the company provide that if the amount due from debtor-members were not paid to the defendant No. 1 by the time provided then such members had to be declared defaulters. But it does not appear anywhere in the rule that unless those amounts were collected the creditor members would not be paid; if that is so, it stands to reason to hold that the creditor members would receive their amounts after deduction pro rata, which the company was bound to pay them. There is no substance in this argument either. ### Response: 1 ### Explanation: was limited only to the extent of the collection of the amounts due from each of the members and after deduction of its commission payment to the creditor members, who were entitled to collect the amount from these debtor members. The company had nothing to do with the actual transactions themselves which were entered into by the members directly, with each other nor even with the settlements. Even if therefore, the Transactions were illegal, the agency itself was notit is not necessary that there should be any formal agreement expressly made for the purpose. Rule 24 which we have referred to earlier and the evidence of the chairman, lead to only conclusion that the relationship between the defendant and the plaintiff was that of an agent and a principal and the defendant No. 1 was the agent of the plaintiff for receiving the amounts from other members of the company. There is no substance in the argument that the defendant No. 1 was not proved to be the agent of thethe case of the State of Bombay v. Virkumar Gulabchand, 54 Bom LR 883 : (AIR 1952 SC 335 ), the accused was prosecuted for the breach of the provisions of the Essential Supplies (Temporary Powers) Act, 1946 read with the Spices (Forward Contracts Prohibition) Order, 1944, relating to turmeric. The Additional City Magistrate, First Class at Sangli, held that the accused was guilty and sentenced him to imprisonment and fine. On appeal the Sessions Judge, South Satara at Sangli, relied upon a judgment of this Court and held that the transactions in turmeric were not controlled under the provisions of the Spices (Forward Contracts Prohibition) Order, 1944, and quashed the conviction of the accused. An appeal by the State to the High Court also failed. Thereafter an appeal by the State to the Supreme Court, succeeded, and it was there held that turmeric was an article of food and that the provisions of the Spices (Forward Contracts Prohibition) Order, 1944, in their application to turmeric were saved under the Essential Supplies (Temporary Powers) Act, 1946. It was under the authority of this judgment that forward transactions in turmeric are renderedthat the rule should apply between principal and agent it is consistent with the rule as stated by Lord Mansfield in (1775) 1 Cowp 341. This case cannot help the defendant since in that case the amount sought to be recovered was given to the agent for an illegal contract and what a party himself could not do he could not do through the agent and, therefore, the ruleare of the view that where the cause of action is not founded either on the illegal contract or on its breach, the partys right to possess his own chattels will be enforced against those who without any right detain the same or convert it to their own use even if it appears either from the pleadings or evidence led at the trial that they have come in possession of the defendants as a result of an illegal transaction.There can be no doubt that there are occasional exceptions to this rule, as suggested in Bowmakers case, 1944-2 All ER 579 at p. 583.16.The question whether or not the rule applies as between principal and agent is a much wider question.In the case of Haji Habib Haji Pir Mohamed v. Bhikamchand Jankilal Shop,in AIR 1954 Nag 306 each of the learned Judges have given strong reasons for the opposing views though they agreed to dismiss the appeal on another ground. We do not decide that question as in this case it is clearly not necessary to do so, since we are of the view on the above reasoning that the rule in question does not apply to the facts of this case. The Court below was clearly in error in holding that the plaintiff could not succeed, on the authority of this case.Now, the plaint shows that three of the members had not made the payments. The rules of the company provide that if the amount due from debtor-members were not paid to the defendant No. 1 by the time provided then such members had to be declared defaulters. But it does not appear anywhere in the rule that unless those amounts were collected the creditor members would not be paid; if that is so, it stands to reason to hold that the creditor members would receive their amounts after deduction pro rata, which the company was bound to pay them. There is no substance in this argument either.The plaintiff has claimed a sum of Rs. 804-15-0 as interest at 6 per cent per annum on the amount claimed by the plaintiff. In the plaint he founds this claim as damages. There is no agreement averred, to pay the interest as claimed by the plaintiff. Mr. Albal, however, relies on notices, Exs. 43, 44, 65 and 67, which are telegrams, informing the defendant No. 1 that it would be liable to pay damages if the amount was not paid. This is not enough to sustain a claim for interest. It does not state what the rate of interest would be nor the particulars of the period. Moreover, if any amount were to be given by way of damages the plaintiff has not shown what are the damages that he has suffered. In this view of the matter he is not entitled to receive any amount by way of interest from the defendant No. 1.20. So far as the defendant No. 2 is concerned he was made a clearing agent by the defendant-company. He was therefore, clearly a servant of the company. There can, therefore, be no personal relationship of agent and principal between him and the plaintiff, there being no privity. He had deposited the amount collected by him as clearing agent from the debtor members in the Bank to the credit of the defendant No.Clearly therefore, the plaintiff is not entitled to a decree against the defendant No. 2 at all.

HASMAT ALI Vs. AMINA BIBI & ORS

the High Court under sub-section (4) thereof. The expression appeal has not been defined in the CPC. Blacks Law Dictionary (7th Edn.) defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC74 , it was held thus: 5.……In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial……. 12. Order XLII of the CPC provides for the procedure to be followed while deciding appeals from the appellate decrees. It states that the Rules of Order XLI shall apply, so far as may be, to the appeals from appellate decrees. Words such as so far as may be or insofar as mean as much or to the extent or to such extent. By virtue of Order XLII Rule 1, the provisions of Order XLI are applicable to second appeal as well, though not in their entirety, but to certain extent. Having regard to the mandate contained in Order XLII, the High Court, while hearing a second appeal, has to follow the procedure contained in Order XLI to the extent possible. 13. Section 100 of the CPC provides for a right of second appeal by approaching a High Court and invoking its aid and interposition to redress error(s) of the subordinate court, subject to the limitations provided therein. An appeal under Section 100 of the CPC could be filed both against the concurrent findings or divergent findings of the courts below. Sub-section (1) of Section 100 of the CPC states that a second appeal would be entertained by the High Court only when the High Court is satisfied that the case involves a substantial question of law. Therefore, for entertaining an appeal under Section 100 of the CPC, it is immaterial as to whether it is against concurrent findings or divergent findings of the courts below. It is needless to state that even when any concurrent finding of fact is appealed, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the High Court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to the respondent. 14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion. 15. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 , this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons. It was held thus: 29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5). 30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion. (emphasis supplied)

0[ds]11. It is clear from the aforesaid provisions, particularly, sub-section (5) of Section 100 of the CPC, that an appeal shall be heard only on the questions formulated by the High Court under sub-section (4) thereof. The expression appeal has not been defined in the CPC. Blacks Law Dictionary (7th Edn.) defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC74 , it was held thus:5.……In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial…….14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.15. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 , this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons. It was held thus:29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: the High Court under sub-section (4) thereof. The expression appeal has not been defined in the CPC. Blacks Law Dictionary (7th Edn.) defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC74 , it was held thus: 5.……In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial……. 12. Order XLII of the CPC provides for the procedure to be followed while deciding appeals from the appellate decrees. It states that the Rules of Order XLI shall apply, so far as may be, to the appeals from appellate decrees. Words such as so far as may be or insofar as mean as much or to the extent or to such extent. By virtue of Order XLII Rule 1, the provisions of Order XLI are applicable to second appeal as well, though not in their entirety, but to certain extent. Having regard to the mandate contained in Order XLII, the High Court, while hearing a second appeal, has to follow the procedure contained in Order XLI to the extent possible. 13. Section 100 of the CPC provides for a right of second appeal by approaching a High Court and invoking its aid and interposition to redress error(s) of the subordinate court, subject to the limitations provided therein. An appeal under Section 100 of the CPC could be filed both against the concurrent findings or divergent findings of the courts below. Sub-section (1) of Section 100 of the CPC states that a second appeal would be entertained by the High Court only when the High Court is satisfied that the case involves a substantial question of law. Therefore, for entertaining an appeal under Section 100 of the CPC, it is immaterial as to whether it is against concurrent findings or divergent findings of the courts below. It is needless to state that even when any concurrent finding of fact is appealed, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings, or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against the provision of law or the decision is one which no Judge acting judicially could reasonably have reached. Once the High Court is satisfied, after hearing the appeal, that the appeal involves a substantial question of law, it has to formulate that question and direct issuance of notice to the respondent. 14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion. 15. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 , this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons. It was held thus: 29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5). 30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion. (emphasis supplied) ### Response: 0 ### Explanation: 11. It is clear from the aforesaid provisions, particularly, sub-section (5) of Section 100 of the CPC, that an appeal shall be heard only on the questions formulated by the High Court under sub-section (4) thereof. The expression appeal has not been defined in the CPC. Blacks Law Dictionary (7th Edn.) defines an appeal as a proceeding undertaken to have a decision reconsidered by bringing it to a higher authority. An appeal is judicial examination by a higher court of a decision of a subordinate court to rectify any possible error(s) in the order under appeal. The law provides the remedy of an appeal because of the recognition that those manning the judicial tiers too commit errors. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatreya Bapat 1969 (2) SCC74 , it was held thus:5.……In the well known work of Story on Constitution (of United States), Vol. 2, Article 1761, it is stated that the essential criterion of appellate jurisdiction is that it revises and corrects the proceedings in a cause already instituted and does not create that cause. The appellate jurisdiction may be exercised in a variety of forms and, indeed, in any form in which the Legislature may choose to prescribe. According to Article 1762 the most usual modes of exercising appellate jurisdiction, at least those which are most known in the United States, are by a writ of error, or by an appeal, or by some process of removal of a suit from an inferior tribunal. An appeal is a process of civil law origin and removes a cause, entirely subjecting the fact as well as the law, to a review and a retrial…….14. In case the appeal does not involve any substantial question of law, the High Court has no other option but to dismiss the appeal. However, in order to come to a conclusion that the appeal does not involve any substantial of law, the High Court has to record the reasons. Giving reasons for the conclusion is necessary as it helps the adversely affected party to understand why his submissions were not accepted. The Court must display its conscious application of mind even while dismissing the appeal at the admission stage. In our view, the High Court cannot dismiss the second appeal in limine without assigning any reasons for its conclusion.15. In Surat Singh (Dead) v. Siri Bhagwan and Others (2018) 4 SCC 562 , this Court has laid down that for dismissal of a second appeal without being admitted, the High Court is required to assign reasons. It was held thus:29. The scheme of Section 100 is that once the High Court is satisfied that the appeal involves a substantial question of law, such question shall have to be framed under sub-section (4) of Section 100. It is the framing of the question which empowers the High Court to finally decide the appeal in accordance with the procedure prescribed under sub-section (5). Both the requirements prescribed in sub-sections (4) and (5) are, therefore, mandatory and have to be followed in the manner prescribed therein. Indeed, as mentioned supra, the jurisdiction to decide the second appeal finally arises only after the substantial question of law is framed under sub-section (4). There may be a case and indeed there are cases where even after framing a substantial question of law, the same can be answered against the appellant. It is, however, done only after hearing the respondents under sub-section (5).30. If, however, the High Court is satisfied after hearing the appellant at the time of admission that the appeal does not involve any substantial question of law, then such appeal is liable to be dismissed in limine without any notice to the respondents after recording a finding in the dismissal order that the appeal does not involve any substantial question of law within the meaning of sub-section (4). It is needless to say that for passing such order in limine, the High Court is required to assign the reasons in support of its conclusion.

Mathuralal Vs. Keshar Bai And Another

on the principal amount of Rs. 500/-. 13. In contrast with the above cases reference may be made to the case of Jankidas v. Laxminarain, ILR (1957) 7 Raj 268 = (AIR 1957 Raj 32 ). In this case the plaintiffs who were usufructuary mortgagees of a house gave a lease of it to the defendant mortgagor on rent and put the lessee in possession thereof on the same day. The rent remaining unpaid the plaintiff filed a suit for arrears of rent and ejectment. Ultimately however the High Court of the former State of Marwar granted a decree for arrears of rent but refused the prayer for ejectment. The plaintiff thereupon filed the suit in 1953 claiming arrears of rent amounting to Rs. 126/- for three years preceding the date of the suit. The suit was resisted by the defendant who among other pleas, contended that the suit was barred by Or. II, Rule 2, Civil P. C. There it was said that although the mortgage and the deed of lease represented one transaction that would not mean that no tenancy came into existence by the execution of the deed of lease. It we held that the right which arose to the mortgagees to sue for rent was an in dependent obligation though it might be part of the same transaction in the sense that it was brought into existence by an arrangement made at the same time for a common purpose. 14. In Lalchand v. Nenuram, ILR (l962) 12 Raj 947 = (AIR 1963 Raj 69 ) the defendants had executed a mortgage in favour of the plaintiffs agreeing to pay interest at 8 per cent. p. a. which came to Rs. 27-8-0 per month. The mortgagors had delivered possession to the mortgagees and a registered qubuliat reciting that they were taking on lease the property described at a monthly rental of Rs. 27-8-0. The lower Courts took the view that the mortgage deed was a rent note and part and parcel of the same transaction and the plaintiffs were not entitled to get a decree for ejectment on the basis of the rent note. Rejecting this the Rajasthan High Court observed at p. 952 (of ILR Raj) = (at pp. 71-72 of AIR) :"Whether the two documents represent one transaction or two different transactions, a Court of law should be anxious to give effect to the terms in both the documents instead of being unduly critical about them............. Having secured the possession of the mortgage, the mortgagee is further entitled to lease it out even to the mortgagor. It is in the interest of the mortgagor that the property is leased out to him as he can better look after it. There is nothing objectionable in this nor is there any statutory prohibition for such transactions. Now if the parties do this by executing proper documents, it is the duty of the Court of law to give effect to them". 15. The reasoning of the Rajasthan judgment seems to be logical and commends itself to us.In all such cases the easing back of the property arises because of the mortgage with possession but we find ourselves unable to hold that the mortgagee does not secure to himself any rights under the deed of lease but must proceed on his mortgage in case the amount secured to him under the deed of lease is not paid. If the security is good and considered to be sufficient by the mortgagee there is no reason why he should be driven to file a suit on his mortgage when he can file a suit for realisation of the moneys due under the rent note. The position of the creditor is strengthened whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. If during the continuance of the security the mortgagee wants to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there can be no legal objection to it. Under the provisions of order 34, Rule 4, he cannot deprive the mortgagor of his right to redeem excepting by proceeding an his mortgage. Although we express no final opinion on this point it may be that a mortgagee who secures a decree for payment of arrears of rent cannot put the property to sale for realisation of the amount decreed but there can be no objection to his suing for possession if the rent note entitles him to do so. So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34,Civil P. C. 16.In our opinion the second con tension put forward on behalf of the appellant has no force. The rights of a mortgagee do not merge in his rights under the preliminary decree for sale. As already mentioned, the mortgagee lost his right to recover the money by sale of the mortgaged property; otherwise his security remained intact and the mortgagor continued to have his right to redeem the property. 17. As regards the third point the only statutory provision to which a reference was made was Section 28 of the Limitation Act of 1908 which provided that:"At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished" If the right of the mortgagee arose on the strength of the rent note which continued to be in force notwithstanding that the period for applying for a final decree for sale had expired, there could be no extinction of his right to sue for possession because of Section 28 of the Limitation Act.

0[ds]15. The reasoning of the Rajasthan judgment seems to be logical and commends itself to us.In all such cases the easing back of the property arises because of the mortgage with possession but we find ourselves unable to hold that the mortgagee does not secure to himself any rights under the deed of lease but must proceed on his mortgage in case the amount secured to him under the deed of lease is not paid. If the security is good and considered to be sufficient by the mortgagee there is no reason why he should be driven to file a suit on his mortgage when he can file a suit for realisation of the moneys due under the rent note. The position of the creditor is strengthened whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. If during the continuance of the security the mortgagee wants to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there can be no legal objection to it. Under the provisions of order 34, Rule 4, he cannot deprive the mortgagor of his right to redeem excepting by proceeding an his mortgage. Although we express no final opinion on this point it may be that a mortgagee who secures a decree for payment of arrears of rent cannot put the property to sale for realisation of the amount decreed but there can be no objection to his suing for possession if the rent note entitles him to do so. So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34,Civil P. C16.In our opinion the second con tension put forward on behalf of the appellant has no force. The rights of a mortgagee do not merge in his rights under the preliminary decree for sale. As already mentioned, the mortgagee lost his right to recover the money by sale of the mortgaged property; otherwise his security remained intact and the mortgagor continued to have his right to redeem the property17. As regards the third point the only statutory provision to which a reference was made was Section 28 of the Limitation Act of 1908 which provided that:"At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished"If the right of the mortgagee arose on the strength of the rent note which continued to be in force notwithstanding that the period for applying for a final decree for sale had expired, there could be no extinction of his right to sue for possession because of Section 28 of the Limitation Act.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: on the principal amount of Rs. 500/-. 13. In contrast with the above cases reference may be made to the case of Jankidas v. Laxminarain, ILR (1957) 7 Raj 268 = (AIR 1957 Raj 32 ). In this case the plaintiffs who were usufructuary mortgagees of a house gave a lease of it to the defendant mortgagor on rent and put the lessee in possession thereof on the same day. The rent remaining unpaid the plaintiff filed a suit for arrears of rent and ejectment. Ultimately however the High Court of the former State of Marwar granted a decree for arrears of rent but refused the prayer for ejectment. The plaintiff thereupon filed the suit in 1953 claiming arrears of rent amounting to Rs. 126/- for three years preceding the date of the suit. The suit was resisted by the defendant who among other pleas, contended that the suit was barred by Or. II, Rule 2, Civil P. C. There it was said that although the mortgage and the deed of lease represented one transaction that would not mean that no tenancy came into existence by the execution of the deed of lease. It we held that the right which arose to the mortgagees to sue for rent was an in dependent obligation though it might be part of the same transaction in the sense that it was brought into existence by an arrangement made at the same time for a common purpose. 14. In Lalchand v. Nenuram, ILR (l962) 12 Raj 947 = (AIR 1963 Raj 69 ) the defendants had executed a mortgage in favour of the plaintiffs agreeing to pay interest at 8 per cent. p. a. which came to Rs. 27-8-0 per month. The mortgagors had delivered possession to the mortgagees and a registered qubuliat reciting that they were taking on lease the property described at a monthly rental of Rs. 27-8-0. The lower Courts took the view that the mortgage deed was a rent note and part and parcel of the same transaction and the plaintiffs were not entitled to get a decree for ejectment on the basis of the rent note. Rejecting this the Rajasthan High Court observed at p. 952 (of ILR Raj) = (at pp. 71-72 of AIR) :"Whether the two documents represent one transaction or two different transactions, a Court of law should be anxious to give effect to the terms in both the documents instead of being unduly critical about them............. Having secured the possession of the mortgage, the mortgagee is further entitled to lease it out even to the mortgagor. It is in the interest of the mortgagor that the property is leased out to him as he can better look after it. There is nothing objectionable in this nor is there any statutory prohibition for such transactions. Now if the parties do this by executing proper documents, it is the duty of the Court of law to give effect to them". 15. The reasoning of the Rajasthan judgment seems to be logical and commends itself to us.In all such cases the easing back of the property arises because of the mortgage with possession but we find ourselves unable to hold that the mortgagee does not secure to himself any rights under the deed of lease but must proceed on his mortgage in case the amount secured to him under the deed of lease is not paid. If the security is good and considered to be sufficient by the mortgagee there is no reason why he should be driven to file a suit on his mortgage when he can file a suit for realisation of the moneys due under the rent note. The position of the creditor is strengthened whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. If during the continuance of the security the mortgagee wants to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there can be no legal objection to it. Under the provisions of order 34, Rule 4, he cannot deprive the mortgagor of his right to redeem excepting by proceeding an his mortgage. Although we express no final opinion on this point it may be that a mortgagee who secures a decree for payment of arrears of rent cannot put the property to sale for realisation of the amount decreed but there can be no objection to his suing for possession if the rent note entitles him to do so. So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34,Civil P. C. 16.In our opinion the second con tension put forward on behalf of the appellant has no force. The rights of a mortgagee do not merge in his rights under the preliminary decree for sale. As already mentioned, the mortgagee lost his right to recover the money by sale of the mortgaged property; otherwise his security remained intact and the mortgagor continued to have his right to redeem the property. 17. As regards the third point the only statutory provision to which a reference was made was Section 28 of the Limitation Act of 1908 which provided that:"At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished" If the right of the mortgagee arose on the strength of the rent note which continued to be in force notwithstanding that the period for applying for a final decree for sale had expired, there could be no extinction of his right to sue for possession because of Section 28 of the Limitation Act. ### Response: 0 ### Explanation: 15. The reasoning of the Rajasthan judgment seems to be logical and commends itself to us.In all such cases the easing back of the property arises because of the mortgage with possession but we find ourselves unable to hold that the mortgagee does not secure to himself any rights under the deed of lease but must proceed on his mortgage in case the amount secured to him under the deed of lease is not paid. If the security is good and considered to be sufficient by the mortgagee there is no reason why he should be driven to file a suit on his mortgage when he can file a suit for realisation of the moneys due under the rent note. The position of the creditor is strengthened whereas in this case the interest on the amount of the mortgage is not the same as the rental fixed. If during the continuance of the security the mortgagee wants to sue the mortgagor on the basis of the rent note and take possession himself or to induct some other tenant thereby securing to himself the amount which the mortgagor had covenanted to pay, there can be no legal objection to it. Under the provisions of order 34, Rule 4, he cannot deprive the mortgagor of his right to redeem excepting by proceeding an his mortgage. Although we express no final opinion on this point it may be that a mortgagee who secures a decree for payment of arrears of rent cannot put the property to sale for realisation of the amount decreed but there can be no objection to his suing for possession if the rent note entitles him to do so. So long as the mortgagor had a right to redeem the mortgage he can always pay off the mortgagee and get back possession. This position would continue so long as the property is not sold under a final decree for sale under the provisions of Order 34,Civil P. C16.In our opinion the second con tension put forward on behalf of the appellant has no force. The rights of a mortgagee do not merge in his rights under the preliminary decree for sale. As already mentioned, the mortgagee lost his right to recover the money by sale of the mortgaged property; otherwise his security remained intact and the mortgagor continued to have his right to redeem the property17. As regards the third point the only statutory provision to which a reference was made was Section 28 of the Limitation Act of 1908 which provided that:"At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished"If the right of the mortgagee arose on the strength of the rent note which continued to be in force notwithstanding that the period for applying for a final decree for sale had expired, there could be no extinction of his right to sue for possession because of Section 28 of the Limitation Act.

Soundararaj Vs. Devasahayam and Others

removal of portions of the eaves of the respondents buildings west of ZI and IJ and north of JR.The first appellate courts judgment has not been made available in the records before us. But it is seen from the judgment of the learned Single Judge of the High Court in the second appeal that the learned Subordinate Judge had confirmed the Trial Courts judgment and decree in toto. In the second appeal the boundary fixed by the Trial Court on the Western side was acceptable to both the parties and the dispute was only with regard to the demarcation of the boundary line on the other side of the respondents property. The respondents contention in the second appeal was that the measurement given in Ex. C-3 should be accepted and not those given in Ex. C-2, a contention which did not find favour with either the Trial Court or the first appellate court. The learned Single Judge negatived the respondents contention in that regard observing thus:"In the first place the finding that is impugned is purely factual in character and it does not involve any question of law. On this simple ground, the contention of the appellants deserves to fall and the appeal could well be dismissed. Even otherwise I find on merits, the appellants do not have a case at all. The trial court as well as the lower appellate court have chosen to place reliance on Exhibit C-2 rather on Exhibit C-3 because the measurements given in Exhibit C-2 tally with the measurements given in Exhibit A-3, the survey plan. It is common ground the measurements given in Exhibit C-3 do not tally. The appellants who now assail the correctness of the measurements giving in Exhibit C-2 have not filed any objection to the Commissioners report and the markings contained in Exhibit C-2 before the trial court. Having regard to these factors, it is not open to the appellants now to contend that the Commissioners report and the markings contained in Exhibit C-2 are not correct......." Consequently it follows that there is no justification whatever to interfere with the fin dings recorded concurrently by the courts below. Regarding the eaves the learned Single Judge rejected the respondents contention observing thus:"The counsel for the appellants then stated that it will cause hardship to the appellants if they were to remove a portion of their eaves projecting into the land of the respondents and also to close the doorways opened by them. This is not a relevant factor for consideration in the appeal. Once it is found that the appellants are not entitled to any space of land beyond the line JR, they are not entitled to have their eaves projecting into the respondents land or to open any doorways leading into his land." 3. With these observations the learned Single Judge dismissed the second appeal with no order as to costs. But when the review petition filed by the respondents came up before the learned Single Judge he noticed the error in the measurement of the diagonal line JC in the Government survey plan Ex. A-3 pointed out by the Trial Court and opined that in view of that mistake there should be a fresh consideration of the question whether Ex. C-3 or Ex. C-2 merits acceptance because Ex. C-2 has been found by the first two courts to be more acceptable on the ground that the measurements given therein tally with those given in Ex. A-3. The learned Judge further opined that the parties who had not chosen to produce their title deeds for some reason or other should be called upon to produce them, and that there was substance in the respondents contention that the survey stone at the northern limit of their property bearing survey No. 3154 has been removed and that its position should be fix ed and measurements taken from that point for determining the boundary of the appellants property on the northeast at the point X or Point E. The learned Judge further opined that as regards the projecting eaves the question is of adverse possession for a period of 12 years which is for acquisition of right to moveable property and not the larger period relating to acquisition of a right of easement, overlooking the fact that the parties and all the courts until the review petition was filed understood the case to be only one of easementAfter hearing the learned Counsel of the parties we are satisfied that the learned Single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two courts but also of the opinion that the learned Judge erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance without adopting the more equitable and just method of framing some additional issues, if any, strictly arising on the pleadings and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence. Under the circumstances of the case we allow the appeal in part and confirm the learned Single Judges order only in so far as it relates to setting aside his own judgment in the second appeal but set aside that order in other respects keeping in tact the judgments and decrees of the first two courts. The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court as mentioned above and dispose of the second appeal after receipt of the findings in the light of those findings and judgments of the first two courts already rendered and the objections, if any, which may be filed by the parties to the findings. It is desirable that a fresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings.

1[ds]But when the review petition filed by the respondents came up before the learned Single Judge he noticed the error in the measurement of the diagonal line JC in the Government survey plan Ex. A-3 pointed out by the Trial Court and opined that in view of that mistake there should be a fresh consideration of the question whether Ex. C-3 or Ex. C-2 merits acceptance because Ex. C-2 has been found by the first two courts to be more acceptable on the ground that the measurements given therein tally with those given in Ex. A-3. The learned Judge further opined that the parties who had not chosen to produce their title deeds for some reason or other should be called upon to produce them, and that there was substance in the respondents contention that the survey stone at the northern limit of their property bearing survey No. 3154 has been removed and that its position should be fix ed and measurements taken from that point for determining the boundary of the appellants property on the northeast at the point X or Point E. The learned Judge further opined that as regards the projecting eaves the question is of adverse possession for a period of 12 years which is for acquisition of right to moveable property and not the larger period relating to acquisition of a right of easement, overlooking the fact that the parties and all the courts until the review petition was filed understood the case to be only one of easementAfter hearing the learned Counsel of the parties we are satisfied that the learned Single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two courts but also of the opinion that the learned Judge erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance without adopting the more equitable and just method of framing some additional issues, if any, strictly arising on the pleadings and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence. Under the circumstances of the case we allow the appeal in part and confirm the learned Single Judges order only in so far as it relates to setting aside his own judgment in the second appeal but set aside that order in other respects keeping in tact the judgments and decrees of the first two courts. The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court as mentioned above and dispose of the second appeal after receipt of the findings in the light of those findings and judgments of the first two courts already rendered and the objections, if any, which may be filed by the parties to the findings. It is desirable that a fresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings. The matter will go back to the High Court for fresh disposal in accordance with the law as indicated above. The costs shall abide the result. The parties are directed to appear before the High Court on November 17, 1983.

### 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: removal of portions of the eaves of the respondents buildings west of ZI and IJ and north of JR.The first appellate courts judgment has not been made available in the records before us. But it is seen from the judgment of the learned Single Judge of the High Court in the second appeal that the learned Subordinate Judge had confirmed the Trial Courts judgment and decree in toto. In the second appeal the boundary fixed by the Trial Court on the Western side was acceptable to both the parties and the dispute was only with regard to the demarcation of the boundary line on the other side of the respondents property. The respondents contention in the second appeal was that the measurement given in Ex. C-3 should be accepted and not those given in Ex. C-2, a contention which did not find favour with either the Trial Court or the first appellate court. The learned Single Judge negatived the respondents contention in that regard observing thus:"In the first place the finding that is impugned is purely factual in character and it does not involve any question of law. On this simple ground, the contention of the appellants deserves to fall and the appeal could well be dismissed. Even otherwise I find on merits, the appellants do not have a case at all. The trial court as well as the lower appellate court have chosen to place reliance on Exhibit C-2 rather on Exhibit C-3 because the measurements given in Exhibit C-2 tally with the measurements given in Exhibit A-3, the survey plan. It is common ground the measurements given in Exhibit C-3 do not tally. The appellants who now assail the correctness of the measurements giving in Exhibit C-2 have not filed any objection to the Commissioners report and the markings contained in Exhibit C-2 before the trial court. Having regard to these factors, it is not open to the appellants now to contend that the Commissioners report and the markings contained in Exhibit C-2 are not correct......." Consequently it follows that there is no justification whatever to interfere with the fin dings recorded concurrently by the courts below. Regarding the eaves the learned Single Judge rejected the respondents contention observing thus:"The counsel for the appellants then stated that it will cause hardship to the appellants if they were to remove a portion of their eaves projecting into the land of the respondents and also to close the doorways opened by them. This is not a relevant factor for consideration in the appeal. Once it is found that the appellants are not entitled to any space of land beyond the line JR, they are not entitled to have their eaves projecting into the respondents land or to open any doorways leading into his land." 3. With these observations the learned Single Judge dismissed the second appeal with no order as to costs. But when the review petition filed by the respondents came up before the learned Single Judge he noticed the error in the measurement of the diagonal line JC in the Government survey plan Ex. A-3 pointed out by the Trial Court and opined that in view of that mistake there should be a fresh consideration of the question whether Ex. C-3 or Ex. C-2 merits acceptance because Ex. C-2 has been found by the first two courts to be more acceptable on the ground that the measurements given therein tally with those given in Ex. A-3. The learned Judge further opined that the parties who had not chosen to produce their title deeds for some reason or other should be called upon to produce them, and that there was substance in the respondents contention that the survey stone at the northern limit of their property bearing survey No. 3154 has been removed and that its position should be fix ed and measurements taken from that point for determining the boundary of the appellants property on the northeast at the point X or Point E. The learned Judge further opined that as regards the projecting eaves the question is of adverse possession for a period of 12 years which is for acquisition of right to moveable property and not the larger period relating to acquisition of a right of easement, overlooking the fact that the parties and all the courts until the review petition was filed understood the case to be only one of easementAfter hearing the learned Counsel of the parties we are satisfied that the learned Single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two courts but also of the opinion that the learned Judge erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance without adopting the more equitable and just method of framing some additional issues, if any, strictly arising on the pleadings and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence. Under the circumstances of the case we allow the appeal in part and confirm the learned Single Judges order only in so far as it relates to setting aside his own judgment in the second appeal but set aside that order in other respects keeping in tact the judgments and decrees of the first two courts. The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court as mentioned above and dispose of the second appeal after receipt of the findings in the light of those findings and judgments of the first two courts already rendered and the objections, if any, which may be filed by the parties to the findings. It is desirable that a fresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings. ### Response: 1 ### Explanation: But when the review petition filed by the respondents came up before the learned Single Judge he noticed the error in the measurement of the diagonal line JC in the Government survey plan Ex. A-3 pointed out by the Trial Court and opined that in view of that mistake there should be a fresh consideration of the question whether Ex. C-3 or Ex. C-2 merits acceptance because Ex. C-2 has been found by the first two courts to be more acceptable on the ground that the measurements given therein tally with those given in Ex. A-3. The learned Judge further opined that the parties who had not chosen to produce their title deeds for some reason or other should be called upon to produce them, and that there was substance in the respondents contention that the survey stone at the northern limit of their property bearing survey No. 3154 has been removed and that its position should be fix ed and measurements taken from that point for determining the boundary of the appellants property on the northeast at the point X or Point E. The learned Judge further opined that as regards the projecting eaves the question is of adverse possession for a period of 12 years which is for acquisition of right to moveable property and not the larger period relating to acquisition of a right of easement, overlooking the fact that the parties and all the courts until the review petition was filed understood the case to be only one of easementAfter hearing the learned Counsel of the parties we are satisfied that the learned Single Judge was not fully justified in allowing the review petition and setting aside not only his own judgment which had confirmed the concurring judgments of the first two courts but also of the opinion that the learned Judge erred in setting aside the judgments of the first two courts and remanding the suit to the court of first instance without adopting the more equitable and just method of framing some additional issues, if any, strictly arising on the pleadings and calling for findings on those issues from the Trial Court with liberty to both the parties for adducing evidence. Under the circumstances of the case we allow the appeal in part and confirm the learned Single Judges order only in so far as it relates to setting aside his own judgment in the second appeal but set aside that order in other respects keeping in tact the judgments and decrees of the first two courts. The High Court will frame such additional issues as may legally arise on the pleadings of the parties and call for findings thereon from the Trial Court as mentioned above and dispose of the second appeal after receipt of the findings in the light of those findings and judgments of the first two courts already rendered and the objections, if any, which may be filed by the parties to the findings. It is desirable that a fresh mind is brought to bear on the questions involved in the second appeal after receipt of the findings. The matter will go back to the High Court for fresh disposal in accordance with the law as indicated above. The costs shall abide the result. The parties are directed to appear before the High Court on November 17, 1983.

Mannalal Jain Vs. The State Of Assam And Others

open to the licensing authority to give preference to co-operative societies if it was of the opinion that granting a license to a co-operative society in a particular locality would facilitate the objects of S. 3 of the Act. This is not what the licensing authority did. He repeatedly refused a license to the petitioner, for the only reason and purpose of granting a monopoly to co-operative societies. In other words, the discrimination that has been made by the licensing authority is really in the administration of the law. It has been administered in a discriminatory manner and for the purpose of achieving an ulterior object, namely, the creation of a monopoly in favour of co-operatives, an object which, clearly enough, is not within sub-cl. (e) of Cl. 5 of the Control Order, 1961. We have quoted earlier the various orders which the licensing authority had passed. Those orders clearly show that the licensing authority refused a license to the petitioner not on grounds referred to in sub-cls. (a) and (b) of Cl. 5 but on the ground that the State Government had decided to introduce a right of monopoly procurement of paddy in favour of co-operative societies and therefore, no licenses should be granted to individual dealers other than co-operative societies. Judged against the background of facts to which we have earlier referred in this judgment, the impugned order dated April 11 1961, appears to us to have been based on the same ground, namely, the creation of a monopoly in favour of co-operatives, even though the order refers to existing licenses and the quantity of foodgrains available in the locality. In the course of the hearing before us, the case was adjourned in order to give the parties an opportunity of filing necessary affidavits to show whether individual dealers other than co-operatives have been completely excluded in the whole of the State in the matter of dealing in paddy. The affidavits show that private dealers have been completely excluded. In the affidavit filed on behalf of respondent No. 1, it has been stated in para. 4:"It is not denied that in the year 1961 licenses for the procurement of paddy have been issued to the co-operatives in all the paddy producing districts in Assam."To show however that no monopoly has been created in favour of a particular co-operative society like respondent No. 6, it has been stated that a number of co-operative societies have been or are being granted licenses for the procurement of paddy. In our view these statements in the affidavits filed on behalf of the respondents show only one and one object, viz., creation of a monopoly in favour of co-operatives. To achieve that object the State Government has resorted to an indirect method. Instead of making an order authorising such monopoly (if the State was competent to make such an Order under the Essential Commodities Act, 1955, as to which we express no opinion), it has chosen to adopt the indirect method of issuing instructions to the licensing authorities in all the districts to grant licenses to co-operatives only. The vice of the impugned order lies in the licensing authority accepting such instructions and passing an order in accordance therewith. The duty of the licensing authority was to pass orders in accordance with Cl. 5 of the Control order, 1961. Instead of doing that, it passed an order in accordance with the instructions given to it on behalf of the State Government, instructions which appear to us to be not in consonance with sub-cl. (e) of Cl. 5; because sub-cl. (e) contemplates a preference to co-operative societies in certain circumstances, but not a monopoly in their favour.11. We accordingly hold that the impugned order is bad as violating the rights of the petitioner guaranteed under Arts. 14 and 19 of the Constitution. We must, therefore, quash the order of the licensing authority dated April 11, 1961. We must also quash the order by which the licensing authority granted a license in favour of respondent No. 6.The licensing authority must now consider the application of the petitioner for a license for the year 1961 on merits along with the application of respondent No. 6 and such other applications as may be still pending. In dealing with these applications the licensing authority must have regard to the provisions of Cl. 5 of the Control Order, 1961, and such other provisions of law as have a bearing on them, in the light of the observations made in this judgment. It would be the duty of the licensing authority to ignore all instructions which are not, in consonance with the provisions of law by which it is to be guided. As the year 1961 will come to an end within a few months, the applications should be dealt with as expeditiously as possible so that the right of the petitioner may not be rendered anfractuous by reason of the delay made in disposing of the applications.12. Before we part with this case we must express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting of licenses, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licenses. We doubt the wisdom of issuing executive instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to override the provisions of law. Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law.We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of Cl. 5 of the Control Order, 1961.

1[ds]Obviously enough it is open to the licensing authority to consider all matters relevant to the grant or refusal of a license and the five matters enumerated in the clause merely highlight some of those matters. All that can be said is that sub-cl.(e) enables the licensing authority to prefer a co-operative society in certain circumstances in the matter of granting a license; in other words, there may be cases or localities where the consideration set out in sub-cl. (e) may override other considerations in the matter of granting a license. We do not think that sub-cl. (e) has any more far-reaching effect. Indeed, the learned Attorney-General appearing for the respondents conceded that sub-cl. (e) of Cl. 5 did not have the effect of creating a monopoly in favour of co-operativeprinciples underlying Art. 14 of the Constitution are now well-settled and have been enunciated and explained in a number of decisions of this Court and we consider it unnecessary to refer to those principles it detail. In the case under our consideration no discrimination has been made between one class of license-holders and another class of license-holders as in the case of AIR 1961 Gujarat 38. What has happened in the present case is that licenses have been granted only to co-operative societies and a license has been denied to the petitioner, the licensing authority proceeding on the footing that a monopoly must be created in favour of co-operative societies. A discrimination has indeed taken place as against, the petitioner, a discrimination which is not justified by the provisions of Cl. 5 of the Control Order, 1961.We accordingly hold that the impugned order is bad as violating the rights of the petitioner guaranteed under Arts. 14 and 19 of the Constitution. We must, therefore, quash the order of the licensing authority dated April 11, 1961. We must also quash the order by which the licensing authority granted a license in favour of respondent No. 6.The licensing authority must now consider the application of the petitioner for a license for the year 1961 on merits along with the application of respondent No. 6 and such other applications as may be still pending. In dealing with these applications the licensing authority must have regard to the provisions of Cl. 5 of the Control Order, 1961, and such other provisions of law as have a bearing on them, in the light of the observations made in this judgment. It would be the duty of the licensing authority to ignore all instructions which are not, in consonance with the provisions of law by which it is to be guided. As the year 1961 will come to an end within a few months, the applications should be dealt with as expeditiously as possible so that the right of the petitioner may not be rendered anfractuous by reason of the delay made in disposing of the applications.12. Before we part with this case we must express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting of licenses, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licenses. We doubt the wisdom of issuing executive instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to override the provisions of law. Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law.We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of Cl. 5 of the Control Order, 1961.

### 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: open to the licensing authority to give preference to co-operative societies if it was of the opinion that granting a license to a co-operative society in a particular locality would facilitate the objects of S. 3 of the Act. This is not what the licensing authority did. He repeatedly refused a license to the petitioner, for the only reason and purpose of granting a monopoly to co-operative societies. In other words, the discrimination that has been made by the licensing authority is really in the administration of the law. It has been administered in a discriminatory manner and for the purpose of achieving an ulterior object, namely, the creation of a monopoly in favour of co-operatives, an object which, clearly enough, is not within sub-cl. (e) of Cl. 5 of the Control Order, 1961. We have quoted earlier the various orders which the licensing authority had passed. Those orders clearly show that the licensing authority refused a license to the petitioner not on grounds referred to in sub-cls. (a) and (b) of Cl. 5 but on the ground that the State Government had decided to introduce a right of monopoly procurement of paddy in favour of co-operative societies and therefore, no licenses should be granted to individual dealers other than co-operative societies. Judged against the background of facts to which we have earlier referred in this judgment, the impugned order dated April 11 1961, appears to us to have been based on the same ground, namely, the creation of a monopoly in favour of co-operatives, even though the order refers to existing licenses and the quantity of foodgrains available in the locality. In the course of the hearing before us, the case was adjourned in order to give the parties an opportunity of filing necessary affidavits to show whether individual dealers other than co-operatives have been completely excluded in the whole of the State in the matter of dealing in paddy. The affidavits show that private dealers have been completely excluded. In the affidavit filed on behalf of respondent No. 1, it has been stated in para. 4:"It is not denied that in the year 1961 licenses for the procurement of paddy have been issued to the co-operatives in all the paddy producing districts in Assam."To show however that no monopoly has been created in favour of a particular co-operative society like respondent No. 6, it has been stated that a number of co-operative societies have been or are being granted licenses for the procurement of paddy. In our view these statements in the affidavits filed on behalf of the respondents show only one and one object, viz., creation of a monopoly in favour of co-operatives. To achieve that object the State Government has resorted to an indirect method. Instead of making an order authorising such monopoly (if the State was competent to make such an Order under the Essential Commodities Act, 1955, as to which we express no opinion), it has chosen to adopt the indirect method of issuing instructions to the licensing authorities in all the districts to grant licenses to co-operatives only. The vice of the impugned order lies in the licensing authority accepting such instructions and passing an order in accordance therewith. The duty of the licensing authority was to pass orders in accordance with Cl. 5 of the Control order, 1961. Instead of doing that, it passed an order in accordance with the instructions given to it on behalf of the State Government, instructions which appear to us to be not in consonance with sub-cl. (e) of Cl. 5; because sub-cl. (e) contemplates a preference to co-operative societies in certain circumstances, but not a monopoly in their favour.11. We accordingly hold that the impugned order is bad as violating the rights of the petitioner guaranteed under Arts. 14 and 19 of the Constitution. We must, therefore, quash the order of the licensing authority dated April 11, 1961. We must also quash the order by which the licensing authority granted a license in favour of respondent No. 6.The licensing authority must now consider the application of the petitioner for a license for the year 1961 on merits along with the application of respondent No. 6 and such other applications as may be still pending. In dealing with these applications the licensing authority must have regard to the provisions of Cl. 5 of the Control Order, 1961, and such other provisions of law as have a bearing on them, in the light of the observations made in this judgment. It would be the duty of the licensing authority to ignore all instructions which are not, in consonance with the provisions of law by which it is to be guided. As the year 1961 will come to an end within a few months, the applications should be dealt with as expeditiously as possible so that the right of the petitioner may not be rendered anfractuous by reason of the delay made in disposing of the applications.12. Before we part with this case we must express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting of licenses, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licenses. We doubt the wisdom of issuing executive instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to override the provisions of law. Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law.We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of Cl. 5 of the Control Order, 1961. ### Response: 1 ### Explanation: Obviously enough it is open to the licensing authority to consider all matters relevant to the grant or refusal of a license and the five matters enumerated in the clause merely highlight some of those matters. All that can be said is that sub-cl.(e) enables the licensing authority to prefer a co-operative society in certain circumstances in the matter of granting a license; in other words, there may be cases or localities where the consideration set out in sub-cl. (e) may override other considerations in the matter of granting a license. We do not think that sub-cl. (e) has any more far-reaching effect. Indeed, the learned Attorney-General appearing for the respondents conceded that sub-cl. (e) of Cl. 5 did not have the effect of creating a monopoly in favour of co-operativeprinciples underlying Art. 14 of the Constitution are now well-settled and have been enunciated and explained in a number of decisions of this Court and we consider it unnecessary to refer to those principles it detail. In the case under our consideration no discrimination has been made between one class of license-holders and another class of license-holders as in the case of AIR 1961 Gujarat 38. What has happened in the present case is that licenses have been granted only to co-operative societies and a license has been denied to the petitioner, the licensing authority proceeding on the footing that a monopoly must be created in favour of co-operative societies. A discrimination has indeed taken place as against, the petitioner, a discrimination which is not justified by the provisions of Cl. 5 of the Control Order, 1961.We accordingly hold that the impugned order is bad as violating the rights of the petitioner guaranteed under Arts. 14 and 19 of the Constitution. We must, therefore, quash the order of the licensing authority dated April 11, 1961. We must also quash the order by which the licensing authority granted a license in favour of respondent No. 6.The licensing authority must now consider the application of the petitioner for a license for the year 1961 on merits along with the application of respondent No. 6 and such other applications as may be still pending. In dealing with these applications the licensing authority must have regard to the provisions of Cl. 5 of the Control Order, 1961, and such other provisions of law as have a bearing on them, in the light of the observations made in this judgment. It would be the duty of the licensing authority to ignore all instructions which are not, in consonance with the provisions of law by which it is to be guided. As the year 1961 will come to an end within a few months, the applications should be dealt with as expeditiously as possible so that the right of the petitioner may not be rendered anfractuous by reason of the delay made in disposing of the applications.12. Before we part with this case we must express our deep concern over the manner in which the State Government or its officers have issued instructions in the matter of granting of licenses, instructions which clearly enough are not in consonance with the provisions of law governing the grant of such licenses. We doubt the wisdom of issuing executive instructions in matters which are governed by provisions of law; even if it be considered necessary to issue instructions in such a matter, the instructions cannot be so framed or utilised as to override the provisions of law. Such a method will destroy the very basis of the rule of law and strike at the very root of orderly administration of law.We have thought it necessary to refer to this matter because we feel that the instructions which the State Government or its officers have issued in the matter of granting of licenses for the procurement of paddy are not in consonance with the provisions of Cl. 5 of the Control Order, 1961.

ASSAM INDUSTRIAL DEVELOPMENT CORPORATION LTD Vs. GILLAPUKRI TEA COMPANY LIMITED & ORS. ETC

action required of the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department. 14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellants submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions. 15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken. 16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses. 17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondents contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010. 18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Governments contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors. (2010) 10 SCC 656 in the following terms: 17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases. 18. In State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249. this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in a subsequent decision of this Court in Meher Rusi Dalal v. Union of India (2004) 7 SCC 362 . in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri AIR 1955 SC 298 : (1955) 1 SCR 1311. The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors. (2020) 8 SCC 129 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Courts reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondents land which had already been acquired and has been under the possession of the appellant since 11.06.2010.

1[ds]Needless to say, if the award was not approved on 05.03.2010, but rather on 06.01.2014 as contended by the first respondent, then the 2013 Act will be applicable and the first respondent will be eligible to receive compensation in accordance therewith.13. To determine whether the award had indeed been approved on 05.03.2010, we first have to examine the letter dated 30.01.2010 through which the State Governments approval of the award was sought by the Deputy Commissioner. It is uncontested that vide this letter both the award and the land acquisition estimate were sent to the State Government for its approval. It is pertinent to note that the award was in the format of Form No. 15 which is the statutorily prescribed form for a land acquisition award under the Assam Land Acquisition Manual. This is also true of the land acquisition estimate which was as per the prescribed format of Form No. 5. As such, the only further action required of the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department.14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellants submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions.15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken.16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses.17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondents contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010.18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Governments contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors. (2010) 10 SCC 656 in the following terms:17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases.18. In State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249. this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in a subsequent decision of this Court in Meher Rusi Dalal v. Union of India (2004) 7 SCC 362 . in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri AIR 1955 SC 298 : (1955) 1 SCR 1311. The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors. (2020) 8 SCC 129 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Courts reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondents land which had already been acquired and has been under the possession of the appellant since 11.06.2010.

### 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: action required of the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department. 14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellants submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions. 15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken. 16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses. 17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondents contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010. 18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Governments contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors. (2010) 10 SCC 656 in the following terms: 17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases. 18. In State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249. this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in a subsequent decision of this Court in Meher Rusi Dalal v. Union of India (2004) 7 SCC 362 . in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri AIR 1955 SC 298 : (1955) 1 SCR 1311. The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors. (2020) 8 SCC 129 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Courts reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondents land which had already been acquired and has been under the possession of the appellant since 11.06.2010. ### Response: 1 ### Explanation: the State Government was to approve the award which was already in the statutorily prescribed form. This is precisely what was done vide the letter dated 05.03.2010 issued by the Deputy Secretary to the Government of Assam, Revenue Department.14. This letter dated 05.03.2010 was issued in response to the letter dated 30.01.2010, whereunder approval of the award and the land acquisition estimate was sought. While this letter only expressly mentions the land acquisition estimate and not the award, a combined reading of this letter with the preceding letter dated 30.01.2010 and the subsequent conduct of the parties, including the first respondent, make it evident that the award stood approved by this letter of 05.03.2010. It is noteworthy that copies of both the letters of 30.01.2010 and 05.03.2010 were also addressed to the Industries & Commerce Department of the Government of Assam. Vide the initial letter of 30.01.2010, the said Department was requested to arrange balance funds for making payment to the land owners as per the award. In furtherance of this, vide the letter of 05.03.2010, the said Department was directed to place the balance estimated fund at the disposal of the Deputy Commissioner. We find strength in the appellants submission that if the award which had been sent for approval alongwith the estimate had not been approved by the said letter dated 05.03.2010, this direction for making funds for payment to landowners available to the Deputy Commissioner would not have been called for. This view is fortified by the subsequent conduct of the parties, as particularly evinced by the below mentioned actions.15. It is undisputed that the award amount was indeed made available to the Deputy Commissioner and the awarded sum was duly paid to and received by the first respondent. Not only did the first respondent receive compensation pursuant to the award, it in fact sought enhancement of the same vide its reassessment petition dated 05.05.2010 u/s 18 of the L.A. Act addressed to the Deputy Commissioner. It is also not contested that vide possession certificate dated 21.05.2010, the first respondent handed over possession to the Deputy Commissioner and that on 11.06.2010 possession of the land was ultimately handed over to the appellant by the Deputy Commissioner. What clearly emerges from the above is that after the letter dated 05.03.2010, it was the common belief of the State Government, the appellant as well as the first respondent that the award had been approved and that now actions subsequent thereto viz. payment and receipt of compensation, handover of possession, seeking reassessment of the compensation were needed to be undertaken.16. It is clear from the materials on record that the plastic project for which the subject Land Acquisition was initiated has already been developed on the acquired land including boundary wall, entrance gate, laying of roads, drains and electrical distribution networks, electrical substation, industrial sheds and warehouses.17. In the above scenario, the arguments of the first respondent are untenable. Once the award has been approved, compensation has been paid thereunder and possession of the land has been handed over to the Government, acquisition proceedings could not have been reopened, including by way of re-notification of the already acquired land under Section 4 of the L.A. Act by the Government. Contrary to the first respondents contention, the question of lapsing under Section 24 of the L.A. Act could not have arisen in this case once the award was approved on 05.03.2010.18. So far as the second set of acquisition proceedings are concerned, without addressing the factual veracity of the State Governments contention that the second award was meant to be only in respect of landowners not covered by the original award, we are of the opinion that it would not have been possible for the State Government to initiate acquisition proceedings in respect of already acquired land such as that of the first respondent herein. This position has been affirmed by this Court in D. Hanumanth SA & Ors. v. State of Karnataka and Ors. (2010) 10 SCC 656 in the following terms:17. Even otherwise, if land already stands acquired by the Government and if the same stands vested in the Government there is no question of acquisition of such a land by issuing a second notification for the Government cannot acquire its own land. The same is by now settled by various decision of this Court in a catena of cases.18. In State of Orissa v. Brundaban Sharma, 1995 Supp (3) SCC 249. this Court has held that the Land Acquisition Act does not contemplate or provide for the acquisition of any interest belonging to the Government in the land on acquisition This position was reiterated in a subsequent decision of this Court in Meher Rusi Dalal v. Union of India (2004) 7 SCC 362 . in paras 15 and 16 of the said judgment, this Court has held that the High Court clearly erred in setting aside the order of the Special Land Acquisition Officer declining a reference since it is settled law that in land acquisition proceedings the Government cannot and does not acquire its own interest. While laying down the aforesaid law, this Court has referred to its earlier decision in Collector of Bombay v. Nusserwanji Rattanji Mistri AIR 1955 SC 298 : (1955) 1 SCR 1311. The recent decision of the Constitution Bench of this Court in Indore Development Authority v. Manoharlal and Ors. (2020) 8 SCC 129 has also affirmed that once possession is taken by the State, the land vests absolutely with the State and the title of the landowner ceases. We find no reason to deviate from this settled position of law and thus are unable to agree with the High Courts reliance on the letters dated 21.07.2012 and 06.01.2014 to nullify the original award and allow fresh acquisition proceedings in respect of the first respondents land which had already been acquired and has been under the possession of the appellant since 11.06.2010.

Agha Abdul Jabbar Khan Vs. Commissioner of Income Tax, M.P

1 lakh could be assessed in the hands of the assessee under section 16(3) of the Act ?" The facts of the case, as set out in the statement of the case. submitted by the Tribunal, are as follows2. The assessee, a Muslim, claimed in his assessment proceedings for the assessment year 1961-62 that a particular item of income is not his income but that of his wife. According to him he had transferred for consideration the property from out of which the income in question arose to his wife for a consideration of Rs. 1 lakh. His case was that at the time of his marriage with the transferee, in 1930, a meher of Rs. 10, 000 had been fixed. But, in 1960, he enhanced the meher to rupees one lakh and in February or March of that year he orally transferred the property in question to his wife to discharge his meher. The Income-tax Officer did not accept the claim of the assessee. He came to the conclusion that there is no satisfactory evidence to show that the transfer in question is a genuine one. In his view the transaction was a gift and not a transfer for consideration. The conclusion reached by the Income-tax Officer was affirmed in appeal by the Appellate Assistant Commissioner. But, on a further appeal by the assessee to the Tribunal, the Tribunal came to the conclusion that the transfer was genuine as well as valid. In its view it was open to the assessee to increase the meher fixed at the time of marriage, on a subsequent date, and the evidence on record established the enhancement pleaded by the assessee as well as the transfer put forward. It also came to the conclusion that, ever since the transfer, the wife of the assessee was in possession of the property transferred in her name. Hence, the income of that property cannot be considered as the income of the assesseeAggrieved by that decision, the department sought to have the following questions referred to the High Court of Madhya Pradesh under section 66(1) of the Act :"(1) Whether, having regard to the evidence on record, the Appellate Tribunal was justified in holding that the transfer of property under dispute was not a gift ?(2) Whether there was any material before the Appellate Tribunal to support its finding that the assessee had in fact increased the dower debt from Rs. 10, 000 to Rs. 1, 00, 000 ?(3) Without prejudice to the questions Nos. 1. and 2 above, whether the Appellate Tribunal was justified in holding that the property transferred to the wife in consideration of dower debt did not attract, the provisions of section 16(3)(a)(iii) ?"3. The Tribunal opined that the only question of law that arose for reference is the one mentioned by us earlier. In fact the Tribunals question proceeds on the basis that there was in fact a transfer as alleged by the assessee and that transfer is a valid one. The question on which the Tribunal sought the opinion of the High Court was whether the income of the property so transferred could be assessed to tax under section 16(3) of the Act: The question framed by the Tribunal appears to us to be self-contradictory. If its findings are correct on fact as well as on law, there can be hardly any doubt that the income of the property in question cannot come within the scope of section 16(3)(iii)4. The department does not appear to have made any attempt before the High Court for calling for a supplementary statement of the case. Unfortunately, the High Court instead of answering the question referred to it, reframed the questions. While doing so, it observed: "In the application made under section 66(1) of the Act, the department desired three questions to be referred to this court. However, as already indicated, the Tribunal referred only one question for the opinion of this court. That question, as formulated by the Tribunal, does not pointedly bring out the real issue in controversy but we think it is sufficiently wide to include within its ambit the following two questions :(i) Whether, in the facts and circumstances of the case, there could be, in law, an oral transfer of the property in lieu of rupees one lakh due as dower debt ?(ii) If so, whether the income from the property is liable to be included in the assessable income under section 16(3) of the Act ?"5. In our opinion the High Court had no jurisdiction to raise new questions of law. The questions raised by it do not flow from the question referred to it for its opinion. The High Courts power under the Act is only to give its opinion on the questions of law referred to it by the Tribunal. It cannot take into consideration questions of law which have not been referred to it for its opinion. If the High Court thought that the question referred to it did not bring out the real point in issue it was open to it to call for a fresh statement of the case and direct the Tribunal to submit for its opinion the real question arising for decision. The High Court did not do so. On the other hand the High Court dealt with the reference as if it was dealing with an appeal before it. It failed to realise the limits of its jurisdiction in references under section 66(1)6. It was urged by Mr. Manchanda, the learned counsel for the department, that on the face of it, the transfer pleaded by the assessee is an invalid one and the story put forward by him is unbelievable. We cannot go into those questions in this appeal because this court is subject to the same limitations, while hearing appeals against the orders of the High Courts in references under section 66(1), as the High Courts are. Our advisory jurisdiction is no more extensive than that of the High Courts7.

1[ds]In our opinion the High Court had no jurisdiction to raise new questions of law. The questions raised by it do not flow from the question referred to it for its opinion. The High Courts power under the Act is only to give its opinion on the questions of law referred to it by the Tribunal. It cannot take into consideration questions of law which have not been referred to it for its opinion. If the High Court thought that the question referred to it did not bring out the real point in issue it was open to it to call for a fresh statement of the case and direct the Tribunal to submit for its opinion the real question arising for decision. The High Court did not do so. On the other hand the High Court dealt with the reference as if it was dealing with an appeal before it. It failed to realise the limits of its jurisdiction in references under sectionwas urged by Mr. Manchanda, the learned counsel for the department, that on the face of it, the transfer pleaded by the assessee is an invalid one and the story put forward by him is unbelievable. We cannot go into those questions in this appeal because this court is subject to the same limitations, while hearing appeals against the orders of the High Courts in references under section 66(1), as the High Courts are. Our advisory jurisdiction is no more extensive than that of the High Courts

### 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 lakh could be assessed in the hands of the assessee under section 16(3) of the Act ?" The facts of the case, as set out in the statement of the case. submitted by the Tribunal, are as follows2. The assessee, a Muslim, claimed in his assessment proceedings for the assessment year 1961-62 that a particular item of income is not his income but that of his wife. According to him he had transferred for consideration the property from out of which the income in question arose to his wife for a consideration of Rs. 1 lakh. His case was that at the time of his marriage with the transferee, in 1930, a meher of Rs. 10, 000 had been fixed. But, in 1960, he enhanced the meher to rupees one lakh and in February or March of that year he orally transferred the property in question to his wife to discharge his meher. The Income-tax Officer did not accept the claim of the assessee. He came to the conclusion that there is no satisfactory evidence to show that the transfer in question is a genuine one. In his view the transaction was a gift and not a transfer for consideration. The conclusion reached by the Income-tax Officer was affirmed in appeal by the Appellate Assistant Commissioner. But, on a further appeal by the assessee to the Tribunal, the Tribunal came to the conclusion that the transfer was genuine as well as valid. In its view it was open to the assessee to increase the meher fixed at the time of marriage, on a subsequent date, and the evidence on record established the enhancement pleaded by the assessee as well as the transfer put forward. It also came to the conclusion that, ever since the transfer, the wife of the assessee was in possession of the property transferred in her name. Hence, the income of that property cannot be considered as the income of the assesseeAggrieved by that decision, the department sought to have the following questions referred to the High Court of Madhya Pradesh under section 66(1) of the Act :"(1) Whether, having regard to the evidence on record, the Appellate Tribunal was justified in holding that the transfer of property under dispute was not a gift ?(2) Whether there was any material before the Appellate Tribunal to support its finding that the assessee had in fact increased the dower debt from Rs. 10, 000 to Rs. 1, 00, 000 ?(3) Without prejudice to the questions Nos. 1. and 2 above, whether the Appellate Tribunal was justified in holding that the property transferred to the wife in consideration of dower debt did not attract, the provisions of section 16(3)(a)(iii) ?"3. The Tribunal opined that the only question of law that arose for reference is the one mentioned by us earlier. In fact the Tribunals question proceeds on the basis that there was in fact a transfer as alleged by the assessee and that transfer is a valid one. The question on which the Tribunal sought the opinion of the High Court was whether the income of the property so transferred could be assessed to tax under section 16(3) of the Act: The question framed by the Tribunal appears to us to be self-contradictory. If its findings are correct on fact as well as on law, there can be hardly any doubt that the income of the property in question cannot come within the scope of section 16(3)(iii)4. The department does not appear to have made any attempt before the High Court for calling for a supplementary statement of the case. Unfortunately, the High Court instead of answering the question referred to it, reframed the questions. While doing so, it observed: "In the application made under section 66(1) of the Act, the department desired three questions to be referred to this court. However, as already indicated, the Tribunal referred only one question for the opinion of this court. That question, as formulated by the Tribunal, does not pointedly bring out the real issue in controversy but we think it is sufficiently wide to include within its ambit the following two questions :(i) Whether, in the facts and circumstances of the case, there could be, in law, an oral transfer of the property in lieu of rupees one lakh due as dower debt ?(ii) If so, whether the income from the property is liable to be included in the assessable income under section 16(3) of the Act ?"5. In our opinion the High Court had no jurisdiction to raise new questions of law. The questions raised by it do not flow from the question referred to it for its opinion. The High Courts power under the Act is only to give its opinion on the questions of law referred to it by the Tribunal. It cannot take into consideration questions of law which have not been referred to it for its opinion. If the High Court thought that the question referred to it did not bring out the real point in issue it was open to it to call for a fresh statement of the case and direct the Tribunal to submit for its opinion the real question arising for decision. The High Court did not do so. On the other hand the High Court dealt with the reference as if it was dealing with an appeal before it. It failed to realise the limits of its jurisdiction in references under section 66(1)6. It was urged by Mr. Manchanda, the learned counsel for the department, that on the face of it, the transfer pleaded by the assessee is an invalid one and the story put forward by him is unbelievable. We cannot go into those questions in this appeal because this court is subject to the same limitations, while hearing appeals against the orders of the High Courts in references under section 66(1), as the High Courts are. Our advisory jurisdiction is no more extensive than that of the High Courts7. ### Response: 1 ### Explanation: In our opinion the High Court had no jurisdiction to raise new questions of law. The questions raised by it do not flow from the question referred to it for its opinion. The High Courts power under the Act is only to give its opinion on the questions of law referred to it by the Tribunal. It cannot take into consideration questions of law which have not been referred to it for its opinion. If the High Court thought that the question referred to it did not bring out the real point in issue it was open to it to call for a fresh statement of the case and direct the Tribunal to submit for its opinion the real question arising for decision. The High Court did not do so. On the other hand the High Court dealt with the reference as if it was dealing with an appeal before it. It failed to realise the limits of its jurisdiction in references under sectionwas urged by Mr. Manchanda, the learned counsel for the department, that on the face of it, the transfer pleaded by the assessee is an invalid one and the story put forward by him is unbelievable. We cannot go into those questions in this appeal because this court is subject to the same limitations, while hearing appeals against the orders of the High Courts in references under section 66(1), as the High Courts are. Our advisory jurisdiction is no more extensive than that of the High Courts

Gtc Industries Ltd Vs. Collector Of Central Excise, New Delhi

on which the sealed envelope had been opened pursuant to the High Courts direction and the said adjudication order shown to Counsel for the parties. The contention that the Boards order had been passed beyond the period stipulated in Section 35E was, therefore, negatived. The Tribunal referred to the application made to it by the Commissioner (L & A), New Delhi and accepted his case that he came to know of the Boards order only on or immediately after 7th December, 1995. Accordingly, it held that the Revenues appeal against the said adjudication order was in time. The Tribunal then noted the contention of the assessee that the assessment order had traversed beyond the scope of the grounds contained in the first and second show cause notices. The Tribunal saw no reason why the details regarding extra profit margin submitted in the third show cause notice should not be looked into for the purpose of the first and second show cause notices. It held that ?the allegations contained in the third show cause notice which are relevant and apposite to the period covered by first and second show cause notices can be looked into for the purpose of adjudication.? 9. It is submitted on behalf of the assessee that the Boards order, directing that an appeal should be filed by the Revenue against the said adjudication order, was passed after the expiry of the period specified in that behalf. Secondly, that, in any event, the filing of the Revenues appeal was beyond time. Thirdly, that the Tribunal exceeded its jurisdiction in ordering that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication, on remand, of the first and second show cause notices. 10. Section 35E(1) empowers the Board to call for and examine the record of any proceeding in which the Collector of Central Excise, as an Adjudicating Authority, has passed any decision or order under the Act for the purpose of satisfying itself as to the legality and propriety thereof. It can direct the Collector to apply to the Tribunal for determination of such points as arise out of the decision or order as are specified by the Board. Sub-section (3) of Section 35L requires that no order shall be made under Sub-section (1) after the expiry of one year from the date of the decision or order of the Adjudicating Authority. 11. The said adjudication order was made on 21st August, 1987. The Boards order was made on 29th May, 1992. Prima facie, the Boards order was well beyond the permitted time. The learned Additional Solicitor General, appearing for the Revenue, relied upon the order of the High Court dated 20th June, 1984 which required that the adjudication order should not be communicated to the assessee but should be kept in a sealed envelope. He submitted that it was in consonance with the spirit of the order of the High Court that the said assessment order had not been looked at by the Board under the provisions of Section 35E and that, therefore, the period during which the said assessment order remained in a sealed envelope should not be taken into consideration; in other words, that the said assessment order should be deemed to bear the date on which it was removed from the sealed envelope, i.e. 18th June, 1991, from which date the appeal was in time. 12. The High Courts order dated 20th June, 1984 required the Revenue not to communicate to the assessee the said assessment order. It imposed no restriction on the activities of the Revenue. That this is so is borne out by the terms of the subsequent order of the High Court dated 18th June, 1991 in which the Revenue was directed to supply copies of the said assessment order to the assessees Advocates. The examination of the said assessment order by the Board under Section 35E of the Act was in no way inhibited by any order of the High Court; nor was the passing of an order directed to the assessing Authority consequent upon such examination. We, therefore, hold that the Boards order was passed after the period prescribed in that behalf by Section 35E of the Act. 13. This brings us to the application for clarification/direction made by the Commissioner (L & A), Customs and Central Excise, New Delhi to the Tribunal on 13th December, 1995. It stated, as aforesaid, that the Revenues appeal should be entertained because the Commissioner (L & A), Customs and Central Excise, New Delhi had not been endorsed a copy of the Boards order and that he had been informed thereof only on 7th December, 1995. The Boards order was endorsed to the Principal Collector, Central Excise, New Delhi. The third show cause notice, in respect of which the Revenue filed the appeal before the Tribunal, was issued by an officer in the Central Excise Collectorate at New Delhi. The requirement of Section 35E that the communication of the Boards order should be made was satisfied long before 7th December, 1995. Consequently, the Revenues appeal was filed long after the permissible period of three months. 14. It is to be noted that the High Court, by its order dated 21st July, 1994, permitted the assessee and the Revenue to file appeals against the said adjudication order within two months, but the Revenue did not take advantage thereof and filed its appeal only on 13th December, 1994. 15. The Tribunal found no legal difficulty in holding that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication of the first and second show cause notices. We find great difficulty in upholding the Tribunals view. As we see it, each show cause notice must be limited to the case that is made out therein by the Revenue. It is not within the jurisdiction of the Tribunal to direct otherwise; to do is to go beyond its purely adjudicatory function.

1[ds]10. Section 35E(1) empowers the Board to call for and examine the record of any proceeding in which the Collector of Central Excise, as an Adjudicating Authority, has passed any decision or order under the Act for the purpose of satisfying itself as to the legality and propriety thereof. It can direct the Collector to apply to the Tribunal for determination of such points as arise out of the decision or order as are specified by the Board. Sub-section (3) of Section 35L requires that no order shall be made under Sub-section (1) after the expiry of one year from the date of the decision or order of the Adjudicating AuthorityThe examination of the said assessment order by the Board under Section 35E of the Act was in no way inhibited by any order of the High Court; nor was the passing of an order directed to the assessing Authority consequent upon such examination. We, therefore, hold that the Boards order was passed after the period prescribed in that behalf by Section 35E of the Act14. It is to be noted that the High Court, by its order dated 21st July, 1994, permitted the assessee and the Revenue to file appeals against the said adjudication order within two months, but the Revenue did not take advantage thereof and filed its appeal only on 13th December, 199415. The Tribunal found no legal difficulty in holding that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication of the first and second show cause notices. We find great difficulty in upholding the Tribunals view. As we see it, each show cause notice must be limited to the case that is made out therein by the Revenue. It is not within the jurisdiction of the Tribunal to direct otherwise; to do is to go beyond its purely adjudicatory function

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: on which the sealed envelope had been opened pursuant to the High Courts direction and the said adjudication order shown to Counsel for the parties. The contention that the Boards order had been passed beyond the period stipulated in Section 35E was, therefore, negatived. The Tribunal referred to the application made to it by the Commissioner (L & A), New Delhi and accepted his case that he came to know of the Boards order only on or immediately after 7th December, 1995. Accordingly, it held that the Revenues appeal against the said adjudication order was in time. The Tribunal then noted the contention of the assessee that the assessment order had traversed beyond the scope of the grounds contained in the first and second show cause notices. The Tribunal saw no reason why the details regarding extra profit margin submitted in the third show cause notice should not be looked into for the purpose of the first and second show cause notices. It held that ?the allegations contained in the third show cause notice which are relevant and apposite to the period covered by first and second show cause notices can be looked into for the purpose of adjudication.? 9. It is submitted on behalf of the assessee that the Boards order, directing that an appeal should be filed by the Revenue against the said adjudication order, was passed after the expiry of the period specified in that behalf. Secondly, that, in any event, the filing of the Revenues appeal was beyond time. Thirdly, that the Tribunal exceeded its jurisdiction in ordering that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication, on remand, of the first and second show cause notices. 10. Section 35E(1) empowers the Board to call for and examine the record of any proceeding in which the Collector of Central Excise, as an Adjudicating Authority, has passed any decision or order under the Act for the purpose of satisfying itself as to the legality and propriety thereof. It can direct the Collector to apply to the Tribunal for determination of such points as arise out of the decision or order as are specified by the Board. Sub-section (3) of Section 35L requires that no order shall be made under Sub-section (1) after the expiry of one year from the date of the decision or order of the Adjudicating Authority. 11. The said adjudication order was made on 21st August, 1987. The Boards order was made on 29th May, 1992. Prima facie, the Boards order was well beyond the permitted time. The learned Additional Solicitor General, appearing for the Revenue, relied upon the order of the High Court dated 20th June, 1984 which required that the adjudication order should not be communicated to the assessee but should be kept in a sealed envelope. He submitted that it was in consonance with the spirit of the order of the High Court that the said assessment order had not been looked at by the Board under the provisions of Section 35E and that, therefore, the period during which the said assessment order remained in a sealed envelope should not be taken into consideration; in other words, that the said assessment order should be deemed to bear the date on which it was removed from the sealed envelope, i.e. 18th June, 1991, from which date the appeal was in time. 12. The High Courts order dated 20th June, 1984 required the Revenue not to communicate to the assessee the said assessment order. It imposed no restriction on the activities of the Revenue. That this is so is borne out by the terms of the subsequent order of the High Court dated 18th June, 1991 in which the Revenue was directed to supply copies of the said assessment order to the assessees Advocates. The examination of the said assessment order by the Board under Section 35E of the Act was in no way inhibited by any order of the High Court; nor was the passing of an order directed to the assessing Authority consequent upon such examination. We, therefore, hold that the Boards order was passed after the period prescribed in that behalf by Section 35E of the Act. 13. This brings us to the application for clarification/direction made by the Commissioner (L & A), Customs and Central Excise, New Delhi to the Tribunal on 13th December, 1995. It stated, as aforesaid, that the Revenues appeal should be entertained because the Commissioner (L & A), Customs and Central Excise, New Delhi had not been endorsed a copy of the Boards order and that he had been informed thereof only on 7th December, 1995. The Boards order was endorsed to the Principal Collector, Central Excise, New Delhi. The third show cause notice, in respect of which the Revenue filed the appeal before the Tribunal, was issued by an officer in the Central Excise Collectorate at New Delhi. The requirement of Section 35E that the communication of the Boards order should be made was satisfied long before 7th December, 1995. Consequently, the Revenues appeal was filed long after the permissible period of three months. 14. It is to be noted that the High Court, by its order dated 21st July, 1994, permitted the assessee and the Revenue to file appeals against the said adjudication order within two months, but the Revenue did not take advantage thereof and filed its appeal only on 13th December, 1994. 15. The Tribunal found no legal difficulty in holding that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication of the first and second show cause notices. We find great difficulty in upholding the Tribunals view. As we see it, each show cause notice must be limited to the case that is made out therein by the Revenue. It is not within the jurisdiction of the Tribunal to direct otherwise; to do is to go beyond its purely adjudicatory function. ### Response: 1 ### Explanation: 10. Section 35E(1) empowers the Board to call for and examine the record of any proceeding in which the Collector of Central Excise, as an Adjudicating Authority, has passed any decision or order under the Act for the purpose of satisfying itself as to the legality and propriety thereof. It can direct the Collector to apply to the Tribunal for determination of such points as arise out of the decision or order as are specified by the Board. Sub-section (3) of Section 35L requires that no order shall be made under Sub-section (1) after the expiry of one year from the date of the decision or order of the Adjudicating AuthorityThe examination of the said assessment order by the Board under Section 35E of the Act was in no way inhibited by any order of the High Court; nor was the passing of an order directed to the assessing Authority consequent upon such examination. We, therefore, hold that the Boards order was passed after the period prescribed in that behalf by Section 35E of the Act14. It is to be noted that the High Court, by its order dated 21st July, 1994, permitted the assessee and the Revenue to file appeals against the said adjudication order within two months, but the Revenue did not take advantage thereof and filed its appeal only on 13th December, 199415. The Tribunal found no legal difficulty in holding that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication of the first and second show cause notices. We find great difficulty in upholding the Tribunals view. As we see it, each show cause notice must be limited to the case that is made out therein by the Revenue. It is not within the jurisdiction of the Tribunal to direct otherwise; to do is to go beyond its purely adjudicatory function

Ramdhandas & Another Vs. State of Punjab

notification No. 6567. S-Lab. 58/1737-RA. Dated June 1, 1958.)3. all booking offices of the Transport Services.(vide Punjab Government notification No. 6147/5815-C-Lab-58/1741-RA, dated June 1, 1958.)"2. The second category of cases are those covered by the second and third provisos to S. 9. Action has been taken under the third proviso to S. 9, by a notification which was issued at the same time as when the Act was brought into force which runs in the following terms:"The following categories of establishments in the State of Punjab shall not open earlier than eight o clock in the morning or close later than six o clock in the evening during the period from 1st May to thirty-first August every year:-1. establishments dealing in timber, manufacture of furniture, tents, supply of furniture or tents on hire, cycles or their repairs, or painting or dyeing;2. establishments, other than tailoring establishments, which include workshops or other establishments where articles are produced, adapted or manufactured, with a view to their use, transport or sale; and3. establishments dealing in agricultural produce brought for sale by producers.(vide Notification No. 6567. S-Lab-58/- 1735-RA, dated June 1, 1958)."3. Those outside S. 4 and which are not covered by notifications under the provisos to S. 9 have, of course, to adjust their business in accordance with the requirements of the Act. It is in the context of these exceptions and the elasticity for which provision is made to meet the imperative requirements of particular types of business, that the constitutional objection has to be considered.8. The constitutional objection is that, the impugned provisions impose unreasonable restrictions on the fundamental right of the petitioners "to carry on their trade or business". The regulation of contracts of labour so as to ameliorate their conditions of work is in reality a problem of human relationship and social control for the advancement of the community. The public and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature of the provision in Art. 1, S. 10 (1), of the U. S. Constitution against "impairment of the obligation of contracts". The only test of constitutional validity, therefore, is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better conditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure-factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask-are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48-hour week, nor the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the concept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its content are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time.9. Besides, this point regarding restrictions of this nature being unreasonable is concluded against the petitioners by the decision of this Court in Manohar Lal v. The State of Punjab, Cri. Appeal No. 173 of 1956: (Since reported in AIR 1961 SC 418 ) judgment on which was delivered on November 11, 1960. The provision there impugned was S. 7 of the Punjab Trade Employees Act, 1940, (which, as stated earlier, had been repealed and re-enacted with modifications by the Act) which directed that the shops and establishments to which it applied should remain closed on one day in the week (corresponding to S. 10 of the act of 1958). The appellant before this Court was a small trader who did not employ any person under him but who, like the second petitioner before us, himself with the members of his family attended to all the requirements of his shop. Basing himself on this feature he challenged the validity of the provision which restricted his right to carry on his business in such manner as he chose on all the seven days in the week. In repelling these objections this Court said :"The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized......The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public...... A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19(6) .....Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable."10. These observations in our opinion, clearly apply and suffice to support the validity of the related provisions here impugned.11.

0[ds]we may point out that the provisions of the Act contemplate that establishments might fall under three categories: (1) where it is necessary in the public interest, and having regard to the service which they render to the community, that the normal hours of working should not be subject to the restrictions imposed by Ss. 9 or 10, (2) those in which there is no need for complete freedom from these restrictions, but in which an adjustment merely as regards the hours set out in S. 9 is sufficient, (3) those in which neither the requirements of the trade nor, of course, the interest of the general public would suffer if the establishment adjusted its operations its conformity with thepublic and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature of the provision in Art. 1, S. 10 (1), of the U. S. Constitution against "impairment of the obligation of contracts". The only test of constitutional validity, therefore, is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better conditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure-factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask-are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48-hour week, nor the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the concept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its content are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: notification No. 6567. S-Lab. 58/1737-RA. Dated June 1, 1958.)3. all booking offices of the Transport Services.(vide Punjab Government notification No. 6147/5815-C-Lab-58/1741-RA, dated June 1, 1958.)"2. The second category of cases are those covered by the second and third provisos to S. 9. Action has been taken under the third proviso to S. 9, by a notification which was issued at the same time as when the Act was brought into force which runs in the following terms:"The following categories of establishments in the State of Punjab shall not open earlier than eight o clock in the morning or close later than six o clock in the evening during the period from 1st May to thirty-first August every year:-1. establishments dealing in timber, manufacture of furniture, tents, supply of furniture or tents on hire, cycles or their repairs, or painting or dyeing;2. establishments, other than tailoring establishments, which include workshops or other establishments where articles are produced, adapted or manufactured, with a view to their use, transport or sale; and3. establishments dealing in agricultural produce brought for sale by producers.(vide Notification No. 6567. S-Lab-58/- 1735-RA, dated June 1, 1958)."3. Those outside S. 4 and which are not covered by notifications under the provisos to S. 9 have, of course, to adjust their business in accordance with the requirements of the Act. It is in the context of these exceptions and the elasticity for which provision is made to meet the imperative requirements of particular types of business, that the constitutional objection has to be considered.8. The constitutional objection is that, the impugned provisions impose unreasonable restrictions on the fundamental right of the petitioners "to carry on their trade or business". The regulation of contracts of labour so as to ameliorate their conditions of work is in reality a problem of human relationship and social control for the advancement of the community. The public and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature of the provision in Art. 1, S. 10 (1), of the U. S. Constitution against "impairment of the obligation of contracts". The only test of constitutional validity, therefore, is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better conditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure-factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask-are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48-hour week, nor the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the concept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its content are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time.9. Besides, this point regarding restrictions of this nature being unreasonable is concluded against the petitioners by the decision of this Court in Manohar Lal v. The State of Punjab, Cri. Appeal No. 173 of 1956: (Since reported in AIR 1961 SC 418 ) judgment on which was delivered on November 11, 1960. The provision there impugned was S. 7 of the Punjab Trade Employees Act, 1940, (which, as stated earlier, had been repealed and re-enacted with modifications by the Act) which directed that the shops and establishments to which it applied should remain closed on one day in the week (corresponding to S. 10 of the act of 1958). The appellant before this Court was a small trader who did not employ any person under him but who, like the second petitioner before us, himself with the members of his family attended to all the requirements of his shop. Basing himself on this feature he challenged the validity of the provision which restricted his right to carry on his business in such manner as he chose on all the seven days in the week. In repelling these objections this Court said :"The ratio of the legislation is social interest in the health of the worker who forms an essential part of the community and in whose welfare, therefore, the community is vitally interested. It is in the light of this purpose that the provisions of the Act have to be scrutinized......The learned Judges of the High Court have rested their decision on this part of the case on the reasoning that the terms of the impugned section might be justified on the ground that it is designed in the interest of the owner of the shop or establishment himself and that his health and welfare is a matter of interest not only to himself but to the general public...... A restriction imposed with a view to secure this purpose would, in our opinion, be clearly saved by Art. 19(6) .....Apart from this, the constitutionality of the impugned provision might be sustained on another ground also, viz., with a view to avoid evasion of provisions specifically designed for the protection of workmen employed. It may be pointed out that acts innocent in themselves may be prohibited and the restrictions in that regard would be reasonable, if the same were necessary to secure the efficient enforcement of valid provisions. The inclusion of a reasonable margin to ensure effective enforcement will not stamp a law otherwise valid as within legislative competence with the character of unconstitutionality as being unreasonable."10. These observations in our opinion, clearly apply and suffice to support the validity of the related provisions here impugned.11. ### Response: 0 ### Explanation: we may point out that the provisions of the Act contemplate that establishments might fall under three categories: (1) where it is necessary in the public interest, and having regard to the service which they render to the community, that the normal hours of working should not be subject to the restrictions imposed by Ss. 9 or 10, (2) those in which there is no need for complete freedom from these restrictions, but in which an adjustment merely as regards the hours set out in S. 9 is sufficient, (3) those in which neither the requirements of the trade nor, of course, the interest of the general public would suffer if the establishment adjusted its operations its conformity with thepublic and social interest in the health and efficiency of the worker is, at the present day, beyond challenge. Our Constitution does not protect or guarantee any fundamental right in the nature of the provision in Art. 1, S. 10 (1), of the U. S. Constitution against "impairment of the obligation of contracts". The only test of constitutional validity, therefore, is whether the provision in the impugned law, which is enacted to avoid physical overstrain of the worker, and so as to afford him better conditions of work, and more regulated hours, thus ensuring to him a reasonable amount of leisure-factors which would render the restrictions in the interest of the general public, is unreasonable from the point of view of the employer. For answering this question it would be necessary to ask-are the restrictions necessary, or do they go beyond what is reasonably needed to protect the worker? Judged by this test, neither the 48-hour week, nor the specification of the opening and closing hours can be said to have gone beyond what by modern standards are necessary for ensuring the health and efficiency of the employee. It might also be added that the concept of what is necessary to secure the welfare of labour, or indeed of the elements which determine its content are neither of them fixed or static, but are dynamic, being merely the manifestation or index of the social conscience as it grows and develops from time to time.

The Commissioner Of Income-Tax, West Bengal I,Calcutta Vs. M/S. Vegetables Products Ltd

(a) (i) is accepted as correct, the result would be that the advance tax paid or taxes deducted at the source cannot be taken into consideration in determining the penalty payable. If that be true, the Counsel urged that even if the assessee had paid more tax than he need have paid, but had not submitted his return within the time fixed, he would be liable to pay penalty on the entire amount assessed. According to them the law cannot be presumed to be so harsh as that.6. There is no doubt that the acceptance of one or the other interpretation sought to be placed on Section 271 (1) (a) (i) by the parties would lead to some inconvenient result, but the duty of the Court is to read the section, understand its language and give effect to the same. If the language is plain, the fact that the consequence of giving effect to it may lead to some absurd result is not a factor to be taken into account in interpreting a provision. It is for the legislature to step in and removel the absurdity. On the other hand, if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. This is a well-accepted rule of construction recognised by this Court in several of its decisions. Hence all that we have to see is what is the true effect of the language employed in S. 271 (1) (a) (i). If we find that language to be ambiguous or capable of more meanings than one, then we have to adopt that interpretation which favours the assessee, more particularly so because the provision relates to imposition of penalty.7. Let us now read Section 271 (1) (a) (i). The section to the extent material for our present purpose reads :"If the Income-tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person -(a) has without reasonable cause failed to furnish the return of total income which he was required to furnish..........by notice given under sub-section (2) of Section 139..............or has without reasonable cause failed to furnish it within the time allowed and in the manner required........by such notice ..........he may direct that such person shall pay by way of penalty,-(i) in the cases referred to in clause (a),in addition to the amount of the tax, if any, payable by hima sum equal to two per cent,of the taxfor every month during which the default continued, but not exceeding in the aggregate fifty per cent, of the tax."(emphasis supplied)8. Section 271 (1) (a) (i) stipulates that the Income-tax Officer may direct that the assessee shall pay by way of penalty, in cases similar to the one that we are considering "in addition to the amount of the tax, if any, payable by him a sum equal to 2 per cent of the tax for every month during which the default continued but not exceeding in the aggregate 50 per cent of the tax".9. We must first determine what is the meaning of the expression "the amount of the tax, if any, payable by him" in S. 271 (1) (a) (i). Does it mean the amount of tax assessed under S. 143 or the amount of tax payable under S. 156? The word "assessed is a term often used in taxation laws. It is used in several provisions in the Act. Quantification of the tax payable is always referred to in the Act as a tax "assessed". A tax payable is not the same thing as tax assessed. The tax payable is that amount for which a demand notice is issued under S. 156. In determining the tax payable, the tax already paid has to be deducted. Hence there can be no doubt that the expression "the amount of the tax, if any, payable by him" referred to in the first part of S. 271 (1) (a) (i) refers to the tax payable under a demand notice. We next come to the question what is the meaning to be attached to the words "the tax" found in the latter part of the provision. It may be noted that the expression used is not "tax" but "the tax". The definite article "the" must have reference to something said earlier. It can only refer to the tax, if any, payable by the assessee mentioned in the first part of Section 271 (1) (a) (i). It is true the expression "tax" is defined in S. 2 (43) thus :" "tax" in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year means income-tax chargeable under the provisions of this Act, and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date."10. But the difficulty in this case is, as mentioned earlier the expression used is not "tax" but "the tax". That expression can be reasonably understood as referring to the expression earlier used in the provision namely "the amount of the tax, if any payable" by the assessee. At any rate, the provision in question is capable of more than one reasonable interpretation. Two High Courts namely Calcutta and Mysore have taken the view that the expression "the tax" in Section 271 (1) (a) (i) refers to "the tax, if any, payable" (by the assessee) mentioned in the earlier part of the section. It is true that Lahore and Delhi High Courts have taken a different view. But the view taken by the Calcutta and Mysore High Courts cannot be said to be untenable view. Hence, particularly in view of the fact that we are interpreting, not merely a taxing provision but a penalty provision as well, the interpretation placed by the Calcutta and Mysore High Courts cannot be rejected. Further as seen earlier, the consequences of accepting the interpretation placed by the Revenue may lead to harsh results.

0[ds]The word "assessed is a term often used in taxation laws. It is used in several provisions in the Act. Quantification of the tax payable is always referred to in the Act as a tax "assessed". A tax payable is not the same thing as tax assessed. The tax payable is that amount for which a demand notice is issued under S. 156. In determining the tax payable, the tax already paid has to be deducted. Hence there can be no doubt that the expression "the amount of the tax, if any, payable by him" referred to in the first part of S. 271 (1) (a) (i) refers to the tax payable under a demandmay be noted that the expression used is not "tax" but "the tax". The definite article "the" must have reference to something said earlier. It can only refer to the tax, if any, payable by the assessee mentioned in the first part of Section 271 (1) (a) (i). It is true the expression "tax" is defined in S. 2 (43) thus"tax" in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year means income-tax chargeable under the provisions of this Act, and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date.But the difficulty in this case is, as mentioned earlier the expression used is not "tax" but "the tax". That expression can be reasonably understood as referring to the expression earlier used in the provision namely "the amount of the tax, if any payable" by the assessee. At any rate, the provision in question is capable of more than one reasonable interpretation. Two High Courts namely Calcutta and Mysore have taken the view that the expression "the tax" in Section 271 (1) (a) (i) refers to "the tax, if any, payable" (by the assessee) mentioned in the earlier part of the section. It is true that Lahore and Delhi High Courts have taken a different view. But the view taken by the Calcutta and Mysore High Courts cannot be said to be untenable view. Hence, particularly in view of the fact that we are interpreting, not merely a taxing provision but a penalty provision as well, the interpretation placed by the Calcutta and Mysore High Courts cannot be rejected. Further as seen earlier, the consequences of accepting the interpretation placed by the Revenue may lead to harsh results.

### 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: (a) (i) is accepted as correct, the result would be that the advance tax paid or taxes deducted at the source cannot be taken into consideration in determining the penalty payable. If that be true, the Counsel urged that even if the assessee had paid more tax than he need have paid, but had not submitted his return within the time fixed, he would be liable to pay penalty on the entire amount assessed. According to them the law cannot be presumed to be so harsh as that.6. There is no doubt that the acceptance of one or the other interpretation sought to be placed on Section 271 (1) (a) (i) by the parties would lead to some inconvenient result, but the duty of the Court is to read the section, understand its language and give effect to the same. If the language is plain, the fact that the consequence of giving effect to it may lead to some absurd result is not a factor to be taken into account in interpreting a provision. It is for the legislature to step in and removel the absurdity. On the other hand, if two reasonable constructions of a taxing provision are possible that construction which favours the assessee must be adopted. This is a well-accepted rule of construction recognised by this Court in several of its decisions. Hence all that we have to see is what is the true effect of the language employed in S. 271 (1) (a) (i). If we find that language to be ambiguous or capable of more meanings than one, then we have to adopt that interpretation which favours the assessee, more particularly so because the provision relates to imposition of penalty.7. Let us now read Section 271 (1) (a) (i). The section to the extent material for our present purpose reads :"If the Income-tax Officer or the Appellate Assistant Commissioner in the course of any proceedings under this Act, is satisfied that any person -(a) has without reasonable cause failed to furnish the return of total income which he was required to furnish..........by notice given under sub-section (2) of Section 139..............or has without reasonable cause failed to furnish it within the time allowed and in the manner required........by such notice ..........he may direct that such person shall pay by way of penalty,-(i) in the cases referred to in clause (a),in addition to the amount of the tax, if any, payable by hima sum equal to two per cent,of the taxfor every month during which the default continued, but not exceeding in the aggregate fifty per cent, of the tax."(emphasis supplied)8. Section 271 (1) (a) (i) stipulates that the Income-tax Officer may direct that the assessee shall pay by way of penalty, in cases similar to the one that we are considering "in addition to the amount of the tax, if any, payable by him a sum equal to 2 per cent of the tax for every month during which the default continued but not exceeding in the aggregate 50 per cent of the tax".9. We must first determine what is the meaning of the expression "the amount of the tax, if any, payable by him" in S. 271 (1) (a) (i). Does it mean the amount of tax assessed under S. 143 or the amount of tax payable under S. 156? The word "assessed is a term often used in taxation laws. It is used in several provisions in the Act. Quantification of the tax payable is always referred to in the Act as a tax "assessed". A tax payable is not the same thing as tax assessed. The tax payable is that amount for which a demand notice is issued under S. 156. In determining the tax payable, the tax already paid has to be deducted. Hence there can be no doubt that the expression "the amount of the tax, if any, payable by him" referred to in the first part of S. 271 (1) (a) (i) refers to the tax payable under a demand notice. We next come to the question what is the meaning to be attached to the words "the tax" found in the latter part of the provision. It may be noted that the expression used is not "tax" but "the tax". The definite article "the" must have reference to something said earlier. It can only refer to the tax, if any, payable by the assessee mentioned in the first part of Section 271 (1) (a) (i). It is true the expression "tax" is defined in S. 2 (43) thus :" "tax" in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year means income-tax chargeable under the provisions of this Act, and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date."10. But the difficulty in this case is, as mentioned earlier the expression used is not "tax" but "the tax". That expression can be reasonably understood as referring to the expression earlier used in the provision namely "the amount of the tax, if any payable" by the assessee. At any rate, the provision in question is capable of more than one reasonable interpretation. Two High Courts namely Calcutta and Mysore have taken the view that the expression "the tax" in Section 271 (1) (a) (i) refers to "the tax, if any, payable" (by the assessee) mentioned in the earlier part of the section. It is true that Lahore and Delhi High Courts have taken a different view. But the view taken by the Calcutta and Mysore High Courts cannot be said to be untenable view. Hence, particularly in view of the fact that we are interpreting, not merely a taxing provision but a penalty provision as well, the interpretation placed by the Calcutta and Mysore High Courts cannot be rejected. Further as seen earlier, the consequences of accepting the interpretation placed by the Revenue may lead to harsh results. ### Response: 0 ### Explanation: The word "assessed is a term often used in taxation laws. It is used in several provisions in the Act. Quantification of the tax payable is always referred to in the Act as a tax "assessed". A tax payable is not the same thing as tax assessed. The tax payable is that amount for which a demand notice is issued under S. 156. In determining the tax payable, the tax already paid has to be deducted. Hence there can be no doubt that the expression "the amount of the tax, if any, payable by him" referred to in the first part of S. 271 (1) (a) (i) refers to the tax payable under a demandmay be noted that the expression used is not "tax" but "the tax". The definite article "the" must have reference to something said earlier. It can only refer to the tax, if any, payable by the assessee mentioned in the first part of Section 271 (1) (a) (i). It is true the expression "tax" is defined in S. 2 (43) thus"tax" in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year means income-tax chargeable under the provisions of this Act, and in relation to any other assessment year income-tax and super-tax chargeable under the provisions of this Act prior to the aforesaid date.But the difficulty in this case is, as mentioned earlier the expression used is not "tax" but "the tax". That expression can be reasonably understood as referring to the expression earlier used in the provision namely "the amount of the tax, if any payable" by the assessee. At any rate, the provision in question is capable of more than one reasonable interpretation. Two High Courts namely Calcutta and Mysore have taken the view that the expression "the tax" in Section 271 (1) (a) (i) refers to "the tax, if any, payable" (by the assessee) mentioned in the earlier part of the section. It is true that Lahore and Delhi High Courts have taken a different view. But the view taken by the Calcutta and Mysore High Courts cannot be said to be untenable view. Hence, particularly in view of the fact that we are interpreting, not merely a taxing provision but a penalty provision as well, the interpretation placed by the Calcutta and Mysore High Courts cannot be rejected. Further as seen earlier, the consequences of accepting the interpretation placed by the Revenue may lead to harsh results.

RAJENDRA SINGH AND OTHERS Vs. NATIONAL INSURANCE COMPANY LIMITED AND OTHERS

NAVIN SINHA, J. 1. Leave granted. 2. The High Court by the impugned order dismissed two appeals arising from separate orders of the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) deciding two accident compensation claims. The appellants had claimed further enhancement of compensation. 3. The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religious congregation. The horse cart was hit by a bus resulting in their death. The Tribunal assessed the notional income of the first deceased at Rs.36,000/- per annum and after 1/4 th deduction towards personal expenses, with a multiplier of 17 awarded a compensation of Rs.4,59,000/-. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs.1,00,000/- was then added as loss of consortium and Rs.25,000/- towards funeral expenses leading to an award total of Rs.3,54,500/- with interest at the rate of 7.5%. 4. In so far as the minor child is concerned, the notional income was assessed at Rs.36,000/- per annum, applying a 50% deduction towards personal expenses with a multiplier of 15, the compensation was awarded at Rs.2,70,000/- out of which 50% was again deducted towards contributory negligence. A sum of Rs.25,000/- was added towards funeral expenses, leading to an award total of Rs.1,60,000/- with interest at the rate of 7.5%. 5. The appeal for enhancement of compensation was dismissed by the High Court and thus the present appeals. 6. Learned counsel for the appellant submits that the notional income of the first deceased has been wrongly fixed ignoring her income of Rs.5000/- per month from dairy farm business. Nothing has been awarded towards future prospects. With regard to the second deceased it was submitted that she was studying in a school and her notional income should have been assessed at Rs.54,000/- per year. Nothing has been awarded towards loss of estate, loss of consortium and funeral expenses. The common submission in both the appeals was that deduction on ground of contributory negligence was unsustainable and unjustified. Reliance was placed on Kajal vs. Jagdish Chand & Ors., AIR 2020 SC 776 , to contend that the income of the deceased child should have been assessed at Rs.4846/- per month. 7. Learned counsel for the respondents submitted that the present appeals do not merit interference. There is no evidence with regard to the claimed business income of the first deceased. The finding of contributory negligence merits no interference. In absence of any proof of income, the question of future prospects simply does not arise. Similarly, the second deceased was a minor school going child who also had no income and therefore the question for grant of future prospects with regard to her also does not arise. 8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation.

0[ds]8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation.9. The first deceased was a housewife aged about 30 years. In Lata Wadhwa vs. State of Bihar, (2001) 8 SCC 197 , this court had observed that considering the multifarious services rendered by housewives, even on a modest estimation, the income of a housewife between the age group of 34 to 59 years who were active in life should be assessed at Rs 36,000 per annum. A distinction was also drawn with regard to elderly ladies in the age group of 62 to 72 who would be more adept in discharge of housewife duties by age and experience, and the value of services rendered by them has been taken at Rs 20,000 per annum.12. The second deceased was a school going child aged about 12 years. She had a whole future to look forward in life with all normal human aspirations. She died prematurely due to the accident at a very tender age for no fault of hers even before she could start to understand the beauty and joys of life with all its ups and downs. The loss of a human life untimely at childhood can never be measured in terms of loss of earning or monetary loss alone. The emotional attachments involved to the loss of the child can have a devastating effect on the family which needs to be visualised and understood. Grant of non-pecuniary damages for the wrong done by awarding compensation for loss of expectation in life is therefore called for. Undoubtedly the injury inflicted by deprivation of the life of the child is very difficult to quantify. The future also abounds with uncertainties. Therefore, the courts have used the expression just compensation to get over the difficulties in quantifying the figure to ensure consistency and uniformity in awarding compensation. This determination shall not depend upon financial position of the victim or the claimant but rather on the capacity and ability of the deceased to provide happiness in life to the claimants had she remained alive. The compensation is for loss of prospective happiness which the claimant would have enjoyed had the child not died at the tender age. Since the child was studying in a school and opportunities in life would undoubtedly abound for her as the years would have rolled by, compensation must also be granted with regard to future prospects. It can safely be presumed that education would have only led to her better growth and maturity with better prospects and a bright future for which compensation needs to be granted under non-pecuniary damages. (See R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1 ).13. The income of the minor girl child is incapable of precise fixation. We find no reason to interfere with the assessed notional income of the second deceased. In R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1 , considering grant of future prospects for the deceased child aged about 10 years it was observed as follows:32. A forceful submission has been made by the learned counsel appearing for the appellant claimants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the courts below.33. On perusal of the evidence on record, we find merit in such submission that the courts below have overlooked that aspect of the matter while granting compensation. It is well-settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the courts to consider the said aspect while awarding compensation…15. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs.2,95,000/- by granting any further compensation under the separate head of future prospects. It may only be noticed that R.K. Malik (supra) does not consider Satender (supra) on the grant of future prospects as far as children are concerned.16. Kajal (supra) is distinguishable on its own facts. The victim of the accident was a nine month old child, whose disability certificate reflected that she would grow up to be an adult lying on the bed with all the physical and biological attributes of a woman on attaining adulthood, but her mind would remain of a nine month old child because of the accident. The case is completely distinguishable on its own facts and did not arise out of a death claim, leading to award of compensation towards expenses for frequent treatment, hospitalization, transportation, loss of future earnings, attendant charges, pain, suffering, loss of amenities, loss of marriage prospects and future medical treatment etc.

### 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: NAVIN SINHA, J. 1. Leave granted. 2. The High Court by the impugned order dismissed two appeals arising from separate orders of the Motor Accident Claims Tribunal (hereinafter referred to as the Tribunal) deciding two accident compensation claims. The appellants had claimed further enhancement of compensation. 3. The deceased in the first appeal was a housewife aged about 30 years. The second deceased was her daughter aged about 12 years. The claimants are the husband/father of the deceased and three minor siblings. The two deceased on 25.12.2012 were travelling in a horse cart along with some others to a religious congregation. The horse cart was hit by a bus resulting in their death. The Tribunal assessed the notional income of the first deceased at Rs.36,000/- per annum and after 1/4 th deduction towards personal expenses, with a multiplier of 17 awarded a compensation of Rs.4,59,000/-. The Tribunal then deducted 50% on ground of contributory negligence as the horse cart was stated to have been in the middle of the road when the accident took place. A sum of Rs.1,00,000/- was then added as loss of consortium and Rs.25,000/- towards funeral expenses leading to an award total of Rs.3,54,500/- with interest at the rate of 7.5%. 4. In so far as the minor child is concerned, the notional income was assessed at Rs.36,000/- per annum, applying a 50% deduction towards personal expenses with a multiplier of 15, the compensation was awarded at Rs.2,70,000/- out of which 50% was again deducted towards contributory negligence. A sum of Rs.25,000/- was added towards funeral expenses, leading to an award total of Rs.1,60,000/- with interest at the rate of 7.5%. 5. The appeal for enhancement of compensation was dismissed by the High Court and thus the present appeals. 6. Learned counsel for the appellant submits that the notional income of the first deceased has been wrongly fixed ignoring her income of Rs.5000/- per month from dairy farm business. Nothing has been awarded towards future prospects. With regard to the second deceased it was submitted that she was studying in a school and her notional income should have been assessed at Rs.54,000/- per year. Nothing has been awarded towards loss of estate, loss of consortium and funeral expenses. The common submission in both the appeals was that deduction on ground of contributory negligence was unsustainable and unjustified. Reliance was placed on Kajal vs. Jagdish Chand & Ors., AIR 2020 SC 776 , to contend that the income of the deceased child should have been assessed at Rs.4846/- per month. 7. Learned counsel for the respondents submitted that the present appeals do not merit interference. There is no evidence with regard to the claimed business income of the first deceased. The finding of contributory negligence merits no interference. In absence of any proof of income, the question of future prospects simply does not arise. Similarly, the second deceased was a minor school going child who also had no income and therefore the question for grant of future prospects with regard to her also does not arise. 8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation. ### Response: 0 ### Explanation: 8. We have considered the submission on behalf of the parties. No evidence has been led by the appellant with regard to any income of the first deceased from dairy business. The deceased were travelling in a horse cart along with others to a religious congregation. It is not the case of the respondents that the first deceased was driving the horse cart or was the owner of the same, much less that it was being driven under her supervision. The deceased were travelling as passengers along with others. The fact that the horse cart may have been in middle of the road at the time of the accident, no fault can be attributed to the deceased holding them liable to contributory negligence and denial of full compensation.9. The first deceased was a housewife aged about 30 years. In Lata Wadhwa vs. State of Bihar, (2001) 8 SCC 197 , this court had observed that considering the multifarious services rendered by housewives, even on a modest estimation, the income of a housewife between the age group of 34 to 59 years who were active in life should be assessed at Rs 36,000 per annum. A distinction was also drawn with regard to elderly ladies in the age group of 62 to 72 who would be more adept in discharge of housewife duties by age and experience, and the value of services rendered by them has been taken at Rs 20,000 per annum.12. The second deceased was a school going child aged about 12 years. She had a whole future to look forward in life with all normal human aspirations. She died prematurely due to the accident at a very tender age for no fault of hers even before she could start to understand the beauty and joys of life with all its ups and downs. The loss of a human life untimely at childhood can never be measured in terms of loss of earning or monetary loss alone. The emotional attachments involved to the loss of the child can have a devastating effect on the family which needs to be visualised and understood. Grant of non-pecuniary damages for the wrong done by awarding compensation for loss of expectation in life is therefore called for. Undoubtedly the injury inflicted by deprivation of the life of the child is very difficult to quantify. The future also abounds with uncertainties. Therefore, the courts have used the expression just compensation to get over the difficulties in quantifying the figure to ensure consistency and uniformity in awarding compensation. This determination shall not depend upon financial position of the victim or the claimant but rather on the capacity and ability of the deceased to provide happiness in life to the claimants had she remained alive. The compensation is for loss of prospective happiness which the claimant would have enjoyed had the child not died at the tender age. Since the child was studying in a school and opportunities in life would undoubtedly abound for her as the years would have rolled by, compensation must also be granted with regard to future prospects. It can safely be presumed that education would have only led to her better growth and maturity with better prospects and a bright future for which compensation needs to be granted under non-pecuniary damages. (See R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1 ).13. The income of the minor girl child is incapable of precise fixation. We find no reason to interfere with the assessed notional income of the second deceased. In R.K. Malik vs. Kiran Pal, (2009) 14 SCC 1 , considering grant of future prospects for the deceased child aged about 10 years it was observed as follows:32. A forceful submission has been made by the learned counsel appearing for the appellant claimants that both the Tribunal as well as the High Court failed to consider the claims of the appellants with regard to the future prospects of the children. It has been submitted that the evidence with regard to the same has been ignored by the courts below.33. On perusal of the evidence on record, we find merit in such submission that the courts below have overlooked that aspect of the matter while granting compensation. It is well-settled legal principle that in addition to awarding compensation for pecuniary losses, compensation must also be granted with regard to the future prospects of the children. It is incumbent upon the courts to consider the said aspect while awarding compensation…15. The deduction on account of contributory negligence has already been held by us to be unsustainable. The determination of a just and proper compensation to the appellants with regard to the deceased child, in the entirety of the facts and circumstances of the case does not persuade us to enhance the same any further from Rs.2,95,000/- by granting any further compensation under the separate head of future prospects. It may only be noticed that R.K. Malik (supra) does not consider Satender (supra) on the grant of future prospects as far as children are concerned.16. Kajal (supra) is distinguishable on its own facts. The victim of the accident was a nine month old child, whose disability certificate reflected that she would grow up to be an adult lying on the bed with all the physical and biological attributes of a woman on attaining adulthood, but her mind would remain of a nine month old child because of the accident. The case is completely distinguishable on its own facts and did not arise out of a death claim, leading to award of compensation towards expenses for frequent treatment, hospitalization, transportation, loss of future earnings, attendant charges, pain, suffering, loss of amenities, loss of marriage prospects and future medical treatment etc.

SHAMANNA Vs. THE DIVISIONAL MANAGER THE ORIENTAL INSURANCE CO. LTD

(3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso there under and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims, (Underlining added) 7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case. 8. The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 , wherein this Court held that the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured The same principle was reiterated in Prem Kumari v. Prahlad Dev and others (2008) 3 SCC 193. 9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle. 10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor. 11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case. 12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that ….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.

1[ds]7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by thee Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and thatif the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicleThe above reference in Parvathneni case has been disposed of on 17.09.2013 by thes Bench keeping the questions of law open to be decided in an appropriate case12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.

### 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: (3) of Section 168 of the Act the insured fails to deposit the amount awarded in favour of the insurer within thirty days from the date of announcement of the award by the Tribunal. (xi) The provisions contained in sub-section (4) with the proviso there under and sub-section (5) which are intended to cover specified contingencies mentioned therein to enable the insurer to recover the amount paid under the contract of insurance on behalf of the insured can be taken recourse to by the Tribunal and be extended to claims and defences of the insurer against the insured by relegating them to the remedy before regular court in cases where on given facts and circumstances adjudication of their claims inter se might delay the adjudication of the claims of the victims, (Underlining added) 7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case. 8. The Supreme Court considered the decision of Swaran Singh case in subsequent decision in National Insurance Co. Ltd. v. Laxmi Narain Dhut, (2007) 3 SCC 700 , wherein this Court held that the decision in Swaran Singh case has no application to cases other than third party risks and in case of third party risks the insurer has to indemnify the amount and if so advised, to recover the same from the insured The same principle was reiterated in Prem Kumari v. Prahlad Dev and others (2008) 3 SCC 193. 9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle. 10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor. 11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by the two-Judge Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and that if the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicle The above reference in Parvathneni case has been disposed of on 17.09.2013 by the three-Judges Bench keeping the questions of law open to be decided in an appropriate case. 12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored. 13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that ….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer. ### Response: 1 ### Explanation: 7. As per the decision in Swaran Singh case, onus is always upon the insurance company to prove that the driver had no valid driving licence and that there was breach of policy conditions. Where the driver did not possess the valid driving licence and there are breach of policy conditions, pay and recover can be ordered in case of third party risks. The Tribunal is required to consider as to whether the owner has taken reasonable care to find out as to whether the driving licence produced by the driver, does not fulfill the requirements of law or not will have to be determined in each case9. For the sake of completion, we may refer to few judgments where the breach of policy conditions was fundamental and the Supreme Court taking contrary view that the insurance companies were not liable to pay the compensation. In National Insurance Co., Ltd. v. Bommithi Subbhayamma and others, (2005) 12 SCC 243 , the Supreme Court reversed the judgment of Andhra Pradesh High Court in making the insurance company liable for payment of compensation in respect of gratuitous passengers carried in the goods vehicle10. In Oriental Insurance Co. Ltd. v. Brij Mohan and others (2007) 7 SCC 56 , the claimant was travelling in the trolley attached to tractor carrying earth to brick kiln. It was found that the tractor and the trolley were not used for agricultural works, the only purpose for which the tractor was insured, when the claimant sustained the injuries. The Supreme Court though held that the insurance company is not liable to pay compensation, however, invoked the power vested in the Supreme Court under Article 142 of the Constitution of India in directing the insurance company to satisfy the award by paying compensation to the insured/claimant and realise the same from the owner of the tractor11. In the present case, to deny the benefit of pay and recover, what seems to have substantially weighed with the High Court is the reference to larger Bench made by thee Bench in National Insurance Co. Ltd. v. Parvathneni and another (2009) 8 SCC 785 which doubted the correctness of the decisions which in exercise of jurisdiction under Article 142 of the Constitution of India directing insurance company to pay the compensation amount even though insurance company has no liability to pay. In Parvathneni case, the Supreme Court pointed out that Article 142 of the Constitution of India does not cover such type of cases and thatif the insurance company has no liability to pay at all, then, it cannot be compelled by order of the court in exercise of its jurisdiction under Article 142 of the Constitution of India to pay the compensation amount and later on recover it from the owner of the vehicleThe above reference in Parvathneni case has been disposed of on 17.09.2013 by thes Bench keeping the questions of law open to be decided in an appropriate case12. Since the reference to the larger bench in Parvathneni case has been disposed of by keeping the questions of law open to be decided in an appropriate case, presently the decision in Swaran Singh case followed in Laxmi Narain Dhut and other cases hold the field. The award passed by the Tribunal directing the insurance company to pay the compensation amount awarded to the claimants and thereafter, recover the same from the owner of the vehicle in question, is in accordance with the judgment passed by this Court in Swaran Singh and Laxmi Narain Dhut cases. While so, in our view, the High Court ought not to have interfered with the award passed by the Tribunal directing the first respondent to pay and recover from the owner of the vehicle. The impugned judgment of the High Court exonerating the insurance company from its liability and directing the claimants to recover the compensation from the owner of the vehicle is set aside and the award passed by the Tribunal is restored13. So far as the recovery of the amount from the owner of the vehicle, the insurance company shall recover as held in the decision in Oriental Insurance Co. Ltd. v. Nanjappan and others (2004) 13 SCC 224 where this Court held that….that for the purpose of recovering the same from the insured, the insurer shall not be required to file a suit. It may initiate a proceeding before the concerned Executing Court as if the dispute between the insurer and the owner was the subject matter of determination before the Tribunal and the issue is decided against the owner and in favour of the insurer.

State Of Maharashtra and Ors Vs. Sukhdeo Singh And Anr.

present case also since the conviction and sentence were pronounced on the same day, the capital sentence awarded to the accused should not be confirmed. In the decision relied on, to which one of us (Ahmadi, J.) was a party and who spoke for the Court, it was emphasised that S. 235(2) of the Code being mandatory in character, the accused must be given an adequate opportunity of placing material bearing on the question of sentence before the Court. It was pointed out that the choice of sentence had to be made after giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the Court for otherwise the Courts decision may be vulnerable. It was then said in paragraph 10 at page 21: We think as a general rule the trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. * The above decision was rendered on 13th April, 1989 whereas the present decision was pronounced on 21st October, 1989. Yet, contended learned counsel for the accused the Court did not appreciate the spirit of S. 235(2) of the Code. The ratio of Allauddin Mians case, 1989 (95) CrLJ 1466) was affirmed in Milkiat Singh v. State of Punjab, 1991 (2) JT 190 (paragraph 18). 56. On the other hand the learned Additional Solicitor General invited our attention to a subsequent decision of this Court in Jumman Khan v. State of U.P., 1990 (S3) SCR 398 : 1991 (97) CrLJ 439). That decision turned on the facts of that case. In that case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex Court. That decision, therefore, does not assist the prosecution. Reliance was then placed on the third proviso to S. 309 of the Code which reads as under : Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him This proviso must be read in the context of the general policy of expeditious inquiry and trial manifested by the main part of the section. That section emphasises that an inquiry or trial once it has begun should proceed from day to day till the evidence of all the witnesses in attendance has been recorded so that they may not be unnecessarily vexed. The underlying object is to discourage frequent adjournments. But that does not mean that the proviso precludes the Court from adjourning the matter even where the interest of justice so demands. The proviso may not entitle an accused to an adjournment but it does not prohibit or preclude the Court from granting one in such serious cases of life and death to satisfy the requirement of justice as enshrined in S. 235(2) of the Code. Expeditious disposal of a criminal case is indeed the requirement of Art. 21 of the Constitution; so also a fair opportunity to place all relevant material before the Court is equally the requirement of the said article. Therefore, if the Court feels that the interest of Justice demands that the matter should be adjourned to enable both sides to place the relevant material touching on the question of sentence before the Court, the above extracted proviso cannot preclude the Court from doing so. 57. But in the instant case we find that both the accused decided to plead guilty. Accused No. 1 had done so at the earlier stage of the trial when he filed the statement Exh. 60A. Accused No. 5 had also made up his mind when he filed the statement Exh. 922 even before his examination under S. 313 of the Code Accused No. 1 had reiterated his determination when he filed the statement Exh. 919. Thus both the accused had mentally decided to own their involvement in the murder of General Vaidya before their statements were recorded under S. 313 of the Code. Not only that their attitude reveals that they had resolved to kill him as they considered him an enemy of the Sikh community since he had desecrated the Akal Takht. They also told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan. It is thus apparent that before they made their statement admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so. But after the decision of this Court in Kehar Singhs case 1989 (95) CrLJ 1) and having regard to the well planned manner in which they executed their resolve to kill General Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under S. 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of S. 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused.

0[ds]12. The facts of which we have given a brief resume make it crystal clear that broadly speaking the prosecution case has two elements, the first relating to the charge of criminal conspiracy and the various criminal acts done in furtherance thereof and the second relating to the actual murder of General Vaidya. The prosecution has also invoked sections 3 and 4 of TADA.is indeed true that while discussing this part of the prosecution evidence the learned trial Judge has committed certain factual errors and has wrongly read the evidence as if PW 120 had opined that the said entries were made by accused No. 1 Sukha. That is probably on account of similarity of names; he seems to have substituted Sukha for Sukhi. We have, however, corrected this error while appreciating the prosecution evidence. But it must be remembered that because Sukhi had fled from the country he could not be produced for identification by the hotel staff. No one has, therefore, identified him as Rakesh Sharma or Ravinder Sharma. The question of identity, therefore, rests solely on the evidence of the handwriting expert PW 120.14. Then we come to the evidence of PW 20 B. D. Sanghvi and PW 22 G. H. Bhagchandani who figured in the transaction concerning the letting out of the G-21, Salunke Vihar flat at Pune, to one Ravinder Sharma. According to the prosecution this Ravinder Sharma had met PW 20 and it was PW 22 who had shown the flat to him. Both these witnesses had, therefore, an occasion to see Ravinder Sharma from close quarters. It was in their presence that the said Ravinder Sharma had signed the agreement to lease on 27th January, 1986. PW 104 V. R. Hallur, the Power of Attorney of Major Madan and PW 105 R. J. Kulkarni who had contacted PW 20 were also concerned with the said deal. The evidence of PW 65 D. B. Bhagve reveals that one Ravinder Sharma had purchased a bank draft of Rs. 15, 000 from the Bank of Baroda, Pune, on 25th January, 1986 in the name of Neelam Madan. The lease documents are at Exhs. 598 and 599. From the evidence of the aforestated witnesses it is established that a person who gave his name as Ravinder Sharma had contacted them for hiring the flat and the deal was finalised, payments were made and documents executed between the 24th and 27th January, 1986 at Pune. Thequestion is who was this Ravinder Sharma ?Once again there is no direct evidence regarding his identity but the prosecution places reliance on the opinion evidence of the handwriting expert PW 120 who has deposed that all these documents are in the handwriting of the absconding accused Sukhi.15. From the above evidence what the prosecution can at best be said to have established is that the person who signed the register of Dreamland Hotel as Rakesh Sharma and the register of Gulmohar Hotel as Ravinder Sharma and the person who signed the lease documents pertaining to G-21, Salunke Vihar flat as Ravinder Sharma was one and the same person because according to the evidence of PW 120 the handwritings tally but the identity of that person has got to be established by comparing the said handwriting with the undisputed handwriting of the suspect. The prosecution seeks to attribute the authorship of the aforesaid documents to the absconding accused Sukhi but since the specimen or admitted handwriting of Sukhi could not be secured, as he had fled from this country to U.S.A. even before the conspiracy came to light, the mere opinion evidence of PW 120, even if accepted at its face value, is not sufficient to establish the identity of the author of those documents. We will have to see if this missing link is supplied by other evidence on record. We may also hasten to add that at this stage we are not examining what value can he attached to the evidence of PW 120. The find of the original bill of Hotel Gulmohar, Exh. 92A, from the G-21, Salunke Vihar flat after the arrest of accused Nos. 1 and 2 does not improve the matter for that by itself cannot prove that the absconding accused Sukhi was the author of the documents relied on. None of these witnesses, not even PW 62 Kantilal Shah, has identified him even from his photograph. So also the fact that the said person, whoever he was, had given a false and bogus Bombay address of 307, Om Apartments, Borivali or that the handwriting of some person who had stayed in yet another assumed name in different hotels of Pune, Ahmedabad and Bhavnagar is of no help to establish the identity. Even though the entries Exhs. 416 and 417 have been relied upon the two telephone operators of Dreamland Hotel were not examined. That being so the prosecution evidence falls far short for establishing its case that all these entries were made by the absconding accused Sukhi16. Then we come to the evidence in regard to the activities at the Antop Hill flat, Bombay, belonging to PW 49 Sadanand Gangnaik. According to him he had let the flat to Makhni Bai but since she has not been examined the further link is not established. As pointed out earlier, according to the prosecution, that flat too was hired by the absconding accused Sukhi sometime in October-November 1985 and the same was raided on 3rd May, 1986. Evidence was tendered by the prosecution with the avowed purpose of showing that a group of terrorists were in occupation of the said flat and when the same was raided certain incriminating evidence was found and attached therefrom. One such important piece is stated to be a novel in english entitled Tripple on the cover page whereof someone had scribbled in pencil the number of General Vaidyas Car DIB-1437. On the basis of the documents referred to in the preceding paragraph, the handwriting expert PW 120 says that the scribe of this number is the very person who happens to be the author of the aforesaid documents. But this piece of evidence suffers from the very same handicap from which the other evidence suffers in regard to the identity of the author of this document also. Besides, PW 48 H. S. Bhullar has contradicted himself on the authorship of the writing on the cover page of the novel Tripple. In his examination-in-chief he said it was in the handwriting of Sukha but on this point he was cross-examined by the prosecution to extract a statement that it was written by Sukhi. The idea was to establish contact between Sukhi and Sukha so that the former can be connected with the crime with the aid of section 120B, I.P.C. From the fact that clothes of different sizes were recovered from the said flat it was argued that several persons were in occupation of the flat. The find of three live and one empty cartridges was a circumstance projected by counsel to support his say that the flat was used for illegal purposes17. From the above facts it is not possible to infer that Sukhi and Sukha were in occupation of the flat. This gap is sought to be filled through PW 48 H. S. Bhullar who claims to be a friend of the inmates of the flat. This witness deposes to have taken three prostitutes to the flat to satisfy the sexual urges of Sukhi, Sukha and another who were living therein. Now this witness is said to have identified Sukha in Court. Exh. 318 dated 8th December, 1988 is an application given by accused No. 5 Jinda alleging that when he and Sukha were being taken to Court they were shown to the prosecution witnesses. Before we examine this allegation it is necessary to bear in mind that PW 48 was apprehended by the police on 10th May, 1986 and was booked as a co-accused but was later released and used as a witness. Great care must be exercised before acting on such a belated identification in Court by a witness who cannot be said to be an independent and unbiased person. Corroboration is sought to be provided through the maid servant PW 49 Lalita who was working in the flat. She too had identified the accused in Court only. She was candid enough to accept the fact that the accused Sukha and Jinda were shown to her and PW 48 when they were being taken to Court. This admission nullifies the identification of the two accused by these two witnesses in Court. No weight can be attached to such identification more so when no satisfactory explanation is forthcoming for the investigation officers failure to hold a test identification parade. So also PW 50 Hira Sinha, one of the prostitutes, also identifies him in Court but she too was not called to any test identification parade to identify the inmates of the flat. She too admits that Sukha was shown to her when he was in the lock-up. The other prostitute Jaya who is said to have had sex with Sukha was not called to the witness stand though she attended Court. When PW 50 could not identify the person with whom she had sex what reliance can be placed on her identification of Sukhi in Court after a lapse of almost two years ? Besides, it is an admitted fact that there was considerable change in the appearance of the accused, earlier they were clean shaven and later they were attired like Sikhs making identification all the more difficult. No neighbour, not even the laundryman, was examined to establish their identity. In this state of the evidence if the learned trial Judge was reluctant to act on such weak evidence, no exception can be taken in regard to his approach.have no reason to so believe. Even if there is any doubt the benefit thereof would go to the defence. PW 155 M. V. Mulley who arranged the test identification parade for PW 46 supports him. But the prosecution does not explain why Inspector Ratan Singh and Sub-Inspector Govind Singh and the laundry man were not examined. Sub-Inspector Govind Singh would have explained why he could not identify accused No. 1 at the test identification parade if he had been called to the witness stand. To us it seems PW 46 was put up to supply the lacuna regarding the involvement and identification of accused No. 1 in particular. The learned trial Judge was right in pointing out that several independent witnesses had not been examined and the prosecution staked its claim on an artificial and unnatural story found unacceptable put forth in the testimony of PW 49 Lalita. Even the identification of accused No. 1 Sukha by PW 46 Jagdish does not carry conviction and is of no avail to the prosecution.evidence of PW 12 Trimbak Yeravedkar shows that it was registered in the R.T.O. in the name of S. B. Shah and was then transferred in the name of Sanjeev Gupta. PW 76, a CBI officer had attached the free service coupon Exh. 187 and the requisition slip Exh. 259. Neither bears any signature of the police officer or panch witness in token of being attached. The papers concerning a motor cycle bearing the name of Sanjeev Gupta are stated to have been recovered on 7th September, 1986 from Sukha and Nimma after their arrest following an accident. Since, according to the prosecution, the said motor cycle was used for murdering General Vaidya and was later recovered from the accident site on 7th September, 1986, it was argued that there was a conspiracy preceding the said murder. The owners manual, Article 10, was found from G-21, Salunke Vihar, Pune, but that does not bear any name or even the registration number of the vehicle. The find of such a document, assuming it was really there and was not planted as submitted by the defence counsel, cannot advance the prosecution case. Another link which the prosecution tried to establish was that this motor cycle was seen parked in the garage allotted to the occupant of G-21, Salunke Vihar flat. This fact is proved through PW 24 Vidyadhar Sabnis. PW 25 Lt. Col. Basanti Lal, occupant of G-23 flat, however, states that since the garage allotted to him was being used for preparing his furniture in the month of May 1986, he was using the garage allotted to G-19 or G-21 flat holders for parking his car. All that his evidence shows that in the month of May 1986 one person had come inquiring about the occupants of G-21 flat and as the flat was locked he had left a message which this witness says he had slipped through the gap in the door of that flat. This is neither here nor there. Then he states that he had seen a red Ind-Suzuki motor cycle parked near the garage of G-21 flat on the 9th or 10th of August, 1986. PW 26 Prakash Sabale, a neighbour residing in Anand Apartments, was called to depose that sometime in June 1986 he had seen a red Ind-Suzuki parked in the garage of G-21 flat. The evidence of this witness conflicts with that of Pw 25 who has stated in no uncertain terms that he was parking his car in the said garage. Was there any particular reason for these witnesses to take note of the red coloured Ind-Suzuki motor cycle ? No reason has been assigned by the witnesses or the investigating officer. Such red Ind-Suzuki motor cycles were not an uncommon sight in the city of Pune, at least none says so. The evidence tendered by the prosecution in this behalf betrays a laboured attempt to connect the inmates of G-21 flat with the purchase of a red Ind-Suzuki motor cycle since it was subsequently involved in an accident on 7th September, 1986 and accused Sukha and Nimma were found using the same. No attempt was made to establish the identity of Sanjeev Gupta even through photographs22. P.W. 27 Hanuman Kunjir, a newspaper vendor, was examined to prove that he supplied the Indian Express newspaper to the occupants of G-21 flat. He discontinued supplying the newspaper when he found that the earlier issues which he had left in the doorgap had not been collected by anyone had and there was no gap through which he could push-in the newspaper. Once he had found the door open and recovered his dues under receipt Exh. 218. No attempt has been made to establish the identity of the person who asked him to supply the newspaper or the person who paid the amount of Rs. 40/- for which he gave the receipt Exh. 218. Hence his evidence is of no use to the prosecution.23. The prosecution alleges that Sukhi left India on 14th July, 1986. The absconding accused Bittu and accused No. 1 Sukha had also secured false passports in fake names. Sukha is said to have taken out a passport in the name of Charan Singh. No expert opinion was tendered though the handwriting expert was examined to show that the application for passport was tendered by Sukha in the assumed name of Charan Singh. The learned trial Judge also points out that the photograph seems to have been tampered with an ex facie raises a grave suspicion regarding the circumstances in which and the point of time when it came to be affixed. P.W. 55 S. S. Kehlon has signed the index card of Charan Singhs application. P.W. 54 Raj Rani Malhotra deposes that nothing adverse was reported by the CID officers in respect of Charan Singh. The passport was, therefore, issued to Charan Singh. From the above evidence it is difficult to ascertain who tampered with the photograph. Even P.W. 70 Rajkumar Mittal who dealt with the index card did not find anything suspicious at that time. P.W. 77 Kulbhusan Sikka had delivered the passport to Shashi Bhushan who was authorised by Charan Singh to receive the same. From the above evidence and particularly lack of expert evidence it is difficult to conclude that accused No. 1 Sukha had committed forgery to secure a passport to leave India. The prosecution has tried to show that Sukhi obtained a passport in the name of Sunil Kumar. Bittu obtained a passport in the name of Harjit Sidhu and Sukha tried to obtain a passport in the name of Charan Singh. It is true that Sukhi left India on 14th July, 1986, may be on a forged passport. So also we may assume that Bittu obtained a false passport and so did Sukha. This by itself will not establish a firm link between the three as co-conspirators. As stated earlier none in the passport office suspected anything shady in regard to Charan Singhs application for grant of passport. It seems that only after the passport was issued some tampering was attempted. The manner in which the photograph is pinned raised suspicion. Who did it is the question ? There is no evidence in this behalf. There is nothing on re record, except suspicion, that accused No. 1 was privy to it. In the absence of reliable evidence it is unwise to act on mere suspicion. We, therefore, cannot find fault with the approach of the learned trial Judge so far as this part of the prosecution case is concerned.. One further fact on which the prosecution places reliance in support of its case of criminal conspiracy is that accused Nos. 1, 2 and 5 travelled by Chhattisgarh Express from Ambala to Doorg between 3rd August, 1986 and 5th August, 1986 and from Doorg to Bombay by Gitanjali Express in assumed names. Apart from the oral evidence of P.Ws. 126 to 135 and 151, the prosecution has placed strong reliance on the reservation forms Exhs. 700 and 701 purporting to be in the handwriting of accused No. 1 Sukha. There is no direct evidence as admittedly they had travelled in assumed names and none has identified them. Thus the only evidence is the opinion evidence of the handwriting expert P.W. 120 to the effect that the reservation forms are in the handwriting of accused No. 1 Sukha. While in Bombay, the accused No. 1 is stated to have given his clothes to Lily White Dry-clearners on 7th August, 1986 and received them from P.W. 89 Deepak Nanawani on the next day. P.W. 30 Arjun Punjabi has proved the two tags of the said laundry found from G-21, Salunke Vihar flat when the same was searched. But the said evidence cannot be of much use unless the identity of the person who delivered and received back the clothes is established. Here also the prosecution relies on the evidence of the handwriting expert to show that accused No. 1 had written his name (assumed name) on the bill prepared at the time the clothes were delivered for dry-cleaning25. From the facts discussed above it becomes clear that the direct evidence, if at all, regarding the identity of the persons who moved about in different assumed names is either wholly wanting or is of such a weak nature that it would be hazardous to place reliance thereon without proper corroboration. As pointed out earlier the direct evidence regarding identity of the culprits comprises of (i) identification for the first time after a lapse of considerable time in Court or, (ii) identification at a test identification parade. In the case of total strangers, it is not safe to place implicit reliance on the evidence of witnesses who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court. In the present case it was all the more difficult as indisputably the accused persons had since changed their appearance. Test identification parade it would be extremely risky to place implicit reliance on identification made for the first time in Court after a long lapse of time and that too of persons who had changed their appearance. We, therefore, think that the learned trial Judge was perfectly justified in looking for corroboration. In Kanan v. state of Kerala, 1979 SCC(Cri) 621 : 1979 (85) CrLJ 919) this court speaking through Murtaza Fazal Ali. J. observed.t is well settled that where a witness identifies an accused who is not known to him in the court for the first time, his evidence is absolutely valueless unless there has been a previous T.I. parade to test his powers of observations. The idea of holding T.I. parade under S. 9 of the Evidence Act is to test the veracity of the witness on the question of his capability to identify an unknown person whom the witness may have seen only once. If no T.I. parade is held then it will be wholly unsafe to rely on his testimony regarding the identification of an accused for the first time inWe are in respectful agreement with the aforequoted observations26. The prosecution also led evidence to show that the accused persons were put up for test identification by the witnesses who claim to have seen them at different places before the actual incident of murder took place. We have adverted to the prosecution evidence in the behalf earlier and have pointed out how weak and thoroughly unreliable the said evidence is. It has been shown that some of the witnesses who claim to have identified the accused, one or more, have conceded that they had an occasion to see the accused in the Borivali lock-up earlier in point of time. This admission on the part of the witnesses has rendered the evidence in this behalf of little or no value and such evidence was rightly brushed aside by the trial Court. We too, having critically examined the evidence in this behalf, find it difficult to accept the same. Therefore, the direct evidence regarding the identity of the accused is of no help to the prosecutionhandwriting of accused No. 5 Jinda could not be obtained and, therefore, the question of comparing his specimen writing with the questioned writing did not arise.the present case since the absconding accused are not before us we are mainly concerned with the experts opinion implicating accused No. 1 Sukha. The speciman writing of this accused have been proved through the evidence P.W. 5 Shaikh Zahir and P.W. 68 Anand Pawar. The evidence shows that P.W. 168 S. Prasad, a police officer, had called the witness to a room where accused No. 2 Nirmal Singh was present and he was required to write down what the said police officer dictated to him. The specimen writing of Nirmal Singh have been proved through the evidence of the said P.W. 5 and P.W. 41 Ramkripal Trivedi. Thereafter they went to another room where accused No. 1 was present. At the instance of P.W. 160 M. P. Singh he was asked to sign as many as fifteen papers. The learned trial judge has not doubted this part of the prosecution case and we may proceed on that basis. To prove the natural handwriting of accused No. 1, the prosecution examined P.W. 84 S. K. Prachendia, a lecturer of Gyan Jyoti P.G. College. This witness claims that accused No. 1 was his student and he had submitted an application in the prescribed form for admission to the P.G. Course as a private candidate. In support reliance is placed on the photograph article 31 showing the witness in company of accused No. 1. Two other registers (articles 39 and 40) have been relied upon to prove that certain replies are in the hand of accused No. 1. But unfortunately for the prosecution the witness could not even identify accused No. 1 in the dock nor did he state that the form and the entries in the registers were made by accused No. 1 in his presence. In his cross-examination the witness admitted that he would not be able to identify the handwriting of other students who studied under him. More so in the case of accused No. 1 who was only a private student. In the circumstances we agree with the learned trial Judge that the evidence on record in regard to the natural handwriting of accused No. 1 is not satisfactory and does not inspire confidence. If we rule out this part of the material used by the handwriting expert for comparison we are merely left with the specimen writing/signatures of accused No. 1 taken while in custody. Here also the evidence of P.W. 120 itself shows that the handwriting of the railway reservation form Exh. 700 does not tally with the specimen writing/signatures of accused No. 1. It only highlights the fact that it would be dangerous to identify the person who travelled on the strength of the reservation form Exh. 700 by comparing the writing thereon with the specimen writing of accused No. 1. The evidence of P.W. 30 Arjun Punjabi and P.W. 89 Deepak Nanwani and the find of laundry tag No. 8833 of Lily White Drycleaners from G-21, Salunke Vihar flat on the September, 1986 was used to establish the fact that accused No. 1 was one of the inmates of the said flat and was in Pune a couple of days before the murder of General Vaidya. This connection is sought to be established on the strength of the opinion evidence of P.W. 120 that the handwriting and signature of the laundry bill Exh. 547 tallied with the specimen writings/signatures of accused No. 1. But the laundry tags do not bear the name of the laundry or the year of issue. It was, however, urged that the evidence of P.W. 89 clearly proved that the number on the tags tallied with the number on the Bill and the opinion evidence of P.W. 120 clearly established the fact that since the writing and signature on the bill tallied with the specimen writingsignature of accused No. 1, it was reasonable to infer that accused No. 1 resided in the G-21, Salunke Vihar flat. But what is indeed surprising is that P.W. 89 was neither called to the test identification parade nor asked to identify the person who had delivered the clothes for drycleaning from amongst the accused seated in the dock.29. It is well settled that evidence regarding the identity of the author of any document can be tendered (i) by examining the person who is conversant and familiar with the handwriting of such person, or (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis, and (iii) by the Court comparing the disputed document with the admitted one. In the present case the prosecution has resorted to the second mode by relaying on the opinion evidence of the handwriting expert P.W. 120. But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the Court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the Court should also be fully satisfied about the competence and credibility of the handwriting expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties.emerges from the case law referred to above is that a handwriting expert is a competent witness whose opinion evidence is recognised as relevant under the provisions of the Evidence Act and has not been equated to the class of evidence of an accomplice. It would, therefore, not be fair to approach the opinion evidence with suspicion but the correct approach would be to weigh the reasons on which it is based. The quality of his opinion would depend on the soundness of the reasons on which it is founded. But the court cannot afford to overlook the fact that the science of identification of handwriting is an imperfect and frail one as compared to the science of identification of finger-prints; courts have, therefore, been wary in placing implicit reliance on such opinion evidence and have looked for corroboration but that is not to say that it is a rule of prudence of general application regardless of the circumstances of the case and the quality of expert evidence. No hard and fast rule can be laid down in this behalf but the Court has to decide in each case on its own merits what weight it should attach to the opinion of the expert31. The trial court examined the evidence of the handwriting expert PW 120 in great detail and came to the conclusion that it was hazardous to rely on his evidence as he had betrayed bias against the accused and in favour of the prosecution as he also belongs to the Police Department (see paragraph 159 of the judgment).regards accused No. 2 Nimma, the learned trial Judge points out that the specimen signature N. Singh does not correspond with the questioned documents. The learned trial judge, therefore, did not consider it wise to place reliance on the opinion of PW 120 particularly because he did not consider his opinion to be independent but found that he had betrayed a tilt in favour of the investigating machinery. Since trial court did not consider the opinion of PW 120 to be dependable he did not deem it necessary to look for corroboration. For the same reason he did not consider it necessary to scrutinise the evidence of the expert in regard the two absconding accused Sukhi and Bittu. No such opinion evidence is relied upon in respect of the other accused. We may at once state that the quality of evidence in regard to proof of identity of Sukhi and Bittu through their so called handwriting is weaker than that of accused No. 1. We have carefully examined the opinion evidence of PW 120 and we agree with the learned trial Judge that the quality of his evidence is not so high as to commend acceptance without corroboration. Having given our anxious consideration to the experts evidence, through which we were taken by the learned counsel for the prosecution, we do not think that the view taken by the learned trial judge is legally unsustainable or perverse. Even otherwise having regard to the facts and circumstances of the case and the nature evidence tendered and the quality of evidence of PW 120 the prosecution has not succeeded in establishing beyond reasonable doubt the so-called conspiracy.There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistace of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos. 1 and 2. Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings.There is no doubt that the said provision empowers the court to see for itself whether on a comparison of the two sets of writing/signature, it can safely be concluded with the assistace of the expert opinion that the disputed writings are in the handwriting of the accused as alleged. For this purpose we were shown the enlarged copies of the two sets of writings but we are afraid we did not consider it advisable to venture a conclusion based on such comparison having regard to the state of evidence on record in regard to the specimen/admitted writings of the accused Nos. 1 and 2. Although the section specifically empowers the court to compare the disputed writings with the specimen/admitted writings shown to be genuine, prudence demands that the Court should be extremely slow in venturing an opinion on the basis of mere comparison, more so, when the quality of evidence in respect of specimen/admitted writings is not of high standard. We have already pointed out the state of evidence as regards the specimen/admitted writings earlier and we think it would be dangerous to stake any opinion on the basis of mere comparison. We have, therefore, refrained from basing our conclusion by comparing the disputed writings with the specimen/admitted writings33. From the above discussion of the evidence it is clear that the prosecutions effort to provide the missing links in the chain by seeking to establish the identity of the participants to the alleged conspiracy through the handwriting expert PW 120 has miserably failed. We, therefore, agree with the conclusion of the learned trial Judge in this behalf34. That brings us to the incident of murder of General Vaidya on the morning of 10th August, 1986 at about 11.30 a.m. We have set out the facts in regard to the said incident some detail in the earlier part of this judgment and will recapitulate only those facts which are necessary to be noticed for the purpose of appreciating evidence leading to the murder. The fact that General Vaidya died a homicidal death is established beyond any manner of doubt by the evidence of PW 157 Dr. L. K. Bade who had undertaken the post-mortem examination and had opined that death was due to shock suffered following gun shot injuries.Counsel for the defence had also admitted this fact as is evidence by Exh. 155.As this fact was not challenged before the trial Court, as indeed it could not be, nor was it contested before us, we need not detain ourselves on the same and would proceed to examine the evidence with a view to fixing the responsibility for the said crime.36. The evidence of the securityman PW 16 Ramchandra Kshirsagar is that when the car was proceeding towards the intersection from where it had to turn right to go to the bungalow of General Vaidya, he saw autorickshaw coming from the opposite side and signalled it by stretching out his hand to keep to the extreme left. Then he saw a cyclist also coming from the opposite side and signalled him also. Just then the car which had slowed down considerably began to negotiate a turn when a red Ind-Suzuki motor cycle drove along the car on the side of General Vaidya who was at the steering wheel. The pillion rider fired three shots from his weapon at the head of General Vaidya and then sped away. This witness wants us to believe that as he was busy signalling the rickshaw driver he had not seen the motor cycle approaching the car before the first shot was fired. As soon as the car came to a halt, he jumped out of the car with his service revolver but as PW 106 Bhanumati Vaidya was shouting for a conveyance he went about searching for one and found a matador van in which the injured General Vaidya was rushed to the hospital. It was after reaching the hospital that he contacted the L.I.B. Inspector Garad to whom he narrated the incident and reiterated the same to the Commissioner of Police. His detailed complaint Exh. 179 was then recorded by PW 119 Inspector Mohite in which he described the colour of the motor cycle as black and not red. Since he was sitting behind PW 106 Bhanumati, he could have seen the assailant when his attention was drawn in that direction on hearing the first shot fired from close range. It is difficult to believe that he had no opportunity to see the motor cyclists. It must be remembered that four shots were fired, albeit in quick succession, but there was a slight pause after the first shot. It is difficult to agree with the suggestion that he had no opportunity to see the assailant and his companion. In fact he states that he saw them from a distance of three or four feet only. As pointed out earlier accused Nos. 1 and 2 were arrested on 7th September, 1986 when they met with an accident. Thereafter on 22nd September, 1986 this witness was called at about 12 noon to the Yervada Jail. Soon thereafter a person who identified himself as a magistrate came and gave them certain instructions regarding the identification parade about to be held. He was then called to a room in which 10 to 12 persons had lined up and he was asked if the person who had fired at General Vaidya was amongst them. He identified one person from the queue as the assailant. He identified accused No. 1 as that person in Court also. The Panchnama drawn up in regard to the test identification parade is at Exh. 349 duly proved by PW 51 B. S. karkande, Special Judicial Magistrate. Except for a couple of minor contradictions there is nothing brought out in his cross-examination to doubt his testimony regarding identification of accused No. 1 as the person who fired the shots at General Vaidya. The presence of this witness at the time of occurrence cannot and indeed was not doubted. So also it cannot be denied that he had an opportunity to identify the assailant. We, therefore, do not see any serious infirmity in his evidence which would cast a doubt as regards his identification of accused No. 1.37. The next important witness is PW 106 Bhanumati Vaidya. She had accompanied her husband and was sitting next to him in the front seat of the car when the incident took place. She states that when the car took a turn at the intersection she heard three sounds like the misfire of a motor cycle but soon thereafter her husbands left hand slipped from the steering and his neck slumped on her shoulder. She states that the car drifted towards a cyclist who jumped off leaving the cycle which was run over by the front wheels of the motor car. She saw the motor cycle with two riders sped away and could only see the back of the pillion rider. She too had received bullet injuries on her right shoulder and was admitted in the intensive care unit of the hospital. She was operated upon for removal of the bullets from her body. Next day a magistrate had visited the hospital and had recorded her statement. She has deposed that the pillion rider whom she had seen from behind had been noticed by her two days earlier on 8 th August, 1986 at about 9.00 or 9.30 a.m. with a red motor cycle opposite Gadge Maharaj School at the corner of bungalow No. 45. Two persons were standing there one of whom was the pillion rider whom she saw from behind after the shoot out. She, however, expressed her inability to identify him from amongst the accused persons in Court. Under cross-examination she stated that she could not say if it was a motor cycle or a moped. Thus her evidence proves the incident beyond any manner of doubt but her evidence is of little use on the question of identity of the assailant and his companion38. PW 14 Digambar Shridhar Gaikwad, the cyclist, deposes that at the time of the incident he was proceeding on his cycle towards the railway station when he heard three sounds and looked towards the Maruti car. He saw a red motor cycle by the side of the driver of the car. It sped away with two persons riding it. The pillion rider who had a bag was seen putting something therein. Since the driver of the car was wounded on his head, he lost control of the vehicle and the same came towards him whereupon he jumped off and the cycle was under the wheels of the car. In cross-examination he stated that he had not seen any other vehicle on the road, thereby ruling out the presence of any autorickshaw in regard to which PW 16 has spoken. His evidence is also not useful from the point of identity of the assailant.is pertinent to note that PWs 61 and 103 had identified accused No. 5 through his photographs articles 23 and 75. They identified him in Court but accused No. 5 stated in answer to question No. 135 that they did so at the behest of the police.40. We now come to the next group of witnesses, the driver and the two passengers of the autorickshaw which the securityman PW 16 claims was seen coming from the opposite direction. PW 16 says that just as the car was turning towards the right, he saw an autorickshaw coming from the opposite direction and signalled it to move to the extreme left. True it is that PW 14, the cyclist, did not notice it but in our view that cannot cast any doubt on the credibility of PW 16. There was no need for the cyclist to take note of the autorickshaw. His attention was rivetted at the car and the motor cycle after he heard the shots and there was no need for him to notice the autorickshaw.42. The rickshaw driver PW 115 has deposed that on 10th August, 1986 at about 11.00 a.m. while he was waiting in front of Agakhan Palace he was engaged by PW 111 and PW 114 who instructed him that they desired to go to the Camp area and from there to the Deccan area. When his vehicle approached the Circuit House intersection and emerged on the Abhimanyu road he saw a white Maruti car and one Ind-Suzuki motor cycle taking a turn to the right of the intersection. The motor cyclists drove on the side of the drivers seat and the pillion rider fired three shots at the driver of the car. Immediately thereafter the motor cyclists sped away. He then speaks about the manner in which the cyclist jumped off and the car came to a half after running over the cycle. He also states that thereafter the two passengers got down from his rickshaw and went near the car. He also parked his rickshaw at the corner of the intersection and joined the other two passengers. He found that the car driver was injured on the head and was bleeding profusely. A matador van arrived and the injured was lifted and placed in the van and carried to the hospital. He and the two passengers then returned to the rickshaw and proceeded towards Deccan side and from there to the Stree Clinic. Sometime after the incident i.e. on 8th November, 1986, the C.B.I. officers showed him seven or eight photographs and asked him if he could recognise the photograph of the motor cyclists. He recognised the photograph of the driver of the motor cycle but he did not notice any photograph of the pillion rider. The photograph of the driver of the motor cycle is included as article 150 and his signature was obtained on the reverse of it. This photograph is stated to be of accused No. 5 whom the witness later identified in Court also. No test identification parade could be held as accused No. 5 Jinda could not be arrested till 30th August, 1987. The evidence of this witness also lends corroboration to the evidence of PWs 111 and 11443. There is also the evidence of PW 28 Noor Mohamad, also a rickshaw driver in whose rickshaw PW 111 and PW 114 had gone to the Jan Kalyan Blood Bank to register their name in case blood may be required at the time of Anupamas operation. He has also stated that the two passengers were talking about having witnessed a shoot out earlier in the day as is ordinarily seen in movies44. The learned trial Judge discarded this part of the prosecution case for diverse reasons, some of them being (i) the story of the securityman Pw 16 in regard to the location of the autorickshaw is in sharp conflict with his version in the FIR; (ii) the presence of PW 111 and PW 114 at the place of the incident is highly doubtful for the reason that there was no cause for them to take the longer route, more particularly when Anupama was admitted to the clinic of PW 1 and was to be operated on that very day; (iii) the conduct of both the witnesses in maintaining sphinx-like silence for more than two and a half months when the incident had shaken the nation was highly unnatural, more so because admittedly PW 111 had met Inspector Mohite only a few days after the incident, may be in some other connection; (iv) the entry in the diary of PW 111 regarding this incident was ex facie a laboured attempt made with a view to creating corroborative documentary evidence to support his false version; and (v) the identification of the motor cycle driver through a photograph purporting to be of accused No. 5 Jinda is also an attempt to connect the said accused with the crime in question. The learned Additional Solicitor General made a valiant attempt to question the correctness of the grounds on which the learned trial Judge brushed aside this part of the prosecution case. But for the view we are inclined to take we would have given our anxious consideration to the submissions of the learned counsel. The purpose of leading this evidence was essentially to identify the driver of the motor cycle through these witnesses. They did so by picking up one photograph from seven or eight shown to them. Whose photograph is this ? Accused No. 5 disowns it. No test identification parade was held since accused No. 5 Jinda was apprehended at Delhi a year or so later on 30th August, 1987 and was taken to Pune in January 1988. Although the prosecution did not deem it wise to hold a test identification parade because of the passage of time, the witnesses examined later did not hesitate to point a finger at accused No. 5 Jinda during the trial. Therefore, according to the prosecution the photograph was that of accused No. 5 Jinda who was very much in Court. The learned trial Judge, therefore, had the benefit of comparing the photograph with accused No. 5 whose photograph it purported to be.will thus be seen that the learned Judge on a comparison of the photograph with the features of accused No. 5 who was very much before him categorically held that the photograph pointed out by the witnesses was not of accused No. 5. We cannot ignore the photograph from consideration for non-production of the negative (not traced) because that is merely an additional plank on which the trial court has ruled out this part of th prosecution case. For the above reasons the trial court refused to place reliance on the prosecutions attempt to establish the identity of accused No. 5 as the driver of the motor cycle through photographs.47. Accused No. 5 Jinda pleaded not guilty to the charge. He did not make any such statement till the conclusion of the evidence when he sent Exh. 922 through Jail. However, at the conclusion of the prosecution evidence when accused No. 5 was examined under section 313 of the Code, he admitted that he was the driver of the motor cycle and accused No. 1 was his pillion rider. He also admitted that accused No. 1 had fired the fatal shots at General Vaidya while sitting on the pillion seat. In answer to the usual last question accused No. 5 said that on the date of the incident he was driving a black motor cycle with accused No. 1 on the pillion seat and it was the latter who fired at and killed General Vaidya. This being an admission of guilt, the question is whether the Court can act upon it. He has supported this by his written statement Exh. 922. It will thus be seen that both the accused Nos. 1 and 5 made written as well as oral admissions regarding their involvement in the commission of the crime.48. It is manifest from the written statements of both accused Nos. 1 and 5 and from their oral statements recorded under S. 313 of the Code that they firmly believed that since General Vaidya was responsible for conducting operation Blue State which had damaged a sacred religious place like the Akal Takht of the Golden Temple at Amritsar and had also hurt the religious feelings and sentiments of the Sikh community, he was guilty of a serious crime, the punishment for which could only be death, and, therefore, they had merely executed him and in doing so had not committed any crime whatsoever. As stated earlier it is on this notion that the accused continued to plead not guilty while at the same time admitting the fact of having killed General Vaidya. It may be mentioned that when the eye-witness account was put to him, accused No. 1 admitted that he was the pillion rider who had fired four shots at General Vaidya. His answers to the various circumstances pointed out to him in his statement under S. 313 of the Code reveal that he unhesitatingly admitted the entire eye-witness account and also owned responsibility for the crime. Even in his written statement Exh. 60A he admitted. So far as accused No. 5 is concerned he too admitted the correctness of the eye-witness account of the incident leading to the ultimate death of General Vaidya. When he was asked if he had anything else to say, he referred to his statement Exh. 922 and admitted that it was in his own handwriting, its contents were correct and he had signed it. He also admitted that he was driving the motor cycle when his pillion rider fired at General Vaidya and injured him. It is in this background that we must examine the impact of their admissions in their statements under S. 313 of the Code.We do not see any merit in these submissions.the instant case it is not correct to say that no incriminating material had surfaced against the accused, particularly accused No. 5, and hence, the learned trial Judge was not justified in examining the accused under S. 313 of the Code.Since no oath is administered to the accused, the statements made by the accused will not be evidence stricto sensu. That is why sub-section (3) says that the accused shall not render himself liable to punishment if he gives false answers.s the answers given by the accused in response to his examination under S. 313 can be taken into consideration in such inquiry or trial. This much is clear on a plain reading of the above sub-section. Therefore, though not strictly evidence, sub-section (4) permits that it may be taken into consideration in the said inquiry or trial. See State of Maharashtra v. R. B. Chowdhari 1967 (3) SCR 708 : 1968 (74) CrLJ 95). This Court in the case of Hate Singh v. State of Madhya Bharat, 1953 (59) CrLJ 1933 : 1953 AIR(SC) 468) held that an answer given by an accused under S. 313 examination can be used for proving his guilt as much as the evidence given by a prosecution witness. In Narain Singh v. State of Punjab 1963 (3) SCR 678 : 1964 (1) CrLJ 730) this Court held that if the accused confesses to the commission of the offence with which he is charged the Court may, relying upon that confession, proceed to convict him. To state the exact language in which the three-Judge Bench answered the question it would be advantageous to reproduce the relevant observations at pages 684-685 (of SCR) : (at p. 733 of Cri LJ)r S. 342 of the Code of Criminal Procedure by the first sub-section, insofar as it is material, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him. Examination under S. 342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation - if any, of the incident which forms the subject-matter of the charge and his defence. By sub-section (3), the answers given by the accused mayat the enquiry or the trial. If the accused person in his examination under S. 342 confesses to the commission of the offence charged against him the Court may, relying upon that confession, proceed to convict him, but if he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in itsn (1) of S. 313 corresponds to sub-section (1) of S. 342 of the old Code except that it now stands bifurcated in two parts with the proviso added thereto clarifying that in summons cases where the presence of the accused is dispensed with his examination under CI. (b) may also be dispensed with. Sub-section (2) of S. 313 reproduces the old sub-section (4) and the present sub-section (3) corresponds to the old sub-section (2) except for the change necessitated on account of the abolition of the jury system. The present sub-section (4) with which we are concerned is a verbatim reproduction of the old sub-section (3). Therefore, the aforestated observations apply with equal force.52. Even on the first principle we see no reason why the Court could not act on the admission or confession made by the accused in the course of the trial or in his statement recorded under S. 313 of the Code. Under Section 12(4) of the TADA Act a Designated Court shall, for the purpose of trial of any offence, have all the powers of a Court of Session and shall try such offence as if it were a Court of Session so far as may be in accordance with the procedure prescribed in the Code for the trial before a Court of Session, albeit subject to the other provisions of the Act. The procedure for the trial of Session cases is outlined in Chapter XVIII of the Code. According to the procedure provided in that Chapter after the case is opened as required by S. 226, if, upon consideration of the record of the case and the documents submitted therewith, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for reasons to be recorded. If, however, the Judge does not see reason to discharge the accused he is required to frame in writing a charge against the accused as required by S. 228 of the Code. Where the Judge frames the charge, the charges so framed has to be read over and explained to the accused and the accused is required to be asked whether he leads guilty of the offence charged or claims to be tried. Section 229 next provides that if the accused pleads guilty, the Judge shall record the plea and may, in his discretion, convict him thereon. The plain language of this provision shows that if the accused pleads guilty the Judge has to record the plea and thereafter decide whether or not to convict the accused. The plea of guilt tantamounts to an admission of all the facts constituting the offence. It is, therefore, essential that before accepting and acting on the plea the Judge must feel satisfied that the accused admits facts or ingredients constituting the offence. The plea of the accused must, therefore, be clear, unambiguous and unqualified and the Court must be satisfied that he has understood the nature of the allegations made against him and admits them. The Court must act with caution and circumspection before accepting and acting on the plea of guilt. Once these requirements are satisfied the law permits the Judge trying he case to record a conviction based on the plea of guilt. If, however, the accused does not plead guilty or the learned Judge does not act on his plea he must fix a date for the examination of the witnesses i.e. the trial of the case. There is nothing in this Chapter which prevents the accused from pleading guilty at any subsequent stage of the trial. But before the trial Judge accepts and acts on that plea he must administer the same caution unto himself. This plea of guilt may also be put forward by the accused in his statement recorded under S. 313 of the Code. In the present case, besides giving written confessional statements both accused No. 1 and accused No. 5 admitted to have been involved in the commission of murder of General Vaidya. We have already pointed out earlier that both the accused have unmistakably, unequivocally and without any reservation whatsoever admitted the fact that they were responsible for the murder of General Vaidya. It is indeed true that accused No. 1 did not name accused No. 5 as he driver of the motor cycle, perhaps he desired to keep him out, but accused No. 5 has himself admitted that he was driving the motor cycle with accused No. 1 on the pillion seat and to facilitate the crime he had brought the motor cycle in line with the Maruti car so that accused No. 1 may have an opportunity of firing at his victim from close quarters. There is, therefore, no doubt whatsoever that both accused No. 1 and accused No. 5 were acting in concert, they had a common intention to kill General Vaidya and in furtherance of that intention accused No. 1 fired that fatal shots. We are, therefore, satisfied that the learned trial Judge was justified in holding that accused No. 1 was guilty under section 302 and accused No. 5 was guilty under section 302/34, I.P.C.The two decisions of the High Courts to which our attention was drawn do not in fact militate against the view which we are inclined to take in regard to the admission of guilt made by the two accused in their statements recorded under S. 313 of the Code. In the case of Jit Bahadur chetri, 1977 (83) CrLJ 1833) (Gauhati), only one witness was examined and immediately thereafter the statement of the accused was recorded under S. 313 of the Code. The deposition of the sole witness did not reveal that he had seen the accused causing the injury in question. The question that was framed was not consistent with this evidence and hence the High Court found that the trial Court had acted illegally. It was held that such an answer cannot be construed as pleading guilty within the meaning of the provisions of the Code and hence the learned Magistrate had acted contrary to law in convicting and sentencing the accused on the basis of that plea. It will thus be seen that the Court came to the conclusion that the accused could not be stated to have pleaded guilty and hence the conviction was set aside. In the other case of Asokan, 1982 (88) CrLJ 173), the High Court of Kerala pointed out that in a criminal case the burden of establishing the guilt beyond reasonable doubt lies, on the prosecution and that burden is neither taken away, nor discharged, nor shifted merely because the accused sets up a plea of private defence. It was pointed out that if the prosecution has not placed any incriminating evidence such an admission made by the accused will be of no avail unless the admission constitutes an admission of guilt of any offence. In that case also the admission made by the accused read as a whole did not constitute an admission of guilt of the offence charged. On the contrary it was in the nature of a the plea of private defence. In such circumstances, the High Court came to the conclusion that in the absence of a unequivocal, unmistakable and unqualified plea of guilt, the Court could not have convicted the accused on the statement made by him under S. 313 of the Code. This decision also does not, therefore, help the defence.54. The accused were inter alia charged under sections 3(2)(i) or (ii) and 3(3) of TADA Act read with sub-rule (4) of Rule 23 of the rules framed thereunder. Section 3 provides the punishment for terrorist acts. Section 10 lays down that when trying any offence a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. It is obvious that where an accused is put up for trial for the commission of any offence under the Act or the Rules made thereunder he can also be tried by the same Designated Court for the other offences with which he may, under the Code, be charged at the same trial provided the offence is connected with such other offence. In the instant case, the accused were tried under the aforesaid provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 465, 468, 471, 419, 302 and 307, I.P.C. They were also charged for the commission of the aforesaid offences with the aid of S. 34, I.P.C. As pointed out earlier under S. 121(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. Accordingly, the two accused persons were tried by the Designated Court since they were charged for the commission of offences under the TADA Act. The Designated Court, however, came to the conclusion that the charge framed under S. 3 of the TADA Act read with the relevant rules had not been established and, therefore, acquitted the accused persons on that count. It is not necessary for us to examine the correctness of this finding as we also come to the conclusion that capital punishment is warranted. It also acquitted all the accused persons of the other charges framed under the Penal Code save and except accused Nos. 1 and 5, as stated earlier. The accused were also convicted under S. 307 and 307/34 respectively for the injury caused to PW 106 Bhanumati Vaidya. Thus the conviction of accused Nos. 1 and 5 is outside the provisions of TADA Act and, therefore, it was open to the Designated Court to award such sentence as was provided by the Penal Code. Section 17 (3) of the TADA Act makes Sections 366 to 371 and S. 392 of the Code applicable in relation to a case involving an offence triable by a Designated Court. The Designated Court having come to the conclusion that this was a case falling within the description of the rarest of a rare awarded the extreme penalty of death to both accused Nos. 1 and 5 for the murder of General Vaidya. In doing so, the trial Court placed strong reliance on the decision of this Court in Kehar Singh v. State (Delhi Administration), 1988 (3) SCC 609 : 1989 (95) CrLJ 1). The learned trial Judge took the view that since the murder of General Vaidya was also on account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within the rarest of a rare category. We think that this line of reasoning adopted by the learned trial Judge is unassailable. We may also point out that the accused persons had no remorse or repentance, in fact they felt proud of having killed General Vaidya in execution of their plan and hence we find no extenuating circumstance to make a departure from the ratio of Kehar Singhs case.That decision turned on the facts of that case. In that case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex Court. That decision, therefore, does not assist the prosecution.57. But in the instant case we find that both the accused decided to plead guilty. Accused No. 1 had done so at the earlier stage of the trial when he filed the statement Exh. 60A. Accused No. 5 had also made up his mind when he filed the statement Exh. 922 even before his examination under S. 313 of the Code Accused No. 1 had reiterated his determination when he filed the statement Exh. 919. Thus both the accused had mentally decided to own their involvement in the murder of General Vaidya before their statements were recorded under S. 313 of the Code. Not only that their attitude reveals that they had resolved to kill him as they considered him an enemy of the Sikh community since he had desecrated the Akal Takht. They also told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan. It is thus apparent that before they made their statement admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so. But after the decision of this Court in Kehar Singhs case 1989 (95) CrLJ 1) and having regard to the well planned manner in which they executed their resolve to kill General Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under S. 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of S. 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused.

### 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: present case also since the conviction and sentence were pronounced on the same day, the capital sentence awarded to the accused should not be confirmed. In the decision relied on, to which one of us (Ahmadi, J.) was a party and who spoke for the Court, it was emphasised that S. 235(2) of the Code being mandatory in character, the accused must be given an adequate opportunity of placing material bearing on the question of sentence before the Court. It was pointed out that the choice of sentence had to be made after giving the accused an effective and real opportunity to place his antecedents, social and economic background, mitigating and extenuating circumstances, etc., before the Court for otherwise the Courts decision may be vulnerable. It was then said in paragraph 10 at page 21: We think as a general rule the trial Courts should after recording the conviction adjourn the matter to a future date and call upon both the prosecution as well as the defence to place the relevant material bearing on the question of sentence before it and thereafter pronounce the sentence to be imposed on the offender. * The above decision was rendered on 13th April, 1989 whereas the present decision was pronounced on 21st October, 1989. Yet, contended learned counsel for the accused the Court did not appreciate the spirit of S. 235(2) of the Code. The ratio of Allauddin Mians case, 1989 (95) CrLJ 1466) was affirmed in Milkiat Singh v. State of Punjab, 1991 (2) JT 190 (paragraph 18). 56. On the other hand the learned Additional Solicitor General invited our attention to a subsequent decision of this Court in Jumman Khan v. State of U.P., 1990 (S3) SCR 398 : 1991 (97) CrLJ 439). That decision turned on the facts of that case. In that case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex Court. That decision, therefore, does not assist the prosecution. Reliance was then placed on the third proviso to S. 309 of the Code which reads as under : Provided also that no adjournment shall be granted for the purpose only of enabling the accused person to show cause against the sentence proposed to be imposed on him This proviso must be read in the context of the general policy of expeditious inquiry and trial manifested by the main part of the section. That section emphasises that an inquiry or trial once it has begun should proceed from day to day till the evidence of all the witnesses in attendance has been recorded so that they may not be unnecessarily vexed. The underlying object is to discourage frequent adjournments. But that does not mean that the proviso precludes the Court from adjourning the matter even where the interest of justice so demands. The proviso may not entitle an accused to an adjournment but it does not prohibit or preclude the Court from granting one in such serious cases of life and death to satisfy the requirement of justice as enshrined in S. 235(2) of the Code. Expeditious disposal of a criminal case is indeed the requirement of Art. 21 of the Constitution; so also a fair opportunity to place all relevant material before the Court is equally the requirement of the said article. Therefore, if the Court feels that the interest of Justice demands that the matter should be adjourned to enable both sides to place the relevant material touching on the question of sentence before the Court, the above extracted proviso cannot preclude the Court from doing so. 57. But in the instant case we find that both the accused decided to plead guilty. Accused No. 1 had done so at the earlier stage of the trial when he filed the statement Exh. 60A. Accused No. 5 had also made up his mind when he filed the statement Exh. 922 even before his examination under S. 313 of the Code Accused No. 1 had reiterated his determination when he filed the statement Exh. 919. Thus both the accused had mentally decided to own their involvement in the murder of General Vaidya before their statements were recorded under S. 313 of the Code. Not only that their attitude reveals that they had resolved to kill him as they considered him an enemy of the Sikh community since he had desecrated the Akal Takht. They also told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan. It is thus apparent that before they made their statement admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so. But after the decision of this Court in Kehar Singhs case 1989 (95) CrLJ 1) and having regard to the well planned manner in which they executed their resolve to kill General Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under S. 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of S. 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused. ### Response: 0 ### Explanation: when trying any offence a Designated Court may also try any other offence with which the accused may, under the Code, be charged at the same trial if the offence is connected with such other offence. It is obvious that where an accused is put up for trial for the commission of any offence under the Act or the Rules made thereunder he can also be tried by the same Designated Court for the other offences with which he may, under the Code, be charged at the same trial provided the offence is connected with such other offence. In the instant case, the accused were tried under the aforesaid provisions of TADA Act and the Rules made thereunder along with the offences under sections 120B, 465, 468, 471, 419, 302 and 307, I.P.C. They were also charged for the commission of the aforesaid offences with the aid of S. 34, I.P.C. As pointed out earlier under S. 121(4) the procedure which the Designated Court must follow is the procedure prescribed in the Code for the trial before a Court of Session. Accordingly, the two accused persons were tried by the Designated Court since they were charged for the commission of offences under the TADA Act. The Designated Court, however, came to the conclusion that the charge framed under S. 3 of the TADA Act read with the relevant rules had not been established and, therefore, acquitted the accused persons on that count. It is not necessary for us to examine the correctness of this finding as we also come to the conclusion that capital punishment is warranted. It also acquitted all the accused persons of the other charges framed under the Penal Code save and except accused Nos. 1 and 5, as stated earlier. The accused were also convicted under S. 307 and 307/34 respectively for the injury caused to PW 106 Bhanumati Vaidya. Thus the conviction of accused Nos. 1 and 5 is outside the provisions of TADA Act and, therefore, it was open to the Designated Court to award such sentence as was provided by the Penal Code. Section 17 (3) of the TADA Act makes Sections 366 to 371 and S. 392 of the Code applicable in relation to a case involving an offence triable by a Designated Court. The Designated Court having come to the conclusion that this was a case falling within the description of the rarest of a rare awarded the extreme penalty of death to both accused Nos. 1 and 5 for the murder of General Vaidya. In doing so, the trial Court placed strong reliance on the decision of this Court in Kehar Singh v. State (Delhi Administration), 1988 (3) SCC 609 : 1989 (95) CrLJ 1). The learned trial Judge took the view that since the murder of General Vaidya was also on account of his involvement in the Blue Star Operation his case stood more or less on the same footing and hence fell within the rarest of a rare category. We think that this line of reasoning adopted by the learned trial Judge is unassailable. We may also point out that the accused persons had no remorse or repentance, in fact they felt proud of having killed General Vaidya in execution of their plan and hence we find no extenuating circumstance to make a departure from the ratio of Kehar Singhs case.That decision turned on the facts of that case. In that case the Court refused to entertain the plea on the ground that it was not raised in the courts below and was sought to be raised for the first time in the apex Court. That decision, therefore, does not assist the prosecution.57. But in the instant case we find that both the accused decided to plead guilty. Accused No. 1 had done so at the earlier stage of the trial when he filed the statement Exh. 60A. Accused No. 5 had also made up his mind when he filed the statement Exh. 922 even before his examination under S. 313 of the Code Accused No. 1 had reiterated his determination when he filed the statement Exh. 919. Thus both the accused had mentally decided to own their involvement in the murder of General Vaidya before their statements were recorded under S. 313 of the Code. Not only that their attitude reveals that they had resolved to kill him as they considered him an enemy of the Sikh community since he had desecrated the Akal Takht. They also told the trial court that they were proud of their act and were not afraid of death and were prepared to sacrifice their lives for the article of their faith, namely, the realisation of their dream of a separate State of Khalistan. It is thus apparent that before they made their statement admitting their involvement they had mentally prepared themselves for the extreme penalty and, therefore, if they desired to place any material for a lesser sentence they had ample opportunity to do so. But after the decision of this Court in Kehar Singhs case 1989 (95) CrLJ 1) and having regard to the well planned manner in which they executed their resolve to kill General Vaidya, they were aware that there was every likelihood of the Court imposing the extreme penalty and they would have, if they so desired, placed material in their written statements or would have requested the Court for time when their statements under S. 313 of the Code were recorded, if they desired to pray for a lesser sentence. Their resolve not to do so is reflected in the fact that they have not chosen to file any appeal against their convictions by the Designated Court. We are, therefore, of the view that in the present case the requirements of S. 235(2) of the Code have been satisfied in letter and spirit and no prejudice is shown to have occurred to the accused. We, therefore, reject this contention of the learned counsel for the accused.

Nabha Power Limited (NPL) Vs. Punjab State Power Corporation Limited (PSPCL) & Another

is the only mode of transportation when the siding has not been made, albeit on account of land acquisition problems.65. The plea of the first respondent that despite the absence of rail siding, if the appellant proceeded to operate the plant, that was their `business decision, cannot be sustained for the reason that the project was set up for obtaining electricity for the first respondent and as a prudent business decision for both, it would be required to operate the plant at the earliest. The complication in obtaining land by the State Government, cannot imply that the project should be on hold for two years, causing loss to everyone and lack of availability of electricity. Such a plea would be in defiance of the very object of the setting up of the power plant.66. Now turning to the other aspect of the GCV of the coal. If the issue is one of SECL billing for higher Calorific Value while actually supplying a low Calorific Value of coal, that would be a matter between the appellant and the SECL and the first respondent cannot be blamed for the same. That does not take away from the application of the formula for energy charge which provides for PCVn as the weighted average Gross Calorific Value delivered to the project. This Calorific Value of coal would have to be, thus, on the same parameter determined at the project site.67. On behalf of the first respondent an endeavour has been made to make a distinction between `at the site and `to the project in the definition of FCOAL n and PCVn. However, this is not of much assistance to the first respondent, in our view, as delivery `to the project could only mean `at the site of the project. It cannot be at the mine site. In fact, this is a fundamental issue where the first respondent seems to be altering the basic concept of the formula by seeking to replace the wordings in the formula relatable to the project-site to the mine-site.68. In view of our discussion we have no hesitation in concluding that the point at which the Calorific Value of the coal is to be measured is at the project-site. The plea of the first respondent that there is no such methodology of measuring the Calorific Value at the project-site is belied by the sample reports of different financial years filed by the appellant along with the synopsis, which itself referred to the joint sampling and testing of the coal received and is duly signed by both sides. It is surprising how such a bald denial was made despite the position existing at the site. These sample reports are for years 2014, 2015, 2016 and 2017.69. We are, thus, of the view that the reading of the energy formula leads to only one conclusion that all costs of coal up to the point of the project site have to be included and the Calorific Value of the coal has to be taken as at the project-site.70. We may notice that there are certain other essential costs sought to be claimed by the appellant such as the transit and handling losses, third party testing charges, liaising charges. We have already held that the formula contains only three elements and thus, the appellant cannot be permitted to plead that any other element, other than those would also incidentally form a part of the formula. In fact, such claims would be hit by RFP clause 2.7.1.4(3) and the energy charges have to be calculated only on the basis of the formula understood in a business sense. Thus, these claims are rejected.71. Last but not the least is the claim for interest. It is undisputed that no such claim has been laid so far, at any stage. The appellant claims to rely upon clause 11.3.4 read with clause 11.6.8. We have extracted the relevant clause aforesaid. No doubt there is a provision for a late payment surcharge in the event of delay in payment of a monthly bill but in the present case it is not as if there are undisputed bills remaining unpaid. There were serious disputes regarding the interpretation of the contractual clauses itself. We do not think that the present one is a fit case where the principle of compensation for deprivation should enure for the benefit of the appellant as a measure of restitution. More so as it has not been claimed by them at any stage. It does appear that this inclusion in the written synopsis does seem to arise as canvassed by the learned Senior Advocate for the first respondent on account of the Tribunal not finding favour with such claim in the remand proceedings by reason of no claim being laid towards the same. We are, thus, not inclined to grant this claim.72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any `implied term but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract.

1[ds]10. The dispute really is about the interpretation of the provisions of the PPA dated 18.1.2010 and is, thus, one of pure interpretation of the terms of the contract.The contours of the controversy show that we are really concerned with the interpretation of the commercial contract inter se theView:49. We now proceed to apply the aforesaid principles which have evolved for interpreting the terms of a commercial contract in question. Parties indulging in commerce act in a commercial sense. It is this ground rule which is the basis of The Moorcock test of giving `business efficacy to the transaction, as must have been intended at all events by both business parties. The development of law saw the `five condition test for an implied condition to be read into the contract including the `business efficacy test. It also sought to incorporate `The Officious Bystander Test [Shirlaw v. Southern Foundries (supra)]. This test has been set out in B.P. Refinery (Westernport) Proprietary Limited v. The President Councillors and Ratepayers of the Shire of Hastings (supra) requiring the requisite conditions to be satisfied: (1) reasonable and equitable; (2) necessary to give business efficacy to the contract; (3) it goes without saying, i.e., The Officious Bystander Test; (4) capable of clear expression; and (5) must not contradict any express term of the contract. The samefind reference also in Investors Compensation Scheme Ltd. v. West Bromwich Building Society (supra) and Attorney General of Belize and Ors. v. Belize Telecom Ltd. and Anr. (supra). Needless to say that the application of these principles would not be to substitute this Courts own view of the presumed understanding of commercial terms by the parties if the terms are explicit in their expression. The explicit terms of a contract are always the final word with regards to the intention of the parties. Thecontract inter se the parties has, thus, to be understood and interpreted in a manner that any view, on a particular clause of the contract, should not do violence to another part of the contract.50. The pricing of the coal is, if one may say, the crux of the problem. It is no doubt true, asby the firstrespondent, that while submitting the financial bid, clause 2.7.1.4(3) of the RFP required the tariff to be quoted inof Annexure 4 to be an `all inclusive tariff and provided that no exclusion shall be allowed. This clause has already been extracted aforesaid. The bidder/appellant was, thus, required to take into account all costs, including capital and operational costs, statutory taxes, etc.. The same clause also provides that the availability of inputs necessary for generation of power should beseller at the `Project Site, which must be reflected in the quoted tariff. The significant aspect is that the working of the contract is on the basis of `Project Site. It has to be, however, simultaneously kept in mind that the present project is in the nature of aproject which provides for a fuel specific procurement, having asite.51. The contract did not provide for a fixed energy charge, or a periodic revision of that charge, as the formula for energy charge was designed in such a manner that it would behe actual cost ofcoal. Thus, the basis is the actual cost incurred with regards to the coal. Of course, a major controversy has arisen as to whether the cost of coal has to be determined on the basis of the purchase price from SECL at thewhen the property is supposed to pass to the appellant, or whether it is the cost of coal to be used for the plant asby the appellantThe variable component of `FCOAL n refers to the `actual cost to the seller/appellant of the three components, i.e., (a) purchasing; (b) transporting; and (c) unloading the coal. The first respondent is thus right that there may be different aspects before the coal is used in the plant which are not required to beby the firstrespondent. The illustrations givenby the firstrespondent are of sizing of coal, crushing of coal, sprinkling and moisturisation of coal for stacking and storage, etc. being activities required to be undertaken prior to generation. Thus, there is no hesitation in our concluding that in view of the specific formula provided, only three aspects relatable to coal would determine the particularword `to obviously would have reference to transporting while the word `at would have relationship with unloading since it would be `transporting to and `unloading at. Any other construction will fail to make grammatical sense. Not only that, all the three, i.e., purchasing, transporting and unloading, have a reference to "the Project." Thus, the definition of FCOAL n is the weighted average actual costby the appellantof purchasing the coal and transporting it to the project site and thereafter unloading the coal at the project site. The fact that the property in coal passed on to the appellantSECL, on delivery being taken at thewould not change the definition of coal pricing as is required for the purposes of calculation of the tariff.55. Mr. Mukul Rohatgi, learned Senior Advocate, thus, rightly took support of the maxim for interpretation, `Reddendo SingulaWe have thus, also endeavoured to read the provision distributively, by applying each object, to the appropriate subject. Thus, the relevant preposition has been applied to the relevant activity.59. Once we obtain clarity on the aforesaid formula for calculation of the energy charges, the prior activity of `washing, before receiving the coal at the project site would be part of the pricing of coal and cost of purchasing the same. The appellant did seek to obtain clarity on the issue of the quality of coal to be used, to which the first respondent did answer that it would have to be `washed coal. In fact, this was in conformity with the NotificationoEF since the travel distance was more than 1,000 kilometers. The reference to coal in the formula would, thus, be only a reference to `washed coal and not to `unwashed coal.The fact that the clarification made it clear that the appellant had to "arrange" the washing of coal, did not imply that the cost of washing the coal had to be bornethe appellant, asthe energy charge formula alone would have to be referred to for the purposes of calculation of the coal price. The operating cost in clause 2.7.1.4(3) of the RFP would refer to the activities mentioned therein and the operation and maintenance of the power plant which would not alter the formula of the energy charges which contains the cost of coal. The principle of `business efficacy would also require us to read the `Monthly Energy Charges formula in a manner as would be normally understood.62. The plea of the first respondent that the fuel supply agreement and the fuel transportation agreement are part of the `project documents which does not include the component of `washing, does not hold much water for the reason that `washed coal is a necessity for the project as a quality requirement for the formula envisaging the requisite quality of coal to be obtained at the project site and, thus, including all the relevant costs up to that quality. The mere term `coal, therefore, would have to mean `washed coal, as no other type of coal could be used in the matter atis for that period of time that the actual transportation cost through road is sought to be64. We fail to appreciate as to how these costs can be excluded, as the transportation costs to the project site have to be compensated to the appellant. It is notogy of transfer, i.e., railways or road. It is also a matter of necessity, since the railway siding had not reached the project site due to some complications in acquisition of land. It is really the transportation cost from point to point which would be involved and the mere mention in the RFP under project related activity/milestone about Railway siding and the Railwaylines from nearby station to sitecannot imply that the Railways is the only mode of transportation when the siding has not been made, albeit on account of land acquisition problems.65. The plea of the first respondent that despite the absence of rail siding, if the appellant proceeded to operate the plant, that was their `business decision, cannot be sustained for the reason that the project was set up for obtaining electricity for the first respondent and as a prudent business decision for both, it would be required to operate the plant at the earliest. The complication in obtainingState Government, cannot imply that the project should be on hold for two years, causing loss to everyone and lack of availability of electricity. Such a plea would be in defiance of the very object of the setting up of the power plant.66. Now turning to the other aspect of the GCV of the coal. If the issue is one of SECL billing for higher Calorific Value while actually supplying a low Calorific Value of coal, that would be a matter between the appellant and the SECL and the first respondent cannot be blamed for the same. That does not take away from the application of the formula for energy charge which provides for PCVn as the weighted average Gross Calorific Value delivered to the project. This Calorific Value of coal would have to be, thus, on the same parameter determined at the project site.67. On behalf of the first respondent an endeavour has been made to make a distinction between `at the site and `to the project in the definition of FCOAL n and PCVn. However, this is not of much assistance to the first respondent, in our view, as delivery `to the project could only mean `at the site of the project. It cannot be at the mine site. In fact, this is a fundamental issue where the first respondent seems to be altering the basic concept of the formula by seeking to replace the wordings in the formula relatable to the68. In view of our discussion we have no hesitation in concluding that the point at which the Calorific Value of the coal is to be measured is at theThe plea of the first respondent that there is no such methodology of measuring the Calorific Value at theed bysample reports of different financial yearsby the appellantalong with the synopsis, which itself referred to the joint sampling and testing of the coal received and is dulyWe may notice that there are certain other essential costs sought to beby the appellantsuch as the transit and handling losses, third party testing charges, liaising charges. We have already held that the formula contains only three elements and thus, the appellant cannot be permitted to plead that any other element, other than those would also incidentally form a part of the formula. In fact, such claims would be hit by RFP clause 2.7.1.4(3) and the energy charges have to be calculated only on the basis of the formula understood in a business sense. Thus, these claims are rejected.71. Last but not the least is the claim for interest. It is undisputed that no such claim has been laid so far, at any stage. The appellant claims to rely upon clause 11.3.4 read with clause 11.6.8. We have extracted the relevant clause aforesaid. No doubt there is a provision for a late payment surcharge in the event of delay in payment of a monthly bill but in the present case it is not as if there are undisputed bills remaining unpaid. There were serious disputes regarding the interpretation of the contractual clauses itself. We do not think that the present one is a fit case where the principle of compensation for deprivation should enure for the benefit of the appellant as a measure of restitution. More so as it has not beenat any stage. It does appear that this inclusion in the written synopsis does seem to arise asned Senior Advocate for the first respondent on account of the Tribunal not finding favour with such claim in the remand proceedings by reason of no claim being laid towards the same. We are, thus, not inclined to grant this claim.72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is evenes of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when thereferred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any `implied term but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract.

### 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: is the only mode of transportation when the siding has not been made, albeit on account of land acquisition problems.65. The plea of the first respondent that despite the absence of rail siding, if the appellant proceeded to operate the plant, that was their `business decision, cannot be sustained for the reason that the project was set up for obtaining electricity for the first respondent and as a prudent business decision for both, it would be required to operate the plant at the earliest. The complication in obtaining land by the State Government, cannot imply that the project should be on hold for two years, causing loss to everyone and lack of availability of electricity. Such a plea would be in defiance of the very object of the setting up of the power plant.66. Now turning to the other aspect of the GCV of the coal. If the issue is one of SECL billing for higher Calorific Value while actually supplying a low Calorific Value of coal, that would be a matter between the appellant and the SECL and the first respondent cannot be blamed for the same. That does not take away from the application of the formula for energy charge which provides for PCVn as the weighted average Gross Calorific Value delivered to the project. This Calorific Value of coal would have to be, thus, on the same parameter determined at the project site.67. On behalf of the first respondent an endeavour has been made to make a distinction between `at the site and `to the project in the definition of FCOAL n and PCVn. However, this is not of much assistance to the first respondent, in our view, as delivery `to the project could only mean `at the site of the project. It cannot be at the mine site. In fact, this is a fundamental issue where the first respondent seems to be altering the basic concept of the formula by seeking to replace the wordings in the formula relatable to the project-site to the mine-site.68. In view of our discussion we have no hesitation in concluding that the point at which the Calorific Value of the coal is to be measured is at the project-site. The plea of the first respondent that there is no such methodology of measuring the Calorific Value at the project-site is belied by the sample reports of different financial years filed by the appellant along with the synopsis, which itself referred to the joint sampling and testing of the coal received and is duly signed by both sides. It is surprising how such a bald denial was made despite the position existing at the site. These sample reports are for years 2014, 2015, 2016 and 2017.69. We are, thus, of the view that the reading of the energy formula leads to only one conclusion that all costs of coal up to the point of the project site have to be included and the Calorific Value of the coal has to be taken as at the project-site.70. We may notice that there are certain other essential costs sought to be claimed by the appellant such as the transit and handling losses, third party testing charges, liaising charges. We have already held that the formula contains only three elements and thus, the appellant cannot be permitted to plead that any other element, other than those would also incidentally form a part of the formula. In fact, such claims would be hit by RFP clause 2.7.1.4(3) and the energy charges have to be calculated only on the basis of the formula understood in a business sense. Thus, these claims are rejected.71. Last but not the least is the claim for interest. It is undisputed that no such claim has been laid so far, at any stage. The appellant claims to rely upon clause 11.3.4 read with clause 11.6.8. We have extracted the relevant clause aforesaid. No doubt there is a provision for a late payment surcharge in the event of delay in payment of a monthly bill but in the present case it is not as if there are undisputed bills remaining unpaid. There were serious disputes regarding the interpretation of the contractual clauses itself. We do not think that the present one is a fit case where the principle of compensation for deprivation should enure for the benefit of the appellant as a measure of restitution. More so as it has not been claimed by them at any stage. It does appear that this inclusion in the written synopsis does seem to arise as canvassed by the learned Senior Advocate for the first respondent on account of the Tribunal not finding favour with such claim in the remand proceedings by reason of no claim being laid towards the same. We are, thus, not inclined to grant this claim.72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is even preceded by opportunities of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when the Penta-test referred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any `implied term but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract. ### Response: 1 ### Explanation: for that period of time that the actual transportation cost through road is sought to be64. We fail to appreciate as to how these costs can be excluded, as the transportation costs to the project site have to be compensated to the appellant. It is notogy of transfer, i.e., railways or road. It is also a matter of necessity, since the railway siding had not reached the project site due to some complications in acquisition of land. It is really the transportation cost from point to point which would be involved and the mere mention in the RFP under project related activity/milestone about Railway siding and the Railwaylines from nearby station to sitecannot imply that the Railways is the only mode of transportation when the siding has not been made, albeit on account of land acquisition problems.65. The plea of the first respondent that despite the absence of rail siding, if the appellant proceeded to operate the plant, that was their `business decision, cannot be sustained for the reason that the project was set up for obtaining electricity for the first respondent and as a prudent business decision for both, it would be required to operate the plant at the earliest. The complication in obtainingState Government, cannot imply that the project should be on hold for two years, causing loss to everyone and lack of availability of electricity. Such a plea would be in defiance of the very object of the setting up of the power plant.66. Now turning to the other aspect of the GCV of the coal. If the issue is one of SECL billing for higher Calorific Value while actually supplying a low Calorific Value of coal, that would be a matter between the appellant and the SECL and the first respondent cannot be blamed for the same. That does not take away from the application of the formula for energy charge which provides for PCVn as the weighted average Gross Calorific Value delivered to the project. This Calorific Value of coal would have to be, thus, on the same parameter determined at the project site.67. On behalf of the first respondent an endeavour has been made to make a distinction between `at the site and `to the project in the definition of FCOAL n and PCVn. However, this is not of much assistance to the first respondent, in our view, as delivery `to the project could only mean `at the site of the project. It cannot be at the mine site. In fact, this is a fundamental issue where the first respondent seems to be altering the basic concept of the formula by seeking to replace the wordings in the formula relatable to the68. In view of our discussion we have no hesitation in concluding that the point at which the Calorific Value of the coal is to be measured is at theThe plea of the first respondent that there is no such methodology of measuring the Calorific Value at theed bysample reports of different financial yearsby the appellantalong with the synopsis, which itself referred to the joint sampling and testing of the coal received and is dulyWe may notice that there are certain other essential costs sought to beby the appellantsuch as the transit and handling losses, third party testing charges, liaising charges. We have already held that the formula contains only three elements and thus, the appellant cannot be permitted to plead that any other element, other than those would also incidentally form a part of the formula. In fact, such claims would be hit by RFP clause 2.7.1.4(3) and the energy charges have to be calculated only on the basis of the formula understood in a business sense. Thus, these claims are rejected.71. Last but not the least is the claim for interest. It is undisputed that no such claim has been laid so far, at any stage. The appellant claims to rely upon clause 11.3.4 read with clause 11.6.8. We have extracted the relevant clause aforesaid. No doubt there is a provision for a late payment surcharge in the event of delay in payment of a monthly bill but in the present case it is not as if there are undisputed bills remaining unpaid. There were serious disputes regarding the interpretation of the contractual clauses itself. We do not think that the present one is a fit case where the principle of compensation for deprivation should enure for the benefit of the appellant as a measure of restitution. More so as it has not beenat any stage. It does appear that this inclusion in the written synopsis does seem to arise asned Senior Advocate for the first respondent on account of the Tribunal not finding favour with such claim in the remand proceedings by reason of no claim being laid towards the same. We are, thus, not inclined to grant this claim.72. We may, however, in the end, extend a word of caution. It should certainly not be an endeavour of commercial courts to look to implied terms of contract. In the current day and age, making of contracts is a matter of high technical expertise with legal brains from all sides involved in the process of drafting a contract. It is evenes of seeking clarifications and doubts so that the parties know what they are getting into. Thus, normally a contract should be read as it reads, as per its express terms. The implied terms is a concept, which is necessitated only when thereferred to aforesaid comes into play. There has to be a strict necessity for it. In the present case, we have really only read the contract in the manner it reads. We have not really read into it any `implied term but from the collection of clauses, come to a conclusion as to what the contract says. The formula for energy charges, to our mind, was quite clear. We have only expounded it in accordance to its natural grammatical contour, keeping in mind the nature of the contract.

Madan Naik by Legal Representatives and Ors. Vs. Hansubala Devi and Ors.

made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1 (k) CPC. There being a specific provision conferring a right of appeal one can resort to the same. 7. The first error occurred when after disposing of the appeal as having abated the learned Judge of the first appellate court proceeded to direct that the appeal is dismissed on contest. There was no contest. There was no adjudication of rights or adjudication of dispute on merits. The claim in the suit was with regard to title to a tank and its embankment. There was no formal complete and binding adjudication of the rights of the parties as canvassed in the appeal before the first appellate court. The appeal stood disposed of as having abated without the slightest reference to the rights of the parties. In this situation there was no question of the drawing up the decree. 8. Section 2, sub-section (2) of the Code of Civil Procedure defines decree to mean the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order When an appeal abates for want of substitution as envisaged by sub-rule (1) of rule 9 of Order 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits section 11 of CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal only course open is to move the court for setting aside abatement. An order under Order 22. Rule 9 (2), CPC refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in section 2 (2), CPC. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High court on the grounds therein set out. What is worthy of notice is that a second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent. 9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned Single Judge in the appeal from order. 10. It may be recalled that the appeal from order was allowed holding that the appellants in the first appellate court were prevented by sufficient cause from seeking substitution within the prescribed period of limitation and an acceptable case was made out for condoning the delay, setting aside the abatement and granting substitution. This decision of the learned Single Judge in appeal from order remains unimpaired unaffected and inviolable by the dismissal of the second appeal on the ground that it was either incompetent or infructuous. 11. After the learned Single Judge allowed the appeal from order and remitted the case to the first appellate court original plaintiffs preferred Letters patent appeal. Frankly speaking no appeal would lie under Letters Patent against a decision rendered by the High court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High court in Letters Patent appeal But assuming without deciding that Letter Patent appeal was competent even on merits the High Court was not justified in interfering with the decision of the learned Single Judge. The Division Bench hearing the Letters Patent appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable.12. The High Court was equally in error in holding that the second appeal was not incompetent because the first appellate court had also made an order dismissing the appeal on contest. That part of the order of the first appellate court was contrary to law and without jurisdiction and non est, once the learned Judge held the appeal before him had abated. For these reasons we are satisfied that the Division Bench of the High Court was in error in allowing the Letters Patent appeal and its decision is contrary to law and unsustainable and must be quashed and set aside.

1[ds]6. When an appeal is disposed of having abated and thereafter an application is made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1 (k) CPC. There being a specific provision conferring a right of appeal one can resort to the same7. The first error occurred when after disposing of the appeal as having abated the learned Judge of the first appellate court proceeded to direct that the appeal is dismissed on contest. There was no contest. There was no adjudication of rights or adjudication of dispute on merits. The claim in the suit was with regard to title to a tank and its embankment. There was no formal complete and binding adjudication of the rights of the parties as canvassed in the appeal before the first appellate court. The appeal stood disposed of as having abated without the slightest reference to the rights of the parties. In this situation there was no question of the drawing up the decreen (2) of the Code of Civil Procedure defines decree to mean the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order When an appeal abates for want of substitution as envisaged bye (1) of rule 9 of Order 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits section 11 of CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal only course open is to move the court for setting aside abatement. An order under Order 22. Rule 9 (2), CPC refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in section 2 (2), CPC. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High court on the grounds therein set out. What is worthy of notice is that a second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned Single Judge in the appeal from order10. It may be recalled that the appeal from order was allowed holding that the appellants in the first appellate court were prevented by sufficient cause from seeking substitution within the prescribed period of limitation and an acceptable case was made out for condoning the delay, setting aside the abatement and granting substitution. This decision of the learned Single Judge in appeal from order remains unimpaired unaffected and inviolable by the dismissal of the second appeal on the ground that it was either incompetent or infructuous11. After the learned Single Judge allowed the appeal from order and remitted the case to the first appellate court original plaintiffs preferred Letters patent appeal. Frankly speaking no appeal would lie under Letters Patent against a decision rendered by the High court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High court in Letters Patent appeal But assuming without deciding that Letter Patent appeal was competent even on merits the High Court was not justified in interfering with the decision of the learned Single Judge. The Division Bench hearing the Letters Patent appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable12. The High Court was equally in error in holding that the second appeal was not incompetent because the first appellate court had also made an order dismissing the appeal on contest. That part of the order of the first appellate court was contrary to law and without jurisdiction and non est, once the learned Judge held the appeal before him had abated. For these reasons we are satisfied that the Division Bench of the High Court was in error in allowing the Letters Patent appeal and its decision is contrary to law and unsustainable and must be quashed and set aside.

### 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: made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1 (k) CPC. There being a specific provision conferring a right of appeal one can resort to the same. 7. The first error occurred when after disposing of the appeal as having abated the learned Judge of the first appellate court proceeded to direct that the appeal is dismissed on contest. There was no contest. There was no adjudication of rights or adjudication of dispute on merits. The claim in the suit was with regard to title to a tank and its embankment. There was no formal complete and binding adjudication of the rights of the parties as canvassed in the appeal before the first appellate court. The appeal stood disposed of as having abated without the slightest reference to the rights of the parties. In this situation there was no question of the drawing up the decree. 8. Section 2, sub-section (2) of the Code of Civil Procedure defines decree to mean the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order When an appeal abates for want of substitution as envisaged by sub-rule (1) of rule 9 of Order 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits section 11 of CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal only course open is to move the court for setting aside abatement. An order under Order 22. Rule 9 (2), CPC refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in section 2 (2), CPC. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High court on the grounds therein set out. What is worthy of notice is that a second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent. 9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned Single Judge in the appeal from order. 10. It may be recalled that the appeal from order was allowed holding that the appellants in the first appellate court were prevented by sufficient cause from seeking substitution within the prescribed period of limitation and an acceptable case was made out for condoning the delay, setting aside the abatement and granting substitution. This decision of the learned Single Judge in appeal from order remains unimpaired unaffected and inviolable by the dismissal of the second appeal on the ground that it was either incompetent or infructuous. 11. After the learned Single Judge allowed the appeal from order and remitted the case to the first appellate court original plaintiffs preferred Letters patent appeal. Frankly speaking no appeal would lie under Letters Patent against a decision rendered by the High court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High court in Letters Patent appeal But assuming without deciding that Letter Patent appeal was competent even on merits the High Court was not justified in interfering with the decision of the learned Single Judge. The Division Bench hearing the Letters Patent appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable.12. The High Court was equally in error in holding that the second appeal was not incompetent because the first appellate court had also made an order dismissing the appeal on contest. That part of the order of the first appellate court was contrary to law and without jurisdiction and non est, once the learned Judge held the appeal before him had abated. For these reasons we are satisfied that the Division Bench of the High Court was in error in allowing the Letters Patent appeal and its decision is contrary to law and unsustainable and must be quashed and set aside. ### Response: 1 ### Explanation: disposed of having abated and thereafter an application is made for setting aside abatement of appeal, an order refusing to set aside abatement is appealable as an order under Order 40, Rule 1 (k) CPC. There being a specific provision conferring a right of appeal one can resort to the same7. The first error occurred when after disposing of the appeal as having abated the learned Judge of the first appellate court proceeded to direct that the appeal is dismissed on contest. There was no contest. There was no adjudication of rights or adjudication of dispute on merits. The claim in the suit was with regard to title to a tank and its embankment. There was no formal complete and binding adjudication of the rights of the parties as canvassed in the appeal before the first appellate court. The appeal stood disposed of as having abated without the slightest reference to the rights of the parties. In this situation there was no question of the drawing up the decreen (2) of the Code of Civil Procedure defines decree to mean the formal expression of an adjudication which, so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144 but shall not include any adjudication from which an appeal lies as an appeal from an order When an appeal abates for want of substitution as envisaged bye (1) of rule 9 of Order 22, it precludes a fresh suit being brought on the same cause of action. It is a specific provision. If abatement implied adjudication on merits section 11 of CPC would be attracted. Abatement of an appeal does not imply adjudication on merits and hence a specific provision had to be made in Order 22, Rule 9 (1) that no fresh suit could be brought on the same cause of action. Therefore when the appeal abated there was no decree, disposing of the first appeal only course open is to move the court for setting aside abatement. An order under Order 22. Rule 9 (2), CPC refusing to set aside abatement is specifically appealable under Order 43, Rule 1 (k). Such an adjudication if it can be so styled would not be a decree as defined in section 2 (2), CPC. Section 100 provides for second appeal to the High Court from every decree passed in appeal by any court subordinate to the High court on the grounds therein set out. What is worthy of notice is that a second appeal lies against a decree passed in appeal. An order under Order 22, Rule 9 appealable as an order would not be a decree and therefore, no second appeal would lie against that order. Such an appeal is liable to be rejected as incompetent9. It would thus appear that the second appeal preferred by the original defendants was incompetent. But the appeal from order refusing to set aside abatement was competent. If the second appeal was incompetent, its dismissal cannot have any impact on the disposal on merits of the appeal from order, and that was rightly done by the learned Single Judge. The learned Single Judge admitted the appeal from order and dismissed the second appeal. In fact, in order to avoid this prolonged litigation upto this Court, it could have been mentioned that the second appeal is dismissed as incompetent or as having become infructuous as the appeal from order was preferred. In any event, the legal position would not change merely because an incompetent second appeal was preferred which came up for hearing and was dismissed in the circumstances clearly showing that it was dismissed as incompetent. It could have no impact on merits or validity of the decision of the learned Single Judge in the appeal from order10. It may be recalled that the appeal from order was allowed holding that the appellants in the first appellate court were prevented by sufficient cause from seeking substitution within the prescribed period of limitation and an acceptable case was made out for condoning the delay, setting aside the abatement and granting substitution. This decision of the learned Single Judge in appeal from order remains unimpaired unaffected and inviolable by the dismissal of the second appeal on the ground that it was either incompetent or infructuous11. After the learned Single Judge allowed the appeal from order and remitted the case to the first appellate court original plaintiffs preferred Letters patent appeal. Frankly speaking no appeal would lie under Letters Patent against a decision rendered by the High court in an appeal from order under Order 43, Rule 1. This is one good ground to quash the decision of the High court in Letters Patent appeal But assuming without deciding that Letter Patent appeal was competent even on merits the High Court was not justified in interfering with the decision of the learned Single Judge. The Division Bench hearing the Letters Patent appeal was clearly in error in holding that the dismissal of the second appeal had rendered the appeal from order infructuous. We are unable to appreciate how this conclusion is arrived at by the High Court and it is wholly unsustainable12. The High Court was equally in error in holding that the second appeal was not incompetent because the first appellate court had also made an order dismissing the appeal on contest. That part of the order of the first appellate court was contrary to law and without jurisdiction and non est, once the learned Judge held the appeal before him had abated. For these reasons we are satisfied that the Division Bench of the High Court was in error in allowing the Letters Patent appeal and its decision is contrary to law and unsustainable and must be quashed and set aside.

ANANDRAO RAMCHANDRA SALUNKE Vs. LIFE INSURANCE CORPORATION OF INDIA

company in advance to make up the deficiency in later premiums to cover the annual cost of insurance, instead of being retained by the assured and paid by him to the company in the shape of greatly increased premiums, when the risk is greatest. It is the net reserve required by law to be kept by the company for the benefit of the assured, and to be maintained to the credit of the policy. So long as the policy remains in force the company has not practically any beneficial interest in it, except as its custodian, with the obligation to maintain it unimpaired and suitably invested for the benefit of the insured. This is the practical, though not the legal, relation of the company to this fund. Upon the surrender of the policy before the death of the assured, the company, to be relieved from all responsibility for the increased risk, which is represented by this accumulating reserve, could well afford to surrender a considerable part of it to the assured, or his representative. A return of a part in some form or other is now usually made… 15. The issue before the Court is as to whether the provisions of Section 113 of the Act and condition 7 of the policy document were duly observed by the insurer. Section 113(1) is in two parts: (i) A policy of life insurance under which the whole of the benefits become payable either on the occurrence of a contingency which is bound to happen or at fixed intervals, acquires a surrender value if all the premiums have been paid for at least three consecutive years. The surrender value of any subsisting bonus already attached to the policy is to be added to the guaranteed surrender value; (ii) Every such policy which is issued by an insurer must show the guaranteed surrender value of the policy at the close of each year after the second year of its currency or at the close of each period of three years throughout the currency of the policy. 16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. The requirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette. 17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed. 18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,250. 19. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest.

1[ds]11. There are popular misconceptions about the concept of surrender value in the sphere of life insurance. In a policy of fire insurance, a policy holder has no expectation of a surrender value. In contrast, a holder of a policy of life insurance may believe (as the appellant in this case does) that their surrender value will be equal to the total amount paid as premium. This expectation is misconceived. Simply put, life insurance operates on the basis of the law of averages. Premium is collected from all policy holders in order to create a common fund. Payouts from the fund are received only by those who suffer the peril which is insured. The economic loss suffered by few is divided amongst many. Premia are fixed by the insurer on the basis of expected mortality rates. Hypothetically speaking, if mortality rates of all individuals were to be equal irrespective of age and everyone paid the same premium, the discontinuance of a policy during its term would not entitle the insured to a surrender value since the common fund would be depleted on a regular basis. In reality, the mortality rates increase with age. Actuarial tables provide a guide to the insurer. Hence, when an insurer initially collects premium from individuals of a younger age, the amount it collects is higher than the amount it pays out towards claims. The difference between them is the reserve. Thus if a policy holder wishes to discontinue a policy before the end of the term, they will only be entitled to their share of the reserve as a surrender value13. Since the value of the reserve is the amount which the insurer collects as premium from policy holders from which it deducts the amount of the claims it pays out, the surrender value payable to a policy holder can never be equal to the premia paid by them.16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. Therequirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,25019. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest.

### 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: company in advance to make up the deficiency in later premiums to cover the annual cost of insurance, instead of being retained by the assured and paid by him to the company in the shape of greatly increased premiums, when the risk is greatest. It is the net reserve required by law to be kept by the company for the benefit of the assured, and to be maintained to the credit of the policy. So long as the policy remains in force the company has not practically any beneficial interest in it, except as its custodian, with the obligation to maintain it unimpaired and suitably invested for the benefit of the insured. This is the practical, though not the legal, relation of the company to this fund. Upon the surrender of the policy before the death of the assured, the company, to be relieved from all responsibility for the increased risk, which is represented by this accumulating reserve, could well afford to surrender a considerable part of it to the assured, or his representative. A return of a part in some form or other is now usually made… 15. The issue before the Court is as to whether the provisions of Section 113 of the Act and condition 7 of the policy document were duly observed by the insurer. Section 113(1) is in two parts: (i) A policy of life insurance under which the whole of the benefits become payable either on the occurrence of a contingency which is bound to happen or at fixed intervals, acquires a surrender value if all the premiums have been paid for at least three consecutive years. The surrender value of any subsisting bonus already attached to the policy is to be added to the guaranteed surrender value; (ii) Every such policy which is issued by an insurer must show the guaranteed surrender value of the policy at the close of each year after the second year of its currency or at the close of each period of three years throughout the currency of the policy. 16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. The requirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette. 17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed. 18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,250. 19. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest. ### Response: 1 ### Explanation: 11. There are popular misconceptions about the concept of surrender value in the sphere of life insurance. In a policy of fire insurance, a policy holder has no expectation of a surrender value. In contrast, a holder of a policy of life insurance may believe (as the appellant in this case does) that their surrender value will be equal to the total amount paid as premium. This expectation is misconceived. Simply put, life insurance operates on the basis of the law of averages. Premium is collected from all policy holders in order to create a common fund. Payouts from the fund are received only by those who suffer the peril which is insured. The economic loss suffered by few is divided amongst many. Premia are fixed by the insurer on the basis of expected mortality rates. Hypothetically speaking, if mortality rates of all individuals were to be equal irrespective of age and everyone paid the same premium, the discontinuance of a policy during its term would not entitle the insured to a surrender value since the common fund would be depleted on a regular basis. In reality, the mortality rates increase with age. Actuarial tables provide a guide to the insurer. Hence, when an insurer initially collects premium from individuals of a younger age, the amount it collects is higher than the amount it pays out towards claims. The difference between them is the reserve. Thus if a policy holder wishes to discontinue a policy before the end of the term, they will only be entitled to their share of the reserve as a surrender value13. Since the value of the reserve is the amount which the insurer collects as premium from policy holders from which it deducts the amount of the claims it pays out, the surrender value payable to a policy holder can never be equal to the premia paid by them.16. In computing the surrender value of any subsisting bonus, reference ought to be made to the stipulations contained in Section 113. The first proviso to Section 113(1) provides that the requirement of the addition of the surrender value of the bonus attaching to the policy at surrender is deemed to have been fulfilled where the method of calculating the guaranteed surrender value makes provision for the surrender value of the bonus attaching to the policy. The second proviso stipulates that the requirement of showing the guaranteed surrender value on a policy is deemed to have been complied with where the insurer shows on the policy the guaranteed surrender value by means of a formula which is accepted by the authority as satisfying the requirements under the third proviso. Therequirement of showing the guaranteed surrender value shall not take effect until six months have expired from the date of publication of the notification in the Official Gazette17. In exercise of the powers conferred by Section 49(2) of the Life Insurance Corporation Act, 1956, the Central Government notified the Life Insurance Corporation Regulations 1959 . Regulation 18(2) empowers the Executive Committee to accept the surrender of any insurance or annuity and to purchase or redeem any insurance or annuity and to waive the forfeiture of any insurance on such terms as the Executive Committee may deem fit. The respondent has placed on the record a copy of the Minutes of the Seventy-seventh meeting of the Executive Committee of the Life Insurance Corporation of India held on 19 August 1959. At that meeting, the Executive Committee approved of the proposed scale of surrender values. The note on the basis of which the approval was granted has also been annexed18. We have considered the basis of the computation which has been placed before the Court and which has been extracted in the earlier part of this judgment. Condition 7 of the policy document specifically provides that the surrender value is equal to 30% of the total premiums paid, excluding premiums for the first year and all extra premiums and/ or additional premiums for accident benefits that may have been paid. The paid up value of the policy on that basis was computed by taking into account the premiums that were paid by the insured. The paid up value of the policy worked out to Rs 23,25019. The real dispute in the present case arose because of the claim of the appellant that he was entitled to the entirety of the bonus and not 32.92% of the total bonus that would have accrued had the policy continued to its term of maturity. The factor of 32.92% has been duly explained on the basis of the actuarial table governing surrender values which has been placed on record. The vested bonus which accrued, stood at Rs 42,187 at the rate of Rs 562.5 per Rs 1,000, according to the bonus chart for endowment policies as on 31 March 2001. There was no error on the part of the respondent in computing the surrender value of the subsisting bonus, on the basis on which it has been computed. The surrender value of the subsisting bonus attached to the policy cannot be the bonus which would have been payable had the policy continued to its full term. In deducing the surrender value of the bonus which was payable to the appellant, the respondent applied the surrender value factor of 32.92% to the total paid up value of the policy. The total paid up value comprised of the paid up value (Rs 23,250) and the vested bonus (Rs 42,187). Hence, the total paid up value of the policy was Rs 65,437 to which the surrender value factor of 32.92% was applied. This resulted in a surrender value of Rs 21,542. What is payable to the insured was computed after deducting the loan which was taken against the policy together with the outstanding interest.

Prakash Vs. State Of Karnataka

if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not. This is what the Constitution Bench said: “It is important therefore that an accused should be properly examined under section 342 [Now Section 313 of the Code of Criminal Procedure] and, as their Lordships of the Privy Council indicated in Dwarkanath v. Emperor, [AIR 1933 PC 124 ] if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in Sessions Courts. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of section 342 should be fairly and faithfully observed.” 64. This was more clearly spelt out in Ajay Singh v. State of Maharashtra [(2007) 12 SCC 341] when this Court held: “A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law.” 65. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution. Ornaments of the deceased 66. According to the prosecution, Prakash had led the Investigating Officer to various places from where some ornaments belonging to Gangamma were recovered. The recovery witnesses were examined by the prosecution as well as those persons from whom the ornaments were recovered. However, what is of significance is that none of the recovered ornaments could be connected to Gangamma. This is a serious lapse in investigation and the mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged to Gangamma. 67. At the stage of re-examination of Hucha Basappa, the prosecution sought permission to examine him with regard to identification of the ornaments said to belong to Gangamma. However, this was declined by the Trial Judge who perused the statement of the witness recorded under Section 162 of the Code of Criminal Procedure which did not have anything with regard to identification of the ornaments. 68. The High Court adversely commented on this and held that the Trial Judge adopted a very strange procedure while declining to grant the request of the prosecution to have the ornaments identified through Hucha Basappa. According to the High Court, Hucha Basappa had stated in an earlier part of his testimony in court that Gangamma had ornaments such as a gold chain, silver waist belt, silver rings, ear studs etc. and that he had seen those ornaments and could identify them if he saw them. Therefore, permission should have been granted to the prosecution to further examine Hucha Basappa and it was for the defence to have brought out any contradiction between the statement made by the witness in court and the statement made by him under Section 162 of the Code of Criminal Procedure. Having said that, the High Court concluded that the ornaments belonged to Gangamma.69. Even if we were to assume that the procedure followed by the Trial Court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma. Other issues 70. It was brought to our notice that the steel rod used to kill Gangamma was recovered at the instance of Prakash. This was hidden under a stone slab and it contained blood stains. The Investigating Officer made no effort to ascertain whether the blood stains on the steel rod were those of Gangamma nor was any effort made to ascertain whether the steel rod contained any fingerprints which matched with those of Prakash. This, coupled with the fact that the blood stained crowbar seized at the place of occurrence, was not sent for a chemical examination, raises a grave suspicion that the investigation was not fair and the benefit of this doubt must go to Prakash. [Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of U.P. v. Arun Kumar Gupta, (2003) 2 SCC 202] 71. All that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma.72. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact. “In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused.” [Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173] Conclusion

1[ds]It cannot, therefore, be definitely concluded that Prakash was being served dinner by Gangamma at about 8.30 p.m. on 5th November, 1990 or that he stayed in her house thereafter. But it is clear that even if Prakash was there, he was not alone with Gangamma when she served dinner.25. Two questions immediately arise in this context: Firstly, why is it that Swamy was not examined by the Investigating Officer since he was expected to be atresidence on 5th November, 1990? There is absolutely no answer forthcoming from the State in this regard. The involvement of Prakash in the incident came about only because Hucha Basappa informed the Investigating Officer on the night of 5th November, 1990 that he was not on talking terms with Prakash and that he had given a complaint against him when Prakash tried to assault Hucha Basappa. This is all the more reason for the Investigating Officer to have questioned Swamy who was expected to be athouse on 5th November, 1990.26. Secondly, why is it that no Test Identification Parade was held to determine whether Prakash was actually the person who was seen by PW-6 Gangamma and byis true that these witnesses had identified Prakash when he was produced before them on his apprehension about five or six days after the incident and also while he was in the dock in court, but the circumstances under which the dock identification took place are not quite satisfactory inasmuch as both the witnesses entered the witness box almost 41/2 years after they are said to have first seen Prakash only briefly and without any identification parade having been conducted.We are of the opinion that given the facts of the case, it would have been more appropriate for an identification parade to have been conducted, but its absence in this case is not necessarily fatal, there being other reasons also for not accepting the case set up by the prosecution. However, the absence of an identification parade certainly casts a doubt abouthouse on 5th November,we find that not only is there an absence of some degree of certainty and a doubt abouthouse on 5th November,1990 but also an absence of certainty and a doubt whether he was there at 1.00 p.m. and at 8.30 p.Given the evidence before us, we find it very difficult to accept with certainty the case of the prosecution that Prakash alone was with Gangamma on the fateful night of 5th November, 1990. The view taken by the Trial Court giving Prakash the benefit of doubt is certainly a plausible view and in the absence of any perversity in the view taken, we are of the opinion the High Court ought not to have upset the conclusion arrived at.We may also mention that from the decision of the High Court it is clear that it has proceeded merely on the basis of probabilities. The High Court held that Prakash was probably present inhouse on 5th November,1990 and that in all probability he was the relative who was having dinner athouse. In a case of circumstantial evidence, there has to be some degree of trustworthiness and certainty about the existence of the circumstances - mere probabilities are certainly not enough. [Hargun Sunder Das Godeja v. State of Maharashtra, (1970) 1 SCC 724 ] In our opinion, this is an unsatisfactory way of dealing with the issue and we cannot uphold the view taken by the High Court in this regard.38. In view of the above, it is not necessary for us to labour on the questions raised on the applicability of the last seen theory. There is a clear doubt whether Prakash was with Gangamma; if he was, then it was at about 1.00 p.m. on 5th November, 1990; there is no evidence that Prakash was with Gangamma thereafter and on the contrary there is evidence that some of her relatives (which may or may not include Prakash) were with her at about 8.30 p.m. We would be stretching the last seen theory to the vanishing point if we were to apply it to the facts of thisultimate conclusion is that there is absolutely no evidence on record to show how Exh. P-20 which is said to be the admitted fingerprint of Prakash came into existence. In the absence of any admitted fingerprint, there is nothing to show that the handprint or the fingerprints on Exh. P-18 was that offar as this case is concerned, the entire exercise offingerprint identification is shrouded in mystery and we cannot give any credence toinvestigation was conducted in a rather unconcerned manner, to say theare not sure whether the actual statement made by Shivanna has been lost in translation.In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains onseized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains onclothes were those ofblood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains onclothes were his own blood stains and that his blood group was also AB.Learned counsel for Prakash contended that the report of the serologist was not put to him when he was examined under Section 313 of the Code of Criminal Procedure. The High Court dealt with this issue in a rather unsatisfactoryIt is one thing to say that no prejudice was caused to Prakash by not affording him an opportunity to explain the serological report. It is quite another thing to put the report to his learned counsel in appeal and give him (the learned counsel) an opportunity to explain the report of the serologist. The course adopted by the High Court is clearly impermissible. The law on the subject was laid down several decades ago by the Constitution Bench in Tara Singh v. State [1951 SCR 729 ] and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him orWe are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of theis a serious lapse in investigation and the mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged tothis was declined by the Trial Judge who perused the statement of the witness recorded under Section 162 of the Code of Criminal Procedure which did not have anything with regard to identification of theThe High Court adversely commented on this and held that the Trial Judge adopted a very strange procedure while declining to grant the request of the prosecution to have the ornaments identified through Hucha Basappa. According to the High Court, Hucha Basappa had stated in an earlier part of his testimony in court that Gangamma had ornaments such as a gold chain, silver waist belt, silver rings, ear studs etc. and that he had seen those ornaments and could identify them if he saw them. Therefore, permission should have been granted to the prosecution to further examine Hucha Basappa and it was for the defence to have brought out any contradiction between the statement made by the witness in court and the statement made by him under Section 162 of the Code of Criminal Procedure. Having said that, the High Court concluded that the ornaments belonged to Gangamma.69. Even if we were to assume that the procedure followed by the Trial Court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma.It was brought to our notice that the steel rod used to kill Gangamma was recovered at the instance of Prakash. This was hidden under a stone slab and it contained blood stains. The Investigating Officer made no effort to ascertain whether the blood stains on the steel rod were those of Gangamma nor was any effort made to ascertain whether the steel rod contained any fingerprints which matched with those of Prakash. This, coupled with the fact that the blood stained crowbar seized at the place of occurrence, was not sent for a chemical examination, raises a grave suspicion that the investigation was not fair and the benefit of this doubt must go to Prakash. [Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of U.P. v. Arun Kumar Gupta, (2003) 2 SCCAll that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma.72. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevanta case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the[Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC

### 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: if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him or not. This is what the Constitution Bench said: “It is important therefore that an accused should be properly examined under section 342 [Now Section 313 of the Code of Criminal Procedure] and, as their Lordships of the Privy Council indicated in Dwarkanath v. Emperor, [AIR 1933 PC 124 ] if a point in the evidence is considered important against the accused and the conviction is intended to be based upon it, then it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it if he so desires. This is an important and salutary provision and I cannot permit it to be slurred over. I regret to find that in many cases scant attention is paid to it, particularly in Sessions Courts. But whether the matter arises in the Sessions Court or in that of the Committing Magistrate, it is important that the provisions of section 342 should be fairly and faithfully observed.” 64. This was more clearly spelt out in Ajay Singh v. State of Maharashtra [(2007) 12 SCC 341] when this Court held: “A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law.” 65. We are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of the prosecution. Ornaments of the deceased 66. According to the prosecution, Prakash had led the Investigating Officer to various places from where some ornaments belonging to Gangamma were recovered. The recovery witnesses were examined by the prosecution as well as those persons from whom the ornaments were recovered. However, what is of significance is that none of the recovered ornaments could be connected to Gangamma. This is a serious lapse in investigation and the mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged to Gangamma. 67. At the stage of re-examination of Hucha Basappa, the prosecution sought permission to examine him with regard to identification of the ornaments said to belong to Gangamma. However, this was declined by the Trial Judge who perused the statement of the witness recorded under Section 162 of the Code of Criminal Procedure which did not have anything with regard to identification of the ornaments. 68. The High Court adversely commented on this and held that the Trial Judge adopted a very strange procedure while declining to grant the request of the prosecution to have the ornaments identified through Hucha Basappa. According to the High Court, Hucha Basappa had stated in an earlier part of his testimony in court that Gangamma had ornaments such as a gold chain, silver waist belt, silver rings, ear studs etc. and that he had seen those ornaments and could identify them if he saw them. Therefore, permission should have been granted to the prosecution to further examine Hucha Basappa and it was for the defence to have brought out any contradiction between the statement made by the witness in court and the statement made by him under Section 162 of the Code of Criminal Procedure. Having said that, the High Court concluded that the ornaments belonged to Gangamma.69. Even if we were to assume that the procedure followed by the Trial Court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma. Other issues 70. It was brought to our notice that the steel rod used to kill Gangamma was recovered at the instance of Prakash. This was hidden under a stone slab and it contained blood stains. The Investigating Officer made no effort to ascertain whether the blood stains on the steel rod were those of Gangamma nor was any effort made to ascertain whether the steel rod contained any fingerprints which matched with those of Prakash. This, coupled with the fact that the blood stained crowbar seized at the place of occurrence, was not sent for a chemical examination, raises a grave suspicion that the investigation was not fair and the benefit of this doubt must go to Prakash. [Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of U.P. v. Arun Kumar Gupta, (2003) 2 SCC 202] 71. All that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma.72. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevant fact. “In a case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the accused.” [Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC 173] Conclusion ### Response: 1 ### Explanation: statement made by Shivanna has been lost in translation.In any event, the recovery of the blood stained clothes of Prakash do not advance the case of the prosecution. The reason is that all that the prosecution sought to prove thereby is that the blood group of Gangamma was AB and the blood stains onseized clothes also belong to blood group AB. In our opinion, this does not lead to any conclusion that the blood stains onclothes were those ofblood. There are millions of people who have the blood group AB and it is quite possible that even Prakash had the blood group AB. In this context, it is important to mention that a blood sample was taken from Prakash and this was sent for examination. The report received from the Forensic Science Laboratory [Exh.P-27] was to the effect that the blood sample was decomposed and therefore its origin and grouping could not be determined. It is, therefore, quite possible that the blood stains onclothes were his own blood stains and that his blood group was also AB.Learned counsel for Prakash contended that the report of the serologist was not put to him when he was examined under Section 313 of the Code of Criminal Procedure. The High Court dealt with this issue in a rather unsatisfactoryIt is one thing to say that no prejudice was caused to Prakash by not affording him an opportunity to explain the serological report. It is quite another thing to put the report to his learned counsel in appeal and give him (the learned counsel) an opportunity to explain the report of the serologist. The course adopted by the High Court is clearly impermissible. The law on the subject was laid down several decades ago by the Constitution Bench in Tara Singh v. State [1951 SCR 729 ] and is to the effect that an accused must be given a chance to offer an explanation if the evidence is to be used against him and the conviction is intended to be based upon it. It follows that if the accused is not given an opportunity to explain the circumstances against him in the testimony of the witnesses, then those circumstances cannot be used against him, whether they prejudice him orWe are not satisfied with the conclusion of the High Court that since the clothes of Prakash were blood stained and the stains bore the same blood group as that of Gangamma, the circumstance could be used Prakash. A serological comparison of the blood of Gangamma and Prakash and the blood stains on his clothes was necessary and that was absent from the evidence of theis a serious lapse in investigation and the mere recovery of some ornaments from some people does not lead to any conclusion that the ornaments so recovered belonged tothis was declined by the Trial Judge who perused the statement of the witness recorded under Section 162 of the Code of Criminal Procedure which did not have anything with regard to identification of theThe High Court adversely commented on this and held that the Trial Judge adopted a very strange procedure while declining to grant the request of the prosecution to have the ornaments identified through Hucha Basappa. According to the High Court, Hucha Basappa had stated in an earlier part of his testimony in court that Gangamma had ornaments such as a gold chain, silver waist belt, silver rings, ear studs etc. and that he had seen those ornaments and could identify them if he saw them. Therefore, permission should have been granted to the prosecution to further examine Hucha Basappa and it was for the defence to have brought out any contradiction between the statement made by the witness in court and the statement made by him under Section 162 of the Code of Criminal Procedure. Having said that, the High Court concluded that the ornaments belonged to Gangamma.69. Even if we were to assume that the procedure followed by the Trial Court was incorrect, in the absence of any identification of the ornaments as belonging to Gangamma, the High Court could not have definitely concluded that they did belong to Gangamma. In any event, even assuming that the ornaments belonged to Gangamma, at best, Prakash would be guilty of having received stolen property but could certainly not be guilty of having murdered Gangamma.It was brought to our notice that the steel rod used to kill Gangamma was recovered at the instance of Prakash. This was hidden under a stone slab and it contained blood stains. The Investigating Officer made no effort to ascertain whether the blood stains on the steel rod were those of Gangamma nor was any effort made to ascertain whether the steel rod contained any fingerprints which matched with those of Prakash. This, coupled with the fact that the blood stained crowbar seized at the place of occurrence, was not sent for a chemical examination, raises a grave suspicion that the investigation was not fair and the benefit of this doubt must go to Prakash. [Lakshmi Singh v. State of Bihar, (1976) 4 SCC 394 and State of U.P. v. Arun Kumar Gupta, (2003) 2 SCCAll that we need say is that the investigation in the case was very cursory and it appears to us that the Investigating Officer had made up his mind that Prakash had murdered Gangamma and the investigation was directed at proving this conclusion rather the other way around with the investigation leading to a conclusion that Prakash had murdered Gangamma.72. It is true that the relevant circumstances should not be looked at in a disaggregated manner but collectively. Still, this does not absolve the prosecution from proving each relevanta case of circumstantial evidence, each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete chain without giving room to any other hypotheses and should be consistent with only the guilt of the[Lakhjit Singh v. State of Punjab, 1994 Supp (1) SCC

Ehsan Khalid Vs. Union of India Thr. Secretary & Others

1. Permission to argue in-person is granted. 2. In this Writ Petition (Public Interest Litigation), the issue with regard to divestment of 10% equity of Coal India Limited (CIL) in October 2010 has been raised. It is alleged that powerful financial institutes usurped the natural resources only on payment of Rs. 15,200 Crores and caused loss to the exchequer of Rs. 1.75 Lakh Crores to the nation. According to the petitioner, the proposal of equity disinvestment was neither legal nor transparent. The existing norms and government laid down policies were flouted.3. On July 15, 2013, this Court directed the petitioner, who appears in-person, to serve a copy of the Writ Petition along with all annexures to Mr. D.S. Mahra, advocate-on-record, to enable Mr. Siddharth Luthra, learned Additional Solicitor General, to take instructions in the matter. 4. We have heard Mr. Ehsan Khalid, petitioner-in-person and Mr. Siddharth Luthra, learned Additional Solicitor General. 5. Mr. Siddharth Luthra placed before us Office Memorandum dated 03.08.2013 alongwith annexures. He stated that entire process of Initial Public Officer (IPO) of CIL was carried out in a transparent manner and as per the rules and regulations laid down by the Securities and Exchange Board of India (SEBI). The procedure is laid down in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 (ICDR). As required by ICDR, intermediaries such as Book Running Legal Managers, legal counsel (domestic and international), advertising agency, register, etc. were appointed to guide the deal and to give the professional advise at every stage. All these appointments were made on competitive basis. 6. As regards the valuation, it was brought to our notice that, inter alia, three valuation methodologies which investors typically use were applied. These three methodologies are - (i) EV (Enterprise Value)/EBITDA (Earnings before Interest, Tax, Depreciation and Amortization), (2) Price to Earnings (Ration of Market price to earning per share of a company) and (3) Price to Book (Ratio of current market price to book value of each share of the company). 7. As per the first methodology, a price band of Rs. 220-238 per share was calculated. In second methodology, a price band of Rs. 234-246 per share was arrived at. As per third methodology, a price band of Rs. 128-135 per share was arrived at. Finally, the price band for IPO was fixed at Rs. 226-245 per share. 8. The petitioner alleges that the assets valuation methodology was not adopted which is the most appropriate methodology of valuation. 9. What was involved in the present case was not the sale of assets but sale of equity capital. If after following the ICDR and on taking into consideration the relevant methodologies of valuation for sale of equity capital the price band of Rs. 226-245 per share was fixed, it cannot be said that the price band so fixed was unreasonable or sale of 10% equity capital by CIL was unfair. Where challenge is laid to a government policy, particularly economic policy, this Court does not interfere in such policy matter in its power of judicial review unless the impugned policy is found to be grossly arbitrary or unfair or unreasonable or irrational or violative of constitutional provisions or contrary to statutory provision.10. In view of what we have discussed above, we are satisfied that no case for interference in the policy matter in our extra-ordinary jurisdiction under Article 32 of the Constitution of India is made out.

0[ds]9. What was involved in the present case was not the sale of assets but sale of equity capital. If after following the ICDR and on taking into consideration the relevant methodologies of valuation for sale of equity capital the price band of Rs.per share was fixed, it cannot be said that the price band so fixed was unreasonable or sale of 10% equity capital by CIL was unfair. Where challenge is laid to a government policy, particularly economic policy, this Court does not interfere in such policy matter in its power of judicial review unless the impugned policy is found to be grossly arbitrary or unfair or unreasonable or irrational or violative of constitutional provisions or contrary to statutory provision.10. In view of what we have discussed above, we are satisfied that no case for interference in the policy matter in ourjurisdiction under Article 32 of the Constitution of India is made out.

### 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. Permission to argue in-person is granted. 2. In this Writ Petition (Public Interest Litigation), the issue with regard to divestment of 10% equity of Coal India Limited (CIL) in October 2010 has been raised. It is alleged that powerful financial institutes usurped the natural resources only on payment of Rs. 15,200 Crores and caused loss to the exchequer of Rs. 1.75 Lakh Crores to the nation. According to the petitioner, the proposal of equity disinvestment was neither legal nor transparent. The existing norms and government laid down policies were flouted.3. On July 15, 2013, this Court directed the petitioner, who appears in-person, to serve a copy of the Writ Petition along with all annexures to Mr. D.S. Mahra, advocate-on-record, to enable Mr. Siddharth Luthra, learned Additional Solicitor General, to take instructions in the matter. 4. We have heard Mr. Ehsan Khalid, petitioner-in-person and Mr. Siddharth Luthra, learned Additional Solicitor General. 5. Mr. Siddharth Luthra placed before us Office Memorandum dated 03.08.2013 alongwith annexures. He stated that entire process of Initial Public Officer (IPO) of CIL was carried out in a transparent manner and as per the rules and regulations laid down by the Securities and Exchange Board of India (SEBI). The procedure is laid down in the Securities and Exchange Board of India (Issue of Capital and Disclosure Requirements) Regulations, 2009 (ICDR). As required by ICDR, intermediaries such as Book Running Legal Managers, legal counsel (domestic and international), advertising agency, register, etc. were appointed to guide the deal and to give the professional advise at every stage. All these appointments were made on competitive basis. 6. As regards the valuation, it was brought to our notice that, inter alia, three valuation methodologies which investors typically use were applied. These three methodologies are - (i) EV (Enterprise Value)/EBITDA (Earnings before Interest, Tax, Depreciation and Amortization), (2) Price to Earnings (Ration of Market price to earning per share of a company) and (3) Price to Book (Ratio of current market price to book value of each share of the company). 7. As per the first methodology, a price band of Rs. 220-238 per share was calculated. In second methodology, a price band of Rs. 234-246 per share was arrived at. As per third methodology, a price band of Rs. 128-135 per share was arrived at. Finally, the price band for IPO was fixed at Rs. 226-245 per share. 8. The petitioner alleges that the assets valuation methodology was not adopted which is the most appropriate methodology of valuation. 9. What was involved in the present case was not the sale of assets but sale of equity capital. If after following the ICDR and on taking into consideration the relevant methodologies of valuation for sale of equity capital the price band of Rs. 226-245 per share was fixed, it cannot be said that the price band so fixed was unreasonable or sale of 10% equity capital by CIL was unfair. Where challenge is laid to a government policy, particularly economic policy, this Court does not interfere in such policy matter in its power of judicial review unless the impugned policy is found to be grossly arbitrary or unfair or unreasonable or irrational or violative of constitutional provisions or contrary to statutory provision.10. In view of what we have discussed above, we are satisfied that no case for interference in the policy matter in our extra-ordinary jurisdiction under Article 32 of the Constitution of India is made out. ### Response: 0 ### Explanation: 9. What was involved in the present case was not the sale of assets but sale of equity capital. If after following the ICDR and on taking into consideration the relevant methodologies of valuation for sale of equity capital the price band of Rs.per share was fixed, it cannot be said that the price band so fixed was unreasonable or sale of 10% equity capital by CIL was unfair. Where challenge is laid to a government policy, particularly economic policy, this Court does not interfere in such policy matter in its power of judicial review unless the impugned policy is found to be grossly arbitrary or unfair or unreasonable or irrational or violative of constitutional provisions or contrary to statutory provision.10. In view of what we have discussed above, we are satisfied that no case for interference in the policy matter in ourjurisdiction under Article 32 of the Constitution of India is made out.

Burmah Shell Oil Distributing Now Known As Bharat Petroleum Vs. Khaja Midhat Noor and Others

or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat quam pereat." 7. This is how the notices should be literally construed. This decision was relied upon by this Court in Mangilal v. Sugan chand Rathi, [1964] 5 S.C.R. 239. There, however, the facts were different. There the defendant was a tenant of the plaintiffs. The defendant was in arrears of rent for one year to the extent of Rs. 1020. On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs.1020 within one month from the date of service of notice, failing which suit for ejectment would be filed. This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs.1320. This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it and gave a fresh not ice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl.(a) of section 4 of the Madhya Pradesh Accommodation Control Act, 1953. It was held that though the notice dated 11th April, 1959 could be construed to be composite notice under section 4(a) of the Accommodation Act and section 106 of the Transfer of Property Act it was ineffective under section 106 of the Transfer of Property Act because it was not a notice of 15 clear days. In that case, the defendant had only 14 clear days notice. Reference was made to the aforesaid decision of Harihar Banerji v. Ramsashi Roy (supra) which was distinguished by this Court. This Court held that notice under section 106 of the Act must be strictly complied with. In so holding this Court relied o n a decision of the Calcutta High Court in Subadini v. Durga Charan Law, I.L.R. 28 Cal. 118 which was construing a notice contemplated by section 106 of the Act and had held that in calculating the 15 days notice the day on which the notice was served was excluded and even if the day on which it expired was taken into account it would be clear that the defendant had only 14 clear days notice. This position was again reiterated by the Calcutta High Court in Gobinda Chandra Saha v. Dwarka Nath Patita, A.I.R. 1915 Cal. 313. This Court affirmed this view that notice must be understood in the light of Harihar Banerji v. Ramsashi Roy (supra). This Court held that the suit was actually based upon the notice dated July 9, 1959 which gave more than 15 days clear notice to the defendant to vacate the premises. This notice was a valid notice under section 106 of the Act. In the instant case if all the paragraphs of Ext. 7 which is a notice in the instant case are read together in harmony it would be manifest that the lessee was directed to hand-over the lease hold property on 16th January, 1973.In the aforesaid view of the matter, in our opinion, there was a valid notice of termination of the lease of the lessee. In any event the lessee did not dispute this contention. The lessee accepted a valid termination of the lease hold property. 8. In Roop Chand Gupta v. Raghuvanshi (Pvt.) Ltd. and another, A.I.R. 1964 S.C. 1889, it was held by t his Court that it is quite clear that law does not require that the sub-lessee need be made a party, if there was a valid termination of the lease. This Court reiterated that in all cases where the landlord instituted a suit against the les see for possession of the land on the basis of a valid notice to quit served on the lessee and did not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This Court noted at page 1892 of the report that this might act harshly on the sub-lessee; but this was a position well understood b y him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. In the facts of this case these observations apply more effectively. The termination of the lease was not disputed by the lessee. T here is no allegation of any collusion between the lessee and the respondent. 9. In that view of the matter, we are of the opinion that the High Court was right. The suit in question was instituted in May, 1979 and the valid notice to quit was given long after the expiry of the period of lease. The sub-lessee had long innings. It is time for him to quit. There is no merit in this petition.

0[ds]In that view of the matter, we are of the opinion that the High Court was right. The suit in question was instituted in May, 1979 and the valid notice to quit was given long after the expiry of the period of lease. The sub-lessee had long innings. It is time for him to quit. There is no merit in this petition.

### 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: or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed ut res magis valeat quam pereat." 7. This is how the notices should be literally construed. This decision was relied upon by this Court in Mangilal v. Sugan chand Rathi, [1964] 5 S.C.R. 239. There, however, the facts were different. There the defendant was a tenant of the plaintiffs. The defendant was in arrears of rent for one year to the extent of Rs. 1020. On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs.1020 within one month from the date of service of notice, failing which suit for ejectment would be filed. This notice was received by the defendant on April 16, 1959. On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs.1320. This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959. The plaintiffs accepted the cheque and cashed it and gave a fresh not ice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July. The defendant did not vacate the premises. Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him. From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl.(a) of section 4 of the Madhya Pradesh Accommodation Control Act, 1953. It was held that though the notice dated 11th April, 1959 could be construed to be composite notice under section 4(a) of the Accommodation Act and section 106 of the Transfer of Property Act it was ineffective under section 106 of the Transfer of Property Act because it was not a notice of 15 clear days. In that case, the defendant had only 14 clear days notice. Reference was made to the aforesaid decision of Harihar Banerji v. Ramsashi Roy (supra) which was distinguished by this Court. This Court held that notice under section 106 of the Act must be strictly complied with. In so holding this Court relied o n a decision of the Calcutta High Court in Subadini v. Durga Charan Law, I.L.R. 28 Cal. 118 which was construing a notice contemplated by section 106 of the Act and had held that in calculating the 15 days notice the day on which the notice was served was excluded and even if the day on which it expired was taken into account it would be clear that the defendant had only 14 clear days notice. This position was again reiterated by the Calcutta High Court in Gobinda Chandra Saha v. Dwarka Nath Patita, A.I.R. 1915 Cal. 313. This Court affirmed this view that notice must be understood in the light of Harihar Banerji v. Ramsashi Roy (supra). This Court held that the suit was actually based upon the notice dated July 9, 1959 which gave more than 15 days clear notice to the defendant to vacate the premises. This notice was a valid notice under section 106 of the Act. In the instant case if all the paragraphs of Ext. 7 which is a notice in the instant case are read together in harmony it would be manifest that the lessee was directed to hand-over the lease hold property on 16th January, 1973.In the aforesaid view of the matter, in our opinion, there was a valid notice of termination of the lease of the lessee. In any event the lessee did not dispute this contention. The lessee accepted a valid termination of the lease hold property. 8. In Roop Chand Gupta v. Raghuvanshi (Pvt.) Ltd. and another, A.I.R. 1964 S.C. 1889, it was held by t his Court that it is quite clear that law does not require that the sub-lessee need be made a party, if there was a valid termination of the lease. This Court reiterated that in all cases where the landlord instituted a suit against the les see for possession of the land on the basis of a valid notice to quit served on the lessee and did not implead the sub-lessee as a party to the suit, the object of the landlord is to eject the sub-lessee from the land in execution of the decree and such an object is quite legitimate. The decree in such a suit would bind the sub-lessee. This Court noted at page 1892 of the report that this might act harshly on the sub-lessee; but this was a position well understood b y him when he took the sub-lease. The law allows this and so the omission cannot be said to be an improper act. In the facts of this case these observations apply more effectively. The termination of the lease was not disputed by the lessee. T here is no allegation of any collusion between the lessee and the respondent. 9. In that view of the matter, we are of the opinion that the High Court was right. The suit in question was instituted in May, 1979 and the valid notice to quit was given long after the expiry of the period of lease. The sub-lessee had long innings. It is time for him to quit. There is no merit in this petition. ### Response: 0 ### Explanation: In that view of the matter, we are of the opinion that the High Court was right. The suit in question was instituted in May, 1979 and the valid notice to quit was given long after the expiry of the period of lease. The sub-lessee had long innings. It is time for him to quit. There is no merit in this petition.

Sooguru Subrahmanyam Vs. State of A.P

undented, for nothing has been put to him in the cross-examination except that he was making efforts to oblige the police. It has come in the evidence of PW-13, the Investigating Officer, that the lock was broke open in the presence of the witnesses and the dead body was found in the room. He has spoken about the seizure of Ex. P-21, the writing of the accused on a book. In the cross-examination, apart from a singular question relating to the Inquest Report, nothing has been asked.15. At this juncture, it is apt to note that PW-1, in the cross-examination, has stated that she had gone to Sai Baba Bhajan. The said aspect has not been believed by the learned trial Judge and we are inclined to think correctly. On the contrary, the circumstances have clearly established that she was in her house. The evidence on record clearly shows that there was a commotion in the morning, she had lodged the FIR, the police arrived and found the house locked from outside and it was broke open in the presence of the witnesses. It is worthwhile to note that the accused did not take the plea of alibi. On the contrary, the factum of abscondence has been proven. Under these circumstances, the cumulative effect is that the husband was present in the house when the death of the wife occurred. The suggestion of rape and murder which has been put in the form of violent sexual act has been found to be untrue on the basis of medical evidence and there is no reason to differ with the said finding. The husband has not come with any explanation where he was on the fateful night and how the door was locked. As has been stated earlier, he had absconded for long. He has not taken any step to report the unnatural death of his wife. From the aforesaid aspects, the circumstances soundly establish that the deceased was with the accused during the night, there was a locking of the door from outside which could not have been done by anyone else except him and further he absconded from the scene of the crime and did not report to the police. Thus, the irresistible and inescapable conclusion is that the accused was the culprit in committing the murder of his wife.16. Now, we may deal with the submission that the prosecution has not been able to prove any motive for the commission of the crime because the suspicion on the part of the husband has not been established. We have already recorded an affirmative finding on that score. However, we may, in this context, profitably refer to the pronouncement in Nathuni Yadav and others v. State of Bihar and another [(1998) 9 SCC 238] wherein a two-Judge Bench has laid down thus: - “17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer [Shorthand Report at p. 308 CCC May 1856] thus:“But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.”Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.” 17. In the said case, it was also observed that in some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity of the person concerned. In the case at hand, as is noticed, there is material on record which suggests that there was some ire that had swelled up in the mind of the accused to extinguish the life spark of the wife.18. It is to be borne in mind that suspicion pertaining to fidelity has immense potentiality to commit irreversible wrongs as it corrupts the mind and corrodes the sense of rational thinking and further allows liberty to the mind to pave the path of evil. In fact, it brings in baseness. It quite often impures mind, takes it to the devil’s den and leads one to do unjust acts than just deeds. In any case, it does not give licence to commit murder. Thus, the submission pertaining to the absence of motive has no substance.19. In view of the aforesaid analysis, we conclude and hold that all the links in the chain of evidence are established beyond reasonable doubt and the established circumstances are consistent with the singular hypothesis that the accused is guilty of the crime and it is totally inconsistent with his innocence. We have said so on the basis of the pronouncements in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ], Padala Veera Reddy v. State of Andhra Pradesh and ors. [AIR 1990 SC 79 ], Balwinder Singh v. State of Punjab [AIR 1996 SC 607 ], Harischandra Ladaku Thange v. State of Maharashtra [AIR 2007 SC 2957 ] and Jagroop Singh v. State of Punjab [AIR 2012 SC 2600 ].

0[ds]9. On the basis of the said injuries, he has expressed the opinion that the deceased had died of asphyxia as a result of smothering and the time of death was 36 to 40 hours prior to his examination. The aforesaid injuries and the opinion has clearly revealed that the death was homicidal. In examination-in-chief, he has deposed that the external injuries mentioned by him vide Ex. P-8 are possible when a person places a pillow on the face and presses and the result is struggle. In the cross-examination, it has been suggested to him that the injuries recorded by him could be possibly by participating in violent sexual intercourse but the same has been categorically denied. Thus, there can be no iota of doubt that the death was homicidal and not suicidal and further it was not a case of rape and murder.10. Once it is held that the death was homicidal and the injuries were not the result of any violent sexual intercourse, the circumstances are to be scrutinized to see the complicity of the accused in the crime.11. First, we shall advert to the issue whether the suspicion relating to the illicit relationship by the accused-appellant has been established. True it is, the neighbours, PWs-1 to 5, who have turned hostile, have stated that the husband and wife had an amicable relationship but the version of the other witnesses project otherwise. From the testimony of PW-8, Triveni, the younger sister of the deceased, it is apparent that on 1.10.2000, the deceased had come to their house at Hindupur and had told her that the accused was harassing her on the pretext that she had developed illicit relationship with someone and was not providing her food. She has deposed that she advised the deceased that quarrels are common in family life and she should adjust herself and, accordingly, she went back to her husband. In the cross-examination, nothing has been elicited to discredit her testimony.12. PW-9, P. Gangappa, another relative of the deceased, has deposed about the deceased agonisedly describing before him the harassment meted out to her by her husband on the excuse that she had developed illicit intimacy with someone. There has been absolutely no cross-examination on this score.13. In view of the aforesaid, we are disposed to think that the accused, for whatever reason, had garnered suspicion against the attitude and character of his wife. We may hasten to add that PW-7, who in his 161 Statement had stated that the accused has told him about the anguish relating to hischaracter, though has turned hostile, yet the same would not make any difference to arrive at the conclusion on the basis of the evidence of PWs-8 and 9 that he had a suspicious mind as regards the character of his wife.14. Presently, we shall proceed to consider certain other circumstances. It has been established on the basis of the material on record that the premises had been taken on rent by the accused and Imamvalli from the landlady, PW-1. PW-1 has admitted that she had given the accused a portion of the house on rental basis. PW-5, son of Imamvalli, has admitted that the accused and his wife were residing on rent in the next portion of their house. Thus, they were close neighbours. PW-1 in her evidence has stated that she was not aware if the deceased was alive or not. The learned trial Judge has commented on her conduct which we need not further expatiate. The fact remains that she has deposed that when she got up in the morning, she found that there was some commotion in the portion which she had given on rent and it was informed to her that someone had died. It is interesting to note that she has admitted the FIR Ex. P-1. In the cross-examination, she has also admitted that the contents of Ex. P-1 were read over and explained to her before she signed it. PW-5 has deposed that Nagamani, the deceased, had died about 6.30 a.m., when PW-1, the landlady, was shouting. PW-12, N. Babu Naidu, the councillor of 26th Ward, has stated that after coming to know about the death of the deceased, he went to her house and found it locked and the same was opened after the police came and the dead body was found on the ground with a pillow on her face. His testimony has gone undented, for nothing has been put to him in the cross-examination except that he was making efforts to oblige the police. It has come in the evidence of PW-13, the Investigating Officer, that the lock was broke open in the presence of the witnesses and the dead body was found in the room. He has spoken about the seizure of Ex. P-21, the writing of the accused on a book. In the cross-examination, apart from a singular question relating to the Inquest Report, nothing has been asked.15. At this juncture, it is apt to note that PW-1, in the cross-examination, has stated that she had gone to Sai Baba Bhajan. The said aspect has not been believed by the learned trial Judge and we are inclined to think correctly. On the contrary, the circumstances have clearly established that she was in her house. The evidence on record clearly shows that there was a commotion in the morning, she had lodged the FIR, the police arrived and found the house locked from outside and it was broke open in the presence of the witnesses. It is worthwhile to note that the accused did not take the plea of alibi. On the contrary, the factum of abscondence has been proven. Under these circumstances, the cumulative effect is that the husband was present in the house when the death of the wife occurred. The suggestion of rape and murder which has been put in the form of violent sexual act has been found to be untrue on the basis of medical evidence and there is no reason to differ with the said finding. The husband has not come with any explanation where he was on the fateful night and how the door was locked. As has been stated earlier, he had absconded for long. He has not taken any step to report the unnatural death of his wife. From the aforesaid aspects, the circumstances soundly establish that the deceased was with the accused during the night, there was a locking of the door from outside which could not have been done by anyone else except him and further he absconded from the scene of the crime and did not report to the police. Thus, the irresistible and inescapable conclusion is that the accused was the culprit in committing the murder of his wife.16. Now, we may deal with the submission that the prosecution has not been able to prove any motive for the commission of the crime because the suspicion on the part of the husband has not been established. We have already recorded an affirmative finding on that score. However, we may, in this context, profitably refer to the pronouncement in Nathuni Yadav and others v. State of Bihar and another [(1998) 9 SCC 238] wherein a two-Judge Bench has laid down thus:Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer [Shorthand Report at p. 308 CCC May 1856]if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressingit is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.In the said case, it was also observed that in some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity of the person concerned. In the case at hand, as is noticed, there is material on record which suggests that there was some ire that had swelled up in the mind of the accused to extinguish the life spark of the wife.18. It is to be borne in mind that suspicion pertaining to fidelity has immense potentiality to commit irreversible wrongs as it corrupts the mind and corrodes the sense of rational thinking and further allows liberty to the mind to pave the path of evil. In fact, it brings in baseness. It quite often impures mind, takes it to theden and leads one to do unjust acts than just deeds. In any case, it does not give licence to commit murder. Thus, the submission pertaining to the absence of motive has no substance.19. In view of the aforesaid analysis, we conclude and hold that all the links in the chain of evidence are established beyond reasonable doubt and the established circumstances are consistent with the singular hypothesis that the accused is guilty of the crime and it is totally inconsistent with his innocence. We have said so on the basis of the pronouncements in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ], Padala Veera Reddy v. State of Andhra Pradesh and ors. [AIR 1990 SC 79 ], Balwinder Singh v. State of Punjab [AIR 1996 SC 607 ], Harischandra Ladaku Thange v. State of Maharashtra [AIR 2007 SC 2957 ] and Jagroop Singh v. State of Punjab [AIR 2012 SC 2600 ].

### 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: undented, for nothing has been put to him in the cross-examination except that he was making efforts to oblige the police. It has come in the evidence of PW-13, the Investigating Officer, that the lock was broke open in the presence of the witnesses and the dead body was found in the room. He has spoken about the seizure of Ex. P-21, the writing of the accused on a book. In the cross-examination, apart from a singular question relating to the Inquest Report, nothing has been asked.15. At this juncture, it is apt to note that PW-1, in the cross-examination, has stated that she had gone to Sai Baba Bhajan. The said aspect has not been believed by the learned trial Judge and we are inclined to think correctly. On the contrary, the circumstances have clearly established that she was in her house. The evidence on record clearly shows that there was a commotion in the morning, she had lodged the FIR, the police arrived and found the house locked from outside and it was broke open in the presence of the witnesses. It is worthwhile to note that the accused did not take the plea of alibi. On the contrary, the factum of abscondence has been proven. Under these circumstances, the cumulative effect is that the husband was present in the house when the death of the wife occurred. The suggestion of rape and murder which has been put in the form of violent sexual act has been found to be untrue on the basis of medical evidence and there is no reason to differ with the said finding. The husband has not come with any explanation where he was on the fateful night and how the door was locked. As has been stated earlier, he had absconded for long. He has not taken any step to report the unnatural death of his wife. From the aforesaid aspects, the circumstances soundly establish that the deceased was with the accused during the night, there was a locking of the door from outside which could not have been done by anyone else except him and further he absconded from the scene of the crime and did not report to the police. Thus, the irresistible and inescapable conclusion is that the accused was the culprit in committing the murder of his wife.16. Now, we may deal with the submission that the prosecution has not been able to prove any motive for the commission of the crime because the suspicion on the part of the husband has not been established. We have already recorded an affirmative finding on that score. However, we may, in this context, profitably refer to the pronouncement in Nathuni Yadav and others v. State of Bihar and another [(1998) 9 SCC 238] wherein a two-Judge Bench has laid down thus: - “17. Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer [Shorthand Report at p. 308 CCC May 1856] thus:“But if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressing difficulties.”Though, it is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.” 17. In the said case, it was also observed that in some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity of the person concerned. In the case at hand, as is noticed, there is material on record which suggests that there was some ire that had swelled up in the mind of the accused to extinguish the life spark of the wife.18. It is to be borne in mind that suspicion pertaining to fidelity has immense potentiality to commit irreversible wrongs as it corrupts the mind and corrodes the sense of rational thinking and further allows liberty to the mind to pave the path of evil. In fact, it brings in baseness. It quite often impures mind, takes it to the devil’s den and leads one to do unjust acts than just deeds. In any case, it does not give licence to commit murder. Thus, the submission pertaining to the absence of motive has no substance.19. In view of the aforesaid analysis, we conclude and hold that all the links in the chain of evidence are established beyond reasonable doubt and the established circumstances are consistent with the singular hypothesis that the accused is guilty of the crime and it is totally inconsistent with his innocence. We have said so on the basis of the pronouncements in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ], Padala Veera Reddy v. State of Andhra Pradesh and ors. [AIR 1990 SC 79 ], Balwinder Singh v. State of Punjab [AIR 1996 SC 607 ], Harischandra Ladaku Thange v. State of Maharashtra [AIR 2007 SC 2957 ] and Jagroop Singh v. State of Punjab [AIR 2012 SC 2600 ]. ### Response: 0 ### Explanation: ground with a pillow on her face. His testimony has gone undented, for nothing has been put to him in the cross-examination except that he was making efforts to oblige the police. It has come in the evidence of PW-13, the Investigating Officer, that the lock was broke open in the presence of the witnesses and the dead body was found in the room. He has spoken about the seizure of Ex. P-21, the writing of the accused on a book. In the cross-examination, apart from a singular question relating to the Inquest Report, nothing has been asked.15. At this juncture, it is apt to note that PW-1, in the cross-examination, has stated that she had gone to Sai Baba Bhajan. The said aspect has not been believed by the learned trial Judge and we are inclined to think correctly. On the contrary, the circumstances have clearly established that she was in her house. The evidence on record clearly shows that there was a commotion in the morning, she had lodged the FIR, the police arrived and found the house locked from outside and it was broke open in the presence of the witnesses. It is worthwhile to note that the accused did not take the plea of alibi. On the contrary, the factum of abscondence has been proven. Under these circumstances, the cumulative effect is that the husband was present in the house when the death of the wife occurred. The suggestion of rape and murder which has been put in the form of violent sexual act has been found to be untrue on the basis of medical evidence and there is no reason to differ with the said finding. The husband has not come with any explanation where he was on the fateful night and how the door was locked. As has been stated earlier, he had absconded for long. He has not taken any step to report the unnatural death of his wife. From the aforesaid aspects, the circumstances soundly establish that the deceased was with the accused during the night, there was a locking of the door from outside which could not have been done by anyone else except him and further he absconded from the scene of the crime and did not report to the police. Thus, the irresistible and inescapable conclusion is that the accused was the culprit in committing the murder of his wife.16. Now, we may deal with the submission that the prosecution has not been able to prove any motive for the commission of the crime because the suspicion on the part of the husband has not been established. We have already recorded an affirmative finding on that score. However, we may, in this context, profitably refer to the pronouncement in Nathuni Yadav and others v. State of Bihar and another [(1998) 9 SCC 238] wherein a two-Judge Bench has laid down thus:Motive for doing a criminal act is generally a difficult area for prosecution. One cannot normally see into the mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionally grave to do grave crimes. Many a murders have been committed without any known or prominent motive. It is quite possible that the aforesaid impelling factor would remain undiscoverable. Lord Chief Justice Champbell struck a note of caution in R. v. Palmer [Shorthand Report at p. 308 CCC May 1856]if there be any motive which can be assigned, I am bound to tell you that the adequacy of that motive is of little importance. We know, from experience of criminal courts that atrocious crimes of this sort have been committed from very slight motives; not merely from malice and revenge, but to gain a small pecuniary advantage, and to drive off for a time pressingit is a sound proposition that every criminal act is done with a motive, it is unsound to suggest that no such criminal act can be presumed unless motive is proved. After all, motive is a psychological phenomenon. Mere fact that prosecution failed to translate that mental disposition of the accused into evidence does not mean that no such mental condition existed in the mind of the assailant.In the said case, it was also observed that in some cases, it may not be difficult to establish motive through direct evidence, while in some other cases, inferences from circumstances may help in discerning the mental propensity of the person concerned. In the case at hand, as is noticed, there is material on record which suggests that there was some ire that had swelled up in the mind of the accused to extinguish the life spark of the wife.18. It is to be borne in mind that suspicion pertaining to fidelity has immense potentiality to commit irreversible wrongs as it corrupts the mind and corrodes the sense of rational thinking and further allows liberty to the mind to pave the path of evil. In fact, it brings in baseness. It quite often impures mind, takes it to theden and leads one to do unjust acts than just deeds. In any case, it does not give licence to commit murder. Thus, the submission pertaining to the absence of motive has no substance.19. In view of the aforesaid analysis, we conclude and hold that all the links in the chain of evidence are established beyond reasonable doubt and the established circumstances are consistent with the singular hypothesis that the accused is guilty of the crime and it is totally inconsistent with his innocence. We have said so on the basis of the pronouncements in Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622 ], Padala Veera Reddy v. State of Andhra Pradesh and ors. [AIR 1990 SC 79 ], Balwinder Singh v. State of Punjab [AIR 1996 SC 607 ], Harischandra Ladaku Thange v. State of Maharashtra [AIR 2007 SC 2957 ] and Jagroop Singh v. State of Punjab [AIR 2012 SC 2600 ].

PSA Mumbai Investments Pte. Limited Vs. The Board of Trustees of the Jawaharlal Nehru Port Trust and Ors

in connection therewith". Therefore, it is evident that the General Conditions of Contract (Section III) and Clause 20 therein providing for arbitration, will not apply in regard to any dispute in regard to the tender or bid, or non-placing of a purchase order, but will apply only in regard to any contract awarded by BSNL by placing a purchase order.xxx27. It is also very significant that Section II (Instructions to Bidders) and Section IV (Special Conditions) which are relevant at the bid stage do not contain any arbitration Clause providing that if there is any dispute between BSNL and a bidder in regard to the bid/tender process, the dispute will be settled by arbitration. On the other hand, the Instruction to Bidders contains a specific provision that if there is a dispute or claim arising out of the tender till (issue of authorization for) placement of the purchase order, only courts will have jurisdiction. Of course, as and when Appellant placed a purchase order on a bidder, the purchase order contained a term that the General conditions of contract, forming part of the bid documents would be a part of the contract documents, and consequently the arbitration Clause applied to the contracts entered between BSNL and the bidders.xxx29. Therefore, only when a purchase order was placed, a contract would be entered; and only when a contract was entered into, the General Conditions of Contract including the arbitration Clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration Clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed.18. However, Mr. Dave, strongly relied upon the judgment in Kollipara Sriramulu (Dead) by his LR (supra). This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed."19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply.20. Mr. Dave also strongly relied upon the judgment in Inox Wind Limited v. Thermocables Limited, (2018) 2 SCC 519 . This judgment in paras 17-19 thereafter made it clear that an exception to the general Rule laid down in M.R. Engineers and Contractors Private Limited (supra) as to standard forms of practice containing arbitration clauses would be extended also to standard forms between individual persons and not merely standard forms of professional assessments.21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptance. Mr. Sibal argued, relying strongly upon M.R. Engineers and Contractors Private Limited (supra), that assuming that there was an arbitration Clause which governs the parties, the said Clause would be wholly inapt as it would only cover disputes between a Special Purpose Vehicle and the Respondent No. 1 arising from the Concession Agreement not yet entered into, and not between the Respondent No. 1 and the Appellant and Respondent No. 2. He is correct, and we agree with this contention as well.22. We now come to the last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfere.23. Mr. Dave relies upon the fact that a subsequent tender has been accepted, causing great financial loss to the Respondent No. 1. Mr. Sibal has replied by saying that the subsequent tender contained different tender conditions and, in any case, insofar as that subsequent tender was concerned, his bid was considered the best amongst six other bidders. Apart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same.

1[ds]13. On a conjoint reading of the aforesaid clauses, a few things become clear - (i) first and foremost a Disclaimer at the forefront of the RFP makes it clear that there is only a bid process that is going on between the parties and that there is no concluded contract between the same (ii) it is equally clear that such bid process would subsume a Letter of Award to be issued by the Respondent No. 1 with two further steps under the Schedule to be gone into before the draft Concession Agreement finally becomes an agreement between Respondent No. 1 and the Special Purpose Vehicle that is constituted by the Consortium for this purpose (iii) that throughout the stage of the bid process, the forum for dispute resolution is exclusively with the Courts at Mumbai and (iv) that right up till the stage of the entering into the Concession Agreement, the bid process may be annulled without giving any reason whatsoever by the Respondent No. 1This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed."19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptanceHe is correct, and we agree with this contention as well22. We now come tothe last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfereApart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same

### 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: in connection therewith". Therefore, it is evident that the General Conditions of Contract (Section III) and Clause 20 therein providing for arbitration, will not apply in regard to any dispute in regard to the tender or bid, or non-placing of a purchase order, but will apply only in regard to any contract awarded by BSNL by placing a purchase order.xxx27. It is also very significant that Section II (Instructions to Bidders) and Section IV (Special Conditions) which are relevant at the bid stage do not contain any arbitration Clause providing that if there is any dispute between BSNL and a bidder in regard to the bid/tender process, the dispute will be settled by arbitration. On the other hand, the Instruction to Bidders contains a specific provision that if there is a dispute or claim arising out of the tender till (issue of authorization for) placement of the purchase order, only courts will have jurisdiction. Of course, as and when Appellant placed a purchase order on a bidder, the purchase order contained a term that the General conditions of contract, forming part of the bid documents would be a part of the contract documents, and consequently the arbitration Clause applied to the contracts entered between BSNL and the bidders.xxx29. Therefore, only when a purchase order was placed, a contract would be entered; and only when a contract was entered into, the General Conditions of Contract including the arbitration Clause would become a part of the contract. If a purchase order was not placed, and consequently the general conditions of contract (Section III) did not become a part of the contract, the conditions in Section III which included the arbitration agreement, would not at all come into existence or operation. In other words, the arbitration Clause in Section III was not an arbitration agreement in praesenti, during the bidding process, but a provision that was to come into existence in future, if a purchase order was placed.18. However, Mr. Dave, strongly relied upon the judgment in Kollipara Sriramulu (Dead) by his LR (supra). This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed."19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply.20. Mr. Dave also strongly relied upon the judgment in Inox Wind Limited v. Thermocables Limited, (2018) 2 SCC 519 . This judgment in paras 17-19 thereafter made it clear that an exception to the general Rule laid down in M.R. Engineers and Contractors Private Limited (supra) as to standard forms of practice containing arbitration clauses would be extended also to standard forms between individual persons and not merely standard forms of professional assessments.21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptance. Mr. Sibal argued, relying strongly upon M.R. Engineers and Contractors Private Limited (supra), that assuming that there was an arbitration Clause which governs the parties, the said Clause would be wholly inapt as it would only cover disputes between a Special Purpose Vehicle and the Respondent No. 1 arising from the Concession Agreement not yet entered into, and not between the Respondent No. 1 and the Appellant and Respondent No. 2. He is correct, and we agree with this contention as well.22. We now come to the last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfere.23. Mr. Dave relies upon the fact that a subsequent tender has been accepted, causing great financial loss to the Respondent No. 1. Mr. Sibal has replied by saying that the subsequent tender contained different tender conditions and, in any case, insofar as that subsequent tender was concerned, his bid was considered the best amongst six other bidders. Apart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same. ### Response: 1 ### Explanation: 13. On a conjoint reading of the aforesaid clauses, a few things become clear - (i) first and foremost a Disclaimer at the forefront of the RFP makes it clear that there is only a bid process that is going on between the parties and that there is no concluded contract between the same (ii) it is equally clear that such bid process would subsume a Letter of Award to be issued by the Respondent No. 1 with two further steps under the Schedule to be gone into before the draft Concession Agreement finally becomes an agreement between Respondent No. 1 and the Special Purpose Vehicle that is constituted by the Consortium for this purpose (iii) that throughout the stage of the bid process, the forum for dispute resolution is exclusively with the Courts at Mumbai and (iv) that right up till the stage of the entering into the Concession Agreement, the bid process may be annulled without giving any reason whatsoever by the Respondent No. 1This judgment did indeed state that it is well-established that a mere reference to a future formal contract will not prevent a binding bargain between the parties if, in fact, there is such a bargain. The judgment then went on to state that "there are, however, cases whether the reference to a future contract is made in such terms as to show that the parties did not intend to be bound until a formal contract is signed."19. We are of the view that the facts of the present case would be governed by the ratio contained in the aforesaid sentence. Insofar as the judgment in Unissi (India) Private Limited (supra) is concerned, it is important to note that, in para 15 of the said judgment, it is stated that the tender of the Appellant was accepted by PGI for supply of 41 pulse oximeters. Since the tender document contained an arbitration clause, and since it was found on facts that a binding contract had been entered into by acceptance of the tender, the parties therein would be bound by the aforesaid clause. It was also stated that, in addition, performance by way of supply of material by the Appellant and acceptance thereof by PGI had also taken place, which would show that the tender of the Appellant, containing an arbitration clause, was admittedly accepted by the Respondent. It is clear that this case is wholly distinguishable, and does not apply on facts as has been stated by us herein above. It is clear that there was no concluded contract at the Letter of Award stage and this judgment would, therefore, not apply21. We may hasten to add that this judgment would have no manner of application on the facts of this case for the reason that it has been found by us that there is no agreement between the parties at all in the facts of the present case, making it clear, therefore, that the arbitration Clause contained in the draft Concession Agreement would not apply. Further, even the without prejudice argument of Mr. Sibal is worthy of acceptanceHe is correct, and we agree with this contention as well22. We now come tothe last argument of Mr. Dave that, on the assumption that the High Court judgment is incorrect, yet we should not, in our discretionary jurisdiction Under Article 136 of the Constitution of India, interfereApart from this, we are of the view that the High Court judgment is wholly incorrect in holding that the Letter of Award would constitute a binding contract between the parties for the reasons given above. It would be a travesty of justice, in the facts of the case, if we were not to interfere and set aside the same

RAKESH Vs. BOARD OF REVENUE U.P.

and 131 of the principal Act, the following sections shall be substituted, namely:-- 130. Bhumidhar with transferable rights.--Every person belonging to any of the following classes, not being a person referred to in section 131, shall be called a bhumidhar with transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely— (a) every person who was a bhumidhar immediately before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977; (b) every person who, immediately before the said date, was a sirdar referred to in clause (a) or clause (c) of section 131, as it stood immediately before the said date; (c) every person who in any other manner acquires on or after the said date the rights of such a bhumidhar under or in accordance with the provisions of this Act. 131. Bhumidhar with non-transferable rights.--Every person belonging to any of the following classes shall be called a bhumidhar with non-transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely- - (a) every person admitted as a sirdar of any land under section 195 before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977, or as a bhumidhar with non-transferable rights under the said section on or after the said date; (b) every person who in any other manner acquires on or after the said date, the rights of such a bhumidhar under or in accordance with the provisions of this Act; (c) every person who is, or has been allotted any land under the provisions of the Uttar Pradesh Bhoodan Yagna Act, 1952. 15. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the date of issue of U.P. Ordinance No.1 of 1977, which was subsequently enacted as an Act, namely, U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28.01.1977, the date of issuance of Ordinance. 16. The most important provision, which needs to be noticed in the Uttar Pradesh Land Laws (Amendment) Act, 1977 is Section 73, which dealt with transitory provisions, which is as follows:- Section 73: Transitory provisions (1) Notwithstanding anything contained in any other law for the time being in force all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before January 28, 1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate. (2) Where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be. 17. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28.01.1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate. 18. The revision against the order dated 23.05.1975 was pending against the rejection of grant of Bhumidhari Sanad, which stood abated by virtue of Ordinance No.1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be. 19. Thus, sub-section (2) of Section 73 of U.P.Act No.8 of 1977 contemplated that all proceedings pertaining to grant of Bhumidhari Sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get Bhumidari rights on the basis of his application dated 25.11.1974 with regard to Plot Nos. 243 and 503, thus, stood terminated by virtue of provisions of Section 73 as extracted above. In view of provisions of Section 73 as extracted above, the claim of Pursottam to get Bhumidhari rights on the basis of his application dated 25.11.1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and High Court erred in law in holding that by Ordinance No.1 of 1977, Pursottam had also got benefited retrospectively. 20. By statutory provision, i.e. Section 73, all pending applications and proceedings were abated and grant of Bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance No.1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28.01.1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and 503. High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing the Suit No. 30 of 1978. 21. The writ petition filed by respondent No.3 questioning the decision of Courts below with regard to Suit No.30 of 1978 was not liable to be allowed by the High Court. All the Courts below including the Board of Revenue had taken correct view with regard to Suit No.30 of 1978 filed by the respondent.

1[ds]6. The High Court in its impugned judgment has taken the view that insofar as Suit No. 31 of 1978 filed by respondent was concerned, Bhumidhari Sanad was granted in favour of Pursottam (deceased), although, after his death but the said Sanad will have retrospective effect making Pursottam Bhumidhar w.e.f. 25.11.1974, hence no error was committed by decreeing Suit No.31 of 1978. Coming to Suit No. 30 of 1978, filed by the respondent, High Court took the view that in view of the fact that Pursottam had challenged the rejection of the application, which was subjudice when the proceedings were abated on account of Ordinance No.1 of 1977, the legal heirs of Pursottam cannot contend contrary to the interest of Pursottam. The High Court also relied on Section 43 of the Transfer of Property Act in upholding the claim of the respondent11. The submission that before grant of Sanad, the applicant had died was also considered by this Court in paragraph No.9 and it was held that the certificate will have a retrospective effect. The view of the High Court was disapproved and suit was held to be entitled to be decreed.12. In view of law as laid down above, the judgment of Allahabad High Court in Ram Sabodh(Supra) cannot help the appellant. The judgment of this Court in Deo Nandan and Another (supra) fully covers the claim of the plaintiff-respondent with regard to Suit No. 31 of 1978 relating to Plot No.521, with regard to which Sanad was granted after death of Pursottam. We are of the view that Additional Commissioner, Board of Revenue and High Court committed no error in decreeing Suit No.31 of 197813. Now, we come to the claim of the plaintiff- respondent with regard to Plot Nos. 243 and 503 in Suit No.30 of 1978. The facts reveal that with regard to aforesaid plots, although application was made on 25.11.1974 by depositing the 20 times amount of the land revenue, but the application was rejected on 23.05.1975 by the Assistant Collector. A revision was filed by Pursottam challenging the said order, which was pending at the time when U.P. Ordinance No.1 of 1977 was issued abating the proceedings. High Court has noted that the claim of Pursottam to grant of Bhumidhari Sanad was subjudice in revision, when the proceedings were abated. It was further observed that legal heirs, who were brought on the record on the revision, due to death of Pursottam, were competent to represent the estate of deceased and cannot setup any claim adverse to the interest of the deceased. High Court observed that had Pursottam not died, he would have acquired the status of Bhumidhar under Ordinance No.1 of 1977 and since he had already executed the sale deed after depositing 20 times land revenue, it would have related back to the date when he made the application and deposited the amount14. We may first notice the provisions of U.P. Ordinance No.1 of 1977, which has been referred to by the High Court and which are relevant in the facts of the present case. We have noticed above that under Section 134 read with Section 137, a Sirdar after depositing 20 times of land revenue and making an application could obtain Bhumidhari Sanad.15. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the date of issue of U.P. Ordinance No.1 of 1977, which was subsequently enacted as an Act, namely, U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28.01.1977, the date of issuance of Ordinance17. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28.01.1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate18. The revision against the order dated 23.05.1975 was pending against the rejection of grant of Bhumidhari Sanad, which stood abated by virtue of Ordinance No.1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be19. Thus, sub-section (2) of Section 73 of U.P.Act No.8 of 1977 contemplated that all proceedings pertaining to grant of Bhumidhari Sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get Bhumidari rights on the basis of his application dated 25.11.1974 with regard to Plot Nos. 243 and 503, thus, stood terminated by virtue of provisions of Section 73 as extracted above. In view of provisions of Section 73 as extracted above, the claim of Pursottam to get Bhumidhari rights on the basis of his application dated 25.11.1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and High Court erred in law in holding that by Ordinance No.1 of 1977, Pursottam had also got benefited retrospectively20. By statutory provision, i.e. Section 73, all pending applications and proceedings were abated and grant of Bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance No.1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28.01.1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and 503. High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing the Suit No. 30 of 197821. The writ petition filed by respondent No.3 questioning the decision of Courts below with regard to Suit No.30 of 1978 was not liable to be allowed by the High Court. All the Courts below including the Board of Revenue had taken correct view with regard to Suit No.30 of 1978 filed by the respondent.

### 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: and 131 of the principal Act, the following sections shall be substituted, namely:-- 130. Bhumidhar with transferable rights.--Every person belonging to any of the following classes, not being a person referred to in section 131, shall be called a bhumidhar with transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely— (a) every person who was a bhumidhar immediately before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977; (b) every person who, immediately before the said date, was a sirdar referred to in clause (a) or clause (c) of section 131, as it stood immediately before the said date; (c) every person who in any other manner acquires on or after the said date the rights of such a bhumidhar under or in accordance with the provisions of this Act. 131. Bhumidhar with non-transferable rights.--Every person belonging to any of the following classes shall be called a bhumidhar with non-transferable rights, and shall have all the rights and be subject to all the liabilities conferred or imposed upon such bhumidhars by or under this Act, namely- - (a) every person admitted as a sirdar of any land under section 195 before the date of commencement of the Uttar Pradesh Land Laws (Amendment) Act, 1977, or as a bhumidhar with non-transferable rights under the said section on or after the said date; (b) every person who in any other manner acquires on or after the said date, the rights of such a bhumidhar under or in accordance with the provisions of this Act; (c) every person who is, or has been allotted any land under the provisions of the Uttar Pradesh Bhoodan Yagna Act, 1952. 15. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the date of issue of U.P. Ordinance No.1 of 1977, which was subsequently enacted as an Act, namely, U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28.01.1977, the date of issuance of Ordinance. 16. The most important provision, which needs to be noticed in the Uttar Pradesh Land Laws (Amendment) Act, 1977 is Section 73, which dealt with transitory provisions, which is as follows:- Section 73: Transitory provisions (1) Notwithstanding anything contained in any other law for the time being in force all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before January 28, 1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate. (2) Where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be. 17. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28.01.1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate. 18. The revision against the order dated 23.05.1975 was pending against the rejection of grant of Bhumidhari Sanad, which stood abated by virtue of Ordinance No.1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be. 19. Thus, sub-section (2) of Section 73 of U.P.Act No.8 of 1977 contemplated that all proceedings pertaining to grant of Bhumidhari Sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get Bhumidari rights on the basis of his application dated 25.11.1974 with regard to Plot Nos. 243 and 503, thus, stood terminated by virtue of provisions of Section 73 as extracted above. In view of provisions of Section 73 as extracted above, the claim of Pursottam to get Bhumidhari rights on the basis of his application dated 25.11.1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and High Court erred in law in holding that by Ordinance No.1 of 1977, Pursottam had also got benefited retrospectively. 20. By statutory provision, i.e. Section 73, all pending applications and proceedings were abated and grant of Bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance No.1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28.01.1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and 503. High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing the Suit No. 30 of 1978. 21. The writ petition filed by respondent No.3 questioning the decision of Courts below with regard to Suit No.30 of 1978 was not liable to be allowed by the High Court. All the Courts below including the Board of Revenue had taken correct view with regard to Suit No.30 of 1978 filed by the respondent. ### Response: 1 ### Explanation: of 1977, the legal heirs of Pursottam cannot contend contrary to the interest of Pursottam. The High Court also relied on Section 43 of the Transfer of Property Act in upholding the claim of the respondent11. The submission that before grant of Sanad, the applicant had died was also considered by this Court in paragraph No.9 and it was held that the certificate will have a retrospective effect. The view of the High Court was disapproved and suit was held to be entitled to be decreed.12. In view of law as laid down above, the judgment of Allahabad High Court in Ram Sabodh(Supra) cannot help the appellant. The judgment of this Court in Deo Nandan and Another (supra) fully covers the claim of the plaintiff-respondent with regard to Suit No. 31 of 1978 relating to Plot No.521, with regard to which Sanad was granted after death of Pursottam. We are of the view that Additional Commissioner, Board of Revenue and High Court committed no error in decreeing Suit No.31 of 197813. Now, we come to the claim of the plaintiff- respondent with regard to Plot Nos. 243 and 503 in Suit No.30 of 1978. The facts reveal that with regard to aforesaid plots, although application was made on 25.11.1974 by depositing the 20 times amount of the land revenue, but the application was rejected on 23.05.1975 by the Assistant Collector. A revision was filed by Pursottam challenging the said order, which was pending at the time when U.P. Ordinance No.1 of 1977 was issued abating the proceedings. High Court has noted that the claim of Pursottam to grant of Bhumidhari Sanad was subjudice in revision, when the proceedings were abated. It was further observed that legal heirs, who were brought on the record on the revision, due to death of Pursottam, were competent to represent the estate of deceased and cannot setup any claim adverse to the interest of the deceased. High Court observed that had Pursottam not died, he would have acquired the status of Bhumidhar under Ordinance No.1 of 1977 and since he had already executed the sale deed after depositing 20 times land revenue, it would have related back to the date when he made the application and deposited the amount14. We may first notice the provisions of U.P. Ordinance No.1 of 1977, which has been referred to by the High Court and which are relevant in the facts of the present case. We have noticed above that under Section 134 read with Section 137, a Sirdar after depositing 20 times of land revenue and making an application could obtain Bhumidhari Sanad.15. Section 134 was omitted by the Uttar Pradesh Land Laws (Amendment) Act, 1977. The effect of the provision was that by statute, Bhumidhari right was conferred on Sirdar, w.e.f., 28.01.1977, the date of issue of U.P. Ordinance No.1 of 1977, which was subsequently enacted as an Act, namely, U.P. Land Laws (Amendment) Act, 1977, which was deemed to have come into effect on 28.01.1977, the date of issuance of Ordinance17. Section 73(1) provides that all proceedings for acquisition of bhumidhari rights under sections 134 and 135 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, as they stood immediately before 28.01.1977 and all proceedings arising therefrom, pending on such date before any court or authority shall abate18. The revision against the order dated 23.05.1975 was pending against the rejection of grant of Bhumidhari Sanad, which stood abated by virtue of Ordinance No.1 of 1977, as has been noted by the High Court in its judgment. The most important provision is Section 73(2), which provides that where any proceeding has abated under sub-section (1) the amount deposited for the acquisition of such rights shall be refunded to the person depositing the same or to his legal representatives as the case may be19. Thus, sub-section (2) of Section 73 of U.P.Act No.8 of 1977 contemplated that all proceedings pertaining to grant of Bhumidhari Sanad shall be abated and amount deposited shall be refunded to the person applying or the legal representative. The consequence of the said provision is that the revision, which was filed by Pursottam stood abated and the amount so deposited was to be refunded to his legal representative. The claim of Pursottam to get Bhumidari rights on the basis of his application dated 25.11.1974 with regard to Plot Nos. 243 and 503, thus, stood terminated by virtue of provisions of Section 73 as extracted above. In view of provisions of Section 73 as extracted above, the claim of Pursottam to get Bhumidhari rights on the basis of his application dated 25.11.1974 stood negated. Hence, on the basis of the pendency of revision, no benefit can be taken by Pursottam and High Court erred in law in holding that by Ordinance No.1 of 1977, Pursottam had also got benefited retrospectively20. By statutory provision, i.e. Section 73, all pending applications and proceedings were abated and grant of Bhumidhari rights was contemplated under Sections 130 and 131, which was sought to be inserted by U.P. Ordinance No.1 of 1977. The benefit of a statutory provision shall be applicable to those Sirdars, who were Sirdars on the date when Ordinance was enforced, which subsequently became an Act. On 28.01.1977, Pursottam was already dead and his legal heirs were mutated in his place, thus, benefit of Ordinance No.1 of 1977 and the U.P. Act No. 8 of 1977 cannot be availed by Pursottam, so as to validate his sale deed dated 26.11.1974 with regard to Plot Nos. 243 and 503. High Court, thus, committed error in allowing the writ petition filed by the contesting respondent and decreeing the Suit No. 30 of 197821. The writ petition filed by respondent No.3 questioning the decision of Courts below with regard to Suit No.30 of 1978 was not liable to be allowed by the High Court. All the Courts below including the Board of Revenue had taken correct view with regard to Suit No.30 of 1978 filed by the respondent.

Bulchand Chandiram of Bombay Vs. Bank of India Limited, Bombay

Sch. G to the petition. We see no reason for differing from the finding of the High Court. The liability on the Loan Account and on the Cash Credit Account was solely that of the appellant and therefore the question of apportionment of the debt under s. 22 of the said Act does not arise.8. The next question arising in this appeal is whether the appellant is entitled. to a refund of the amount recovered from the insurance policies. It appears that there were 12 life policies mentioned in Sch. E of the application out of which two policies matured in 1950 and 1951 the rest matured during the pendency of the application of the appellant. The Bank received Rs. 1, 000 and Rs. 23, 700 on January 22, 1951 and July 9, 1952. In 1948 the appellant had executed absolute assignment in respect of all the policies in favour of the Bank. Since the amounts were due to the Karachi Branch, these were converted into Pakistan rupees and repatriated. In respect of the other policies the Bank- recovered the-additional amount of Rs. 25, 684.56 P and Rs. 15, 560.99 P. The trial court held that as regards the first two policies, the appellant is not entitled to refund of excess amount over the apportioned debt of Rs. 13, 684/2/11 but in respect of other policies the trial court held that the Bank was bound to refund the excess amount. In appeal the High Court has, however, taken the view that s. 17 of the said Act applied and the appellant had no right to refund in respect of any of the insurance policies unless it was shown that the realisation was in excess of the debt due. It was argued by Mr. Chagla that the insurance policies do not fall within s. 17 of the said Act. It is not possible to accept this contention as correct. Clause 36 of s. 3 of the General Clauses Act (Act X of 1897) defines "movable property" to mean "property of every description, except immovable property". Clause 26 of s. 3 of the General Clauses Act defines "immovable property" to "include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In the present case there is the additional fact that the policies were assigned by the appellant and his wife to the Bank and thereafter the insurance policies remained in possession of the Bank. In the present case therefore there is an absolute assignment of the policies in favour of the Bank and the policies were also in its possession. In our opinion, s. 17 of the Act applies and unless realisation was in excess of the debt due the appellant was not entitled to refund.9. We accordingly reject the argument of the appellant on this aspect of the case.It was also contended on behalf of the appellant that the High Court had erred in interpreting the word "renewal" occurring in the definition of the word "debt" in the said Act. In our opinion, there is no substance in this argument. It is manifest that the confirmation or acknowledgement of indebtedness which includes both loan and interest and further advances, if any would not fall within the ambit of the expression "renewal in the proviso to s. 2 (6) of the said Act. The liability referred to in the proviso Is the liability solely by way of renewal and the proviso to the section states that the original loan and not the one for which the renewal is made is the debt within the meaning of the section. But the proviso does not apply if the confirmation or acknowledgement is not solely by way of renewal on account of loan or interest but includes further advance. In our opinion the High Court was justified in coming to the conclusion that the debts ascertained by it were the debts of the appellant within the meaning of the said Act. The High Court found that the promissory note dated November 18, 1947 for a sum of Rs. 1, 09, 000 represented the debt of Rs. 1, 09, 000 in the Cash Credit Account and that the promissory note dated June 19, 1947 for a sum of Rs. 1, 25, 000 represented the debt of Rs. 1, 25, 000 in the Loan Account which was actually taken on July 12, 1947. As regards the Cash Credit Account, the High Court awarded simple interest up to December 10, 1951 at 4 per cent. which worked out to Rs. 17, 702.79 P and held that an aggregate amount of Rs. 1, 26, 702.79 P was due by the appellant in the said Cash Credit Account. As regards the Loan Account, the High Court awarded simple interest at 4 per cent. from July 12, 1947 up to December 10, 1951 and held that an aggregate amount of Rs. 1, 47, 068.49 P was due by the appellant. The debt in the Cash Credit Account was reduced by a deduction of Rs. 17, 429.14 P (which represented the proportion of the verified claim to the surrender value of the policies) to Rs. 109, 273.65 P.Lastly, Mr. Chagla submitted that the appellant should have been given credit of the amount of Rs. 10, 000 paid to the Bank as income of the mortgage properties in Pakistan. It was pointed out that the amount was received as income of the mortgaged properties by the Custodian of Evacuee Properties in Pakistan and the amount was paid by the Pakistan Government to the Bank. It was argued that there was no justification for not allow respect of this amount.10. It is not necessary for us to go into the merits of this question because Mr. S. T. Desai on behalf of the respondent-Bank said that he had no objection if the amount of Rs. 10, 000 was credited towards the debt of the appellant as determined by the High Court.

0[ds]In support of this appeal Mr. Chagla contended, in the first place, that no interest should have been allowed to the Bank from August 15, 1947 in view of the provisions of s. 29 of the said Act. We are unable to accept this argument as correct. Proviso, (b) to s. 29(1) of the said Act confers a discretion on the Tribunal to allow interest not exceeding 4 per cent. per annum for the period from August 15, 1947 up to December 10, 1951, the date on which the said Act came into force in Bombay after taking into account the, paying capacity of the debtor as defined in s. 32 of the Act. The expression "paying capacity of the debtor", is defined in S. 32 of the said Act asaggregate of the market value of all-the attachable assets in India of the displaced debtor plus the income which is likely to accrue to him for the next three years succeeding, excluding from the computation of such income a sum calculated at the rate of two hundred and fifty rupees aHigh Court has observed, on the statement of the appellant himself, that his paying capacity far exceeded the aggregate debt due from him and it was therefore a fit case in which interest at 4 per cent, should be allowed to the Bank from August 15, 1947 to December 10, 1951. In our opinion, the finding of the High Court on this point is supported by proper evidence. We accordingly reject the argument of the appellant on this aspect of the case.Chagla contended that this section has no application in view of the over-riding effect of s. 3 of the said Act. It is not necessary, in our opinion, to decide this point in the present case. We shall assume in favour of the appellant that S. 43 of the Indian Contract Act has no application. Even upon that assumption the plea of the appellant for apportionment of the debt must be rejected because the High Court has found upon examination of the evidence, that the liability both on the Loan Account and on the Cash Credit Account was undertaken solely by the appellant. The finding of the High Court on this point is supported by paragraphs 12 and 15 of the petition of the appellant. In these two paragraphs the appellant admitted that he had opened the Cash Credit Account with the Bank and that he had taken the loan against mortgaged securities mentioned in Sch. G to the petition. We see no reason for differing from the finding of the High Court. The liability on the Loan Account and on the Cash Credit Account was solely that of the appellant and therefore the question of apportionment of the debt under s. 22 of the said Act does notappears that there were 12 life policies mentioned in Sch. E of the application out of which two policies matured in 1950 and 1951 the rest matured during the pendency of the application of the appellant. The Bank received Rs. 1, 000 and Rs. 23, 700 on January 22, 1951 and July 9, 1952. In 1948 the appellant had executed absolute assignment in respect of all the policies in favour of the Bank. Since the amounts were due to the Karachi Branch, these were converted into Pakistan rupees and repatriated. In respect of the other policies the Bank- recovered the-additional amount of Rs. 25, 684.56 P and Rs. 15, 560.99appeal the High Court has, however, taken the view that s. 17 of the said Act applied and the appellant had no right to refund in respect of any of the insurance policies unless it was shown that the realisation was in excess of the debt due. It was argued by Mr. Chagla that the insurance policies do not fall within s. 17 of the said Act. It is not possible to accept this contention as correct. Clause 36 of s. 3 of the General Clauses Act (Act X of 1897) defines "movable property" to mean "property of every description, except immovable property". Clause 26 of s. 3 of the General Clauses Act defines "immovable property" to "include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In the present case there is the additional fact that the policies were assigned by the appellant and his wife to the Bank and thereafter the insurance policies remained in possession of the Bank. In the present case therefore there is an absolute assignment of the policies in favour of the Bank and the policies were also in its possession. In our opinion, s. 17 of the Act applies and unless realisation was in excess of the debt due the appellant was not entitled to refund.We accordingly reject the argument of the appellant on this aspect of the case.It was also contended on behalf of the appellant that the High Court had erred in interpreting the word "renewal" occurring in the definition of the word "debt" in the said Act. In our opinion, there is no substance in this argument. It is manifest that the confirmation or acknowledgement of indebtedness which includes both loan and interest and further advances, if any would not fall within the ambit of the expression "renewal in the proviso to s. 2 (6) of the said Act. The liability referred to in the proviso Is the liability solely by way of renewal and the proviso to the section states that the original loan and not the one for which the renewal is made is the debt within the meaning of the section. But the proviso does not apply if the confirmation or acknowledgement is not solely by way of renewal on account of loan or interest but includes further advance. In our opinion the High Court was justified in coming to the conclusion that the debts ascertained by it were the debts of the appellant within the meaning of the said Act. The High Court found that the promissory note dated November 18, 1947 for a sum of Rs., 000 represented the debt of Rs. 1,000 in the Cash Credit Account and that the promissory note dated June 19, 1947 for a sum of Rs. 1,000 represented the debt of Rs. 1,25, 000 in the Loan Account which was actually taken on July 12, 1947. As regards the Cash Credit Account, the High Court awarded simpleup to December 10, 1951at 4 per cent. which worked out to Rs. 17, 702.79 P and held that an aggregate amount of Rs. 1, 26, 702.79 P was due by the appellant in the said Cash Credit Account. As regards the Loan Account, the High Court awarded simple interest at 4 per cent. from July 12, 1947up to December 10, 1951and held that an aggregate amount of Rs. 1, 47, 068.49 P was due by the appellant. The debt in the Cash Credit Account was reduced by a deduction of Rs. 17, 429.14 P (which represented the proportion of the verified claim to the surrender value of the policies) to Rs. 109, 273.65 P.Lastly, Mr. Chagla submitted that the appellant should have been given credit of the amount of Rs. 10, 000 paid to the Bank as income of the mortgage properties in Pakistan. It was pointed out that the amount was received as income of the mortgaged properties by the Custodian of Evacuee Properties in Pakistan and the amount was paid by the Pakistan Government to the Bank. It was argued that there was no justification for not allow respect of thisis not necessary for us to go into the merits of this question because Mr. S. T. Desai on behalf of the respondent-Bank said that he had no objection if the amount of Rs. 10, 000 was credited towards the debt of the appellant as determined by the High Court.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: Sch. G to the petition. We see no reason for differing from the finding of the High Court. The liability on the Loan Account and on the Cash Credit Account was solely that of the appellant and therefore the question of apportionment of the debt under s. 22 of the said Act does not arise.8. The next question arising in this appeal is whether the appellant is entitled. to a refund of the amount recovered from the insurance policies. It appears that there were 12 life policies mentioned in Sch. E of the application out of which two policies matured in 1950 and 1951 the rest matured during the pendency of the application of the appellant. The Bank received Rs. 1, 000 and Rs. 23, 700 on January 22, 1951 and July 9, 1952. In 1948 the appellant had executed absolute assignment in respect of all the policies in favour of the Bank. Since the amounts were due to the Karachi Branch, these were converted into Pakistan rupees and repatriated. In respect of the other policies the Bank- recovered the-additional amount of Rs. 25, 684.56 P and Rs. 15, 560.99 P. The trial court held that as regards the first two policies, the appellant is not entitled to refund of excess amount over the apportioned debt of Rs. 13, 684/2/11 but in respect of other policies the trial court held that the Bank was bound to refund the excess amount. In appeal the High Court has, however, taken the view that s. 17 of the said Act applied and the appellant had no right to refund in respect of any of the insurance policies unless it was shown that the realisation was in excess of the debt due. It was argued by Mr. Chagla that the insurance policies do not fall within s. 17 of the said Act. It is not possible to accept this contention as correct. Clause 36 of s. 3 of the General Clauses Act (Act X of 1897) defines "movable property" to mean "property of every description, except immovable property". Clause 26 of s. 3 of the General Clauses Act defines "immovable property" to "include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In the present case there is the additional fact that the policies were assigned by the appellant and his wife to the Bank and thereafter the insurance policies remained in possession of the Bank. In the present case therefore there is an absolute assignment of the policies in favour of the Bank and the policies were also in its possession. In our opinion, s. 17 of the Act applies and unless realisation was in excess of the debt due the appellant was not entitled to refund.9. We accordingly reject the argument of the appellant on this aspect of the case.It was also contended on behalf of the appellant that the High Court had erred in interpreting the word "renewal" occurring in the definition of the word "debt" in the said Act. In our opinion, there is no substance in this argument. It is manifest that the confirmation or acknowledgement of indebtedness which includes both loan and interest and further advances, if any would not fall within the ambit of the expression "renewal in the proviso to s. 2 (6) of the said Act. The liability referred to in the proviso Is the liability solely by way of renewal and the proviso to the section states that the original loan and not the one for which the renewal is made is the debt within the meaning of the section. But the proviso does not apply if the confirmation or acknowledgement is not solely by way of renewal on account of loan or interest but includes further advance. In our opinion the High Court was justified in coming to the conclusion that the debts ascertained by it were the debts of the appellant within the meaning of the said Act. The High Court found that the promissory note dated November 18, 1947 for a sum of Rs. 1, 09, 000 represented the debt of Rs. 1, 09, 000 in the Cash Credit Account and that the promissory note dated June 19, 1947 for a sum of Rs. 1, 25, 000 represented the debt of Rs. 1, 25, 000 in the Loan Account which was actually taken on July 12, 1947. As regards the Cash Credit Account, the High Court awarded simple interest up to December 10, 1951 at 4 per cent. which worked out to Rs. 17, 702.79 P and held that an aggregate amount of Rs. 1, 26, 702.79 P was due by the appellant in the said Cash Credit Account. As regards the Loan Account, the High Court awarded simple interest at 4 per cent. from July 12, 1947 up to December 10, 1951 and held that an aggregate amount of Rs. 1, 47, 068.49 P was due by the appellant. The debt in the Cash Credit Account was reduced by a deduction of Rs. 17, 429.14 P (which represented the proportion of the verified claim to the surrender value of the policies) to Rs. 109, 273.65 P.Lastly, Mr. Chagla submitted that the appellant should have been given credit of the amount of Rs. 10, 000 paid to the Bank as income of the mortgage properties in Pakistan. It was pointed out that the amount was received as income of the mortgaged properties by the Custodian of Evacuee Properties in Pakistan and the amount was paid by the Pakistan Government to the Bank. It was argued that there was no justification for not allow respect of this amount.10. It is not necessary for us to go into the merits of this question because Mr. S. T. Desai on behalf of the respondent-Bank said that he had no objection if the amount of Rs. 10, 000 was credited towards the debt of the appellant as determined by the High Court. ### Response: 0 ### Explanation: of the appellant for apportionment of the debt must be rejected because the High Court has found upon examination of the evidence, that the liability both on the Loan Account and on the Cash Credit Account was undertaken solely by the appellant. The finding of the High Court on this point is supported by paragraphs 12 and 15 of the petition of the appellant. In these two paragraphs the appellant admitted that he had opened the Cash Credit Account with the Bank and that he had taken the loan against mortgaged securities mentioned in Sch. G to the petition. We see no reason for differing from the finding of the High Court. The liability on the Loan Account and on the Cash Credit Account was solely that of the appellant and therefore the question of apportionment of the debt under s. 22 of the said Act does notappears that there were 12 life policies mentioned in Sch. E of the application out of which two policies matured in 1950 and 1951 the rest matured during the pendency of the application of the appellant. The Bank received Rs. 1, 000 and Rs. 23, 700 on January 22, 1951 and July 9, 1952. In 1948 the appellant had executed absolute assignment in respect of all the policies in favour of the Bank. Since the amounts were due to the Karachi Branch, these were converted into Pakistan rupees and repatriated. In respect of the other policies the Bank- recovered the-additional amount of Rs. 25, 684.56 P and Rs. 15, 560.99appeal the High Court has, however, taken the view that s. 17 of the said Act applied and the appellant had no right to refund in respect of any of the insurance policies unless it was shown that the realisation was in excess of the debt due. It was argued by Mr. Chagla that the insurance policies do not fall within s. 17 of the said Act. It is not possible to accept this contention as correct. Clause 36 of s. 3 of the General Clauses Act (Act X of 1897) defines "movable property" to mean "property of every description, except immovable property". Clause 26 of s. 3 of the General Clauses Act defines "immovable property" to "include land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth". In the present case there is the additional fact that the policies were assigned by the appellant and his wife to the Bank and thereafter the insurance policies remained in possession of the Bank. In the present case therefore there is an absolute assignment of the policies in favour of the Bank and the policies were also in its possession. In our opinion, s. 17 of the Act applies and unless realisation was in excess of the debt due the appellant was not entitled to refund.We accordingly reject the argument of the appellant on this aspect of the case.It was also contended on behalf of the appellant that the High Court had erred in interpreting the word "renewal" occurring in the definition of the word "debt" in the said Act. In our opinion, there is no substance in this argument. It is manifest that the confirmation or acknowledgement of indebtedness which includes both loan and interest and further advances, if any would not fall within the ambit of the expression "renewal in the proviso to s. 2 (6) of the said Act. The liability referred to in the proviso Is the liability solely by way of renewal and the proviso to the section states that the original loan and not the one for which the renewal is made is the debt within the meaning of the section. But the proviso does not apply if the confirmation or acknowledgement is not solely by way of renewal on account of loan or interest but includes further advance. In our opinion the High Court was justified in coming to the conclusion that the debts ascertained by it were the debts of the appellant within the meaning of the said Act. The High Court found that the promissory note dated November 18, 1947 for a sum of Rs., 000 represented the debt of Rs. 1,000 in the Cash Credit Account and that the promissory note dated June 19, 1947 for a sum of Rs. 1,000 represented the debt of Rs. 1,25, 000 in the Loan Account which was actually taken on July 12, 1947. As regards the Cash Credit Account, the High Court awarded simpleup to December 10, 1951at 4 per cent. which worked out to Rs. 17, 702.79 P and held that an aggregate amount of Rs. 1, 26, 702.79 P was due by the appellant in the said Cash Credit Account. As regards the Loan Account, the High Court awarded simple interest at 4 per cent. from July 12, 1947up to December 10, 1951and held that an aggregate amount of Rs. 1, 47, 068.49 P was due by the appellant. The debt in the Cash Credit Account was reduced by a deduction of Rs. 17, 429.14 P (which represented the proportion of the verified claim to the surrender value of the policies) to Rs. 109, 273.65 P.Lastly, Mr. Chagla submitted that the appellant should have been given credit of the amount of Rs. 10, 000 paid to the Bank as income of the mortgage properties in Pakistan. It was pointed out that the amount was received as income of the mortgaged properties by the Custodian of Evacuee Properties in Pakistan and the amount was paid by the Pakistan Government to the Bank. It was argued that there was no justification for not allow respect of thisis not necessary for us to go into the merits of this question because Mr. S. T. Desai on behalf of the respondent-Bank said that he had no objection if the amount of Rs. 10, 000 was credited towards the debt of the appellant as determined by the High Court.

Buddu Satyanarayana And Others Vs. Konduru Venkatapayya And Others

made. In the copies of the Inam Register and Inam Statement filed in that case the Archakas were shown as the grantees and the present enjoyers of the Inam grant and the amount shown under the heading in column 2 of the Inam register as the assessment was the same as the amount shown under column 3 of the Inam Statement under the heading "Income derived from Inam". In the case before us the Archakas are nowhere mentioned in either Exhibit P/3 or in Exhibit D/3, there is no evidence that they had any title to kudivaram rights and finally the amount of assessment shown under column 7 of the Inam register, Exhibit P/3, is Rs. 198139, whereas the amount shown as income derived from the Inam as shown in column 13 of the Inam Statement, Exhibit D/3, is Rs. 26631. Apart from these points of distinction the decision relied on by the learned Attorney-General appears to us to be of doubtful authority. As will appear from the passages quoted above, the decision rested mainly, if not entirely, on the fact that the amount of assessment and the amount of income were the same and the conclusion was drawn that the Inam grant comprised only of the revenue assessment, i.e., of melvaram rights. We are unable to follow the reasoning. Whether the Inam comprised the land itself, that is to say, both melvaram and kudivaram rights or only the melvaram rights, the entries had to be made in the Inam Register in the same form and even in the case of the grant of the land itself comprising both the rights the amount of assessment had to be set out under column 7 of the Inam Register for it is notsuggested that a different form had to be used where the grant comprised both the rights. It follows, therefore, that no inference that the Inam -grant comprised only melvaram rights can be inferred from the fact that under column 7 only the amount of assessment is set out, and, therefore, the reasoning on which the decision relied on by the learned Attorney-General was founded cannot be supported as correct. Indeed, that decision has been dissented from by another Bench of the Madras High Court in Yelamanchili Venkatadri & another v. Vedantam Seshacharyulu and others (A.I.R. 1948 Mad. 72) . In the present case the High Court was, in our opinion, clearly right in preferring the last mentioned decision to the unreported decision mentioned above. Having regard to the different entries under the different columns in Exhibit P/3 and Exhibit D/3 there is no escape from the position that this Inam grant in favour of the temple comprised both the interests in the land.6. An argument was sought to be raised by the learned Attorney- General that the grantor Janganna Rao was only the Collector of the revenue and as such could not grant more than what he had got. Reference was made to the Kistna District Manual by Gordon Mackenzie but it appeared that the person therein mentioned was not the same grantor as we are concerned with in this case and the point was not pursued and nothing further need be said about it.7. Finally, the learned Attorney-General submits that these Archakas who were rendering services faithfully from generation to generation from ancient times should not, in equity, be ejected from the entire lands and that they should be allowed to remain in possession of the lands and be permitted to appropriate to themselves the expenses of the services and a reasonable remuneration and the rest of the income should be made over to the temple as its property. Reference was made to two unreported decisions of the Madras High Court in Appeal No. 218 of 1946Dandibhotla Kutumba Sastrulu v. Kontharapu Venkatalingam, and in Appeal No. 709 of 1944, Buddu Satyanarayana v. Dasari Butchayya, Executive Officer of the Temple of Sri Malleswaraswami Varu, China Pulivaram. In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if not legal, of the Archakas and to make some provision for protecting their rights, but those considerations appear to us to be entirely out of place in a suit for ejectment on proof of title. If the two decisions lay down, as it is contended they do, that the principles which may have a bearing on a proceeding for framing of a scheme or for enforcing the scheme that is framed may be applied to a case of the kind we have now before us it will be difficult for us to uphold them either on authority or on principle. Further what is the conduct of the Archakas defendants appearing on the record of this case ? Although they are Archakas they actually asserted an adverse right in the face of the honest admission of their predecessors in title, made in the Inam statement Exhibit D-3. Such conduct cannot but be regarded as disentitling them from any claim founded on equity. The explanation put forward for the first time in paragraph 7 of their present statement of case filed in this Court explaining the absence of a claim to the property by their predecessors at the time of the Inam Inquiry namely, respect for the deity enjoined by Agama Shastra is not at all convincing. Further, the giving of such equitable relief must depend on questions of fact, namely, the income of the property, the reasonable expenses and remuneration for the services, the amounts appropriated by them all this time and so forth which have not been investigated into in this case, because, no doubt, this question of equitable relief has been put forward as a last resort after having lost their battle. We do not think in the circumstances of the case any indulgence should be shown to the Archakas even if it were permissible for the Court in a suit of this description to give such relief.8.

0[ds]It is true that the original grant is not forthcoming but turning to the evidence we find two documents which appear to us to be decisive on the question of title. The first one is Exhibit P/3, a copy of the relevant entries in the Inam Register of 1860. This Inam Register was prepared after enquiries made by the Inam Deputy Collector and the statements furnished at that time by the then Archakas were taken into consideration for preparing the register. The copy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Exhibit D/3. In the Inam Register (Ex. P/3) under the several columns grouped under the general heading " Class extent and value of Inam " this Inam is classified in column 2 as Devadayam. In column 3 are set out the survey numbers together with the word Dry indicating the nature of the land comprised within the surveythe heading " Income derived from the Inam whether it is sarvadumbala or jodi. lf jodi the amount" in column 13 is stated " sarvadumbala Inam Cist according to the rate prevailing in the neighbouring fields Rs. 26631." This statement (Ex. D/3) bearsthe signature of the Karnams and the witnesses. it will be noticed that neither in the Inam Register Ex. P/3 nor in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least -interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the gurant or and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas. We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against thefrom these points of distinction the decision relied on by the learned Attorney-General appears to us to be of doubtful authority. As will appear from the passages quoted above, the decision rested mainly, if not entirely, on the fact that the amount of assessment and the amount of income were the same and the conclusion was drawn that the Inam grant comprised only of the revenue assessment, i.e., of melvaram rights. We are unable to follow thethey are Archakas they actually asserted an adverse right in the face of the honest admission of their predecessors in title, made in the Inam statement Exhibit D-3. Such conduct cannot but be regarded as disentitling them from any claim founded on equity. The explanation put forward for the first time in paragraph 7 of their present statement of case filed in this Court explaining the absence of a claim to the property by their predecessors at the time of the Inam Inquiry namely, respect for the deity enjoined by Agama Shastra is not at all convincing. Further, the giving of such equitable relief must depend on questions of fact, namely, the income of the property, the reasonable expenses and remuneration for the services, the amounts appropriated by them all this time and so forth which have not been investigated into in this case, because, no doubt, this question of equitable relief has been put forward as a last resort after having lost their battle. We do not think in the circumstances of the case any indulgence should be shown to the Archakas even if it were permissible for the Court in a suit of this description to give such relief.

### 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: made. In the copies of the Inam Register and Inam Statement filed in that case the Archakas were shown as the grantees and the present enjoyers of the Inam grant and the amount shown under the heading in column 2 of the Inam register as the assessment was the same as the amount shown under column 3 of the Inam Statement under the heading "Income derived from Inam". In the case before us the Archakas are nowhere mentioned in either Exhibit P/3 or in Exhibit D/3, there is no evidence that they had any title to kudivaram rights and finally the amount of assessment shown under column 7 of the Inam register, Exhibit P/3, is Rs. 198139, whereas the amount shown as income derived from the Inam as shown in column 13 of the Inam Statement, Exhibit D/3, is Rs. 26631. Apart from these points of distinction the decision relied on by the learned Attorney-General appears to us to be of doubtful authority. As will appear from the passages quoted above, the decision rested mainly, if not entirely, on the fact that the amount of assessment and the amount of income were the same and the conclusion was drawn that the Inam grant comprised only of the revenue assessment, i.e., of melvaram rights. We are unable to follow the reasoning. Whether the Inam comprised the land itself, that is to say, both melvaram and kudivaram rights or only the melvaram rights, the entries had to be made in the Inam Register in the same form and even in the case of the grant of the land itself comprising both the rights the amount of assessment had to be set out under column 7 of the Inam Register for it is notsuggested that a different form had to be used where the grant comprised both the rights. It follows, therefore, that no inference that the Inam -grant comprised only melvaram rights can be inferred from the fact that under column 7 only the amount of assessment is set out, and, therefore, the reasoning on which the decision relied on by the learned Attorney-General was founded cannot be supported as correct. Indeed, that decision has been dissented from by another Bench of the Madras High Court in Yelamanchili Venkatadri & another v. Vedantam Seshacharyulu and others (A.I.R. 1948 Mad. 72) . In the present case the High Court was, in our opinion, clearly right in preferring the last mentioned decision to the unreported decision mentioned above. Having regard to the different entries under the different columns in Exhibit P/3 and Exhibit D/3 there is no escape from the position that this Inam grant in favour of the temple comprised both the interests in the land.6. An argument was sought to be raised by the learned Attorney- General that the grantor Janganna Rao was only the Collector of the revenue and as such could not grant more than what he had got. Reference was made to the Kistna District Manual by Gordon Mackenzie but it appeared that the person therein mentioned was not the same grantor as we are concerned with in this case and the point was not pursued and nothing further need be said about it.7. Finally, the learned Attorney-General submits that these Archakas who were rendering services faithfully from generation to generation from ancient times should not, in equity, be ejected from the entire lands and that they should be allowed to remain in possession of the lands and be permitted to appropriate to themselves the expenses of the services and a reasonable remuneration and the rest of the income should be made over to the temple as its property. Reference was made to two unreported decisions of the Madras High Court in Appeal No. 218 of 1946Dandibhotla Kutumba Sastrulu v. Kontharapu Venkatalingam, and in Appeal No. 709 of 1944, Buddu Satyanarayana v. Dasari Butchayya, Executive Officer of the Temple of Sri Malleswaraswami Varu, China Pulivaram. In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if not legal, of the Archakas and to make some provision for protecting their rights, but those considerations appear to us to be entirely out of place in a suit for ejectment on proof of title. If the two decisions lay down, as it is contended they do, that the principles which may have a bearing on a proceeding for framing of a scheme or for enforcing the scheme that is framed may be applied to a case of the kind we have now before us it will be difficult for us to uphold them either on authority or on principle. Further what is the conduct of the Archakas defendants appearing on the record of this case ? Although they are Archakas they actually asserted an adverse right in the face of the honest admission of their predecessors in title, made in the Inam statement Exhibit D-3. Such conduct cannot but be regarded as disentitling them from any claim founded on equity. The explanation put forward for the first time in paragraph 7 of their present statement of case filed in this Court explaining the absence of a claim to the property by their predecessors at the time of the Inam Inquiry namely, respect for the deity enjoined by Agama Shastra is not at all convincing. Further, the giving of such equitable relief must depend on questions of fact, namely, the income of the property, the reasonable expenses and remuneration for the services, the amounts appropriated by them all this time and so forth which have not been investigated into in this case, because, no doubt, this question of equitable relief has been put forward as a last resort after having lost their battle. We do not think in the circumstances of the case any indulgence should be shown to the Archakas even if it were permissible for the Court in a suit of this description to give such relief.8. ### Response: 0 ### Explanation: It is true that the original grant is not forthcoming but turning to the evidence we find two documents which appear to us to be decisive on the question of title. The first one is Exhibit P/3, a copy of the relevant entries in the Inam Register of 1860. This Inam Register was prepared after enquiries made by the Inam Deputy Collector and the statements furnished at that time by the then Archakas were taken into consideration for preparing the register. The copy of the statement filed by the then Archakas before the Inam Deputy Collector was exhibited in this case as Exhibit D/3. In the Inam Register (Ex. P/3) under the several columns grouped under the general heading " Class extent and value of Inam " this Inam is classified in column 2 as Devadayam. In column 3 are set out the survey numbers together with the word Dry indicating the nature of the land comprised within the surveythe heading " Income derived from the Inam whether it is sarvadumbala or jodi. lf jodi the amount" in column 13 is stated " sarvadumbala Inam Cist according to the rate prevailing in the neighbouring fields Rs. 26631." This statement (Ex. D/3) bearsthe signature of the Karnams and the witnesses. it will be noticed that neither in the Inam Register Ex. P/3 nor in the statement Ex. D/3 is there any mention of the Archakas as the grantee or for the matter of that, having any the least -interest, personal or otherwise, in the subject-matter of the Inam grant. The two exhibits quite clearly indicate that the Inam grant was made in favour of the temple by the gurant or and that in the face of this definite evidence and proof of the nature of the grant, no presumption of a lost grant can be made in favour of the Archakas. We, therefore, in agreement with the High Court, hold that the deity was the grantee and the first question raised before us must be answered against thefrom these points of distinction the decision relied on by the learned Attorney-General appears to us to be of doubtful authority. As will appear from the passages quoted above, the decision rested mainly, if not entirely, on the fact that the amount of assessment and the amount of income were the same and the conclusion was drawn that the Inam grant comprised only of the revenue assessment, i.e., of melvaram rights. We are unable to follow thethey are Archakas they actually asserted an adverse right in the face of the honest admission of their predecessors in title, made in the Inam statement Exhibit D-3. Such conduct cannot but be regarded as disentitling them from any claim founded on equity. The explanation put forward for the first time in paragraph 7 of their present statement of case filed in this Court explaining the absence of a claim to the property by their predecessors at the time of the Inam Inquiry namely, respect for the deity enjoined by Agama Shastra is not at all convincing. Further, the giving of such equitable relief must depend on questions of fact, namely, the income of the property, the reasonable expenses and remuneration for the services, the amounts appropriated by them all this time and so forth which have not been investigated into in this case, because, no doubt, this question of equitable relief has been put forward as a last resort after having lost their battle. We do not think in the circumstances of the case any indulgence should be shown to the Archakas even if it were permissible for the Court in a suit of this description to give such relief.

Nitinbhai Saevantilal Shah Vs. Manubhai Manjibhai Panchal

in which Section 326 (3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice. 15. The High Court by the impugned judgment rejected the contention regarding proceedings having been vitiated under Section 461 of the Code, on the ground that parties had submitted pursis dated August 3, 2001 and in view of the provisions of Section 465 of the Code, the alleged irregularity cannot be regarded as having occasioned failure of justice and thus can be cured. The reliance placed by the High Court, on the pursis submitted by the appellants before the learned Metropolitan Magistrate declaring that they had no objection if matter was decided after taking into consideration the evidence recorded by his predecessor- in-office is misconceived. It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law. 16. The cardinal principal of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. It is so stated by this Court in the decision in Payare Lal Vs. State of Punjab, AIR 1962 SC 690 : (1962 (1) Crl LJ 688). This principle was being rigorously applied prior to the introduction of Section 350 in the Code of Criminal Procedure, 1898. Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code. From the language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial. 17. The next question that arises is as to from what stage the learned Metropolitan Magistrate Ahmedabad, should proceed with the trial de novo. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle of trial of criminal cases, it is crystal clear that if that principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. Therefore, Section 461 of the new Code would be applicable. Section 461 of the new Code narrates irregularities which vitiate proceedings. The relevant provision is Clause (l). It reads as follows:- “461. Irregularities which vitiate proceedings:- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely;x x x x x(l) tries an offender;x x x x xhisproceedings shall be void.” A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law, would be void and void proceedings cannot be validated under Section 465 of the Code. This defect is not a mere irregularity and the conviction of the appellants cannot, even if sustainable on the evidence, be upheld under Section 465 of the Code. In regard to Section 350 of the old Code, it was said by Privy Council in Pulukuri Kotayya Vs. Emperor, AIR 1947 P.C. 67 that “when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537”. 18. This is not a case of irregularity but want of competency. Apart from Section 326 (1) and 326 (2) which are not applicable to the present case in view of Section 326 (3), the Code does not conceive of such a trial. Therefore, Section 465 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one. 19. For the foregoing reasons the appeal succeeds. The judgment dated August 09, 2010 rendered by the learned Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 529 of 2003 upholding conviction of the appellants for the offence under Section 138 of the Act is hereby set aside.

0[ds]The manner in which record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding. Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regularmandatory language in which Section 326 (3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantialHigh Court by the impugned judgment rejected the contention regarding proceedings having been vitiated under Section 461 of the Code, on the ground that parties had submitted pursis dated August 3, 2001 and in view of the provisions of Section 465 of the Code, the alleged irregularity cannot be regarded as having occasioned failure of justice and thus can be cured. The reliance placed by the High Court, on the pursis submitted by the appellants before the learned Metropolitan Magistrate declaring that they had no objection if matter was decided after taking into consideration the evidence recorded by his predecessor- in-office is misconceived. It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under thethe language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novothe foregoing reasons the appeal succeeds. The judgment dated August 09, 2010 rendered by the learned Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 529 of 2003 upholding conviction of the appellants for the offence under Section 138 of the Act is hereby 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: in which Section 326 (3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantial justice. 15. The High Court by the impugned judgment rejected the contention regarding proceedings having been vitiated under Section 461 of the Code, on the ground that parties had submitted pursis dated August 3, 2001 and in view of the provisions of Section 465 of the Code, the alleged irregularity cannot be regarded as having occasioned failure of justice and thus can be cured. The reliance placed by the High Court, on the pursis submitted by the appellants before the learned Metropolitan Magistrate declaring that they had no objection if matter was decided after taking into consideration the evidence recorded by his predecessor- in-office is misconceived. It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under the law. 16. The cardinal principal of law in criminal trial is that it is a right of an accused that his case should be decided by a Judge who has heard the whole of it. It is so stated by this Court in the decision in Payare Lal Vs. State of Punjab, AIR 1962 SC 690 : (1962 (1) Crl LJ 688). This principle was being rigorously applied prior to the introduction of Section 350 in the Code of Criminal Procedure, 1898. Section 326 of the new Code deals with what was intended to be dealt with by Section 350 of the old Code. From the language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novo trial. 17. The next question that arises is as to from what stage the learned Metropolitan Magistrate Ahmedabad, should proceed with the trial de novo. As it has been seen that Section 326 of the new Code is an exception to the cardinal principle of trial of criminal cases, it is crystal clear that if that principle is violated by a particular Judge or a Magistrate, he would be doing something not being empowered by law in that behalf. Therefore, Section 461 of the new Code would be applicable. Section 461 of the new Code narrates irregularities which vitiate proceedings. The relevant provision is Clause (l). It reads as follows:- “461. Irregularities which vitiate proceedings:- If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely;x x x x x(l) tries an offender;x x x x xhisproceedings shall be void.” A plain reading of this provision shows that the proceedings held by a Magistrate, to the extent that he is not empowered by law, would be void and void proceedings cannot be validated under Section 465 of the Code. This defect is not a mere irregularity and the conviction of the appellants cannot, even if sustainable on the evidence, be upheld under Section 465 of the Code. In regard to Section 350 of the old Code, it was said by Privy Council in Pulukuri Kotayya Vs. Emperor, AIR 1947 P.C. 67 that “when a trial is conducted in a manner different from that prescribed by the Code, the trial is bad, and no question of curing an irregularity arises; but if the trial is conducted substantially in the manner prescribed, but some irregularity occurs in the course of such conduct, the irregularity can be cured under Section 537”. 18. This is not a case of irregularity but want of competency. Apart from Section 326 (1) and 326 (2) which are not applicable to the present case in view of Section 326 (3), the Code does not conceive of such a trial. Therefore, Section 465 of the Code has no application. It cannot be called in aid to make what was incompetent, competent. There has been no proper trial of the case and there should be one. 19. For the foregoing reasons the appeal succeeds. The judgment dated August 09, 2010 rendered by the learned Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 529 of 2003 upholding conviction of the appellants for the offence under Section 138 of the Act is hereby set aside. ### Response: 0 ### Explanation: The manner in which record in summary trials is to be maintained is provided in Section 263 of the Code. Section 264 mentions that in every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of evidence and a judgment containing a brief statement of the reasons for the finding. Thus the Magistrate is not expected to record full evidence which he would have been, otherwise required to record in a regular trial and his judgment should also contain a brief statement of the reasons for the finding and not elaborate reasons which otherwise he would have been required to record in regularmandatory language in which Section 326 (3) is couched, leaves no manner of doubt that when a case is tried as a summary case a Magistrate, who succeeds the Magistrate who had recorded the part or whole of the evidence, cannot act on the evidence so recorded by his predecessor. In summary proceedings, the successor Judge or Magistrate has no authority to proceed with the trial from a stage at which his predecessor has left it. The reason why the provisions of sub-Section (1) and (2) of Section 326 of the Code have not been made applicable to summary trials is that in summary trials only substance of evidence has to be recorded. The Court does not record the entire statement of witness. Therefore, the Judge or the Magistrate who has recorded such substance of evidence is in a position to appreciate the evidence led before him and the successor Judge or Magistrate cannot appreciate the evidence only on the basis of evidence recorded by his predecessor. Section 326 (3) of the Code does not permit the Magistrate to act upon the substance of the evidence recorded by his predecessor, the obvious reason being that if succeeding Judge is permitted to rely upon the substance of the evidence recorded by his predecessor, there will be a serious prejudice to the accused and indeed, it would be difficult for a succeeding Magistrate himself to decide the matter effectively and to do substantialHigh Court by the impugned judgment rejected the contention regarding proceedings having been vitiated under Section 461 of the Code, on the ground that parties had submitted pursis dated August 3, 2001 and in view of the provisions of Section 465 of the Code, the alleged irregularity cannot be regarded as having occasioned failure of justice and thus can be cured. The reliance placed by the High Court, on the pursis submitted by the appellants before the learned Metropolitan Magistrate declaring that they had no objection if matter was decided after taking into consideration the evidence recorded by his predecessor- in-office is misconceived. It is well settled that no amount of consent by the parties can confer jurisdiction where there exists none, on a Court of law nor can they divest a Court of jurisdiction which it possesses under thethe language of Section 326(3) of the Code, it is plain that the provisions of Section 326(1) and 326(2) of the new Code are not applicable to summary trial. Therefore, except in regard to those cases which fall within the ambit of Section 326 of the Code, the Magistrate cannot proceed with the trial placing reliance on the evidence recorded by his predecessor. He has got to try the case de novo. In this view of the matter, the High Court should have ordered de novothe foregoing reasons the appeal succeeds. The judgment dated August 09, 2010 rendered by the learned Single Judge of the High Court of Gujarat at Ahmedabad in Criminal Revision Application No. 529 of 2003 upholding conviction of the appellants for the offence under Section 138 of the Act is hereby set aside.

H.E.H. Nizam'S Religious Endowment Trusthyderabad Vs. Commissioner Of Income-Tax, Andhra Pradesh,Hyderabad

second part is applied or finally set apart for application. The words applied or finally set apart for application in the second part indicate that unless the income from the said property is applied or finally set apart for the purposes within the taxable territories, the said income does not earn the exemption. There cannot be any reason why a different meaning should be given to the expression applied or accumulated for application in the first part of the clause; for, on principle, there cannot be any possible distinction between such income from the property wholly held under trust or a part of the property held in trust. The words applied any accumulated therefore, must mean applied or finally set apart. Applied means that the income is actually applied for the said purposes in the taxable territories; and accumulated means that the income is set apart during the year for future spending on the said purposes. The expression accumulated for a purpose involves a conscious act in praesenti and posits a clear indication on the part of the trustee to set apart the income for that purpose. It is, therefore, manifest that under Cl. (i), only income from the property wholly or in part held in trust actually applied or set apart for application for future spending on religious or charitable purposes within the taxable territories is exempted from inclusion in the total income. 7. As has been pointed out by Craies in his book on Statute Law, 6th Edn., at p. 217, The effect of an excepting or qualifying proviso, according to the ordinary rules of construction is to except out the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it.The proviso to Cl. (i) excepts the two classes of income subject to the condition mentioned therein from the operation of the substantive clause. It comes into operation only when the said income is applied to religious or charitable purposes without the taxable territories. In that event the Central Board of Revenue, by general or special order, may direct that it shall not be included in the total income. The proviso also throws light on the construction of the substantive part of Cl. (i) as the exception can be invoked only upon the application of the income to the said purposes outside the taxable territories. The application of the income in praesenti or in futuro for purposes in or outside the taxable territories, as the case may be, is the necessary condition for invoking either the substantive part of the clause or the proviso thereto. 8. The argument of Mr. Narasa Raju, namely, that as at the time the income was accumulated the Trustees did not exercise the option, the accumulation would necessarily be for some of the purposes within the taxable territories, leads to a fallacy. If accepted, it would enlarge the scope of the exemption; while the section expressly exempts only such income as is applied or accumulated for application for such purposes within the taxable territories, the income would be exempted even though it was accumulated for mixed purposes, that is, for purposes both within and without the taxable territories. Purposes within the taxable territories are not the same as mixed purposes. At best the amounts are kept under a suspense account with an option to the trustees to set apart at a later date for purposes within or without the taxable territories. Howsoever the option is exercised at a later stage, it is not an accumulation during the relevant accounting year for purposes within the taxable territories. 9. Some of the cases cited at the Bar may not be of direct application but the principle laid down therein may be helpful in construing the terms of the present Trust deed. The Judicial Committee in Mohammad Ibrahim v. Income-tax Commissioner, Nagpur, 57 Ind App 260: (AIR 1930 PC 226 ) held that where the purposes of a trust were not wholly charitable or religious and no portion of the property had been set aside for those purposes, the income from the trust could not be identified as appropriated exclusively thereto. The principle underlying this decision is, where a trust is for mixed purposes, some religious and other secular, with an option to the trustee to select one or other of the purposes, it is not possible to predicate till the selection is made that the object is for religious or charitable purposes. In the present case, an option is given to the Trustees to set apart the income for the purposes within the taxable territories or without such territories and till a selection is made it is not equally possible to predicate that the accumulation of income is for purposes within the taxable territories. Till the Trustees set apart the accumulation for the purposes within the taxable territories, it cannot be said that the purposes are within the taxable territories. 10. Mr. Narasa Raju attempted to argue that in the present case the income was set apart for purposes within the taxable territories. This aspect of the question was never raised till now. It involves a question of fact. Clause 3(d)(v) of the Trust deed on which reliance is placed is only an expression of desire on the part of the settlor that the income of the Trust should be spent equally on the four religious and charitable purposes mentioned in the deed. The said desire does not amount to setting apart by the Trustees of the whole or a part of the income from the Trust for purposes within the taxable territories. Indeed, Cl. 3(d) of the Trust deed indicates the Trustees have no power to set apart or accumulate the income for any of the purposes mentioned in the Trust deed till after the death of the settlor. We cannot, therefore, hold on the material placed before us that the Trustees have set apart the accumulated income for purposes within the taxable territories.

1[ds]Under this section a particular class or kind of income is exempted from taxation.It is settled law that the burden is on the Revenue Authorities to show that the income is liable to tax under the statute; but the onus of showing that a particular class of income is exempt from taxation lies on the assessee. To earn the exemption, the assessee has to establish that his case clearly and squarely falls within the ambit of the said provisions of the Act. There cannot be any reason why a different meaning should be given to the expression applied or accumulated for application in the first part of the clause; for, on principle, there cannot be any possible distinction between such income from the property wholly held under trust or a part of the property held in trust. The words applied any accumulated therefore, must mean applied or finally set apart. Applied means that the income is actually applied for the said purposes in the taxable territories; and accumulated means that the income is set apart during the year for future spending on the said purposes. The expression accumulated for a purpose involves a conscious act in praesenti and posits a clear indication on the part of the trustee to set apart the income for that purpose. It is, therefore, manifest that under Cl. (i), only income from the property wholly or in part held in trust actually applied or set apart for application for future spending on religious or charitable purposes within the taxable territories is exempted from inclusion in the total incomeThe proviso also throws light on the construction of the substantive part of Cl. (i) as the exception can be invoked only upon the application of the income to the said purposes outside the taxable territories. The application of the income in praesenti or in futuro for purposes in or outside the taxable territories, as the case may be, is the necessary condition for invoking either the substantive part of the clause or the proviso thereto8. The argument of Mr. Narasa Raju, namely, that as at the time the income was accumulated the Trustees did not exercise the option, the accumulation would necessarily be for some of the purposes within the taxable territories, leads to a fallacy. If accepted, it would enlarge the scope of the exemption; while the section expressly exempts only such income as is applied or accumulated for application for such purposes within the taxable territories, the income would be exempted even though it was accumulated for mixed purposes, that is, for purposes both within and without the taxable territories. Purposes within the taxable territories are not the same as mixed purposes. At best the amounts are kept under a suspense account with an option to the trustees to set apart at a later date for purposes within or without the taxable territories. Howsoever the option is exercised at a later stage, it is not an accumulation during the relevant accounting year for purposes within the taxable territoriesIn the present case, an option is given to the Trustees to set apart the income for the purposes within the taxable territories or without such territories and till a selection is made it is not equally possible to predicate that the accumulation of income is for purposes within the taxable territories. Till the Trustees set apart the accumulation for the purposes within the taxable territories, it cannot be said that the purposes are within the taxable territories10. Mr. Narasa Raju attempted to argue that in the present case the income was set apart for purposes within the taxable territories. This aspect of the question was never raised till now. It involves a question of fact. Clause 3(d)(v) of the Trust deed on which reliance is placed is only an expression of desire on the part of the settlor that the income of the Trust should be spent equally on the four religious and charitable purposes mentioned in the deed. The said desire does not amount to setting apart by the Trustees of the whole or a part of the income from the Trust for purposes within the taxable territories. Indeed, Cl. 3(d) of the Trust deed indicates the Trustees have no power to set apart or accumulate the income for any of the purposes mentioned in the Trust deed till after the death of the settlor. We cannot, therefore, hold on the material placed before us that the Trustees have set apart the accumulated income for purposes within the taxable territories.

### 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: second part is applied or finally set apart for application. The words applied or finally set apart for application in the second part indicate that unless the income from the said property is applied or finally set apart for the purposes within the taxable territories, the said income does not earn the exemption. There cannot be any reason why a different meaning should be given to the expression applied or accumulated for application in the first part of the clause; for, on principle, there cannot be any possible distinction between such income from the property wholly held under trust or a part of the property held in trust. The words applied any accumulated therefore, must mean applied or finally set apart. Applied means that the income is actually applied for the said purposes in the taxable territories; and accumulated means that the income is set apart during the year for future spending on the said purposes. The expression accumulated for a purpose involves a conscious act in praesenti and posits a clear indication on the part of the trustee to set apart the income for that purpose. It is, therefore, manifest that under Cl. (i), only income from the property wholly or in part held in trust actually applied or set apart for application for future spending on religious or charitable purposes within the taxable territories is exempted from inclusion in the total income. 7. As has been pointed out by Craies in his book on Statute Law, 6th Edn., at p. 217, The effect of an excepting or qualifying proviso, according to the ordinary rules of construction is to except out the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it.The proviso to Cl. (i) excepts the two classes of income subject to the condition mentioned therein from the operation of the substantive clause. It comes into operation only when the said income is applied to religious or charitable purposes without the taxable territories. In that event the Central Board of Revenue, by general or special order, may direct that it shall not be included in the total income. The proviso also throws light on the construction of the substantive part of Cl. (i) as the exception can be invoked only upon the application of the income to the said purposes outside the taxable territories. The application of the income in praesenti or in futuro for purposes in or outside the taxable territories, as the case may be, is the necessary condition for invoking either the substantive part of the clause or the proviso thereto. 8. The argument of Mr. Narasa Raju, namely, that as at the time the income was accumulated the Trustees did not exercise the option, the accumulation would necessarily be for some of the purposes within the taxable territories, leads to a fallacy. If accepted, it would enlarge the scope of the exemption; while the section expressly exempts only such income as is applied or accumulated for application for such purposes within the taxable territories, the income would be exempted even though it was accumulated for mixed purposes, that is, for purposes both within and without the taxable territories. Purposes within the taxable territories are not the same as mixed purposes. At best the amounts are kept under a suspense account with an option to the trustees to set apart at a later date for purposes within or without the taxable territories. Howsoever the option is exercised at a later stage, it is not an accumulation during the relevant accounting year for purposes within the taxable territories. 9. Some of the cases cited at the Bar may not be of direct application but the principle laid down therein may be helpful in construing the terms of the present Trust deed. The Judicial Committee in Mohammad Ibrahim v. Income-tax Commissioner, Nagpur, 57 Ind App 260: (AIR 1930 PC 226 ) held that where the purposes of a trust were not wholly charitable or religious and no portion of the property had been set aside for those purposes, the income from the trust could not be identified as appropriated exclusively thereto. The principle underlying this decision is, where a trust is for mixed purposes, some religious and other secular, with an option to the trustee to select one or other of the purposes, it is not possible to predicate till the selection is made that the object is for religious or charitable purposes. In the present case, an option is given to the Trustees to set apart the income for the purposes within the taxable territories or without such territories and till a selection is made it is not equally possible to predicate that the accumulation of income is for purposes within the taxable territories. Till the Trustees set apart the accumulation for the purposes within the taxable territories, it cannot be said that the purposes are within the taxable territories. 10. Mr. Narasa Raju attempted to argue that in the present case the income was set apart for purposes within the taxable territories. This aspect of the question was never raised till now. It involves a question of fact. Clause 3(d)(v) of the Trust deed on which reliance is placed is only an expression of desire on the part of the settlor that the income of the Trust should be spent equally on the four religious and charitable purposes mentioned in the deed. The said desire does not amount to setting apart by the Trustees of the whole or a part of the income from the Trust for purposes within the taxable territories. Indeed, Cl. 3(d) of the Trust deed indicates the Trustees have no power to set apart or accumulate the income for any of the purposes mentioned in the Trust deed till after the death of the settlor. We cannot, therefore, hold on the material placed before us that the Trustees have set apart the accumulated income for purposes within the taxable territories. ### Response: 1 ### Explanation: Under this section a particular class or kind of income is exempted from taxation.It is settled law that the burden is on the Revenue Authorities to show that the income is liable to tax under the statute; but the onus of showing that a particular class of income is exempt from taxation lies on the assessee. To earn the exemption, the assessee has to establish that his case clearly and squarely falls within the ambit of the said provisions of the Act. There cannot be any reason why a different meaning should be given to the expression applied or accumulated for application in the first part of the clause; for, on principle, there cannot be any possible distinction between such income from the property wholly held under trust or a part of the property held in trust. The words applied any accumulated therefore, must mean applied or finally set apart. Applied means that the income is actually applied for the said purposes in the taxable territories; and accumulated means that the income is set apart during the year for future spending on the said purposes. The expression accumulated for a purpose involves a conscious act in praesenti and posits a clear indication on the part of the trustee to set apart the income for that purpose. It is, therefore, manifest that under Cl. (i), only income from the property wholly or in part held in trust actually applied or set apart for application for future spending on religious or charitable purposes within the taxable territories is exempted from inclusion in the total incomeThe proviso also throws light on the construction of the substantive part of Cl. (i) as the exception can be invoked only upon the application of the income to the said purposes outside the taxable territories. The application of the income in praesenti or in futuro for purposes in or outside the taxable territories, as the case may be, is the necessary condition for invoking either the substantive part of the clause or the proviso thereto8. The argument of Mr. Narasa Raju, namely, that as at the time the income was accumulated the Trustees did not exercise the option, the accumulation would necessarily be for some of the purposes within the taxable territories, leads to a fallacy. If accepted, it would enlarge the scope of the exemption; while the section expressly exempts only such income as is applied or accumulated for application for such purposes within the taxable territories, the income would be exempted even though it was accumulated for mixed purposes, that is, for purposes both within and without the taxable territories. Purposes within the taxable territories are not the same as mixed purposes. At best the amounts are kept under a suspense account with an option to the trustees to set apart at a later date for purposes within or without the taxable territories. Howsoever the option is exercised at a later stage, it is not an accumulation during the relevant accounting year for purposes within the taxable territoriesIn the present case, an option is given to the Trustees to set apart the income for the purposes within the taxable territories or without such territories and till a selection is made it is not equally possible to predicate that the accumulation of income is for purposes within the taxable territories. Till the Trustees set apart the accumulation for the purposes within the taxable territories, it cannot be said that the purposes are within the taxable territories10. Mr. Narasa Raju attempted to argue that in the present case the income was set apart for purposes within the taxable territories. This aspect of the question was never raised till now. It involves a question of fact. Clause 3(d)(v) of the Trust deed on which reliance is placed is only an expression of desire on the part of the settlor that the income of the Trust should be spent equally on the four religious and charitable purposes mentioned in the deed. The said desire does not amount to setting apart by the Trustees of the whole or a part of the income from the Trust for purposes within the taxable territories. Indeed, Cl. 3(d) of the Trust deed indicates the Trustees have no power to set apart or accumulate the income for any of the purposes mentioned in the Trust deed till after the death of the settlor. We cannot, therefore, hold on the material placed before us that the Trustees have set apart the accumulated income for purposes within the taxable territories.

Workmen of The Rajasthan Atomic Power Project Vs. Management of The Rajasthan Atomic Power Project

Gupta, J.1. The following dispute was referred under S.10(2) of the Industrial Disputes Act, 1947 for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur :"Whether the action of the Management of Rajasthan Atomic Power Project, Post Office Anushakti, via Kota in giving a notice of change, dated 20th March, 1973 under S.9A of the Industrial Disputes Act, 1947, in so far as payment of overtime allowance to staff car drivers is concerned, is justified. If not, to what relief are they entitled ?"The dispute arose in the following manner. Prior to August 1, 1971 the motor vehicle drivers employed in the Rajasthan Atomic Power Project, hereinafter called the Project, were being paid over-time allowance in accordance with the Staff Car Rules. The Rajasthan Anushakti Priyojna Karamchari Sangh, which was the recognized union of the employees of the Project, referred to hereinafter as the union, claimed that the overtime allowance repaid to the drivers should be fixed at the rates at which the other employees of the Project were being paid. This claim gave rise to a dispute which was settled after protracted discussions on certain terms and a memorandum of settlement was signed by the representatives of the parties concerned before the Assistant Labour Commissioner (Central), Kota, on November 17, 1971. The memorandum of settlement reads as follows :"Terms of SettlementIt is agreed that :1. The motor vehicle drivers and bus helpers shall be paid overtime in accordance with the provision of the Motor Transport Workers Act, 1961 and the rules framed, thereunder by the Government of Rajasthan with effect from 1-8-1971.2. The arrears accruing in regard to cl. (1) above shall be paid to all the entitled workers by 31st December, 1971.3. The parties shall furnish their implementation report to the Assistant Labour Commissioner, (c), Kota, on or before 15-1-1972."2. On December 12, 1972 the Management of the Project gave notice to the General Secretary of the union under S.19(2) of the Industrial Disputes Act conveying their intention to terminate the settlement, dated November 17, 1971 is so far as the staff car drivers were concerned. On the expiry of two months from the service of this notice, the Management served on the union a notice under S.9A of the Industrial Disputes Act proposing to effect a change in the conditions of service of the staff car drivers as indicated in the notice under S. 19(2). The notice under S. 9A stated that with effect from April 12, 1973 the staff car drivers would be entitled to overtime allowance as admissible to them under the Staff Rules and not under the Motor Transport Workers Act, 1961. This gave rise to the dispute which, as earlier, was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur. Before the Tribunal it was contended on behalf of the Management that they had entered into the settlement dated November 17, 1971 under a mistaken belief that the staff car drivers were covered by the provisions of the Motor Transport Workers Act, 1961 but they found later that the definition of "motor transport worker" in S.2(h) of the Motor Transport "Workers" Act, 1961 did not include the staff car drivers of the project. The Tribunal agreed that the staff car drivers were not motor transport workers within the meaning of S. 2(h) and held that there was force in the contention of the Management that they were wrongly included in the settlement and that the termination of the settlement in so far as it was concerned the staff car drivers was, therefore, justified. The Tribunal found that the staff car drivers were not entitled to any relief and made his award accordingly. The workmen of the project represented by their union have preferred this appeal by special leave challenging the validity of the award.3. It seems to us that the question whether the staff car drivers of the project were motor transport workers as defined in the Motor Transport Workers Act, 1961 was not relevant to the issue before the Tribunal. The workmen were not seeking to enforce their right to overtime allowance under the Motor Transport Workers Act. The settlement dated November 17, 1971 resolved the existing dispute as to the rate of overtime allowance payable to the motor vehicle drivers by providing in one of the terms that they should be paid overtime in accordance with the provisions of the Motor Transport Workers Act, 1961. The agreement making the provisions as to overtime in the Motor Transport Workers Act, 1961 applicable to the motor vehicle drivers employed in the Project itself suggests that the parties were aware that the Act has its own force did not apply to the motor vehicle drivers. If these motor vehicle drivers were governed by the provisions of the Motor Transport Workers Act, then no question of applying that Act for a settlement between the parties could possibly arise. It is not disputed that motor vehicle drivers include staff car drivers. The right asserted by the staff car drivers arises on the settlement and does not flow out of the Motor Transport Workers Act, 1961, and it appears from the memorandum of settlement that it was arrived at "after protracted discussion." In these circumstances we do not think that it could be said that the management of the Project entered into the settlement on a mistaken belief. As the award proceeds on the managements case of "mistaken belief" which we do not consider acceptable,

1[ds]3. It seems to us that the question whether the staff car drivers of the project were motor transport workers as defined in the Motor Transport Workers Act, 1961 was not relevant to the issue before the Tribunal. The workmen were not seeking to enforce their right to overtime allowance under the Motor Transport Workers Act. The settlement dated November 17, 1971 resolved the existing dispute as to the rate of overtime allowance payable to the motor vehicle drivers by providing in one of the terms that they should be paid overtime in accordance with the provisions of the Motor Transport Workers Act, 1961. The agreement making the provisions as to overtime in the Motor Transport Workers Act, 1961 applicable to the motor vehicle drivers employed in the Project itself suggests that the parties were aware that the Act has its own force did not apply to the motor vehicle drivers. If these motor vehicle drivers were governed by the provisions of the Motor Transport Workers Act, then no question of applying that Act for a settlement between the parties could possibly arise. It is not disputed that motor vehicle drivers include staff car drivers. The right asserted by the staff car drivers arises on the settlement and does not flow out of the Motor Transport Workers Act, 1961, and it appears from the memorandum of settlement that it was arrived at "after protracted discussion." In these circumstances we do not think that it could be said that the management of the Project entered into the settlement on a mistaken belief. As the award proceeds on the managements case of "mistaken belief" which we do not consider acceptable

### 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: Gupta, J.1. The following dispute was referred under S.10(2) of the Industrial Disputes Act, 1947 for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur :"Whether the action of the Management of Rajasthan Atomic Power Project, Post Office Anushakti, via Kota in giving a notice of change, dated 20th March, 1973 under S.9A of the Industrial Disputes Act, 1947, in so far as payment of overtime allowance to staff car drivers is concerned, is justified. If not, to what relief are they entitled ?"The dispute arose in the following manner. Prior to August 1, 1971 the motor vehicle drivers employed in the Rajasthan Atomic Power Project, hereinafter called the Project, were being paid over-time allowance in accordance with the Staff Car Rules. The Rajasthan Anushakti Priyojna Karamchari Sangh, which was the recognized union of the employees of the Project, referred to hereinafter as the union, claimed that the overtime allowance repaid to the drivers should be fixed at the rates at which the other employees of the Project were being paid. This claim gave rise to a dispute which was settled after protracted discussions on certain terms and a memorandum of settlement was signed by the representatives of the parties concerned before the Assistant Labour Commissioner (Central), Kota, on November 17, 1971. The memorandum of settlement reads as follows :"Terms of SettlementIt is agreed that :1. The motor vehicle drivers and bus helpers shall be paid overtime in accordance with the provision of the Motor Transport Workers Act, 1961 and the rules framed, thereunder by the Government of Rajasthan with effect from 1-8-1971.2. The arrears accruing in regard to cl. (1) above shall be paid to all the entitled workers by 31st December, 1971.3. The parties shall furnish their implementation report to the Assistant Labour Commissioner, (c), Kota, on or before 15-1-1972."2. On December 12, 1972 the Management of the Project gave notice to the General Secretary of the union under S.19(2) of the Industrial Disputes Act conveying their intention to terminate the settlement, dated November 17, 1971 is so far as the staff car drivers were concerned. On the expiry of two months from the service of this notice, the Management served on the union a notice under S.9A of the Industrial Disputes Act proposing to effect a change in the conditions of service of the staff car drivers as indicated in the notice under S. 19(2). The notice under S. 9A stated that with effect from April 12, 1973 the staff car drivers would be entitled to overtime allowance as admissible to them under the Staff Rules and not under the Motor Transport Workers Act, 1961. This gave rise to the dispute which, as earlier, was referred for adjudication to the Central Government Industrial Tribunal-cum-Labour Court, Jabalpur. Before the Tribunal it was contended on behalf of the Management that they had entered into the settlement dated November 17, 1971 under a mistaken belief that the staff car drivers were covered by the provisions of the Motor Transport Workers Act, 1961 but they found later that the definition of "motor transport worker" in S.2(h) of the Motor Transport "Workers" Act, 1961 did not include the staff car drivers of the project. The Tribunal agreed that the staff car drivers were not motor transport workers within the meaning of S. 2(h) and held that there was force in the contention of the Management that they were wrongly included in the settlement and that the termination of the settlement in so far as it was concerned the staff car drivers was, therefore, justified. The Tribunal found that the staff car drivers were not entitled to any relief and made his award accordingly. The workmen of the project represented by their union have preferred this appeal by special leave challenging the validity of the award.3. It seems to us that the question whether the staff car drivers of the project were motor transport workers as defined in the Motor Transport Workers Act, 1961 was not relevant to the issue before the Tribunal. The workmen were not seeking to enforce their right to overtime allowance under the Motor Transport Workers Act. The settlement dated November 17, 1971 resolved the existing dispute as to the rate of overtime allowance payable to the motor vehicle drivers by providing in one of the terms that they should be paid overtime in accordance with the provisions of the Motor Transport Workers Act, 1961. The agreement making the provisions as to overtime in the Motor Transport Workers Act, 1961 applicable to the motor vehicle drivers employed in the Project itself suggests that the parties were aware that the Act has its own force did not apply to the motor vehicle drivers. If these motor vehicle drivers were governed by the provisions of the Motor Transport Workers Act, then no question of applying that Act for a settlement between the parties could possibly arise. It is not disputed that motor vehicle drivers include staff car drivers. The right asserted by the staff car drivers arises on the settlement and does not flow out of the Motor Transport Workers Act, 1961, and it appears from the memorandum of settlement that it was arrived at "after protracted discussion." In these circumstances we do not think that it could be said that the management of the Project entered into the settlement on a mistaken belief. As the award proceeds on the managements case of "mistaken belief" which we do not consider acceptable, ### Response: 1 ### Explanation: 3. It seems to us that the question whether the staff car drivers of the project were motor transport workers as defined in the Motor Transport Workers Act, 1961 was not relevant to the issue before the Tribunal. The workmen were not seeking to enforce their right to overtime allowance under the Motor Transport Workers Act. The settlement dated November 17, 1971 resolved the existing dispute as to the rate of overtime allowance payable to the motor vehicle drivers by providing in one of the terms that they should be paid overtime in accordance with the provisions of the Motor Transport Workers Act, 1961. The agreement making the provisions as to overtime in the Motor Transport Workers Act, 1961 applicable to the motor vehicle drivers employed in the Project itself suggests that the parties were aware that the Act has its own force did not apply to the motor vehicle drivers. If these motor vehicle drivers were governed by the provisions of the Motor Transport Workers Act, then no question of applying that Act for a settlement between the parties could possibly arise. It is not disputed that motor vehicle drivers include staff car drivers. The right asserted by the staff car drivers arises on the settlement and does not flow out of the Motor Transport Workers Act, 1961, and it appears from the memorandum of settlement that it was arrived at "after protracted discussion." In these circumstances we do not think that it could be said that the management of the Project entered into the settlement on a mistaken belief. As the award proceeds on the managements case of "mistaken belief" which we do not consider acceptable

Manohar Lal Vs. Vinesh Anand

way with reasonable legal justification and that in such cases, ethical considerations operate and ought to operate.25. In that uncertain state of law, the Law Commission observed in paragraph 15.99 of its Report that it felt that in any concrete case this question is bound into create problem of interpretation and accordingly suggested a change in law for the purposes of Section 195 of the Code. It felt that the term `Court for the purposes of clauses (b) and (c) should mean a Civil, Revenue or a Criminal Court, properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if declared by the Act to be a court for the purposes of Section 195. Indubitably, the introduction of the inclusive clause in the definition of `Court in sub-section (3) of Section 195 has brought about a change in the law. No rule is more firmly established than the principles enunciated in Heydon case [(1584) 3 Co Rep 7a: 76 ER 637] which have been continually cited with approval not only by the English courts but also by the Privy Council as well as this Court. The principles laid down in Heydon case have been enunciated in Craises on Statute Law, 6th Edn. at p. 96 as follows :That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered : (1) what was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, (4) The true reason of the remedy. And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.These rules are still in full form and effect, with the addition that regard must now be had not only to the existing law but also to prior legislation and to the judicial interpretation thereof. The court applied the rule in Heydon case in Bengal Immunity Company Limited v. State of Bihar, AIR 1955 SC 661 in the construction of Article 286 of the Constitution. After referring to the state of law prevailing in the then provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter State trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus, S.R. Das, Actg, C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ. proceeded to say : (SCR p. 635)It was to cure this mischief of multiple taxation and to preserve the free flow of the interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 of the Constitution.....An illustration of the application of the rules is also furnished in the construction of Section 2(d) of the Prize Competitions Act, 1955. In R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 Venkatarama Ayyar, J. speaking for the court after referring to the previous state of the law, to the mischief that continued under that law and to the resolutions passed by different State legislatures under Article 252(1) of the Constitution authorising Parliament to pass the Act, stated : (SCR p. 939)Having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill."17. Balirams decision (supra) has taken into consideration the entire judicial precedent available till the date of the judgment and came to a conclusion upon reliance of the Madhya Pradesh High Court judgment in Puhupram v. State of Madhya Pradesh, 1968 MPLJ 629 that the same lays down the correct law. This Court observed:"36. ..........The least that is required of a court is the capacity to deliver a `definitive judgment, and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a court. That being so, it must be held that a Commission of Inquiry appointed by the appropriate government under Section 3(1) of the Commissions of Inquiry Act is not a court for the purposes of Section 195 of the Code."18. Needless to record here that on a proper appreciation of judgment in Baliram (supra), there cannot be two opinions as to the scope and effect of Section 195(3) of Code and we thus record our concurrence with the view expressed by this Court in Baliram. The law thus laid down by the Bench decision of the Calcutta High Court in Sailaja Kanta (supra) cannot be said to be good law and thus stands over-ruled even on the basis of the state of law under the 1940 Act (being a repealed statute presently). 19. On the wake of the aforesaid, we are unable to record our concurrence with the submissions made in support of the appeal that the Arbitrator can be termed to be a Court within the meaning of section 195 of the Cr. Procedure Code, as such question of applicability of Section 340 Cr.P.Code in a proceeding before the Arbitrator does not and cannot arise. The issue thus is answered in the negative. The Appeal, therefore, fails and is dismissed. No order as to costs.

0[ds]In almost every case except the very plainest, it would be possible to decide the issue either way with reasonable legal justification and that in such cases, ethical considerations operate and ought to operate.25. In that uncertain state of law, the Law Commission observed in paragraph 15.99 of its Report that it felt that in any concrete case this question is bound into create problem of interpretation and accordingly suggested a change in law for the purposes of Section 195 of the Code. It felt that the term `Court for the purposes of clauses (b) and (c) should mean a Civil, Revenue or a Criminal Court, properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if declared by the Act to be a court for the purposes of Section 195. Indubitably, the introduction of the inclusive clause in the definition of `Court in sub-section (3) of Section 195 has brought about a change in the law. No rule is more firmly established than the principles enunciated in Heydon case [(1584) 3 Co Rep 7a: 76 ER 637] which have been continually cited with approval not only by the English courts but also by the Privy Council as well as this Court. The principles laid down in Heydon case have been enunciated in Craises on Statute Law, 6th Edn. at p. 96 as follows :That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered : (1) what was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, (4) The true reason of the remedy. And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.These rules are still in full form and effect, with the addition that regard must now be had not only to the existing law but also to prior legislation and to the judicial interpretation thereof. The court applied the rule in Heydon case in Bengal Immunity Company Limited v. State of Bihar, AIR 1955 SC 661 in the construction of Article 286 of the Constitution. After referring to the state of law prevailing in the then provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter State trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus, S.R. Das, Actg, C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ. proceeded to say : (SCR p. 635)It was to cure this mischief of multiple taxation and to preserve the free flow of the interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 of the Constitution.....An illustration of the application of the rules is also furnished in the construction of Section 2(d) of the Prize Competitions Act, 1955. In R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 Venkatarama Ayyar, J. speaking for the court after referring to the previous state of the law, to the mischief that continued under that law and to the resolutions passed by different State legislatures under Article 252(1) of the Constitution authorising Parliament to pass the Act, stated : (SCR p. 939)Having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill."17. Balirams decision (supra) has taken into consideration the entire judicial precedent available till the date of the judgment and came to a conclusion upon reliance of the Madhya Pradesh High Court judgment in Puhupram v. State of Madhya Pradesh, 1968 MPLJ 629 that the same lays down the correct law. This Court observed:"36. ..........The least that is required of a court is the capacity to deliver a `definitive judgment, and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a court. That being so, it must be held that a Commission of Inquiry appointed by the appropriate government under Section 3(1) of the Commissions of Inquiry Act is not a court for the purposes of Section 195 of the Code."18. Needless to record here that on a proper appreciation of judgment in Baliram (supra), there cannot be two opinions as to the scope and effect of Section 195(3) of Code and we thus record our concurrence with the view expressed by this Court in Baliram. The law thus laid down by the Bench decision of the Calcutta High Court in Sailaja Kanta (supra) cannot be said to be good law and thus stands over-ruled even on the basis of the state of law under the 1940 Act (being a repealed statute presently).

### 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: way with reasonable legal justification and that in such cases, ethical considerations operate and ought to operate.25. In that uncertain state of law, the Law Commission observed in paragraph 15.99 of its Report that it felt that in any concrete case this question is bound into create problem of interpretation and accordingly suggested a change in law for the purposes of Section 195 of the Code. It felt that the term `Court for the purposes of clauses (b) and (c) should mean a Civil, Revenue or a Criminal Court, properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if declared by the Act to be a court for the purposes of Section 195. Indubitably, the introduction of the inclusive clause in the definition of `Court in sub-section (3) of Section 195 has brought about a change in the law. No rule is more firmly established than the principles enunciated in Heydon case [(1584) 3 Co Rep 7a: 76 ER 637] which have been continually cited with approval not only by the English courts but also by the Privy Council as well as this Court. The principles laid down in Heydon case have been enunciated in Craises on Statute Law, 6th Edn. at p. 96 as follows :That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered : (1) what was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, (4) The true reason of the remedy. And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.These rules are still in full form and effect, with the addition that regard must now be had not only to the existing law but also to prior legislation and to the judicial interpretation thereof. The court applied the rule in Heydon case in Bengal Immunity Company Limited v. State of Bihar, AIR 1955 SC 661 in the construction of Article 286 of the Constitution. After referring to the state of law prevailing in the then provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter State trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus, S.R. Das, Actg, C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ. proceeded to say : (SCR p. 635)It was to cure this mischief of multiple taxation and to preserve the free flow of the interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 of the Constitution.....An illustration of the application of the rules is also furnished in the construction of Section 2(d) of the Prize Competitions Act, 1955. In R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 Venkatarama Ayyar, J. speaking for the court after referring to the previous state of the law, to the mischief that continued under that law and to the resolutions passed by different State legislatures under Article 252(1) of the Constitution authorising Parliament to pass the Act, stated : (SCR p. 939)Having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill."17. Balirams decision (supra) has taken into consideration the entire judicial precedent available till the date of the judgment and came to a conclusion upon reliance of the Madhya Pradesh High Court judgment in Puhupram v. State of Madhya Pradesh, 1968 MPLJ 629 that the same lays down the correct law. This Court observed:"36. ..........The least that is required of a court is the capacity to deliver a `definitive judgment, and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a court. That being so, it must be held that a Commission of Inquiry appointed by the appropriate government under Section 3(1) of the Commissions of Inquiry Act is not a court for the purposes of Section 195 of the Code."18. Needless to record here that on a proper appreciation of judgment in Baliram (supra), there cannot be two opinions as to the scope and effect of Section 195(3) of Code and we thus record our concurrence with the view expressed by this Court in Baliram. The law thus laid down by the Bench decision of the Calcutta High Court in Sailaja Kanta (supra) cannot be said to be good law and thus stands over-ruled even on the basis of the state of law under the 1940 Act (being a repealed statute presently). 19. On the wake of the aforesaid, we are unable to record our concurrence with the submissions made in support of the appeal that the Arbitrator can be termed to be a Court within the meaning of section 195 of the Cr. Procedure Code, as such question of applicability of Section 340 Cr.P.Code in a proceeding before the Arbitrator does not and cannot arise. The issue thus is answered in the negative. The Appeal, therefore, fails and is dismissed. No order as to costs. ### Response: 0 ### Explanation: In almost every case except the very plainest, it would be possible to decide the issue either way with reasonable legal justification and that in such cases, ethical considerations operate and ought to operate.25. In that uncertain state of law, the Law Commission observed in paragraph 15.99 of its Report that it felt that in any concrete case this question is bound into create problem of interpretation and accordingly suggested a change in law for the purposes of Section 195 of the Code. It felt that the term `Court for the purposes of clauses (b) and (c) should mean a Civil, Revenue or a Criminal Court, properly so called, but where a tribunal created by an Act has all or practically all the attributes of a court, it might be regarded as a court only if declared by the Act to be a court for the purposes of Section 195. Indubitably, the introduction of the inclusive clause in the definition of `Court in sub-section (3) of Section 195 has brought about a change in the law. No rule is more firmly established than the principles enunciated in Heydon case [(1584) 3 Co Rep 7a: 76 ER 637] which have been continually cited with approval not only by the English courts but also by the Privy Council as well as this Court. The principles laid down in Heydon case have been enunciated in Craises on Statute Law, 6th Edn. at p. 96 as follows :That for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered : (1) what was the common law before the making of the Act, (2) What was the mischief and defect for which the common law did not provide, (3) what remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth, (4) The true reason of the remedy. And then the office of all the Judges is always to make such construction as shall suppress the mischief and advance the remedy, and to suppress subtle inventions and evasions for the continuance of the mischief and pro privato commodo, and to add force and life to the cure and remedy according to the true intent of the makers of the act pro bono publico.These rules are still in full form and effect, with the addition that regard must now be had not only to the existing law but also to prior legislation and to the judicial interpretation thereof. The court applied the rule in Heydon case in Bengal Immunity Company Limited v. State of Bihar, AIR 1955 SC 661 in the construction of Article 286 of the Constitution. After referring to the state of law prevailing in the then provinces prior to the Constitution as also to the chaos and confusion that was brought about in inter State trade and commerce by indiscriminate exercising of taxing powers by the different provincial legislatures founded on the theory of territorial nexus, S.R. Das, Actg, C.J. speaking for himself and Vivian Bose and Jafer Imam, JJ. proceeded to say : (SCR p. 635)It was to cure this mischief of multiple taxation and to preserve the free flow of the interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the Constitution-makers adopted Article 286 of the Constitution.....An illustration of the application of the rules is also furnished in the construction of Section 2(d) of the Prize Competitions Act, 1955. In R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930 Venkatarama Ayyar, J. speaking for the court after referring to the previous state of the law, to the mischief that continued under that law and to the resolutions passed by different State legislatures under Article 252(1) of the Constitution authorising Parliament to pass the Act, stated : (SCR p. 939)Having regard to the history of the legislation, the declared object thereof and the wording of the statute, we are of opinion the competitions which are sought to be controlled and regulated by the Act are only those competitions in which success does not depend to any substantial degree on skill."17. Balirams decision (supra) has taken into consideration the entire judicial precedent available till the date of the judgment and came to a conclusion upon reliance of the Madhya Pradesh High Court judgment in Puhupram v. State of Madhya Pradesh, 1968 MPLJ 629 that the same lays down the correct law. This Court observed:"36. ..........The least that is required of a court is the capacity to deliver a `definitive judgment, and merely because the procedure adopted by it is of a legal character and it has power to administer an oath will not impart to it the status of a court. That being so, it must be held that a Commission of Inquiry appointed by the appropriate government under Section 3(1) of the Commissions of Inquiry Act is not a court for the purposes of Section 195 of the Code."18. Needless to record here that on a proper appreciation of judgment in Baliram (supra), there cannot be two opinions as to the scope and effect of Section 195(3) of Code and we thus record our concurrence with the view expressed by this Court in Baliram. The law thus laid down by the Bench decision of the Calcutta High Court in Sailaja Kanta (supra) cannot be said to be good law and thus stands over-ruled even on the basis of the state of law under the 1940 Act (being a repealed statute presently).

Kanumukkala Krishnamurthy Vs. State of Andhra Pradesh

stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission. 17. The fact that the Service Commission is an independent statutory authority has no relevant bearing on this question. It is a statutory body as it is constituted under the provisions of a statute. It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does not take any hint or instructions or clue from the Government. It brings to bear its own independent mind to judge the comparative merits of the candidates and their suitability to the posts they apply for. Its function is to advise the Government on the suitability of the candidates. It is therefore a statutory adviser to Government in the matter of appointment to the Services. Deception of such an adviser is deception of the Government which is expected to pay heed to its advise and act accordingly. 18. There have been cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority concerned. In such cases, the person deceiving the servants or agents has been held to have deceived the authority concerned, though no direct question was raised about the deception being made not to the authority but to its servant. The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing that they satisfied the various conditions prescribed for candidates for those appointments. We may refer to some such cases. 19. In The Crown v. Gunpat, 7 Pun Re 1868 Cr. the accused who had produced a railway pass with an altered number before the ticket collector when travelling by a train, was held to have thereby dishonestly induced the railway company to do or omit to do what they otherwise would not have done or omitted, by the production of the altered pass. The deception of the ticket collector was considered to be deception of the railway company. 20. In P.E. Billinghurst v. H.P. Blackburn, 27 Cal WN 821: (AIR 1924 Cal 18) certain bills were presented by a company for payment. They were checked by Government officials who were deceived by certain representations made by subordinate officials through whom the bills had passed, and consequently payments were made in satisfaction of the demands under the bills. The persons concerned in causing the deception were convicted of cheating the Government. 21. In Supdt. and Remembrancer of Legal Affairs v. Manmatha Bhusan Chatterjee, ILR 51 Cal 250 : (AIR 1924 Cal 495 ) it was held that if the evidence showed that responsible officers of the East Indian Railway Company and its Asansol Office were deceived and induced either to allot wagons to a certain colliery which would not otherwise have been allotted or to make out wagon chalans for the colliery which would not otherwise have been made it was sufficient to support the allegations in the charges that the railway company was, by reason of deceipt, induced to act in a certain way. The deception of the responsible officers was thus taken to be the deception of the railway company, the possible damage to whose reputation was remote. 22. In Emperor v. Fazal Din, 4 Cri LJ 355 (Lah) it was held that the deception practised was likely to cause damage or harm to the person on whom it was practised or to the railway authorities whose agent he was in the matter of appointments. 23. In Queen-Empress v. Appasami, ILR 12 Mad 151 the act of the accused in obtaining, by personation, a half ticket from the Superintendent at a University Examination and in signing the name of another person on the examination papers was held to indicate an intention on his part to lead the University authorities to believe that the examination papers were answered by the other person. This again is on the principle that the deception of the Superintendent who was working for the University was a deception of the University itself. 24. Similarly, in Ashwini Kumar Gupta v. Emperor, ILR (1937) 1 Cal 71: (AIR 1936 Cal 403) the accused personated another person at a University examination by cheating the Registrar. It was held that this not only damaged the reputation of the Registrar, but also that of the University. 25. Reference may also be made to the case reported as In re: Hampshire Land Company, 1896-2 Ch 743 in which a Society had lent money to a company on the borrowing of the directors of that company who were not competent to borrow, the resolution conferring on them the power of borrowing being invalid for certain reasons. It was held that the Society had a right to assume, in a case like that, that all the essentials of internal management had been carried out by the borrowing company. On the same principle it can be said that, the Government of the State had a right to assume that the Service Commissions had verified that the candidates selected by it for appointment by the Government possessed the necessary qualification and in that view the scrutiny by the Service Commission can be said to be on behalf of the Government. 26. The Government appointed the appellant to a post in its Medical Service on being induced by deception that he was fully qualified for the appointment. In consequence of the appointment, Government had to pay him the salaries which fell due. It is clear therefore that the appellant, by deceiving the Government, dishonestly induced it to deliver property to him and thus committed the offence of cheating under S. 415 I.P.C. as he pretended to be Kaza Krishnamurthy which he was not. The offence really committed by him was cheating by personation, punishable under S. 419 I.P.C.

1[ds]9. The Courts below, as already stated, found that the appellant cheated the Service Commission by deceiving that he held the degree of M. B. B. S., and by intentionally inducing the Commission to recommend his appointment to the post of Civil Assistant Surgeon, IInd Class, and that this act of the Service Commission was likely to damage its reputation as the appellant did not really possess the degree of M. B. B. S. Assuming without deciding, that such a deception of the Service Commission and its recommendation could, in certain circumstances, cause damage to its reputation, we are of opinion that in the circumstances of this case there was no likelihood of the causing of such damage to its reputation. There is nothing on the record to show that the Service Commission could have ordinarily detected the deception or that the appointment of the applicant to the post in the Medical Service was the appointment of a person who proved to be inefficient. On the contrary, the evidence on the record shows that, for about l0 years between his appointment and the institution of this case, he served efficiently and obtained good reports from the Departmental Superiors. His incompetency for the post was due to his having not obtained the minimum academic qualifications prescribed for the candidates for these posts.We are therefore of opinion that the appellant has not committed the offence of cheating as defined in the latter part of S. 415 I.P.C., even though he had deceived the Service Commission by representing himself to be a duly qualified candidate, and thus induced it to select him for the postThere is no force in this contention for the simple reason that there is nothing on the record to indicate that an admission card was issued entitling the appellant to sit at the competitive examination. In fact, no examination as such took place, and the contention for the respondent appears to have been made under a misapprehension arising out of the letter of the Secretary of the Service Commission to the Surgeon General with the Government of Madras stating that he was enclosing the list containing the names and other particulars of 45 candidates who were successful at the competitive examination held by the commission for the direct recruitment of Civil Assistant Surgeons, Class II (Men) in the Madras Medical Service. It is however clear from the record that the candidates were simply interviewed by the Commission. There is nothing on the record to show that any written examination to which admission was by admission cards took place11. In these circumstances, we cannot hold merely on the basis of suggestions, that any competitive written examination was held and that any admission card was issued to the appellant entitling him to sit at the examination and, consequently, cannot hold that the offence of cheating by dishonestly inducing the service Commission to deliver him property was committed by the appellant13. We accept the contention for the respondent. The appointments to the Medical Services are made by Government. The Service Commission simply selects the candidates and recommends their names to Government for appointment. This is clear from letter Exhibit7 from the Secretary to the Service Commission to thel with the Government of Madras. The letter refers to the enclosing of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the Commission15. Any representation made in an application for appointment is really a representation made to the Government , the appointing authority and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance, up to the stage of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practiced for that purpose and thereof there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation16. We are therefore of opinion that the appellants misrepresentation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission17. The fact that the Service Commission is an independent statutory authority has no relevant bearing on this question. It is a statutory body as it is constituted under the provisions of a statute. It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does not take any hint or instructions or clue from the Government. It brings to bear its own independent mind to judge the comparative merits of the candidates and their suitability to the posts they apply for. Its function is to advise the Government on the suitability of the candidates. It is therefore a statutory adviser to Government in the matter of appointment to the Services. Deception of such an adviser is deception of the Government which is expected to pay heed to its advise and act accordingly18. There have been cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority concerned. In such cases, the person deceiving the servants or agents has been held to have deceived the authority concerned, though no direct question was raised about the deception being made not to the authority but to its servant. The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing that they satisfied the various conditions prescribed for candidates for those appointmentsOn the same principle it can be said that, the Government of the State had a right to assume that the Service Commissions had verified that the candidates selected by it for appointment by the Government possessed the necessary qualification and in that view the scrutiny by the Service Commission can be said to be on behalf of the Government26. The Government appointed the appellant to a post in its Medical Service on being induced by deception that he was fully qualified for the appointment. In consequence of the appointment, Government had to pay him the salaries which fell due. It is clear therefore that the appellant, by deceiving the Government, dishonestly induced it to deliver property to him and thus committed the offence of cheating under S. 415 I.P.C. as he pretended to be Kaza Krishnamurthy which he was not. The offence really committed by him was cheating by personation, punishable under S. 419 I.P.C.

### 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: stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission. 17. The fact that the Service Commission is an independent statutory authority has no relevant bearing on this question. It is a statutory body as it is constituted under the provisions of a statute. It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does not take any hint or instructions or clue from the Government. It brings to bear its own independent mind to judge the comparative merits of the candidates and their suitability to the posts they apply for. Its function is to advise the Government on the suitability of the candidates. It is therefore a statutory adviser to Government in the matter of appointment to the Services. Deception of such an adviser is deception of the Government which is expected to pay heed to its advise and act accordingly. 18. There have been cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority concerned. In such cases, the person deceiving the servants or agents has been held to have deceived the authority concerned, though no direct question was raised about the deception being made not to the authority but to its servant. The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing that they satisfied the various conditions prescribed for candidates for those appointments. We may refer to some such cases. 19. In The Crown v. Gunpat, 7 Pun Re 1868 Cr. the accused who had produced a railway pass with an altered number before the ticket collector when travelling by a train, was held to have thereby dishonestly induced the railway company to do or omit to do what they otherwise would not have done or omitted, by the production of the altered pass. The deception of the ticket collector was considered to be deception of the railway company. 20. In P.E. Billinghurst v. H.P. Blackburn, 27 Cal WN 821: (AIR 1924 Cal 18) certain bills were presented by a company for payment. They were checked by Government officials who were deceived by certain representations made by subordinate officials through whom the bills had passed, and consequently payments were made in satisfaction of the demands under the bills. The persons concerned in causing the deception were convicted of cheating the Government. 21. In Supdt. and Remembrancer of Legal Affairs v. Manmatha Bhusan Chatterjee, ILR 51 Cal 250 : (AIR 1924 Cal 495 ) it was held that if the evidence showed that responsible officers of the East Indian Railway Company and its Asansol Office were deceived and induced either to allot wagons to a certain colliery which would not otherwise have been allotted or to make out wagon chalans for the colliery which would not otherwise have been made it was sufficient to support the allegations in the charges that the railway company was, by reason of deceipt, induced to act in a certain way. The deception of the responsible officers was thus taken to be the deception of the railway company, the possible damage to whose reputation was remote. 22. In Emperor v. Fazal Din, 4 Cri LJ 355 (Lah) it was held that the deception practised was likely to cause damage or harm to the person on whom it was practised or to the railway authorities whose agent he was in the matter of appointments. 23. In Queen-Empress v. Appasami, ILR 12 Mad 151 the act of the accused in obtaining, by personation, a half ticket from the Superintendent at a University Examination and in signing the name of another person on the examination papers was held to indicate an intention on his part to lead the University authorities to believe that the examination papers were answered by the other person. This again is on the principle that the deception of the Superintendent who was working for the University was a deception of the University itself. 24. Similarly, in Ashwini Kumar Gupta v. Emperor, ILR (1937) 1 Cal 71: (AIR 1936 Cal 403) the accused personated another person at a University examination by cheating the Registrar. It was held that this not only damaged the reputation of the Registrar, but also that of the University. 25. Reference may also be made to the case reported as In re: Hampshire Land Company, 1896-2 Ch 743 in which a Society had lent money to a company on the borrowing of the directors of that company who were not competent to borrow, the resolution conferring on them the power of borrowing being invalid for certain reasons. It was held that the Society had a right to assume, in a case like that, that all the essentials of internal management had been carried out by the borrowing company. On the same principle it can be said that, the Government of the State had a right to assume that the Service Commissions had verified that the candidates selected by it for appointment by the Government possessed the necessary qualification and in that view the scrutiny by the Service Commission can be said to be on behalf of the Government. 26. The Government appointed the appellant to a post in its Medical Service on being induced by deception that he was fully qualified for the appointment. In consequence of the appointment, Government had to pay him the salaries which fell due. It is clear therefore that the appellant, by deceiving the Government, dishonestly induced it to deliver property to him and thus committed the offence of cheating under S. 415 I.P.C. as he pretended to be Kaza Krishnamurthy which he was not. The offence really committed by him was cheating by personation, punishable under S. 419 I.P.C. ### Response: 1 ### Explanation: been made under a misapprehension arising out of the letter of the Secretary of the Service Commission to the Surgeon General with the Government of Madras stating that he was enclosing the list containing the names and other particulars of 45 candidates who were successful at the competitive examination held by the commission for the direct recruitment of Civil Assistant Surgeons, Class II (Men) in the Madras Medical Service. It is however clear from the record that the candidates were simply interviewed by the Commission. There is nothing on the record to show that any written examination to which admission was by admission cards took place11. In these circumstances, we cannot hold merely on the basis of suggestions, that any competitive written examination was held and that any admission card was issued to the appellant entitling him to sit at the examination and, consequently, cannot hold that the offence of cheating by dishonestly inducing the service Commission to deliver him property was committed by the appellant13. We accept the contention for the respondent. The appointments to the Medical Services are made by Government. The Service Commission simply selects the candidates and recommends their names to Government for appointment. This is clear from letter Exhibit7 from the Secretary to the Service Commission to thel with the Government of Madras. The letter refers to the enclosing of a list containing the names and other particulars of the candidates who were successful at the examination, their names being arranged in order of merit. It refers to the relaxing of a certain rule in view of the paucity of candidates and states that they may be appointed, if necessary, pending receipt of the certificate of physical fitness and a further communication from the Commission15. Any representation made in an application for appointment is really a representation made to the Government , the appointing authority and not only to the Public Service Commission to which the application is presented and which has to deal with that application in the first instance, up to the stage of selection. The object of the applicant was to secure an appointment and not merely to deceive the Public Service Commission and sit at the examination or to appear at the interview. The deception was practiced for that purpose and thereof there seems to be no good reason for holding that the deception came to an end once the Service Commission was deceived and had taken action on it as a result of the deception. A false representation in an application to the Service Commission continues and persists to be so till the application is considered by the final authority responsible for making the appointments and must therefore be deemed to be made to that final authority as well. In the instant case, when the recommendation of the Service Commission was sent to the Government, the qualifications of the recommended candidates, including the fact that the appellant had passed the M.B.B.S. examination were mentioned. The Government therefore believed that the appellant possessed the degree of M.B.B.S., that as the Service Commission had scrutinized the application in that regard and had satisfied itself that the appellant possessed that degree. The consequence of that is that the Government were led to believe that fact, which thus became a false representation16. We are therefore of opinion that the appellants misrepresentation to the Service Commission continued and persisted till the final stage of the Government passing an order of appointment and that therefore the Government itself was deceived by the misrepresentation he had made in his application presented to the Service Commission17. The fact that the Service Commission is an independent statutory authority has no relevant bearing on this question. It is a statutory body as it is constituted under the provisions of a statute. It is independent of the Government in the sense that in its selection of candidates or in its tendering advice to the Government it does not take any hint or instructions or clue from the Government. It brings to bear its own independent mind to judge the comparative merits of the candidates and their suitability to the posts they apply for. Its function is to advise the Government on the suitability of the candidates. It is therefore a statutory adviser to Government in the matter of appointment to the Services. Deception of such an adviser is deception of the Government which is expected to pay heed to its advise and act accordingly18. There have been cases in which servants or agents of an authority have been deceived while the loss has been suffered by the authority concerned. In such cases, the person deceiving the servants or agents has been held to have deceived the authority concerned, though no direct question was raised about the deception being made not to the authority but to its servant. The principle of the cases, to our mind, fully applies to the case of candidates deceiving the Public Service Commission and thereby deceiving the Government in believing that they satisfied the various conditions prescribed for candidates for those appointmentsOn the same principle it can be said that, the Government of the State had a right to assume that the Service Commissions had verified that the candidates selected by it for appointment by the Government possessed the necessary qualification and in that view the scrutiny by the Service Commission can be said to be on behalf of the Government26. The Government appointed the appellant to a post in its Medical Service on being induced by deception that he was fully qualified for the appointment. In consequence of the appointment, Government had to pay him the salaries which fell due. It is clear therefore that the appellant, by deceiving the Government, dishonestly induced it to deliver property to him and thus committed the offence of cheating under S. 415 I.P.C. as he pretended to be Kaza Krishnamurthy which he was not. The offence really committed by him was cheating by personation, punishable under S. 419 I.P.C.

INDSIL HYDRO POWER Vs. STATE OF KERALA

a period of five years from 1994 to 1999. These concessions were independent of and would not therefore disentitle the appellant to the benefit of the agreement that was entered into with KSEB on 30 December 1994. The grant of a concessional tariff is a matter of policy to encourage new industries to set up operations in the State. 38. The claim of the appellant, however, in the present proceedings is based upon the contract for setting up a captive power generation unit relying on the hydel policy of the State dated 7 December 1990 in terms of which the agreement between the parties was executed. 39. Clause 10 of the agreement stipulated that the energy drawn from the hydel units – Phase I and Phase II – would be delivered free of cost to the appellant less an amount of 12% towards wheeling charges and transmission losses. Alternatively, it would be banked by KSEB, if the appellant so desired. KSEB would collect 1% of the energy so banked as its commission. 40. The case of the appellant is that as a result of the inability of KSEB to set up the transmission lines it was unable to receive the power which it was in a position to evacuate into the grid for its captive use. The grievance of the appellant is that as a result of this, it was compelled to purchase power from KSEB at the rates as applicable. Clause 12 of the agreement contemplates a situation where the KSEB grid is not in a position to absorb the energy generated from the project for any reason including the breakdown of transmission lines or any other reason beyond the control of KSEB. In that event, clause 12 provides that the generation from the project will have to be restricted to the extent of generation for captive consumption as directed by KSEB. These provisions indicate that the contract is not entirely silent in regard to a situation involving the inability of KSEBs grid to absorb the energy generated from the project for any reason including a reason which is beyond the control of KSEB. 41. In the present case, the essential facts are not in dispute. 42. Pursuant to the interim order that was passed by the High Court, the Chief Electrical Inspector upon inspecting the work of installation submitted a report on 14 September 2000. The report has not been questioned. The report categorically states that the installation of transformers was completed on 21 August 2000. The work which remained was in the nature of pre-commissioning tests for which the work which had to be completed was essentially the laying down of the 110 KV line on the part of KSEB. The report of the Chief Electrical inspector makes it clear that it was as a result of the delay which took place in the construction of the transmission line that the actual injection of power into the grid could not take place. There is, in other words, clear and cogent material to lead to the conclusion that the appellant had duly fulfilled its obligation of setting up Phase I and Phase II of its units and the only reason why it was unable to inject power into the grid was because the setting up of the transmission lines by KSEB could not take place. 43. The order of the State Government dated 7 February 2001 shows that there was no deliberate act or default on the part of KSEB. Indeed, it has not been seriously disputed that at the material time, there were agitations on the part of the farmers and certain other circumstances which caused delay in the construction of the transmission lines. However as significant as these reasons are, it should not lead to a situation where a private investor who has acted upon the policy of the State Government being left in the lurch as a result of supervening circumstances which have resulted in the power not being evacuated into the grid due to the non-commissioning of the transmission lines at the material time by KSEB. It is imperative that contractual obligations entered into by the State have legal sanctity. A legal regime where the sanctity of contracts is respected and commercial contracts are enforced is essential to the maintenance of the rule of law. Trade and commerce can be freely conducted in a stable legal order which provides remedies for enforcement. 44. At this stage, it is also necessary to note that though in the order of the State Government dated 7 February 2001, it was envisaged that the transmission lines would be constructed and completed by 28 February 2001, there was a further delay of approximately three months even thereafter as a result of which the evacuation of power could commence only with effect from 1 June 2001. On the basis of the factual data which has emerged from the record, on which there is no dispute, we are hence, of the view that the basis on which the State Government took a decision on 7 February 2001 and the High Court affirmed it by its impugned judgment would need to be re-visited in the light of what we have observed above. 45. We are in agreement with the view of the State Government, as accepted by the High Court, that the appellant was not entitled to the grant of deemed generation status as a matter of right. Similarly, the concessional power tariff which is applicable for a period of five years from 1994 to 1999 was extended until 20 August 2000. This is undoubtedly a matter of policy and the High Court was justified in coming to the conclusion that it is not open to the Court to foist a particular measure of policy on the State. In what manner the State should remedy the grievance of the private investor is something which should be duly considered by the State Government within the available framework of law and its own policy

1[ds]33. While assessing the merits of the rival contentions, this Court must be cognizant of the fact that the invocation of the power of judicial review under Article 226 of the Constitution of India was in the context of a contract which was entered into between the appellant and KSEB in pursuance of a policy initiative of the Government of Kerala. Evidently, in announcing the policy initiative on 7 December 1990, the State Government intended to encourage the setting up of hydel power projects by private agencies and hence, a slew of concessions came to be provided. The agreement that was entered into between the appellant and the KSEB is undoubtedly a matter in the contractual arena. It is now a settled principle of law that the exercise of writ jurisdiction under Article 226 is not excluded in matters pertaining to contract Shrilekha Vidyarthi (Kumari) v. State of U.P., (1991) 1 SCC 212 ; ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., (2004) 3 SCC 553 ; Noble Resources Ltd. v. State of Orissa, (2006) 10 SCC 236. 34. In the present case, under its agreement with KSEB the appellant assumed the obligation to set up Phases I and II of a hydel project with a capacity of 21 MW and to operate the project for a period of 30 years. After the expiry of 30 years, the project would be handed over to the State free of cost35. It was in this background that the agreement stipulated that the date of commissioning would be construed as the date from which the power generated by the units set up by the appellant was fed into KSEB grid. Under clause 3 of the agreement, the appellant was to furnish within three months a programme for construction and installation towards the completion of the project. Commercial operation was to be achieved within a period of 30 months from that date. Under clause 9 of the contract, KSEB assumed the obligation to set up the transmission line. Though the contract does not specify the exact length of the transmission line, clause 9 makes it clear that for a length of 4 kms, construction would be at the cost and expense of the appellant while the balance would be constructed by KSEB at its own cost. While a superficial reading of clause 9 alone is liable to lead to the interpretation that no time was fixed for the completion of the transmission lines, this in our opinion, would not be a correct reading of the contract. In construing a commercial document, the contract must be read and understood in its entirety so as to attribute to it a business meaning which was within the understanding of the contracting partiesThus, the reasonable construction of the contract would be that the commencement of commercial operations within 30 months postulated that both the appellant and KSEB must perform their respective obligations under the contract within that period so as to adhere to the date of commencing commercial operations. Hence, the High Court was not correct in coming to the conclusion that the contract did not stipulate any timelines for the completion of the work of constructing the transmission line. Such a requirement was implicit in clause 3 of the agreement and clause 9 must necessarily be read in that context.37. The submission which has been urged on behalf of KSEB principally relies on the concessions which have been provided to the appellant in regard to the tariff which is applicable to its industrial unit. These concessions, it must be noted, were available to all new industries to whom a concessional tariff was provided over a period of five years from 1994 to 1999. These concessions were independent of and would not therefore disentitle the appellant to the benefit of the agreement that was entered into with KSEB on 30 December 1994. The grant of a concessional tariff is a matter of policy to encourage new industries to set up operations in the State38. The claim of the appellant, however, in the present proceedings is based upon the contract for setting up a captive power generation unit relying on the hydel policy of the State dated 7 December 1990 in terms of which the agreement between the parties was executed41. In the present case, the essential facts are not in dispute.42. Pursuant to the interim order that was passed by the High Court, the Chief Electrical Inspector upon inspecting the work of installation submitted a report on 14 September 2000. The report has not been questioned. The report categorically states that the installation of transformers was completed on 21 August 2000. The work which remained was in the nature of pre-commissioning tests for which the work which had to be completed was essentially the laying down of the 110 KV line on the part of KSEB. The report of the Chief Electrical inspector makes it clear that it was as a result of the delay which took place in the construction of the transmission line that the actual injection of power into the grid could not take place. There is, in other words, clear and cogent material to lead to the conclusion that the appellant had duly fulfilled its obligation of setting up Phase I and Phase II of its units and the only reason why it was unable to inject power into the grid was because the setting up of the transmission lines by KSEB could not take place43. The order of the State Government dated 7 February 2001 shows that there was no deliberate act or default on the part of KSEB. Indeed, it has not been seriously disputed that at the material time, there were agitations on the part of the farmers and certain other circumstances which caused delay in the construction of the transmission lines. However as significant as these reasons are, it should not lead to a situation where a private investor who has acted upon the policy of the State Government being left in the lurch as a result of supervening circumstances which have resulted in the power not being evacuated into the grid due to the non-commissioning of the transmission lines at the material time by KSEB. It is imperative that contractual obligations entered into by the State have legal sanctity. A legal regime where the sanctity of contracts is respected and commercial contracts are enforced is essential to the maintenance of the rule of law. Trade and commerce can be freely conducted in a stable legal order which provides remedies for enforcement.44. At this stage, it is also necessary to note that though in the order of the State Government dated 7 February 2001, it was envisaged that the transmission lines would be constructed and completed by 28 February 2001, there was a further delay of approximately three months even thereafter as a result of which the evacuation of power could commence only with effect from 1 June 2001. On the basis of the factual data which has emerged from the record, on which there is no dispute, we are hence, of the view that the basis on which the State Government took a decision on 7 February 2001 and the High Court affirmed it by its impugned judgment would need to be re-visited in the light of what we have observed above.45. We are in agreement with the view of the State Government, as accepted by the High Court, that the appellant was not entitled to the grant of deemed generation status as a matter of right. Similarly, the concessional power tariff which is applicable for a period of five years from 1994 to 1999 was extended until 20 August 2000. This is undoubtedly a matter of policy and the High Court was justified in coming to the conclusion that it is not open to the Court to foist a particular measure of policy on the State. In what manner the State should remedy the grievance of the private investor is something which should be duly considered by the State Government within the available framework of law and its own policy

### 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: a period of five years from 1994 to 1999. These concessions were independent of and would not therefore disentitle the appellant to the benefit of the agreement that was entered into with KSEB on 30 December 1994. The grant of a concessional tariff is a matter of policy to encourage new industries to set up operations in the State. 38. The claim of the appellant, however, in the present proceedings is based upon the contract for setting up a captive power generation unit relying on the hydel policy of the State dated 7 December 1990 in terms of which the agreement between the parties was executed. 39. Clause 10 of the agreement stipulated that the energy drawn from the hydel units – Phase I and Phase II – would be delivered free of cost to the appellant less an amount of 12% towards wheeling charges and transmission losses. Alternatively, it would be banked by KSEB, if the appellant so desired. KSEB would collect 1% of the energy so banked as its commission. 40. The case of the appellant is that as a result of the inability of KSEB to set up the transmission lines it was unable to receive the power which it was in a position to evacuate into the grid for its captive use. The grievance of the appellant is that as a result of this, it was compelled to purchase power from KSEB at the rates as applicable. Clause 12 of the agreement contemplates a situation where the KSEB grid is not in a position to absorb the energy generated from the project for any reason including the breakdown of transmission lines or any other reason beyond the control of KSEB. In that event, clause 12 provides that the generation from the project will have to be restricted to the extent of generation for captive consumption as directed by KSEB. These provisions indicate that the contract is not entirely silent in regard to a situation involving the inability of KSEBs grid to absorb the energy generated from the project for any reason including a reason which is beyond the control of KSEB. 41. In the present case, the essential facts are not in dispute. 42. Pursuant to the interim order that was passed by the High Court, the Chief Electrical Inspector upon inspecting the work of installation submitted a report on 14 September 2000. The report has not been questioned. The report categorically states that the installation of transformers was completed on 21 August 2000. The work which remained was in the nature of pre-commissioning tests for which the work which had to be completed was essentially the laying down of the 110 KV line on the part of KSEB. The report of the Chief Electrical inspector makes it clear that it was as a result of the delay which took place in the construction of the transmission line that the actual injection of power into the grid could not take place. There is, in other words, clear and cogent material to lead to the conclusion that the appellant had duly fulfilled its obligation of setting up Phase I and Phase II of its units and the only reason why it was unable to inject power into the grid was because the setting up of the transmission lines by KSEB could not take place. 43. The order of the State Government dated 7 February 2001 shows that there was no deliberate act or default on the part of KSEB. Indeed, it has not been seriously disputed that at the material time, there were agitations on the part of the farmers and certain other circumstances which caused delay in the construction of the transmission lines. However as significant as these reasons are, it should not lead to a situation where a private investor who has acted upon the policy of the State Government being left in the lurch as a result of supervening circumstances which have resulted in the power not being evacuated into the grid due to the non-commissioning of the transmission lines at the material time by KSEB. It is imperative that contractual obligations entered into by the State have legal sanctity. A legal regime where the sanctity of contracts is respected and commercial contracts are enforced is essential to the maintenance of the rule of law. Trade and commerce can be freely conducted in a stable legal order which provides remedies for enforcement. 44. At this stage, it is also necessary to note that though in the order of the State Government dated 7 February 2001, it was envisaged that the transmission lines would be constructed and completed by 28 February 2001, there was a further delay of approximately three months even thereafter as a result of which the evacuation of power could commence only with effect from 1 June 2001. On the basis of the factual data which has emerged from the record, on which there is no dispute, we are hence, of the view that the basis on which the State Government took a decision on 7 February 2001 and the High Court affirmed it by its impugned judgment would need to be re-visited in the light of what we have observed above. 45. We are in agreement with the view of the State Government, as accepted by the High Court, that the appellant was not entitled to the grant of deemed generation status as a matter of right. Similarly, the concessional power tariff which is applicable for a period of five years from 1994 to 1999 was extended until 20 August 2000. This is undoubtedly a matter of policy and the High Court was justified in coming to the conclusion that it is not open to the Court to foist a particular measure of policy on the State. In what manner the State should remedy the grievance of the private investor is something which should be duly considered by the State Government within the available framework of law and its own policy ### Response: 1 ### Explanation: that for a length of 4 kms, construction would be at the cost and expense of the appellant while the balance would be constructed by KSEB at its own cost. While a superficial reading of clause 9 alone is liable to lead to the interpretation that no time was fixed for the completion of the transmission lines, this in our opinion, would not be a correct reading of the contract. In construing a commercial document, the contract must be read and understood in its entirety so as to attribute to it a business meaning which was within the understanding of the contracting partiesThus, the reasonable construction of the contract would be that the commencement of commercial operations within 30 months postulated that both the appellant and KSEB must perform their respective obligations under the contract within that period so as to adhere to the date of commencing commercial operations. Hence, the High Court was not correct in coming to the conclusion that the contract did not stipulate any timelines for the completion of the work of constructing the transmission line. Such a requirement was implicit in clause 3 of the agreement and clause 9 must necessarily be read in that context.37. The submission which has been urged on behalf of KSEB principally relies on the concessions which have been provided to the appellant in regard to the tariff which is applicable to its industrial unit. These concessions, it must be noted, were available to all new industries to whom a concessional tariff was provided over a period of five years from 1994 to 1999. These concessions were independent of and would not therefore disentitle the appellant to the benefit of the agreement that was entered into with KSEB on 30 December 1994. The grant of a concessional tariff is a matter of policy to encourage new industries to set up operations in the State38. The claim of the appellant, however, in the present proceedings is based upon the contract for setting up a captive power generation unit relying on the hydel policy of the State dated 7 December 1990 in terms of which the agreement between the parties was executed41. In the present case, the essential facts are not in dispute.42. Pursuant to the interim order that was passed by the High Court, the Chief Electrical Inspector upon inspecting the work of installation submitted a report on 14 September 2000. The report has not been questioned. The report categorically states that the installation of transformers was completed on 21 August 2000. The work which remained was in the nature of pre-commissioning tests for which the work which had to be completed was essentially the laying down of the 110 KV line on the part of KSEB. The report of the Chief Electrical inspector makes it clear that it was as a result of the delay which took place in the construction of the transmission line that the actual injection of power into the grid could not take place. There is, in other words, clear and cogent material to lead to the conclusion that the appellant had duly fulfilled its obligation of setting up Phase I and Phase II of its units and the only reason why it was unable to inject power into the grid was because the setting up of the transmission lines by KSEB could not take place43. The order of the State Government dated 7 February 2001 shows that there was no deliberate act or default on the part of KSEB. Indeed, it has not been seriously disputed that at the material time, there were agitations on the part of the farmers and certain other circumstances which caused delay in the construction of the transmission lines. However as significant as these reasons are, it should not lead to a situation where a private investor who has acted upon the policy of the State Government being left in the lurch as a result of supervening circumstances which have resulted in the power not being evacuated into the grid due to the non-commissioning of the transmission lines at the material time by KSEB. It is imperative that contractual obligations entered into by the State have legal sanctity. A legal regime where the sanctity of contracts is respected and commercial contracts are enforced is essential to the maintenance of the rule of law. Trade and commerce can be freely conducted in a stable legal order which provides remedies for enforcement.44. At this stage, it is also necessary to note that though in the order of the State Government dated 7 February 2001, it was envisaged that the transmission lines would be constructed and completed by 28 February 2001, there was a further delay of approximately three months even thereafter as a result of which the evacuation of power could commence only with effect from 1 June 2001. On the basis of the factual data which has emerged from the record, on which there is no dispute, we are hence, of the view that the basis on which the State Government took a decision on 7 February 2001 and the High Court affirmed it by its impugned judgment would need to be re-visited in the light of what we have observed above.45. We are in agreement with the view of the State Government, as accepted by the High Court, that the appellant was not entitled to the grant of deemed generation status as a matter of right. Similarly, the concessional power tariff which is applicable for a period of five years from 1994 to 1999 was extended until 20 August 2000. This is undoubtedly a matter of policy and the High Court was justified in coming to the conclusion that it is not open to the Court to foist a particular measure of policy on the State. In what manner the State should remedy the grievance of the private investor is something which should be duly considered by the State Government within the available framework of law and its own policy

K. ANANDA RAO Vs. SRI S.S. RAWAT, IAS

by the Government. It further stated that if an employee was retired on attaining age of 58 years, he/she shall be reinstated and continued upto 60 years. However, this GO dated 08.08.2017 did not in any way depart from or dilute the principles as to what would be the situation in case of interregnum period or gap period as was specifically referred to and dealt with in memo dated 28.06.2016. The situation becomes quite clear by further instructions issued on 11.06.2018 which again referred to gap period. 14. Since all these issues were not canvased before this Court and were not gone into by this Court on 09.08.2017, the question that arises is whether the expression ?consequential benefits? occurring in the order dated 09.08.2017 must be given the interpretation that the employees were entitled to all salaries and emoluments for the period that they had not even worked in their respective organisations? The order dated 09.08.2017 does not indicate that any such aspect of the matter was in contemplation of this Court or the matter was addressed from this stand point. In the absence of any discussion, it is very difficult to say that this Court had thought of granting something which was in excess of what was contemplated in various policy documents culminating in the GO dated 08.08.2017. Those policy documents were not overridden or in way found to be inoperative. As a matter of fact, they were not even referred to. 15. In this background we need to consider the expression ?consequential benefits? in said order dated 09.8.2017. The contempt petitioners submit that going by the law laid down by this Court in B. Prabhakar Rao 2 and particularly direction No.2 therein the financial benefits in the nature of salary and other emoluments must be given to the employees even for the period that the employees had not worked. But the situation in B. Prabhakar Rao 2 was completely different. There, the issue was only regarding raising of age of retirement from 55 years to 58 years. In the present case the decision of raising the age of superannuation was more or less contemporaneous with bifurcationof the erstwhile State of Andhra Pradesh. The division of assets and liabilities was still to be undertaken. The issue of allocation of employees in various institutions in the erstwhile State was also to be finalized. And lastly, there was a clear direction issued by this Court invoking powers under 142 of the Constitution of India. No such power was invoked or exercised while passing the order dated on 09.08.2017. 16. In Sureshchandra Singh 4 , this Court dealt with somewhat similar issue. After enhancement of the retirement age of the Central Government employees from 58 years to 60 years, the employees working in Public Sector Undertakings/Enterprises also raised similar demand on the principle of parity. The matter was considered by this Court in paragraph 5 as under: ?5. Here the Government of India took a policy decision to increase the retirement of Central Government employees. Application of that decision in respect of employees of public sector enterprises is dependent upon so many factors that are to be taken into account in the light of the peculiar characteristics of each company or corporation or department. So the first OM itself provides that the order will come into force only with effect from the date of notification of amendment to the relevant rules and regulations. So it is for the authority concerned to make necessary changes in the rules and regulations after taking into account all the relevant aspects. Immediately after the first OM dated 13-5-1998 the Department of Public Enterprises, Ministry of Industry, Government of India issued OM dated 19-5-1998 wherein the modalities of the implementation of the first OM in this Department was detailed. Here it is pertinent to note that the OM dated 19-5-1998 is not an instruction issued in the name of the President. On the other hand, it was issued by the Department of Public Enterprises, which is advisory in nature. It accorded a broad discretion to the corporations or companies for the implementation of the enhanced retirement age after taking into account all the relevant factors. Pursuant to this direction the Board of Directors of FCIL took the decision not to increase the retirement age of its employees. The relevant factors that prevailed upon the Board of Directors are fully set out in its resolution and they are: that the Company is one of the highest loss-making company in the country; that the accumulated loss till the relevant date was to the tune of Rs 5049 crores; that the Company is incurring financial losses of roughly Rs 2.35 crores everyday; that the Company has no capacity to pay salaries to its employees; that the Company was referred to BIFR and was declared as sick on 6-11-1992; that as on the relevant date the Company has the negative net worth to the tune of Rs.4316.21 crores and; that the Company has surplus manpower; that it is not taking any new employees but on the contrary it is making conscious efforts to reduce the surplus manpower.? 17. Thus, purely on the principle of parity the employees of the institution or entities in Schedule IX and X of 2014 Act could not demand the benefit of enhancement of the age of superannuation from 58 years to 60 years. That benefit came to be conferred under policy documents and finally by the GO dated 08.08.2017. Thus, the source was in those policy documents and naturally the extent of benefits was also spelt out in those instruments issued by the Government. The Circular dated 28.06.2016 which was more or less adopted in proceedings dated 11.06.2018 must be taken to be the governing criteria in respect of such employees. Unless and until that governing criteria was departed from specifically, mere expression ?consequential benefits? would not entitle the concerned employees anything greater than what was contemplated in the policy documents issued by the State Government.

0[ds]10. It is true that the initial orders dated 27.04.2017, 05.05.2017 and 09.05.2017 were passed in matters pertaining to the employees of Gurukulam or Society. All these orders were ex-parte orders. Insofar as the employees of the Society are concerned, it was submitted before this Court on 27.04.2017 that a decision had already been taken by the Society for raising the age of superannuation and all that was required to be done in the matter was only a formal expression in the form of an appropriate legislation. The expression in the order dated 05.05.2017 that the protection afforded would apply ?to all similarly situated employees under the respondent institutions? was only in respect of the employees of the Society and not in relation to employees of all the other entities mentioned in Schedules IX and X of 2014 Act. As a matter of fact, no notice was issued in any matter apart from the matters pertaining to the Society and all such other matters were simply tagged with the main bunch of cases which came up before this Court and were disposed of on 09.08.2017. The learned Advocates appearing for the alleged contemnors are right in their submission that insofar as entities other than the Society were concerned, the order dated 09.08.2017 was not passed after due notice to them. Nonetheless the State was definitely represented before this Court on 09.08.2017 and was heard. We do not therefore, deem it appropriate to decide these Contempt Petitions purely on this issue and, therefore, proceed to consider the merits and whether there has been any violation of the directions issued by this Court on 09.08.2017.The raising of age of superannuation by amending Section 3 of 1984 Act was soon after the bifurcation of the erstwhile State of Andhra Pradesh. The concern as to what would be the situation if the employees were finally allocated to the newly carved State of Andhra Pradesh and the employees by that time had attained the age of 58 years, was dealt with in newly inserted Section 3A in 2014 Act. The principle was to re-induct them in the services under the State of Andhra Pradesh without any break in service. Further, if the employee had not attained the age of 60 years, he would be re-inducted; and in case he had attained the age of 60 years, what would in such cases be conferred upon the employees was notional advantage for the purpose of calculation of his pensionary benefits as if he had rendered service in the State of Andhra Pradesh.After the policy decision was taken on 05.08.2015 to raise the age of superannuation from 58 years to 60 years in respect of employees of Society, that decision was kept in abeyance by Resolution dated 18.06.2016. This Resolution states that the Government had taken stock of all the developments and had decided that the issue regarding enhancement of age of superannuation in respect of employees of the entities and institutions listed in IX and X Schedule of 2014 Act would be taken only after the issue of division of assets and liabilities of the concerned institutions between the two States was settled and the allotment of employees was finalized. This was followed by GO dated 28.06.2016 which dealt with issues like how after re-induction of the employees pursuant to enhancement of age of superannuation, the period that the employees were out of employment, was to be dealt with. Such period was referred to as the interregnum period or gap period, and was then dealt with under various heads. These developments are indicative that it was always in contemplation that if an employee had superannuated on attaining the age of 58 years and was thereafter re-inducted in service with superannuation age being 60 years, he would not be entitled to any salary or normal emoluments for what was referred to as the interregnum period or gap period, but would be entitled to certain notional benefits stipulated therein.Even after the disposal of petitions by the High Court, the matter was receiving the attention of the State Government which is evident from GO dated 08.08.2017. It referred to the background facts including the requirement to have the concerned rules or regulations regarding the service conditions of employees in establishments in Schedule IX and X to be amended after due approval by the Government and after consideration whether such establishments were finally capable and viable. One of the factors which was recited was about that the issue of division of assets and liabilities was still pending and that the allocation of the employees was not yet finalized. The GO modified the earlier decision dated 27.06.2017 to the extent it had made such decisions prospective and now gave retrospective effect from 02.06.2014. It thus undoubtedly relaxed conditions as regards the requirement to have the rules and regulations amended after due approval by the Government. It further stated that if an employee was retired on attaining age of 58 years, he/she shall be reinstated and continued upto 60 years. However, this GO dated 08.08.2017 did not in any way depart from or dilute the principles as to what would be the situation in case of interregnum period or gap period as was specifically referred to and dealt with in memo dated 28.06.2016. The situation becomes quite clear by further instructions issued on 11.06.2018 which again referred to gap period.Since all these issues were not canvased before this Court and were not gone into by this Court on 09.08.2017, the question that arises is whether the expression ?consequential benefits? occurring in the order dated 09.08.2017must be given the interpretation that the employees were entitled to all salaries and emoluments for the period that they had not even worked in their respective organisations? The order dated 09.08.2017 does not indicate that any such aspect of the matter was in contemplation of this Court or the matter was addressed from this stand point. In the absence of any discussion, it is very difficult to say that this Court had thought of granting something which was in excess of what was contemplated in various policy documents culminating in the GO dated 08.08.2017. Those policy documents were not overridden or in way found to be inoperative. As a matter of fact, they were not even referred to.In this background we need to consider the expression ?consequential benefits? in said order dated 09.8.2017. The contempt petitioners submit that going by the law laid down by this Court in B. Prabhakar Rao 2 and particularly direction No.2 therein the financial benefits in the nature of salary and other emoluments must be given to the employees even for the period that the employees had not worked. But the situation in B. Prabhakar Rao 2 was completely different. There, the issue was only regarding raising of age of retirement from 55 years to 58 years. In the present case the decision of raising the age of superannuation was more or less contemporaneous with bifurcationof the erstwhile State of Andhra Pradesh. The division of assets and liabilities was still to be undertaken. The issue of allocation of employees in various institutions in the erstwhile State was also to be finalized. And lastly, there was a clear direction issued by this Court invoking powers under 142 of the Constitution of India. No such power was invoked or exercised while passing the order dated on 09.08.2017.Thus, purely on the principle of parity the employees of the institution or entities in Schedule IX and X of 2014 Act could not demand the benefit of enhancement of the age of superannuation from 58 years to 60 years. That benefit came to be conferred under policy documents and finally by the GO dated 08.08.2017. Thus, the source was in those policy documents and naturally the extent of benefits was also spelt out in those instruments issued by the Government. The Circular dated 28.06.2016 which was more or less adopted in proceedings dated 11.06.2018 must be taken to be the governing criteria in respect of such employees. Unless and until that governing criteria was departed from specifically, mere expression ?consequential benefits? would not entitle the concerned employees anything greater than what was contemplated in the policy documents issued by the State Government.

### 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: by the Government. It further stated that if an employee was retired on attaining age of 58 years, he/she shall be reinstated and continued upto 60 years. However, this GO dated 08.08.2017 did not in any way depart from or dilute the principles as to what would be the situation in case of interregnum period or gap period as was specifically referred to and dealt with in memo dated 28.06.2016. The situation becomes quite clear by further instructions issued on 11.06.2018 which again referred to gap period. 14. Since all these issues were not canvased before this Court and were not gone into by this Court on 09.08.2017, the question that arises is whether the expression ?consequential benefits? occurring in the order dated 09.08.2017 must be given the interpretation that the employees were entitled to all salaries and emoluments for the period that they had not even worked in their respective organisations? The order dated 09.08.2017 does not indicate that any such aspect of the matter was in contemplation of this Court or the matter was addressed from this stand point. In the absence of any discussion, it is very difficult to say that this Court had thought of granting something which was in excess of what was contemplated in various policy documents culminating in the GO dated 08.08.2017. Those policy documents were not overridden or in way found to be inoperative. As a matter of fact, they were not even referred to. 15. In this background we need to consider the expression ?consequential benefits? in said order dated 09.8.2017. The contempt petitioners submit that going by the law laid down by this Court in B. Prabhakar Rao 2 and particularly direction No.2 therein the financial benefits in the nature of salary and other emoluments must be given to the employees even for the period that the employees had not worked. But the situation in B. Prabhakar Rao 2 was completely different. There, the issue was only regarding raising of age of retirement from 55 years to 58 years. In the present case the decision of raising the age of superannuation was more or less contemporaneous with bifurcationof the erstwhile State of Andhra Pradesh. The division of assets and liabilities was still to be undertaken. The issue of allocation of employees in various institutions in the erstwhile State was also to be finalized. And lastly, there was a clear direction issued by this Court invoking powers under 142 of the Constitution of India. No such power was invoked or exercised while passing the order dated on 09.08.2017. 16. In Sureshchandra Singh 4 , this Court dealt with somewhat similar issue. After enhancement of the retirement age of the Central Government employees from 58 years to 60 years, the employees working in Public Sector Undertakings/Enterprises also raised similar demand on the principle of parity. The matter was considered by this Court in paragraph 5 as under: ?5. Here the Government of India took a policy decision to increase the retirement of Central Government employees. Application of that decision in respect of employees of public sector enterprises is dependent upon so many factors that are to be taken into account in the light of the peculiar characteristics of each company or corporation or department. So the first OM itself provides that the order will come into force only with effect from the date of notification of amendment to the relevant rules and regulations. So it is for the authority concerned to make necessary changes in the rules and regulations after taking into account all the relevant aspects. Immediately after the first OM dated 13-5-1998 the Department of Public Enterprises, Ministry of Industry, Government of India issued OM dated 19-5-1998 wherein the modalities of the implementation of the first OM in this Department was detailed. Here it is pertinent to note that the OM dated 19-5-1998 is not an instruction issued in the name of the President. On the other hand, it was issued by the Department of Public Enterprises, which is advisory in nature. It accorded a broad discretion to the corporations or companies for the implementation of the enhanced retirement age after taking into account all the relevant factors. Pursuant to this direction the Board of Directors of FCIL took the decision not to increase the retirement age of its employees. The relevant factors that prevailed upon the Board of Directors are fully set out in its resolution and they are: that the Company is one of the highest loss-making company in the country; that the accumulated loss till the relevant date was to the tune of Rs 5049 crores; that the Company is incurring financial losses of roughly Rs 2.35 crores everyday; that the Company has no capacity to pay salaries to its employees; that the Company was referred to BIFR and was declared as sick on 6-11-1992; that as on the relevant date the Company has the negative net worth to the tune of Rs.4316.21 crores and; that the Company has surplus manpower; that it is not taking any new employees but on the contrary it is making conscious efforts to reduce the surplus manpower.? 17. Thus, purely on the principle of parity the employees of the institution or entities in Schedule IX and X of 2014 Act could not demand the benefit of enhancement of the age of superannuation from 58 years to 60 years. That benefit came to be conferred under policy documents and finally by the GO dated 08.08.2017. Thus, the source was in those policy documents and naturally the extent of benefits was also spelt out in those instruments issued by the Government. The Circular dated 28.06.2016 which was more or less adopted in proceedings dated 11.06.2018 must be taken to be the governing criteria in respect of such employees. Unless and until that governing criteria was departed from specifically, mere expression ?consequential benefits? would not entitle the concerned employees anything greater than what was contemplated in the policy documents issued by the State Government. ### Response: 0 ### Explanation: 60 years, he would be re-inducted; and in case he had attained the age of 60 years, what would in such cases be conferred upon the employees was notional advantage for the purpose of calculation of his pensionary benefits as if he had rendered service in the State of Andhra Pradesh.After the policy decision was taken on 05.08.2015 to raise the age of superannuation from 58 years to 60 years in respect of employees of Society, that decision was kept in abeyance by Resolution dated 18.06.2016. This Resolution states that the Government had taken stock of all the developments and had decided that the issue regarding enhancement of age of superannuation in respect of employees of the entities and institutions listed in IX and X Schedule of 2014 Act would be taken only after the issue of division of assets and liabilities of the concerned institutions between the two States was settled and the allotment of employees was finalized. This was followed by GO dated 28.06.2016 which dealt with issues like how after re-induction of the employees pursuant to enhancement of age of superannuation, the period that the employees were out of employment, was to be dealt with. Such period was referred to as the interregnum period or gap period, and was then dealt with under various heads. These developments are indicative that it was always in contemplation that if an employee had superannuated on attaining the age of 58 years and was thereafter re-inducted in service with superannuation age being 60 years, he would not be entitled to any salary or normal emoluments for what was referred to as the interregnum period or gap period, but would be entitled to certain notional benefits stipulated therein.Even after the disposal of petitions by the High Court, the matter was receiving the attention of the State Government which is evident from GO dated 08.08.2017. It referred to the background facts including the requirement to have the concerned rules or regulations regarding the service conditions of employees in establishments in Schedule IX and X to be amended after due approval by the Government and after consideration whether such establishments were finally capable and viable. One of the factors which was recited was about that the issue of division of assets and liabilities was still pending and that the allocation of the employees was not yet finalized. The GO modified the earlier decision dated 27.06.2017 to the extent it had made such decisions prospective and now gave retrospective effect from 02.06.2014. It thus undoubtedly relaxed conditions as regards the requirement to have the rules and regulations amended after due approval by the Government. It further stated that if an employee was retired on attaining age of 58 years, he/she shall be reinstated and continued upto 60 years. However, this GO dated 08.08.2017 did not in any way depart from or dilute the principles as to what would be the situation in case of interregnum period or gap period as was specifically referred to and dealt with in memo dated 28.06.2016. The situation becomes quite clear by further instructions issued on 11.06.2018 which again referred to gap period.Since all these issues were not canvased before this Court and were not gone into by this Court on 09.08.2017, the question that arises is whether the expression ?consequential benefits? occurring in the order dated 09.08.2017must be given the interpretation that the employees were entitled to all salaries and emoluments for the period that they had not even worked in their respective organisations? The order dated 09.08.2017 does not indicate that any such aspect of the matter was in contemplation of this Court or the matter was addressed from this stand point. In the absence of any discussion, it is very difficult to say that this Court had thought of granting something which was in excess of what was contemplated in various policy documents culminating in the GO dated 08.08.2017. Those policy documents were not overridden or in way found to be inoperative. As a matter of fact, they were not even referred to.In this background we need to consider the expression ?consequential benefits? in said order dated 09.8.2017. The contempt petitioners submit that going by the law laid down by this Court in B. Prabhakar Rao 2 and particularly direction No.2 therein the financial benefits in the nature of salary and other emoluments must be given to the employees even for the period that the employees had not worked. But the situation in B. Prabhakar Rao 2 was completely different. There, the issue was only regarding raising of age of retirement from 55 years to 58 years. In the present case the decision of raising the age of superannuation was more or less contemporaneous with bifurcationof the erstwhile State of Andhra Pradesh. The division of assets and liabilities was still to be undertaken. The issue of allocation of employees in various institutions in the erstwhile State was also to be finalized. And lastly, there was a clear direction issued by this Court invoking powers under 142 of the Constitution of India. No such power was invoked or exercised while passing the order dated on 09.08.2017.Thus, purely on the principle of parity the employees of the institution or entities in Schedule IX and X of 2014 Act could not demand the benefit of enhancement of the age of superannuation from 58 years to 60 years. That benefit came to be conferred under policy documents and finally by the GO dated 08.08.2017. Thus, the source was in those policy documents and naturally the extent of benefits was also spelt out in those instruments issued by the Government. The Circular dated 28.06.2016 which was more or less adopted in proceedings dated 11.06.2018 must be taken to be the governing criteria in respect of such employees. Unless and until that governing criteria was departed from specifically, mere expression ?consequential benefits? would not entitle the concerned employees anything greater than what was contemplated in the policy documents issued by the State Government.

UNION OF INDIA & ORS Vs. M/S EXIDE INDUSTRIES LIMITED & ANR

the legislature over the power of the judiciary. A courts directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect. In Indian Aluminium Co. (supra), the Court relied upon a set of authorities and extended its approval to the above stated position of law thus: 41. … A Constitution Bench of this Court had held that the distinction between legislative act and judicial act is well-known. The adjudication of the rights of the parties is a judicial function. The legislature has to lay down the law prescribing the norms or conduct which will govern the parties and transactions to require the court to give effect to that law. Validating legislation which removes the norms of invalidity of action or providing remedy is not an encroachment on judicial power. Statutory rule made under the proviso to Article 309 was upheld. The legislature cannot by a bare declaration without anything more, directly overrule, reverse or override a judicial decision at any time in exercise of the plenary power conferred on the legislature by Articles 245 and 246 of the Constitution. It can render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or nullifying effect, the conditions on which such a decision is based. In Hari Singh and Ors. v. The Military Estate Officer, (1973) 1 SCR 515 , prior to 1958 two alternative modes of eviction under Public Premises Act were available. When the eviction was sought of an unauthorised occupant by summary procedure the constitutionality thereof was challenged and upheld. The Act was subsequently amended in 1958 with retrospective operation from September 16, 1958. Thereunder only one procedure for eviction was available. It was contended to be a legislative encroachment of judicial power. A Bench of three Judges held that the legislature possessed competence over the subject matter and the Validation Act could remove the defect which the court had found in the previous case. It was not the legislative encroachment of judicial power but one of removing the defect which the court had pointed out with a deeming date. (emphasis supplied) 39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision. 40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived. 41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).

1[ds]Constitutional validity of clause (f)13. In the present case, the legislative power of the Parliament to enact clause (f) in the light of Article 245 is not doubted at all.It is no more res integra that the examination of the Court begins with a presumption in favour of constitutionality. This presumption is not just borne out of judicial discipline and prudence, but also out of the basic scheme of the Constitution wherein the power to legislate is the exclusive domain of the Legislature/Parliament. This power is clothed with power to decide when to legislate, what to legislate and how much to legislate. Thus, to decide the timing, content and extent of legislation is a function primarily entrusted to the legislature and in exercise of judicial review, the Court starts with a basic presumption in favour of the proper exercise of such powerWith the passage of time, the legislature inserted more deductions to Section 43B including cess, bonus or commission payable by employer, interest on loans payable to financial institutions, scheduled banks etc., payment in lieu of leave encashment by the employer and repayment of dues to the railways. Thus understood, there is no oneness or uniformity in the nature of deductions included in Section 43B. It holds no merit to urge that this section only provides for deductions concerning statutory liabilities. Section 43B is a mix bag and new and dissimilar entries have been inserted therein from time to time to cater to different fiscal scenarios, which are best determined by the government of the day. It is not unusual or abnormal for the legislature to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to override regulations or conditions19. The leave encashment scheme envisages the payment of a certain amount to the employees in lieu of their unused paid leaves in a year. The nature of this payment is beneficial and pro- employee. However, it is not in the form of a bounty and forms a part of the conditions of service of the employee. An employer seeking deduction from tax liability in advance, in the name of discharging the liability of leave encashment, without actually extending such payment to the employee as and when the time for payment arises may lead to abhorrent consequences. When time for such payment arises upon retirement (or otherwise) of the employee, an employer may simply refuse to pay. Consequently, the innocent employee will be entangled in litigation in the evening of his/her life for claiming a hard-earned right without any fault on his part. Concomitantly, it would entail in double benefit to the employer – advance deduction from tax liability without any burden of actual payment and refusal to pay as and when occasion arises. It is this mischief clause (f) seeks to subjugate20. The argument advanced by the respondents that the nature of leave encashment liability is such that it is impossible to make the actual payment in the same year, adds no weight to the claim of invalidity of the clause. We say so because the thrust of the provision is not to control the timing of payment, rather, it is strictly targeted to control the timing of claiming deduction in the name of such liability. The mischief sought to be remedied by this clause, as discussed above, clarifies the position21. Be it noted that the interpretation of a statute cannot be unrelated to the nature of the statute. In line with other clauses under Section 43B, clause (f) was enacted to remedy a particular mischief and the concerns of public good, employees welfare and prevention of fraud upon revenue is writ large in the said clause. In our view, such statutes are to be viewed through the prism of the mischief they seek to suppress, that is, the Heydons case (1584) 3 Co Rep 7 principle. In CRAWFORD, Statutory Construction CRAWFORD, Statutory Construction p. 508 , it has been gainfully delineated that an enactment designed to prevent fraud upon the revenue is more properly a statute against fraud rather than a taxing statute, and hence should receive a liberal construction in the governments favourNon-disclosure of objects and reasons24. The objects and reasons behind the enactment of a statute signify the intention of the legislature behind the enactment of a statutory provision. Indubitably, the purpose or underlying aim of a law can be discerned when interpreted in the light of stated objects and reasons. Inasmuch as, the settled canon of interpretation is to deduce the true intent of the legislature, as the will of the people is constitutionally bestowed in the legislature. It is true that an express objects and reasons would be useful in understanding the import of an enacted provision as and when the Court is called upon to interpret the same28. The Division Bench of the High Court, in the present case, plainly glossed over the fundamental presumption of constitutionality in favour of clause (f) and based its judgment upon the absence of objects and reasons as striking at the root of its validity. In our view, this approach is flawed for at least three reasons. First, it steers clear from the necessary attempt to discover any constitutional infirmities in the enacted provision. Second, it makes no attempt to dissect the text of the provision so as to display the need to go beyond the text. Third, it goes into the background of the enactment and ventures into a sphere which is out of bounds for the Court as long as the need for interpretation borne out of any ambiguity arises29. The process of testing validity is not to sneak into the prudence or proprieties of the legislature in enacting the impugned provision. Nor, is it to examine the culpable conduct of the legislature as an appellate authority over the legislature. The only examination of the Court is restricted to the finding of a constitutional infirmity in the provision, as is placed before the Court. Thus, the non-disclosure of objects and reasons per se would not impinge upon the constitutionality of a provision unless the provision is ambiguous and the possible interpretation violate Part III of the Constitution. In the absence of any finding of any constitutional infirmity in a provision, the Court is not empowered to invalidate a provision30. To hold a provision as violative of the Constitution on account of failure of the legislature to state the objects and reasons would amount to an indirect scrutiny of the motives of the legislature behind the enactment. Such a course of action, in our view, is unwarranted. The raison detre behind this self- imposed restriction is because of the fundamental reason that different organs of the State do not scrutinise each others wisdom in the exercise of their duties. In other words, the time- tested principle of checks and balances does not empower the Court to question the motives or wisdom of the legislature, except in circumstances when the same is demonstrated from the enacted lawWe have noted that the High Court has characterised clause (f) as arbitrary and unconscionable while imputing it with unconstitutionality. It is pertinent to note that the High Court reaches this conclusion without undertaking an actual examination of clause (f). Instead, the declaration is preceded by an enquiry into the circumstances leading upto the enactment. As discussed above, the constitutional power of judicial review contemplates a review of the provision, as it stands, and not a review of the circumstances in which the enactment was made. Be it noted that merely holding an enacted provision as unconscionable or arbitrary is not sufficient to hold it as unconstitutional unless such infirmities are sufficiently shown to exist in the form, substance or functioning of the impugned provision. No such infirmity has been exhibited and adverted to in the impugned judgmentInconsistency of clause (f) and absence of nexus with Section 43B31. The High Court has supported its finding of invalidity by recording two observations vis-a-vis the previously existing (unamended) clauses of Section 43B – first, that clause (f) is inconsistent with other clauses and nature of deduction targeted in clause (f) is distinct from other deductions. Second, that clause (f) has no nexus with the objects and reasons behind the enactment of original Section 43B and therefore, the objects and reasons attributed to Section 43B cannot be used to deduce the object and purpose of clause (f)32. At the outset, we observe that both the grounds are ill- founded. In the basic scheme of Section 43B, there is no direct or indirect limitation upon the power of legislature to include only particular type of deductions in the ambit of Section 43B. To say that Section 43B is restricted to deductions of a statutory nature would be nothing short of reading the provision in a purely imaginative manner. As already discussed above, from 1983 onwards, Section 43B had taken within its fold diverse nature of deductions, ranging from tax, duty to bonus, commission, railway fee, interest on loans and general provisions for welfare of employees. An external examination of this journey of Section 43B reveals that the legislature never restricted it to a particular category of deduction and that intent cannot be read into the main Section by the Court, while sitting in judicial review. Concededly, it is a provision to attach conditionality on deductions otherwise allowable under the Act in respect of specified heads, in that previous year in which the sum is actually paid irrespective of method of accounting33. Further, it be noted that the broad objective of enacting Section 43B concerning specified deductions referred to therein was to protect larger public interest primarily of revenue including welfare of the employees. Clause (f) fits into that scheme and shares sufficient nexus with the broad objective, as already discussed hitherto34. Before stepping into the next ground, we are inclined to observe that the approach of constitutional courts ought to be different while dealing with fiscal statutes. It is trite that the legislature is the best forum to weigh different problems in the fiscal domain and form policies to address the same including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. In the very nature of taxing statutes, legislature holds the power to frame laws to plug in specific leakages. Such laws are always pin-pointed in nature and are only meant to target a specific avenue of taxability depending upon the experiences of tax evasion and tax avoidance at the ground level. The general principles of exclusion and inclusion do not apply to taxing statutes with the same vigour unless the law reeks of constitutional infirmities. No doubt, fiscal statutes must comply with the tenets of Article 14. However, a larger discretion is given to the legislature in taxing statutes than in other spheres. In Anant Mills Co. Ltd. vs. State of Gujarat & Ors. (1975) 2 SCC 175 , this Court noted thus:25. ...But, in the application of the principles, the courts, in view of the inherent complexity of fiscal adjustment of diverse elements, permit a larger discretion to the Legislature in the matter of classification so long as it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable waysViewed thus, the reason weighed with the Division Bench of the High Court in the impugned judgment is untenableDefeating the dictum in Bharat Earth Movers case35. We shall now examine clause (f) on the ground that it defeats the judgment of this Court in Bharat Earth Movers (supra). We have carefully analysed the decision in Bharat Earth Movers (supra) and note that the Court was sitting in appeal over the nature of liability under the leave encashment scheme and held such liability to be a present liability. Resultantly, it became deductible from the profit and loss account of the assessee in the same accounting year in which provision against the same is made37. It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment - as a judgment is delivered with strict regard to the enactment as applicable at the relevant time. However, once the enactment itself stands corrected, the basic cause of adjudication stands altered and necessary effect follows the same. A legislative body is not supposed to be in possession of a heavenly wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts a law to that effect. It is in the nature of a trial and error exercise and we must note that a law-making body, particularly in statutes of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).

### 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 legislature over the power of the judiciary. A courts directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect. In Indian Aluminium Co. (supra), the Court relied upon a set of authorities and extended its approval to the above stated position of law thus: 41. … A Constitution Bench of this Court had held that the distinction between legislative act and judicial act is well-known. The adjudication of the rights of the parties is a judicial function. The legislature has to lay down the law prescribing the norms or conduct which will govern the parties and transactions to require the court to give effect to that law. Validating legislation which removes the norms of invalidity of action or providing remedy is not an encroachment on judicial power. Statutory rule made under the proviso to Article 309 was upheld. The legislature cannot by a bare declaration without anything more, directly overrule, reverse or override a judicial decision at any time in exercise of the plenary power conferred on the legislature by Articles 245 and 246 of the Constitution. It can render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or nullifying effect, the conditions on which such a decision is based. In Hari Singh and Ors. v. The Military Estate Officer, (1973) 1 SCR 515 , prior to 1958 two alternative modes of eviction under Public Premises Act were available. When the eviction was sought of an unauthorised occupant by summary procedure the constitutionality thereof was challenged and upheld. The Act was subsequently amended in 1958 with retrospective operation from September 16, 1958. Thereunder only one procedure for eviction was available. It was contended to be a legislative encroachment of judicial power. A Bench of three Judges held that the legislature possessed competence over the subject matter and the Validation Act could remove the defect which the court had found in the previous case. It was not the legislative encroachment of judicial power but one of removing the defect which the court had pointed out with a deeming date. (emphasis supplied) 39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision. 40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived. 41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f). ### Response: 1 ### Explanation: of classification so long as it adheres to the fundamental principles underlying the said doctrine. The power of the Legislature to classify is of wide range and flexibility so that it can adjust its system of taxation in all proper and reasonable waysViewed thus, the reason weighed with the Division Bench of the High Court in the impugned judgment is untenableDefeating the dictum in Bharat Earth Movers case35. We shall now examine clause (f) on the ground that it defeats the judgment of this Court in Bharat Earth Movers (supra). We have carefully analysed the decision in Bharat Earth Movers (supra) and note that the Court was sitting in appeal over the nature of liability under the leave encashment scheme and held such liability to be a present liability. Resultantly, it became deductible from the profit and loss account of the assessee in the same accounting year in which provision against the same is made37. It is no doubt true that the legislature cannot sit over a judgment of this Court or so to speak overrule it. There cannot be any declaration of invalidating a judgment of the Court without altering the legal basis of the judgment - as a judgment is delivered with strict regard to the enactment as applicable at the relevant time. However, once the enactment itself stands corrected, the basic cause of adjudication stands altered and necessary effect follows the same. A legislative body is not supposed to be in possession of a heavenly wisdom so as to contemplate all possible exigencies of their enactment. As and when the legislature decides to solve a problem, it has multiple solutions on the table. At this stage, the Parliament exercises its legislative wisdom to shortlist the most desirable solution and enacts a law to that effect. It is in the nature of a trial and error exercise and we must note that a law-making body, particularly in statutes of fiscal nature, is duly empowered to undertake such an exercise as long as the concern of legislative competence does not come into doubt. Upon the law coming into force, it becomes operative in the public domain and opens itself to any review under Part III as and when it is found to be plagued with infirmities. Upon being invalidated by the Court, the legislature is free to diagnose such law and alter the invalid elements thereof. In doing so, the legislature is not declaring the opinion of the Court to be invalid39. Reverting to the true effect of the reported judgment under consideration, it was rendered in light of general dispensation of autonomy of the assessee to follow cash or mercantile system of accounting prevailing at the relevant time, in absence of an express statutory provision to do so differently. It is an authority on the nature of the liability of leave encashment in terms of the earlier dispensation. In absence of any such provision, the sole operative provision was Section 145(1) of the 1961 Act that allowed complete autonomy to the assessee to follow the mercantile system. Now a limited change has been brought about by the insertion of clause (f) in Section 43B and nothing more. It applies prospectively. Merely because a liability has been held to be a present liability qualifying for instant deduction in terms of the applicable provisions at the relevant time does not ipso facto signify that deduction against such liability cannot be regulated by a law made by Parliament prospectively. In matter of statutory deductions, it is open to the legislature to withdraw the same prospectively. In other words, once the Finance Act, 2001 was duly passed by the Parliament inserting clause (f) in Section 43B with prospective effect, the deduction against the liability of leave encashment stood regulated in the manner so prescribed. Be it noted that the amendment does not reverse the nature of the liability nor has it taken away the deduction as such. The liability of leave encashment continues to be a present liability as per the mercantile system of accounting. Further, the insertion of clause (f) has not extinguished the autonomy of the assessee to follow the mercantile system. It merely defers the benefit of deduction to be availed by the assessee for the purpose of computing his taxable income and links it to the date of actual payment thereof to the employee concerned. Thus, the only effect of the insertion of clause (f) is to regulate the stated deduction by putting it in a special provision40. Notably, this regulatory measure is in sync with other deductions specified in Section 43B, which are also present and accrued liabilities. To wit, the liability in lieu of tax, duty, cess, bonus, commission etc. also arise in the present as per the mercantile system, but assessees used to defer payment thereof despite claiming deductions thereagainst under the guise of mercantile system of accounting. Resultantly, irrespective of the category of liability, such deductions were regulated by law under the aegis of Section 43B, keeping in mind the peculiar exigencies of fiscal affairs and underlying concerns of public revenue. A priori, merely because a certain liability has been declared to be a present liability by the Court as per the prevailing enactment, it does not follow that legislature is denuded of its power to correct the mischief with prospective effect, including to create a new liability, exempt an existing liability, create a deduction or subject an existing deduction to new regulatory measures. Strictly speaking, the Court cannot venture into hypothetical spheres while adjudging constitutionality of a duly enacted provision and unfounded limitations cannot be read into the process of judicial review. A priori, the plea that clause (f) has been enacted with the sole purpose to defeat the judgment of this Court is misconceived41. The position of law discussed above leaves no manner of doubt as regards the legitimacy of enacting clause (f). The respondents have neither made a case of non-existence of competence nor demonstrated any constitutional infirmity in clause (f).

STATE OF GUJARAT Vs. UTILITY USERS WELFARE ASSOCIATION THROUGH ITS PRESIDENT

the ‘trappings of the Court’, an aspect we have agreed to hereinbefore. Once it has the ‘trappings of the Court’ and performs judicial functions, albeit limited ones in the context of the overall functioning of the Commission, still while performing such judicial functions 58 Another distinguished jurist who served as a Professor of Law at The Harvard Law School Page 77 of 84which may be of far reaching effect, the presence of a member having knowledge of law would become necessary. The absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act. 106. In Madras Bar Association 59 (MJ-II), the Constitution Bench, referring to the decision in Madras Bar Association 60 (MJ-I) observed that members of tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. We are conscious of the fact that the case (MJ-I) dealt with a factual matrix where the powers vested in courts were sought to be transferred to the tribunal, but what is relevant is the aspect of judicial functions with all the ‘trappings of the court’ and exercise of judicial power, at least, in respect of same part of the functioning of the State Commission. Thus, if the Chairman of the Commission is not a man of law, there should, at least, be a member who is drawn from the legal field. The observations of the Constitution Bench in Madras Bar Association 61 (MJ-II) constitutes a 59 supra 60 supra 61 supra Page 78 of 84declaration on the concept of basic structure with reference to the concepts of“separation of powers”,“rule of law”and“judicial review”. The first question raised before the Constitution Bench as to whether judicial review was part of the basic structure of the Constitution was, thus, answered in the affirmative. 107. We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does not imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 108. In Brahm Dutt v. Union of India 62 , it has been observed that if there are advisory and regulatory functions as well as adjudicatory functions to be performed, it may be appropriate to create two separate bodies for the same. That is, however, an aspect, which is in the wisdom of the legislature and that course is certainly open for the future if the legislature deems it so. However, at present there is a 62 supra Page 79 of 84single Commission, which inter alia performs adjudicatory functions and, thus, the presence of a man of law as a member is a necessity in order to sustain the provision, as otherwise, it would fall foul of the principles of separation of powers and judicial review, which have been read to be a part of the basic structure of the Constitution. 109. We are also not in a position to accept the plea advanced by the learned Attorney General that since there is a presence of a Judge in the Appellate Tribunal that would obviate the need of a man of law as a member of the State Commission. The original proceedings cannot be cured of its defect merely by providing a right of appeal. 110. We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law and who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 111. The challenge laid in TC (C) Nos.139/2015 & 138/2015 is to the appointments made to the Tamil Nadu State Commission and the exercise of the powers suo moto by the Commission. The fundamental Page 80 of 84plea is of financial bias of the two members as they were working in their erstwhile avatars. The name of Mr. G. Rajagopal was recommended when he was still working as the Director, TANGEDCO and he opted for voluntary retirement after his name had been recommended. Mr. Akshayakumar retired from the post of Managing Director of TANTRANSCO on 31.5.14 and was appointed as Chairman of the Commission on 6.6.14. The tariff hike was approved by a majority of 2:1 with these two members being part of the majority view. 112. In respect of the aforesaid, reliance was placed on the judgment in Rajesh Awasthi 63 and Mor Modern Cooperative Transport Society Ltd. 64 . We, however, find that those judgments would not apply in the present case. The nature of financial interest was examined in the narrower sense as well as the wider sense and in the wider sense, it was held to include the direct or indirect interest of a person in relation to a financial undertaking. The situation arose when the person concerned was holding both the posts simultaneously, which is not so in the present case. (as noticed in para 52 above) It is also pointed out by the learned counsel appearing for the State of Tamil Nadu that the orders 63 supra 64 supra Page 81 of 84of appointment have been exclusively assailed right till the Supreme Court. It may be added that the Selection Committee was presided over by a retired Judge of the High Court. 113. We, thus, find no merit in the plea sought to be advanced assailing either the appointment or the suo moto tariff revision. Conclusion: 114.

0[ds]T.C.(C) No.140/2015 and T.C.(C) No.137/2015 & IA Nos.3 & 4/201654. There was really no fresh material addressed before us so far as the aforesaid petitions are concerned.55. Insofar as IA Nos.3 & 4/2016, filed by CLP Wind Farms Private Limited, seeking intervention in T.C.(C) No.137/2015, are concerned, the prayer for intervention is made on the ground that the Court issues appropriate directions to the Tamil Nadu Electricity RegulatoryCommission for time bound hearing and expeditious adjudication of thepetitions, being DRP Nos.62/2014 & 63/2014. The Court finds no merit in the applications, as the prayers made in the applications are outside the lis being adjudicated by the Court. The same are accordingly disposed of.If we turn back to the provisions of Section 84 of the said Act, we find that the expressions used in sub-section (1) both in the context of the requirement of ability, integrity and standing as also in the context of adequate knowledge and capacity in dealing with problems relating to engineering, finance, commerce, economics, law or management. On the other hand, in sub-section (2) while dealing with the possibility of appointment of a Chairperson from the pool of sitting or retired Judges, the expression used isg it to be a discretionary power.80. We are, thus, inclined to accept the line of reasoning advanced by the learned counsel led by the learned Attorney General that the plain reading of the section leaves no manner of doubt that the legislature only envisaged a possibility of appointment of a Chairperson from the pool of sitting or retired Judges of the High Court, in which case the method of appointment would be different from the one as envisaged under Section 85 of the said Act.81. We may also look to the nature and functions performed by the State Commission. Functions of the State Commission are prescribed under Section 86 of the said Act. The enumerated functions aredetermination of tariff, regulation of electricity purchase and procurement process of distribution licencees, facilitating intra-state transmission, issuing licences to persons, promoting cogeneration and generation of electricity from renewable sources, levy fee, specify or enforce standards, fix trading margins. All these functions are regulatory in character rather than adjudicatory. The real adjudicatory function is only provided in sub-clause (f) whereupon the Commission has the option of adjudicating the disputes between the licencees and generating companies, or to refer such disputes to arbitration. There is also an advisory role to be performed by the State Commission as specified in sub-section (2). The issue, however, is not whether a Judge would be comfortable doing this function but whether these are types of functions which necessarily mandate a Judge to be a Chairperson. The answer to this would also be in the negative, supporting the view we have adopted on the plain reading of the section.85. Mr. Jayant Bhushan, learned senior counsel also rightly emphasized that were it to be presumed that the Chairperson had to be mandatorily a Judge, the process of appointment would have to be in terms of the proviso and not in terms of Section 85 of the said Act. This would make the reference to a Chairperson under Sub-Sections (2), (3), (5) & (6) of Section 85 otiose as that eventuality would never arise were such a plea to be accepted.We are, thus, unable to accept the contention advanced on behalf of the parties, who sought to sustain the view adopted by the Gujarat High Court. The fact that the Chairperson has a right to nominate theMember, who would chair meetings in his absence as per sub-section (2) of Section 92, or that the presence of a man of law would be no substitute to the requirement of a Judge who would bring a judicial thought process to the decision making as Chairman, or that the regulatory body should not be unregulated, are generalized pleas, which are difficult to accept. No doubt, the law declared by the Supreme Court is binding on all Courts within the territory of India, which would also include principles of law emanating from a judgment or interpretation of the law, but then the ratio decidendi of the judgments of the Supreme Court, makes the principle of mandatory requirement of a Judge applicable only to cases where the judicial function is sought to be shifted through the process of. We may also note that Section 84(2) of the said Act begins with a non-obstante clause, i.e., Notwithstanding anything contained in(1), it does not take away what is stated in sub-section (1), which deals with the requirements that are necessary in the appointment of a Member or Chairperson. It would not cut down the clear terms of the enactment being sub-section (1). The occasion to use such a non-obstante clause really arose because the process ofappointment of a Chairperson who is, or has been a Judge, is required to be different, and thus, the mandatory consultation with the Chief Justice. It is nothing more or less. Further sub-section (1) of Section 85 provides for a Selection Committee to be headed by a Judge of the High Court but with the proviso that the said provision would not apply for the appointment of a person as a Chairperson who is, or has been, a Judge of the High Court. This, in fact, shows that a non-Judge can be appointed as the Chairperson by the Selection Committee constituted under Section 85 of the said Act, which in turn is chaired by a Judge of the High Court. We are, thus, unequivocally of the view that Section 84(2) of the said Act only gives the discretionary option to the State Government to appoint a Judge as the Chairperson of the State Commission. The said provision therefore, is not mandatory in nature.are conscious of the fact that the case (MJ-I) dealt with a factual matrix where the powers vested in courts were sought to be transferred to the tribunal, but what is relevant is the aspect of judicial functions with all the ‘trappings of theand exercise of judicial power, at least, in respect of same part of the functioning of the State Commission. Thus, if the Chairman of the Commission is not a man of law, there should, at least, be a member who is drawn from the legal field. The observations of the Constitution Bench in Madras Bar(MJ-II) constitutes adeclaration on the concept of basic structure with reference to the concepts ofe of. The first question raised before the Constitution Bench as to whether judicial review was part of the basicof the Constitutionwas, thus, answered in the affirmative.We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does not imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in thew, who has the requisite qualifications to have been appointed as aof the High Courtor a District Judge.at present there is asingle Commission, which inter alia performs adjudicatory functions and, thus, theof a man of law as a memberis a necessity in order to sustain the provision, as otherwise, it would fall foul of the principles of separation of powers and judicial review, which have been read to be a part of the basic09. We are also not in a position to accept the plea advanced by the learned Attorney General that since there is aof a Judgein the Appellate Tribunal that would obviate the needof a man of law as a memberof the State Commission. The original proceedings cannot be cured of its defect merely by providing a right of appeal.We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in theaw and who has the requisite qualifications to have been appointed as aof the High Courtor a District Judge.In respect of the aforesaid, reliance was placed on the judgment in Rajeshand Mor Modern Cooperative Transport Society Ltd.We, however, find that those judgments would not apply in the present case. Theal interest was examined in the narrower sense as well as the wider sense and in the wider sense, it was held to include the direct or indirect interest of a person in relation to a financial undertaking. The situation arose when the person concerned was holding both the posts simultaneously, which is not so in the present case. (as noticed in para 52 above) It is also pointed out by the learned counsel appearing for theil Nadu that the ordersof appointment have been exclusively assailed right till the Supreme Court. It may be added that the Selection Committee was presided over by a retiredWe, thus, find no merit in the plea sought to be advanced assailing either the appointment or the suo moto tariff

### 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 ‘trappings of the Court’, an aspect we have agreed to hereinbefore. Once it has the ‘trappings of the Court’ and performs judicial functions, albeit limited ones in the context of the overall functioning of the Commission, still while performing such judicial functions 58 Another distinguished jurist who served as a Professor of Law at The Harvard Law School Page 77 of 84which may be of far reaching effect, the presence of a member having knowledge of law would become necessary. The absence of a member having knowledge of law would make the composition of the State Commission such as would make it incapable of performing the functions under Section 86(1)(f) of the said Act. 106. In Madras Bar Association 59 (MJ-II), the Constitution Bench, referring to the decision in Madras Bar Association 60 (MJ-I) observed that members of tribunals discharging judicial functions could only be drawn from sources possessed of expertise in law and competent to discharge judicial functions. We are conscious of the fact that the case (MJ-I) dealt with a factual matrix where the powers vested in courts were sought to be transferred to the tribunal, but what is relevant is the aspect of judicial functions with all the ‘trappings of the court’ and exercise of judicial power, at least, in respect of same part of the functioning of the State Commission. Thus, if the Chairman of the Commission is not a man of law, there should, at least, be a member who is drawn from the legal field. The observations of the Constitution Bench in Madras Bar Association 61 (MJ-II) constitutes a 59 supra 60 supra 61 supra Page 78 of 84declaration on the concept of basic structure with reference to the concepts of“separation of powers”,“rule of law”and“judicial review”. The first question raised before the Constitution Bench as to whether judicial review was part of the basic structure of the Constitution was, thus, answered in the affirmative. 107. We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does not imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 108. In Brahm Dutt v. Union of India 62 , it has been observed that if there are advisory and regulatory functions as well as adjudicatory functions to be performed, it may be appropriate to create two separate bodies for the same. That is, however, an aspect, which is in the wisdom of the legislature and that course is certainly open for the future if the legislature deems it so. However, at present there is a 62 supra Page 79 of 84single Commission, which inter alia performs adjudicatory functions and, thus, the presence of a man of law as a member is a necessity in order to sustain the provision, as otherwise, it would fall foul of the principles of separation of powers and judicial review, which have been read to be a part of the basic structure of the Constitution. 109. We are also not in a position to accept the plea advanced by the learned Attorney General that since there is a presence of a Judge in the Appellate Tribunal that would obviate the need of a man of law as a member of the State Commission. The original proceedings cannot be cured of its defect merely by providing a right of appeal. 110. We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law and who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. 111. The challenge laid in TC (C) Nos.139/2015 & 138/2015 is to the appointments made to the Tamil Nadu State Commission and the exercise of the powers suo moto by the Commission. The fundamental Page 80 of 84plea is of financial bias of the two members as they were working in their erstwhile avatars. The name of Mr. G. Rajagopal was recommended when he was still working as the Director, TANGEDCO and he opted for voluntary retirement after his name had been recommended. Mr. Akshayakumar retired from the post of Managing Director of TANTRANSCO on 31.5.14 and was appointed as Chairman of the Commission on 6.6.14. The tariff hike was approved by a majority of 2:1 with these two members being part of the majority view. 112. In respect of the aforesaid, reliance was placed on the judgment in Rajesh Awasthi 63 and Mor Modern Cooperative Transport Society Ltd. 64 . We, however, find that those judgments would not apply in the present case. The nature of financial interest was examined in the narrower sense as well as the wider sense and in the wider sense, it was held to include the direct or indirect interest of a person in relation to a financial undertaking. The situation arose when the person concerned was holding both the posts simultaneously, which is not so in the present case. (as noticed in para 52 above) It is also pointed out by the learned counsel appearing for the State of Tamil Nadu that the orders 63 supra 64 supra Page 81 of 84of appointment have been exclusively assailed right till the Supreme Court. It may be added that the Selection Committee was presided over by a retired Judge of the High Court. 113. We, thus, find no merit in the plea sought to be advanced assailing either the appointment or the suo moto tariff revision. Conclusion: 114. ### Response: 0 ### Explanation: of Section 85 of the said Act. This would make the reference to a Chairperson under Sub-Sections (2), (3), (5) & (6) of Section 85 otiose as that eventuality would never arise were such a plea to be accepted.We are, thus, unable to accept the contention advanced on behalf of the parties, who sought to sustain the view adopted by the Gujarat High Court. The fact that the Chairperson has a right to nominate theMember, who would chair meetings in his absence as per sub-section (2) of Section 92, or that the presence of a man of law would be no substitute to the requirement of a Judge who would bring a judicial thought process to the decision making as Chairman, or that the regulatory body should not be unregulated, are generalized pleas, which are difficult to accept. No doubt, the law declared by the Supreme Court is binding on all Courts within the territory of India, which would also include principles of law emanating from a judgment or interpretation of the law, but then the ratio decidendi of the judgments of the Supreme Court, makes the principle of mandatory requirement of a Judge applicable only to cases where the judicial function is sought to be shifted through the process of. We may also note that Section 84(2) of the said Act begins with a non-obstante clause, i.e., Notwithstanding anything contained in(1), it does not take away what is stated in sub-section (1), which deals with the requirements that are necessary in the appointment of a Member or Chairperson. It would not cut down the clear terms of the enactment being sub-section (1). The occasion to use such a non-obstante clause really arose because the process ofappointment of a Chairperson who is, or has been a Judge, is required to be different, and thus, the mandatory consultation with the Chief Justice. It is nothing more or less. Further sub-section (1) of Section 85 provides for a Selection Committee to be headed by a Judge of the High Court but with the proviso that the said provision would not apply for the appointment of a person as a Chairperson who is, or has been, a Judge of the High Court. This, in fact, shows that a non-Judge can be appointed as the Chairperson by the Selection Committee constituted under Section 85 of the said Act, which in turn is chaired by a Judge of the High Court. We are, thus, unequivocally of the view that Section 84(2) of the said Act only gives the discretionary option to the State Government to appoint a Judge as the Chairperson of the State Commission. The said provision therefore, is not mandatory in nature.are conscious of the fact that the case (MJ-I) dealt with a factual matrix where the powers vested in courts were sought to be transferred to the tribunal, but what is relevant is the aspect of judicial functions with all the ‘trappings of theand exercise of judicial power, at least, in respect of same part of the functioning of the State Commission. Thus, if the Chairman of the Commission is not a man of law, there should, at least, be a member who is drawn from the legal field. The observations of the Constitution Bench in Madras Bar(MJ-II) constitutes adeclaration on the concept of basic structure with reference to the concepts ofe of. The first question raised before the Constitution Bench as to whether judicial review was part of the basicof the Constitutionwas, thus, answered in the affirmative.We are, thus, of the view that it is mandatory to have a person of law, as a member of the State Commission. When we say so, it does not imply that any person from the field of law can be picked up. It has to be a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in thew, who has the requisite qualifications to have been appointed as aof the High Courtor a District Judge.at present there is asingle Commission, which inter alia performs adjudicatory functions and, thus, theof a man of law as a memberis a necessity in order to sustain the provision, as otherwise, it would fall foul of the principles of separation of powers and judicial review, which have been read to be a part of the basic09. We are also not in a position to accept the plea advanced by the learned Attorney General that since there is aof a Judgein the Appellate Tribunal that would obviate the needof a man of law as a memberof the State Commission. The original proceedings cannot be cured of its defect merely by providing a right of appeal.We are, thus, of the unequivocal view that for all adjudicatory functions, the Bench must necessarily have at least one member, who is or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in theaw and who has the requisite qualifications to have been appointed as aof the High Courtor a District Judge.In respect of the aforesaid, reliance was placed on the judgment in Rajeshand Mor Modern Cooperative Transport Society Ltd.We, however, find that those judgments would not apply in the present case. Theal interest was examined in the narrower sense as well as the wider sense and in the wider sense, it was held to include the direct or indirect interest of a person in relation to a financial undertaking. The situation arose when the person concerned was holding both the posts simultaneously, which is not so in the present case. (as noticed in para 52 above) It is also pointed out by the learned counsel appearing for theil Nadu that the ordersof appointment have been exclusively assailed right till the Supreme Court. It may be added that the Selection Committee was presided over by a retiredWe, thus, find no merit in the plea sought to be advanced assailing either the appointment or the suo moto tariff

Amritlal Nathubhai Shah and Others Vs. Union Government of India and Another

and (4) of section 17 of the Act to which our attention has been invited by Mr. Sen on behalf of the appellants for the argument that they are the only provisions for specifying the boundaries of the reserved areas, and as they relate to prospecting or mining operations to be undertaken by the Central Government, they are enough to show that the Act does not contemplate or provide for reservation by any other authority or for any other purpose. The argument is however untenable because the aforesaid sub-sections of section 17 do not cover the entire field of the authority of refusing to grant a prospecting licence or a mining lease to any one else, and do not deal with the State Governments authority to reserve any area for itself. As has been stated, the authority to order reservation . flows from the fact that the State is the owner of the mines and the minerals within its territory, which vest in it. But quite apart fro m that, we find that rule 59 of the Rules, which have been made under sections 13 of the Act, clearly contemplates such reservation by an order of the State Government. That rule deals with the availability of areas for the grant of a prospecting licence or a mining lease in such cases, and provides as follows:"59. Availability of certain areas for grant to be notified --In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a min ing lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the licence or lease after following the procedure laid down in rule 58."4. Mr. Sen has conceded that it is a valid rule. It clearly contemplates reservation of land for an y purpose, by the State Government, and its consequent non-availability for the grant of a prospecting licence or mining lease during the period it remains under reservation by an order of the State Government. A reading of rules 58, 59 and 60 makes it quite clear that it is not permissible for any person to apply for a licence or lease in respect of a reserved area until after it becomes available for such grant, and the availability is notified by the State Government in the Official Gazette. Rule 60 provides that an application for the grant of a prospecting, licence or a mining lease in respect of an area for which no such notification has been issued, inter alia, under rule 59, for making the area available for grant of a licence or a lease, would be premature, and "shall not be entertained and the fee. if any, paid in respect of any such application shah be refunded." It would therefore follow that as the areas which are the subject matter of the present appeals had been reserved by the State Government for the purpose stated in its notifications, and as those lands did not become available again for the grant of a prospecting licence or a mining lease, the State Government was well within its rights in rejecting the applications of the appellants under rule 60 as premature. The Central Government was thus justified in rejecting the revision applications which were filed against the orders of rejection passed by the State Government.We have gone through the decisions in State of Orissa V. Union of India(A.I.R 1972 Orissa 68.) and M/s S. Lal and Co. Ltd. v. The Union of India and others(A.I R. 1975 Patna 44.), on which reliance has been placed by Mr. Sen. In the former case the High Court of Orissa took the view that reservation of a particular area for being exploited in the public sector by the State could not be said to be a purpose for which it could be reserved under rule 59. In taking that view the High Court went by the consideration that the subject of the legislation in the Act became an "exclusive subject for legislation by Parliament" and there was no residuary power of working out mines and minerals without ob serving the conditions prescribed by the Act and the Rules. The High Court therefore went wrong in not appreciating that even , though the field of legislation had been covered by the declaration of the Parliament in section 2 of the Act, that could not justify the inference that the State Government thereby lost its right to the minerals which vested in it as a property within its territory. The High Court has also erred in taking t he view that the State was required to obtain a licence or a lease even though it was itself the owner of the land and there was nothing in the Act or the Rules to show that the provisions for the obtaining of a licence or lease would still be applicable to it.5. In S. Lai and Co. Ltd. v. Union of India and others (supra) the High Court noticed the decision in State of Orissa v. Union of India (supra) but it cannot be urged with any justification that the view expressed in it was followed by the Patna High Court. On the other hand the Patna High Court followed the view which was taken by the Gujarat High Court in the judgment which is the subject matter of the present appeals and held that the State Government has the power "to reserve certain areas for exploitation by itself. or by a statutory corporation or for a company in a public sector." The controversy in that case was. however, examined with reference to the provisions of article 298 of the Constitution. The two cases cited by Mr. Sen cannot thus be of any avail to the appellants.

0[ds]The argument is however untenable because the aforesaid sub-sections of section 17 do not cover the entire field of the authority of refusing to grant a prospecting licence or a mining lease to any one else, and do not deal with the State Governments authority to reserve any area for itself. As has been stated, the authority to order reservation . flows from the fact that the State is the owner of the mines and the minerals within its territory, which vest in it. But quite apart fro m that, we find that rule 59 of the Rules, which have been made under sections 13 of the Act, clearly contemplates such reservation by an order of the State Government. That rule deals with the availability of areas for the grant of a prospecting licence or a mining lease in such cases, and provides asAvailability of certain areas for grant to be notified --In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a min ing lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the licence or lease after following the procedure laid down in rulehave gone through the decisions in State of Orissa V. Union of India(A.I.R 1972 Orissa 68.) and M/s S. Lal and Co. Ltd. v. The Union of India and others(A.I R. 1975 Patna 44.), on which reliance has been placed by Mr. Sen. In the former case the High Court of Orissa took the view that reservation of a particular area for being exploited in the public sector by the State could not be said to be a purpose for which it could be reserved under rule 59. In taking that view the High Court went by the consideration that the subject of the legislation in the Act became an "exclusive subject for legislation by Parliament" and there was no residuary power of working out mines and minerals without ob serving the conditions prescribed by the Act and the Rules. The High Court therefore went wrong in not appreciating that even , though the field of legislation had been covered by the declaration of the Parliament in section 2 of the Act, that could not justify the inference that the State Government thereby lost its right to the minerals which vested in it as a property within its territory. The High Court has also erred in taking t he view that the State was required to obtain a licence or a lease even though it was itself the owner of the land and there was nothing in the Act or the Rules to show that the provisions for the obtaining of a licence or lease would still be applicable toS. Lai and Co. Ltd. v. Union of India and others (supra) the High Court noticed the decision in State of Orissa v. Union of India (supra) but it cannot be urged with any justification that the view expressed in it was followed by the Patna High Court. On the other hand the Patna High Court followed the view which was taken by the Gujarat High Court in the judgment which is the subject matter of the present appeals and held that the State Government has the power "to reserve certain areas for exploitation by itself. or by a statutory corporation or for a company in a public sector." The controversy in that case was. however, examined with reference to the provisions of article 298 of the Constitution. The two cases cited by Mr. Sen cannot thus be of any avail to the appellants.

### Instruction: Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document. ### Input: and (4) of section 17 of the Act to which our attention has been invited by Mr. Sen on behalf of the appellants for the argument that they are the only provisions for specifying the boundaries of the reserved areas, and as they relate to prospecting or mining operations to be undertaken by the Central Government, they are enough to show that the Act does not contemplate or provide for reservation by any other authority or for any other purpose. The argument is however untenable because the aforesaid sub-sections of section 17 do not cover the entire field of the authority of refusing to grant a prospecting licence or a mining lease to any one else, and do not deal with the State Governments authority to reserve any area for itself. As has been stated, the authority to order reservation . flows from the fact that the State is the owner of the mines and the minerals within its territory, which vest in it. But quite apart fro m that, we find that rule 59 of the Rules, which have been made under sections 13 of the Act, clearly contemplates such reservation by an order of the State Government. That rule deals with the availability of areas for the grant of a prospecting licence or a mining lease in such cases, and provides as follows:"59. Availability of certain areas for grant to be notified --In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a min ing lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the licence or lease after following the procedure laid down in rule 58."4. Mr. Sen has conceded that it is a valid rule. It clearly contemplates reservation of land for an y purpose, by the State Government, and its consequent non-availability for the grant of a prospecting licence or mining lease during the period it remains under reservation by an order of the State Government. A reading of rules 58, 59 and 60 makes it quite clear that it is not permissible for any person to apply for a licence or lease in respect of a reserved area until after it becomes available for such grant, and the availability is notified by the State Government in the Official Gazette. Rule 60 provides that an application for the grant of a prospecting, licence or a mining lease in respect of an area for which no such notification has been issued, inter alia, under rule 59, for making the area available for grant of a licence or a lease, would be premature, and "shall not be entertained and the fee. if any, paid in respect of any such application shah be refunded." It would therefore follow that as the areas which are the subject matter of the present appeals had been reserved by the State Government for the purpose stated in its notifications, and as those lands did not become available again for the grant of a prospecting licence or a mining lease, the State Government was well within its rights in rejecting the applications of the appellants under rule 60 as premature. The Central Government was thus justified in rejecting the revision applications which were filed against the orders of rejection passed by the State Government.We have gone through the decisions in State of Orissa V. Union of India(A.I.R 1972 Orissa 68.) and M/s S. Lal and Co. Ltd. v. The Union of India and others(A.I R. 1975 Patna 44.), on which reliance has been placed by Mr. Sen. In the former case the High Court of Orissa took the view that reservation of a particular area for being exploited in the public sector by the State could not be said to be a purpose for which it could be reserved under rule 59. In taking that view the High Court went by the consideration that the subject of the legislation in the Act became an "exclusive subject for legislation by Parliament" and there was no residuary power of working out mines and minerals without ob serving the conditions prescribed by the Act and the Rules. The High Court therefore went wrong in not appreciating that even , though the field of legislation had been covered by the declaration of the Parliament in section 2 of the Act, that could not justify the inference that the State Government thereby lost its right to the minerals which vested in it as a property within its territory. The High Court has also erred in taking t he view that the State was required to obtain a licence or a lease even though it was itself the owner of the land and there was nothing in the Act or the Rules to show that the provisions for the obtaining of a licence or lease would still be applicable to it.5. In S. Lai and Co. Ltd. v. Union of India and others (supra) the High Court noticed the decision in State of Orissa v. Union of India (supra) but it cannot be urged with any justification that the view expressed in it was followed by the Patna High Court. On the other hand the Patna High Court followed the view which was taken by the Gujarat High Court in the judgment which is the subject matter of the present appeals and held that the State Government has the power "to reserve certain areas for exploitation by itself. or by a statutory corporation or for a company in a public sector." The controversy in that case was. however, examined with reference to the provisions of article 298 of the Constitution. The two cases cited by Mr. Sen cannot thus be of any avail to the appellants. ### Response: 0 ### Explanation: The argument is however untenable because the aforesaid sub-sections of section 17 do not cover the entire field of the authority of refusing to grant a prospecting licence or a mining lease to any one else, and do not deal with the State Governments authority to reserve any area for itself. As has been stated, the authority to order reservation . flows from the fact that the State is the owner of the mines and the minerals within its territory, which vest in it. But quite apart fro m that, we find that rule 59 of the Rules, which have been made under sections 13 of the Act, clearly contemplates such reservation by an order of the State Government. That rule deals with the availability of areas for the grant of a prospecting licence or a mining lease in such cases, and provides asAvailability of certain areas for grant to be notified --In the case of any land which is otherwise available for the grant of a prospecting licence or a mining lease but in respect of which the State Government has refused to grant a prospecting licence or a min ing lease on the ground that the land should be reserved for any purpose, the State Government shall, as soon as such land becomes again available for the grant of a prospecting or mining lease, grant the licence or lease after following the procedure laid down in rulehave gone through the decisions in State of Orissa V. Union of India(A.I.R 1972 Orissa 68.) and M/s S. Lal and Co. Ltd. v. The Union of India and others(A.I R. 1975 Patna 44.), on which reliance has been placed by Mr. Sen. In the former case the High Court of Orissa took the view that reservation of a particular area for being exploited in the public sector by the State could not be said to be a purpose for which it could be reserved under rule 59. In taking that view the High Court went by the consideration that the subject of the legislation in the Act became an "exclusive subject for legislation by Parliament" and there was no residuary power of working out mines and minerals without ob serving the conditions prescribed by the Act and the Rules. The High Court therefore went wrong in not appreciating that even , though the field of legislation had been covered by the declaration of the Parliament in section 2 of the Act, that could not justify the inference that the State Government thereby lost its right to the minerals which vested in it as a property within its territory. The High Court has also erred in taking t he view that the State was required to obtain a licence or a lease even though it was itself the owner of the land and there was nothing in the Act or the Rules to show that the provisions for the obtaining of a licence or lease would still be applicable toS. Lai and Co. Ltd. v. Union of India and others (supra) the High Court noticed the decision in State of Orissa v. Union of India (supra) but it cannot be urged with any justification that the view expressed in it was followed by the Patna High Court. On the other hand the Patna High Court followed the view which was taken by the Gujarat High Court in the judgment which is the subject matter of the present appeals and held that the State Government has the power "to reserve certain areas for exploitation by itself. or by a statutory corporation or for a company in a public sector." The controversy in that case was. however, examined with reference to the provisions of article 298 of the Constitution. The two cases cited by Mr. Sen cannot thus be of any avail to the appellants.

Commissioner of C. Ex Vs. Mahindra Ugine Steel Company Ltd

it is not in dispute that ultimately the manufacturer of the motor vehicle pays the excise duty on the motor vehicle parts which are manufactured by the respondent on undertaking the aforesaid job work. 3. The question before us, in the present appeal, is as to whether Rule 8 of the Central Excise (Valuation) Rules, 2000 (hereinafter referred to as the Rules) or Rule 11 thereof would apply in arriving at the valuation of the goods at the end of the respondent/assessee. As per the appellant/Department Rule 8 is applicable and therefore the value has to be 115% of the cost of production. Rule 8 reads as under: “RULE 8: Where the excisable goods are not sold by the assessee but are used for consumption by him or on his behalf in the production or manufacture of other articles, the value shall be one hundred and fifteen per cent of the cost of production or manufacture of such goods.” 4. On the face of it Rule 8 will have no application to the facts of the present case. It is rightly pointed out by the CEGAT that for the applicability of this Rule two requirements are to be fulfilled. The first is that the excisable goods that the assessee manufactures are not sold by him and the second requirement is that these goods must be used for consumption either by him or on his behalf in the production or manufacture of other articles. In the present case, first condition is undoubtedly satisfied as the goods are not sold by the respondent. However, second condition is not at all met or fulfilled inasmuch as the goods are not used by the assessee for consumption either by him or on his behalf in the production or manufacture of other articles. As stated above, these goods are supplied to the manufacturer of the motor vehicles.5. Learned counsel for the appellant, however, referred to Rule 9 and submitted that the proviso to the said Rule would attract the applicability of Rule 8 in the present case. In order to appreciate this argument, we take note of Rule 9 which is reproduced below: “RULE 9: When the assessee so arranges that the excisable goods are not sold by an assessee except to or through a person who is related in the manner specified in either of sub-clauses (ii), (iii) or (iv) of clause (b) of sub-section (3) of section 4 of the Act, the value of the goods shall be the normal transaction value at which these are sold by the related person at the time of removal, to buyers (not being related person); or where such goods are not sold to such buyers, to buyers (being related person), who sells such goods in retail:Provided that in a case where the related person does not sell the goods but uses or consumes such goods in the production or manufacture of articles, the value shall be determined in the manner specified in rule8.” In order to attract this rule, first requirement is that the assessee sells the excisable goods to or through a person who is related in the manner stated in S.4(3)(b) of the Act. There are four eventualities provided in sub-clause (i) to (iv) which such a person can be related. Sec.4(3)(b): persons shall be deemed to be “related” if—(i) they are inter-connected undertakings;(ii) they are relatives;(iii) amongst them the buyer is a relative and distributor of the assessee, or a sub-distributor of such distributor; or(iv) they are so associated that they have interest, directly or indirectly, in the business of each other. However Rule 9 mentions relationship that is visualised in sub-clauses (ii) to (iv) only and excludes clause (i). 6. Thus, this Rule would be applicable only in those cases that assessee is related in the manner specified in either of sub-clause (ii),(iii) or (iv) of clause (b) of sub-section (3) of Section 4 of the Act and not in those cases where the person is related in the manner as stated in clause (i) thereof. In those cases where Rule 9 is applicable, for the purpose of valuation, normal transaction value at which such goods are sold by the related person, is to be taken as the value of the goods. Proviso becomes applicable only when goods are not sold by the related person at all and used or consumed for home production. As there is no sale transaction by the related person, question of value thereof will not be available and therefore, to arrive at the value in such a situation one has to fall back on Rule 8. 7. However, if main Rule 9 is not attracted, question of applicability of proviso thereto does not arise. 8. In the present case what we found is that a specific finding is arrived at by the Assistant Commissioner himself that the respondent who has manufactured goods on job work basis for M/s. Mahindra and Mahindra is treated as related to Mahindra and Mahindra in terms of Section 4(3)(b)(i) of the Act. The Commissioner in this behalf stated as under in his order: “I find that assessee have manufactured goods on job work basis for M/s. Mahindra & Mahindra and others. M/s. Mahindra & Mahindra are the related persons in terms of Section 4(3)(b)(1) a fact which the assessee has also admitted and others i.e. M/s. Ashok Leyland, M/s. Ameja & M/s. PSSL are not related.” 9. Such a relationship is excluded from Rule 9 as sub-clause (i) is conspicuously absent therefrom. On this ground alone proviso to the Rule 9 shall not be attracted at all. Therefore, from whatever angle the matter is looked with, Rule 8 would not apply here. 10. Once we come to the conclusion that Rule 8 is not applicable in the case of the respondent, it is Rule 11 only which becomes applicable as that is residuary provision for arriving at the value of any excisable goods which are not determined under any other rule. 11.

0[ds]Thus, this Rule would be applicable only in those cases that assessee is related in the manner specified in either of(ii),(iii) or (iv) of clause (b) of(3) of Section 4 of the Act and not in those cases where the person is related in the manner as stated in clause (i) thereof. In those cases where Rule 9 is applicable, for the purpose of valuation, normal transaction value at which such goods are sold by the related person, is to be taken as the value of the goods. Proviso becomes applicable only when goods are not sold by the related person at all and used or consumed for home production. As there is no sale transaction by the related person, question of value thereof will not be available and therefore, to arrive at the value in such a situation one has to fall back on Rule 8.However, if main Rule 9 is not attracted, question of applicability of proviso thereto does not arise.In the present case what we found is that a specific finding is arrived at by the Assistant Commissioner himself that the respondent who has manufactured goods on job work basis for M/s. Mahindra and Mahindra is treated as related to Mahindra and Mahindra in terms of Section 4(3)(b)(i) of the Act.Such a relationship is excluded from Rule 9 as(i) is conspicuously absent therefrom. On this ground alone proviso to the Rule 9 shall not be attracted at all. Therefore, from whatever angle the matter is looked with, Rule 8 would not apply here.Once we come to the conclusion that Rule 8 is not applicable in the case of the respondent, it is Rule 11 only which becomes applicable as that is residuary provision for arriving at the value of any excisable goods which are not determined under any other rule.

### 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: it is not in dispute that ultimately the manufacturer of the motor vehicle pays the excise duty on the motor vehicle parts which are manufactured by the respondent on undertaking the aforesaid job work. 3. The question before us, in the present appeal, is as to whether Rule 8 of the Central Excise (Valuation) Rules, 2000 (hereinafter referred to as the Rules) or Rule 11 thereof would apply in arriving at the valuation of the goods at the end of the respondent/assessee. As per the appellant/Department Rule 8 is applicable and therefore the value has to be 115% of the cost of production. Rule 8 reads as under: “RULE 8: Where the excisable goods are not sold by the assessee but are used for consumption by him or on his behalf in the production or manufacture of other articles, the value shall be one hundred and fifteen per cent of the cost of production or manufacture of such goods.” 4. On the face of it Rule 8 will have no application to the facts of the present case. It is rightly pointed out by the CEGAT that for the applicability of this Rule two requirements are to be fulfilled. The first is that the excisable goods that the assessee manufactures are not sold by him and the second requirement is that these goods must be used for consumption either by him or on his behalf in the production or manufacture of other articles. In the present case, first condition is undoubtedly satisfied as the goods are not sold by the respondent. However, second condition is not at all met or fulfilled inasmuch as the goods are not used by the assessee for consumption either by him or on his behalf in the production or manufacture of other articles. As stated above, these goods are supplied to the manufacturer of the motor vehicles.5. Learned counsel for the appellant, however, referred to Rule 9 and submitted that the proviso to the said Rule would attract the applicability of Rule 8 in the present case. In order to appreciate this argument, we take note of Rule 9 which is reproduced below: “RULE 9: When the assessee so arranges that the excisable goods are not sold by an assessee except to or through a person who is related in the manner specified in either of sub-clauses (ii), (iii) or (iv) of clause (b) of sub-section (3) of section 4 of the Act, the value of the goods shall be the normal transaction value at which these are sold by the related person at the time of removal, to buyers (not being related person); or where such goods are not sold to such buyers, to buyers (being related person), who sells such goods in retail:Provided that in a case where the related person does not sell the goods but uses or consumes such goods in the production or manufacture of articles, the value shall be determined in the manner specified in rule8.” In order to attract this rule, first requirement is that the assessee sells the excisable goods to or through a person who is related in the manner stated in S.4(3)(b) of the Act. There are four eventualities provided in sub-clause (i) to (iv) which such a person can be related. Sec.4(3)(b): persons shall be deemed to be “related” if—(i) they are inter-connected undertakings;(ii) they are relatives;(iii) amongst them the buyer is a relative and distributor of the assessee, or a sub-distributor of such distributor; or(iv) they are so associated that they have interest, directly or indirectly, in the business of each other. However Rule 9 mentions relationship that is visualised in sub-clauses (ii) to (iv) only and excludes clause (i). 6. Thus, this Rule would be applicable only in those cases that assessee is related in the manner specified in either of sub-clause (ii),(iii) or (iv) of clause (b) of sub-section (3) of Section 4 of the Act and not in those cases where the person is related in the manner as stated in clause (i) thereof. In those cases where Rule 9 is applicable, for the purpose of valuation, normal transaction value at which such goods are sold by the related person, is to be taken as the value of the goods. Proviso becomes applicable only when goods are not sold by the related person at all and used or consumed for home production. As there is no sale transaction by the related person, question of value thereof will not be available and therefore, to arrive at the value in such a situation one has to fall back on Rule 8. 7. However, if main Rule 9 is not attracted, question of applicability of proviso thereto does not arise. 8. In the present case what we found is that a specific finding is arrived at by the Assistant Commissioner himself that the respondent who has manufactured goods on job work basis for M/s. Mahindra and Mahindra is treated as related to Mahindra and Mahindra in terms of Section 4(3)(b)(i) of the Act. The Commissioner in this behalf stated as under in his order: “I find that assessee have manufactured goods on job work basis for M/s. Mahindra & Mahindra and others. M/s. Mahindra & Mahindra are the related persons in terms of Section 4(3)(b)(1) a fact which the assessee has also admitted and others i.e. M/s. Ashok Leyland, M/s. Ameja & M/s. PSSL are not related.” 9. Such a relationship is excluded from Rule 9 as sub-clause (i) is conspicuously absent therefrom. On this ground alone proviso to the Rule 9 shall not be attracted at all. Therefore, from whatever angle the matter is looked with, Rule 8 would not apply here. 10. Once we come to the conclusion that Rule 8 is not applicable in the case of the respondent, it is Rule 11 only which becomes applicable as that is residuary provision for arriving at the value of any excisable goods which are not determined under any other rule. 11. ### Response: 0 ### Explanation: Thus, this Rule would be applicable only in those cases that assessee is related in the manner specified in either of(ii),(iii) or (iv) of clause (b) of(3) of Section 4 of the Act and not in those cases where the person is related in the manner as stated in clause (i) thereof. In those cases where Rule 9 is applicable, for the purpose of valuation, normal transaction value at which such goods are sold by the related person, is to be taken as the value of the goods. Proviso becomes applicable only when goods are not sold by the related person at all and used or consumed for home production. As there is no sale transaction by the related person, question of value thereof will not be available and therefore, to arrive at the value in such a situation one has to fall back on Rule 8.However, if main Rule 9 is not attracted, question of applicability of proviso thereto does not arise.In the present case what we found is that a specific finding is arrived at by the Assistant Commissioner himself that the respondent who has manufactured goods on job work basis for M/s. Mahindra and Mahindra is treated as related to Mahindra and Mahindra in terms of Section 4(3)(b)(i) of the Act.Such a relationship is excluded from Rule 9 as(i) is conspicuously absent therefrom. On this ground alone proviso to the Rule 9 shall not be attracted at all. Therefore, from whatever angle the matter is looked with, Rule 8 would not apply here.Once we come to the conclusion that Rule 8 is not applicable in the case of the respondent, it is Rule 11 only which becomes applicable as that is residuary provision for arriving at the value of any excisable goods which are not determined under any other rule.

Ajodhya Bhagat & Others Vs. The State of Bihar & Others

Section 6 notification is not by the Collector but by the local Government, and, therefore, it is bad. Fourth, the notification is for Patna Improvement Trust but it appears that it is for the Samiti. The Samiti paid the money but the provisions of Part VII of the Act have not been followed.17. The Solicitor General rightly contended that no arguments had been advanced before the High Court with regard to notification not being by the Collector, and that there was no satisfaction of the Collector with regard to Section 4 notification. He rightly submitted that the Government would have given answer of facts, and, therefore, this Court is not only deprived of facts but also of the judgment of the High Court on these aspect. We are, therefore, unable to allow the appellants to canvass those two grounds.18. Counsel for the appellants submitted that the allegation in the petition was that the Collector on 20 July, 1961 asked the authority to publish notification under the emergent procedure dispensing with the provisions of Section 5-A of the Act. The notification was published under the signature of the Collector on 17 July, 1961. Therefore, there was no decision of the local Government under section 17 (1) read with Section 17 (4) of the Act and the requirements of Section 5-A could not be disposed with.19. The High Court said that the Government was unable to produce the file conveying the decision of the Government. The High Court said that the "non-traceability of the Government order in the Secretariat file must in the circumstances be attributed to the deliberate destruction of the relevant papers by the interested parties." The High Court further said that acquisition proceedings had been initiated in 1961 under the instructions of the government. But for the "intervention of influential persons" it is highly improbable that the Government would have ordered stay of the entire land acquisition proceeding on 3 May, 1965.20. The facts found by the High Court are these. The Patana Improvement Trust requested that the emergency provisions of the Act should be applied. The Deputy Collector in-Charge pointed out to the Collector that the draft notification must be sent to the Government in the Revenue Department which could apply the emergency provisions and dispense with the compliance of Section 5-A of the Act. The Collector prepared a draft notification, signed it and sent it to the Government along with the letter dated 20 July, 1961. The notification was actually published on 6 August, 1961. On that very day the Deputy Collector directed a copy of the notification to be sent to the persons interested. On 4 September, 1961 the Deputy Collector again recorded that notification had been issued under the emergent procedure. There are indications of the receipt of the letter of the Collector in the Secretariat on 22 July, 1961. On 26 July, 1961 the note in the Secretariat file referred to the receipt of the letter. The High Court on these facts held that the circumstances led to the inescapable conclusion that the Government must have passed the necessary orders.21. The High Court referred to the certified copy of the order sheet of the Land Acquisition Case from 14 July, 1961 to 14 October, 1961 in support of the conclusion reached by the High Court. The order sheet dated 15 July, 1967 shows that the Chairman, Improvement Trust wanted 64.49 acres to be acquired under the emergent procedure. The Deputy Collector after personal inspection was satisfied that the lands were waste and arable lands and there was objection to their acquisition under the emergent procedure. The Deputy Collector suggested to the Collector that a draft notification for that purpose should be prepared and sent to the Deputy Secretary to the Government in the revenue Department for permission. The draft was approved by the Collector and was signed by him on 17 July, 1961. It was sent to the Government by the Collector with letter dated 20 July, 1961. Then the notice dated 6 August, 1961 was published. The notice mentions that the Government gave its decision under section 17 (4) of the Act. On 4 September, 1961 the note in the order sheet states that a notification under Section 4 (1) of the Act under the emergent procedure has been published on 6 August, 1961. The further note in the order sheet dated 4 September, 1961 states that the draft declaration under Section 6 of the Act along with declaration plan has been prepared and is submitted for approval.22. On these facts the High Court held that the appellants did not established that the Government did not give their approval to the application of emergency provisions of Section 17 (1) read with Section 17 (4) of the Act. The High Court was right in repelling the suggestion of the appellants that the Government did not give their approval to the application of emergency provisions for the purpose of acquisition.23. The High Court held that the appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention, Secondly, the High Court said that the trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petition and hold up the acquisition proceedings for more than a generation.The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary views t the discretion exercised by the High Court.

0[ds]19. The High Court said that the Government was unable to produce the file conveying the decision of the Government. The High Court said that theof the Government order in the Secretariat file must in the circumstances be attributed to the deliberate destruction of the relevant papers by the interested parties." The High Court further said that acquisition proceedings had been initiated in 1961 under the instructions of the government. But for the "intervention of influential persons" it is highly improbable that the Government would have ordered stay of the entire land acquisition proceeding on 3 May, 1965.20. The facts found by the High Court are these. The Patana Improvement Trust requested that the emergency provisions of the Act should be applied. The Deputy Collectorpointed out to the Collector that the draft notification must be sent to the Government in the Revenue Department which could apply the emergency provisions and dispense with the compliance of Sectionof the Act. The Collector prepared a draft notification, signed it and sent it to the Government along with the letter dated 20 July, 1961. The notification was actually published on 6 August, 1961. On that very day the Deputy Collector directed a copy of the notification to be sent to the persons interested. On 4 September, 1961 the Deputy Collector again recorded that notification had been issued under the emergent procedure. There are indications of the receipt of the letter of the Collector in the Secretariat on 22 July, 1961. On 26 July, 1961 the note in the Secretariat file referred to the receipt of the letter. The High Court on these facts held that the circumstances led to the inescapable conclusion that the Government must have passed the necessary orders.21. The High Court referred to the certified copy of the order sheet of the Land Acquisition Case from 14 July, 1961 to 14 October, 1961 in support of the conclusion reached by the High Court. The order sheet dated 15 July, 1967 shows that the Chairman, Improvement Trust wanted 64.49 acres to be acquired under the emergent procedure. The Deputy Collector after personal inspection was satisfied that the lands were waste and arable lands and there was objection to their acquisition under the emergent procedure. The Deputy Collector suggested to the Collector that a draft notification for that purpose should be prepared and sent to the Deputy Secretary to the Government in the revenue Department for permission. The draft was approved by the Collector and was signed by him on 17 July, 1961. It was sent to the Government by the Collector with letter dated 20 July, 1961. Then the notice dated 6 August, 1961 was published. The notice mentions that the Government gave its decision under section 17 (4) of the Act. On 4 September, 1961 the note in the order sheet states that a notification under Section 4 (1) of the Act under the emergent procedure has been published on 6 August, 1961. The further note in the order sheet dated 4 September, 1961 states that the draft declaration under Section 6 of the Act along with declaration plan has been prepared and is submitted for approval.22. On these facts the High Court held that the appellants did not established that the Government did not give their approval to the application of emergency provisions of Section 17 (1) read with Section 17 (4) of the Act. The High Court was right in repelling the suggestion of the appellants that the Government did not give their approval to the application of emergency provisions for the purpose of acquisition.23. The High Court held that the appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention, Secondly, the High Court said that the trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petition and hold up the acquisition proceedings for more than a generation.The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary views t the discretion exercised by the High Court.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: Section 6 notification is not by the Collector but by the local Government, and, therefore, it is bad. Fourth, the notification is for Patna Improvement Trust but it appears that it is for the Samiti. The Samiti paid the money but the provisions of Part VII of the Act have not been followed.17. The Solicitor General rightly contended that no arguments had been advanced before the High Court with regard to notification not being by the Collector, and that there was no satisfaction of the Collector with regard to Section 4 notification. He rightly submitted that the Government would have given answer of facts, and, therefore, this Court is not only deprived of facts but also of the judgment of the High Court on these aspect. We are, therefore, unable to allow the appellants to canvass those two grounds.18. Counsel for the appellants submitted that the allegation in the petition was that the Collector on 20 July, 1961 asked the authority to publish notification under the emergent procedure dispensing with the provisions of Section 5-A of the Act. The notification was published under the signature of the Collector on 17 July, 1961. Therefore, there was no decision of the local Government under section 17 (1) read with Section 17 (4) of the Act and the requirements of Section 5-A could not be disposed with.19. The High Court said that the Government was unable to produce the file conveying the decision of the Government. The High Court said that the "non-traceability of the Government order in the Secretariat file must in the circumstances be attributed to the deliberate destruction of the relevant papers by the interested parties." The High Court further said that acquisition proceedings had been initiated in 1961 under the instructions of the government. But for the "intervention of influential persons" it is highly improbable that the Government would have ordered stay of the entire land acquisition proceeding on 3 May, 1965.20. The facts found by the High Court are these. The Patana Improvement Trust requested that the emergency provisions of the Act should be applied. The Deputy Collector in-Charge pointed out to the Collector that the draft notification must be sent to the Government in the Revenue Department which could apply the emergency provisions and dispense with the compliance of Section 5-A of the Act. The Collector prepared a draft notification, signed it and sent it to the Government along with the letter dated 20 July, 1961. The notification was actually published on 6 August, 1961. On that very day the Deputy Collector directed a copy of the notification to be sent to the persons interested. On 4 September, 1961 the Deputy Collector again recorded that notification had been issued under the emergent procedure. There are indications of the receipt of the letter of the Collector in the Secretariat on 22 July, 1961. On 26 July, 1961 the note in the Secretariat file referred to the receipt of the letter. The High Court on these facts held that the circumstances led to the inescapable conclusion that the Government must have passed the necessary orders.21. The High Court referred to the certified copy of the order sheet of the Land Acquisition Case from 14 July, 1961 to 14 October, 1961 in support of the conclusion reached by the High Court. The order sheet dated 15 July, 1967 shows that the Chairman, Improvement Trust wanted 64.49 acres to be acquired under the emergent procedure. The Deputy Collector after personal inspection was satisfied that the lands were waste and arable lands and there was objection to their acquisition under the emergent procedure. The Deputy Collector suggested to the Collector that a draft notification for that purpose should be prepared and sent to the Deputy Secretary to the Government in the revenue Department for permission. The draft was approved by the Collector and was signed by him on 17 July, 1961. It was sent to the Government by the Collector with letter dated 20 July, 1961. Then the notice dated 6 August, 1961 was published. The notice mentions that the Government gave its decision under section 17 (4) of the Act. On 4 September, 1961 the note in the order sheet states that a notification under Section 4 (1) of the Act under the emergent procedure has been published on 6 August, 1961. The further note in the order sheet dated 4 September, 1961 states that the draft declaration under Section 6 of the Act along with declaration plan has been prepared and is submitted for approval.22. On these facts the High Court held that the appellants did not established that the Government did not give their approval to the application of emergency provisions of Section 17 (1) read with Section 17 (4) of the Act. The High Court was right in repelling the suggestion of the appellants that the Government did not give their approval to the application of emergency provisions for the purpose of acquisition.23. The High Court held that the appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention, Secondly, the High Court said that the trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petition and hold up the acquisition proceedings for more than a generation.The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary views t the discretion exercised by the High Court. ### Response: 0 ### Explanation: 19. The High Court said that the Government was unable to produce the file conveying the decision of the Government. The High Court said that theof the Government order in the Secretariat file must in the circumstances be attributed to the deliberate destruction of the relevant papers by the interested parties." The High Court further said that acquisition proceedings had been initiated in 1961 under the instructions of the government. But for the "intervention of influential persons" it is highly improbable that the Government would have ordered stay of the entire land acquisition proceeding on 3 May, 1965.20. The facts found by the High Court are these. The Patana Improvement Trust requested that the emergency provisions of the Act should be applied. The Deputy Collectorpointed out to the Collector that the draft notification must be sent to the Government in the Revenue Department which could apply the emergency provisions and dispense with the compliance of Sectionof the Act. The Collector prepared a draft notification, signed it and sent it to the Government along with the letter dated 20 July, 1961. The notification was actually published on 6 August, 1961. On that very day the Deputy Collector directed a copy of the notification to be sent to the persons interested. On 4 September, 1961 the Deputy Collector again recorded that notification had been issued under the emergent procedure. There are indications of the receipt of the letter of the Collector in the Secretariat on 22 July, 1961. On 26 July, 1961 the note in the Secretariat file referred to the receipt of the letter. The High Court on these facts held that the circumstances led to the inescapable conclusion that the Government must have passed the necessary orders.21. The High Court referred to the certified copy of the order sheet of the Land Acquisition Case from 14 July, 1961 to 14 October, 1961 in support of the conclusion reached by the High Court. The order sheet dated 15 July, 1967 shows that the Chairman, Improvement Trust wanted 64.49 acres to be acquired under the emergent procedure. The Deputy Collector after personal inspection was satisfied that the lands were waste and arable lands and there was objection to their acquisition under the emergent procedure. The Deputy Collector suggested to the Collector that a draft notification for that purpose should be prepared and sent to the Deputy Secretary to the Government in the revenue Department for permission. The draft was approved by the Collector and was signed by him on 17 July, 1961. It was sent to the Government by the Collector with letter dated 20 July, 1961. Then the notice dated 6 August, 1961 was published. The notice mentions that the Government gave its decision under section 17 (4) of the Act. On 4 September, 1961 the note in the order sheet states that a notification under Section 4 (1) of the Act under the emergent procedure has been published on 6 August, 1961. The further note in the order sheet dated 4 September, 1961 states that the draft declaration under Section 6 of the Act along with declaration plan has been prepared and is submitted for approval.22. On these facts the High Court held that the appellants did not established that the Government did not give their approval to the application of emergency provisions of Section 17 (1) read with Section 17 (4) of the Act. The High Court was right in repelling the suggestion of the appellants that the Government did not give their approval to the application of emergency provisions for the purpose of acquisition.23. The High Court held that the appellants were guilty of delay and laches. The High Court relied on two important facts. First, that there was delivery of possession. The appellants alleged that it was a paper transaction. The High Court rightly rejected that contention, Secondly, the High Court said that the trust invested several lakhs of rupees for the construction of roads and material for development purposes. The appellants were in full knowledge of the same. The appellants did not take any steps. The High Court rightly said that to allow this type of challenge to an acquisition of large block of land piecemeal by the owners of some of the plots in succession would not be proper. If this type of challenge is encouraged the various owners of small plots will come up with writ petition and hold up the acquisition proceedings for more than a generation.The High Court rightly exercised discretion against the appellants. We do not see any reason to take a contrary views t the discretion exercised by the High Court.

Ilac Limited Vs. Union of India

to grant permission to close down the factories. Thereafter, on 29. 5. 1985, Company sought permission of the Labour commissioner under Section (25-M) to lay-off the workmen with effect from 23. 5. 1985 on the ground of shortage of electricity supply. By impugned order dated 25. 7. 1985, the Deputy Labour commissioner rejected the permission on the ground that there was no shortage of power; that the Company did not pay electricity bills of Tata Powers Company and despite opportunities being given to the Company by the Government and Tata Power Company, the bills were not paid and on account of non-payment of bills the Tata Power Company disconnected power supply and for this reason the provisions of Section 25-M of the Industrial Disputes Act are not attracted because there was no shortage of power supply and disconnection for non-payment of bills cannot be equated to shortage of power supply. The Deputy Labour Commissioner also rejected permission sought by the Company on the ground that the Company applied for permission after illegally imposing lay-off. The lay-off was implemented from May 23, 1985 whereas permission was sought six days after imposing illegal lay-off. The Deputy Labour commissioner, on facts, therefore, rejected the permission. To complete the chronology of events it may be mentioned that on the day when the impugned order was passed i. e. 25. 7. 1985 petitioner applied for reference to the Tribunal. For the reasons given hereinabove the reference application was also rejected on the ground that there was no lay-off in the eyes of law. Thereafter, the record indicates that lockout was imposed by the Company on the ground of alleged violence resorted to by the workmen. Proceedings in that regard are pending in this court. We do not wish to express any opinion regarding those proceedings. Finally, as stated above, the Company is under B. I. F. R. as of today. The result is that, till today the lay-off imposed in 1985 continues. No attempt has been made even to lift the lay off. ( 3 ) AT the outset we would like to point out that in the present case in view of the above events we decided to proceed on the factual aspects of the case and on merits. We heard the learned counsel on merits. ( 4 ) AS regards the challenge to the constitutional validity of the Act the learned counsel conceded that in view of the judgment of the Supreme Court this question does not service. The learned counsel also raised legal contentions with regard to findings of the Labour Commissioner on the question of the time limit to seek permission to lay-off. It is not necessary to got into the question of constitutional validity or into the question of limitation because we have proceeded to decide this matter squarely on the facts and circumstances of the case and accordingly we heard the learned advocate for the petitioner on the merits of the case. ( 5 ) THE above events clearly indicate that right from 1981 attempts were made to close down the company on one excuse or the other. Initially in 1981 closure was sought to be effected on the footing that imports of the raw material were not available. The closure permissions as refused. ILAC came on the scene in 1985. Thereafter, the Company laid-off the workmen on the ground that they were not in a position to pay electricity charges because Tata Power Company increased fuel adjustments charges. As correctly held by Deputy Commissioner of Labour, this is not a case of shortage of electricity supply as contemplated under section 25m of the I. D. Act. It is the case of non-payment of electricity bills and, therefore, permission cannot be granted. Moreover, we find that in the entire petition the Company has pleaded that the increase in fuel adjustment charges by Tata Power Company which are statutory in nature were arbitrary. The deputy Labour Commissioner was not concerned with the said challenge. In any event we find from the record that both the Government and Tata Power Company gave concession and opportunity to the Company to make the payment but the company failed to make the payment and in the circumstances disconnection took place. In fact, the entire exercise resorted to by the company was malafide. It was only to defeat the rights of the workmen. Non-payment of electricity charges cannot be the ground to effect lay-off. The malafide intentions of the company are borne out also by letter dated 23. 1. 1985 i. e. much prior to effecting lockout in May 1985. This letter is addressed by the Company to Tata Power Company requesting Tata company to disconnect the electricity supply. Further despite concessions being given both by the Government and Tata Company payments were not effected. This clearly shows that lay-off was only a subterfuge. In the above facts, there was no lay-off. In the circumstances, Deputy commissioner of Labour was right in rejecting the permission. When the Company realised that the permission is refused, they applied for reference to the Industrial Tribunal on 25. 7. 1985 which has been rightly rejected by the Deputy Commissioner of Labour vide impugned order dated October 30, 1985 on the ground that he has considered the entire case on merits vide order dated 25. 7. 1985. Further it may be mentioned that normally this Court is inclined to grant references to the Government. However, in the present case we find that the Company has resorted to various tactics only to defeat the rights of the employees. Initially, they resorted to closure. Having failed, they resorted to lay-off, which, as stated hereinabove never existed in the eyes of law. Shortage of raw material or power supply in appropriate cases may result in lay-of but in the present case that is not so. In the present power supply. On the contrary, the Company brought about a situation by not paying the electricity charges and, thereafter, they have imposed the alleged lay-off.

0[ds]( 5 ) THE above events clearly indicate that right from 1981 attempts were made to close down the company on one excuse or the other. Initially in 1981 closure was sought to be effected on the footing that imports of the raw material were not available. The closure permissions as refused. ILAC came on the scene in 1985. Thereafter, the Companythe workmen on the ground that they were not in a position to pay electricity charges because Tata Power Company increased fuel adjustments charges. As correctly held by Deputy Commissioner of Labour, this is not a case of shortage of electricity supply as contemplated under section 25m of the I. D. Act. It is the case ofof electricity bills and, therefore, permission cannot be granted. Moreover, we find that in the entire petition the Company has pleaded that the increase in fuel adjustment charges by Tata Power Company which are statutory in nature were arbitrary. The deputy Labour Commissioner was not concerned with the said challenge. In any event we find from the record that both the Government and Tata Power Company gave concession and opportunity to the Company to make the payment but the company failed to make the payment and in the circumstances disconnection took place. In fact, the entire exercise resorted to by the company was malafide. It was only to defeat the rights of the workmen.of electricity charges cannot be the ground to effectThe malafide intentions of the company are borne out also by letter dated 23. 1. 1985 i. e. much prior to effecting lockout in May 1985. This letter is addressed by the Company to Tata Power Company requesting Tata company to disconnect the electricity supply. Further despite concessions being given both by the Government and Tata Company payments were not effected. This clearly shows thatwas only a subterfuge. In the above facts, there was noIn the circumstances, Deputy commissioner of Labour was right in rejecting the permission. When the Company realised that the permission is refused, they applied for reference to the Industrial Tribunal on 25. 7. 1985 which has been rightly rejected by the Deputy Commissioner of Labour vide impugned order dated October 30, 1985 on the ground that he has considered the entire case on merits vide order dated 25. 7. 1985. Further it may be mentioned that normally this Court is inclined to grant references to the Government. However, in the present case we find that the Company has resorted to various tactics only to defeat the rights of the employees. Initially, they resorted to closure. Having failed, they resorted towhich, as stated hereinabove never existed in the eyes of law. Shortage of raw material or power supply in appropriate cases may result inbut in the present case that is not so. In the present power supply. On the contrary, the Company brought about a situation by not paying the electricity charges and, thereafter, they have imposed the alleged

### 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: to grant permission to close down the factories. Thereafter, on 29. 5. 1985, Company sought permission of the Labour commissioner under Section (25-M) to lay-off the workmen with effect from 23. 5. 1985 on the ground of shortage of electricity supply. By impugned order dated 25. 7. 1985, the Deputy Labour commissioner rejected the permission on the ground that there was no shortage of power; that the Company did not pay electricity bills of Tata Powers Company and despite opportunities being given to the Company by the Government and Tata Power Company, the bills were not paid and on account of non-payment of bills the Tata Power Company disconnected power supply and for this reason the provisions of Section 25-M of the Industrial Disputes Act are not attracted because there was no shortage of power supply and disconnection for non-payment of bills cannot be equated to shortage of power supply. The Deputy Labour Commissioner also rejected permission sought by the Company on the ground that the Company applied for permission after illegally imposing lay-off. The lay-off was implemented from May 23, 1985 whereas permission was sought six days after imposing illegal lay-off. The Deputy Labour commissioner, on facts, therefore, rejected the permission. To complete the chronology of events it may be mentioned that on the day when the impugned order was passed i. e. 25. 7. 1985 petitioner applied for reference to the Tribunal. For the reasons given hereinabove the reference application was also rejected on the ground that there was no lay-off in the eyes of law. Thereafter, the record indicates that lockout was imposed by the Company on the ground of alleged violence resorted to by the workmen. Proceedings in that regard are pending in this court. We do not wish to express any opinion regarding those proceedings. Finally, as stated above, the Company is under B. I. F. R. as of today. The result is that, till today the lay-off imposed in 1985 continues. No attempt has been made even to lift the lay off. ( 3 ) AT the outset we would like to point out that in the present case in view of the above events we decided to proceed on the factual aspects of the case and on merits. We heard the learned counsel on merits. ( 4 ) AS regards the challenge to the constitutional validity of the Act the learned counsel conceded that in view of the judgment of the Supreme Court this question does not service. The learned counsel also raised legal contentions with regard to findings of the Labour Commissioner on the question of the time limit to seek permission to lay-off. It is not necessary to got into the question of constitutional validity or into the question of limitation because we have proceeded to decide this matter squarely on the facts and circumstances of the case and accordingly we heard the learned advocate for the petitioner on the merits of the case. ( 5 ) THE above events clearly indicate that right from 1981 attempts were made to close down the company on one excuse or the other. Initially in 1981 closure was sought to be effected on the footing that imports of the raw material were not available. The closure permissions as refused. ILAC came on the scene in 1985. Thereafter, the Company laid-off the workmen on the ground that they were not in a position to pay electricity charges because Tata Power Company increased fuel adjustments charges. As correctly held by Deputy Commissioner of Labour, this is not a case of shortage of electricity supply as contemplated under section 25m of the I. D. Act. It is the case of non-payment of electricity bills and, therefore, permission cannot be granted. Moreover, we find that in the entire petition the Company has pleaded that the increase in fuel adjustment charges by Tata Power Company which are statutory in nature were arbitrary. The deputy Labour Commissioner was not concerned with the said challenge. In any event we find from the record that both the Government and Tata Power Company gave concession and opportunity to the Company to make the payment but the company failed to make the payment and in the circumstances disconnection took place. In fact, the entire exercise resorted to by the company was malafide. It was only to defeat the rights of the workmen. Non-payment of electricity charges cannot be the ground to effect lay-off. The malafide intentions of the company are borne out also by letter dated 23. 1. 1985 i. e. much prior to effecting lockout in May 1985. This letter is addressed by the Company to Tata Power Company requesting Tata company to disconnect the electricity supply. Further despite concessions being given both by the Government and Tata Company payments were not effected. This clearly shows that lay-off was only a subterfuge. In the above facts, there was no lay-off. In the circumstances, Deputy commissioner of Labour was right in rejecting the permission. When the Company realised that the permission is refused, they applied for reference to the Industrial Tribunal on 25. 7. 1985 which has been rightly rejected by the Deputy Commissioner of Labour vide impugned order dated October 30, 1985 on the ground that he has considered the entire case on merits vide order dated 25. 7. 1985. Further it may be mentioned that normally this Court is inclined to grant references to the Government. However, in the present case we find that the Company has resorted to various tactics only to defeat the rights of the employees. Initially, they resorted to closure. Having failed, they resorted to lay-off, which, as stated hereinabove never existed in the eyes of law. Shortage of raw material or power supply in appropriate cases may result in lay-of but in the present case that is not so. In the present power supply. On the contrary, the Company brought about a situation by not paying the electricity charges and, thereafter, they have imposed the alleged lay-off. ### Response: 0 ### Explanation: ( 5 ) THE above events clearly indicate that right from 1981 attempts were made to close down the company on one excuse or the other. Initially in 1981 closure was sought to be effected on the footing that imports of the raw material were not available. The closure permissions as refused. ILAC came on the scene in 1985. Thereafter, the Companythe workmen on the ground that they were not in a position to pay electricity charges because Tata Power Company increased fuel adjustments charges. As correctly held by Deputy Commissioner of Labour, this is not a case of shortage of electricity supply as contemplated under section 25m of the I. D. Act. It is the case ofof electricity bills and, therefore, permission cannot be granted. Moreover, we find that in the entire petition the Company has pleaded that the increase in fuel adjustment charges by Tata Power Company which are statutory in nature were arbitrary. The deputy Labour Commissioner was not concerned with the said challenge. In any event we find from the record that both the Government and Tata Power Company gave concession and opportunity to the Company to make the payment but the company failed to make the payment and in the circumstances disconnection took place. In fact, the entire exercise resorted to by the company was malafide. It was only to defeat the rights of the workmen.of electricity charges cannot be the ground to effectThe malafide intentions of the company are borne out also by letter dated 23. 1. 1985 i. e. much prior to effecting lockout in May 1985. This letter is addressed by the Company to Tata Power Company requesting Tata company to disconnect the electricity supply. Further despite concessions being given both by the Government and Tata Company payments were not effected. This clearly shows thatwas only a subterfuge. In the above facts, there was noIn the circumstances, Deputy commissioner of Labour was right in rejecting the permission. When the Company realised that the permission is refused, they applied for reference to the Industrial Tribunal on 25. 7. 1985 which has been rightly rejected by the Deputy Commissioner of Labour vide impugned order dated October 30, 1985 on the ground that he has considered the entire case on merits vide order dated 25. 7. 1985. Further it may be mentioned that normally this Court is inclined to grant references to the Government. However, in the present case we find that the Company has resorted to various tactics only to defeat the rights of the employees. Initially, they resorted to closure. Having failed, they resorted towhich, as stated hereinabove never existed in the eyes of law. Shortage of raw material or power supply in appropriate cases may result inbut in the present case that is not so. In the present power supply. On the contrary, the Company brought about a situation by not paying the electricity charges and, thereafter, they have imposed the alleged

State of Tamil Nadu vs Vs. P.K. Sinha and Ors

case of any emergency situation, a minimum of 48 hours notice shall be given for holding a meeting.2) In case, the State which is likely to be affected is not represented in the meeting, then the possibility of calling another meeting will be examined by the Committee.Provided that if the situation is such that it is not possible to delay taking a decision, then the Committee may decide the issue by majority vote even in the absence of representative from the affected State.3) The quorum for meeting of Regulation Committee shall be six Members.4) All the Members including the Chairman and Member Secretary of the Committee shall have voting right; the Chairman shall also have a casting vote.Sd/-U.P. SinghSecretaryMinistry of Water Resources,River Development & GangaRejuvenation, Govt. of IndiaNew Delhi-110001.13. As aforementioned, the comments on the draft corrected scheme are mainly at the behest of State of Karnataka and State of Kerala. No suggestion has been offered by the State of Tamil Nadu to the corrected draft scheme, except to submit that the implementation of the scheme should be with utmost dispatch in consonance with the Award, as modified by this Court, in its letter and spirit. He submitted that there is distress situation in the State of Tamil Nadu due to scarcity of water which can be remedied to some extent by the effective implementation of the scheme.14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitude.15. Reverting to the specific grievance with regard to clauses 9(3)(i) and 9(3)(vii), the argument is that the same would compel the States to furnish/place an indent for the supplies required by them on each reservoir site. That is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this Court.16. Coming to the suggestion/objection in reference to Clause 9(3)(iii) of the draft scheme, reliance has been placed on the recommendation made by the Assessors to the Tribunal forming part of the report of the Tribunal. The Assessors had advised that 10 TMC each as carry-over storage in the reservoirs of the two States may be provided to take care of any delay in onset of South-West monsoon. That may be the recommendation of the Assessors but the allocation and distribution of river water will have to be in full conformity with the Award as modified by this Court and as aforementioned on the principles of apportionment to be followed as delineated in Point No. X of the judgment of this Court.17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of Clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period.18. We appreciate the stand taken by Mr. Nambiar, learned Senior Counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more.19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No. 47065 of 2018 and the affidavit filed on 7th May, 2018 in M.A. No. 934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I. As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch.

1[ds]13. As aforementioned, the comments on the draft corrected scheme are mainly at the behest of State of Karnataka and State of Kerala. No suggestion has been offered by the State of Tamil Nadu to the corrected draft scheme, except to submit that the implementation of the scheme should be with utmost dispatch in consonance with the Award, as modified by this Court, in its letter and spirit. He submitted that there is distress situation in the State of Tamil Nadu due to scarcity of water which can be remedied to some extent by the effective implementation of the scheme14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitudeThat is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this CourtThe Assessors had advised that 10 TMC each as carry-over storage in the reservoirs of the two States may be provided to take care of any delay in onset of South-West monsoon. That may be the recommendation of the Assessors but the allocation and distribution of river water will have to be in full conformity with the Award as modified by this Court and as aforementioned on the principles of apportionment to be followed as delineated in Point No. X of the judgment of this Court17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of Clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period18. We appreciate the stand taken by Mr. Nambiar, learned Senior Counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No. 47065 of 2018 and the affidavit filed on 7th May, 2018 in M.A. No. 934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I. As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: case of any emergency situation, a minimum of 48 hours notice shall be given for holding a meeting.2) In case, the State which is likely to be affected is not represented in the meeting, then the possibility of calling another meeting will be examined by the Committee.Provided that if the situation is such that it is not possible to delay taking a decision, then the Committee may decide the issue by majority vote even in the absence of representative from the affected State.3) The quorum for meeting of Regulation Committee shall be six Members.4) All the Members including the Chairman and Member Secretary of the Committee shall have voting right; the Chairman shall also have a casting vote.Sd/-U.P. SinghSecretaryMinistry of Water Resources,River Development & GangaRejuvenation, Govt. of IndiaNew Delhi-110001.13. As aforementioned, the comments on the draft corrected scheme are mainly at the behest of State of Karnataka and State of Kerala. No suggestion has been offered by the State of Tamil Nadu to the corrected draft scheme, except to submit that the implementation of the scheme should be with utmost dispatch in consonance with the Award, as modified by this Court, in its letter and spirit. He submitted that there is distress situation in the State of Tamil Nadu due to scarcity of water which can be remedied to some extent by the effective implementation of the scheme.14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitude.15. Reverting to the specific grievance with regard to clauses 9(3)(i) and 9(3)(vii), the argument is that the same would compel the States to furnish/place an indent for the supplies required by them on each reservoir site. That is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this Court.16. Coming to the suggestion/objection in reference to Clause 9(3)(iii) of the draft scheme, reliance has been placed on the recommendation made by the Assessors to the Tribunal forming part of the report of the Tribunal. The Assessors had advised that 10 TMC each as carry-over storage in the reservoirs of the two States may be provided to take care of any delay in onset of South-West monsoon. That may be the recommendation of the Assessors but the allocation and distribution of river water will have to be in full conformity with the Award as modified by this Court and as aforementioned on the principles of apportionment to be followed as delineated in Point No. X of the judgment of this Court.17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of Clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period.18. We appreciate the stand taken by Mr. Nambiar, learned Senior Counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more.19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No. 47065 of 2018 and the affidavit filed on 7th May, 2018 in M.A. No. 934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I. As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch. ### Response: 1 ### Explanation: 13. As aforementioned, the comments on the draft corrected scheme are mainly at the behest of State of Karnataka and State of Kerala. No suggestion has been offered by the State of Tamil Nadu to the corrected draft scheme, except to submit that the implementation of the scheme should be with utmost dispatch in consonance with the Award, as modified by this Court, in its letter and spirit. He submitted that there is distress situation in the State of Tamil Nadu due to scarcity of water which can be remedied to some extent by the effective implementation of the scheme14. After hearing the parties, we are of the considered opinion that the suggestions/objections of the State of Karnataka and State of Kerala are devoid of merit. The fact that the subject of water, that is to say, water supplies, irrigation and canals, drainage and embankments, water storage and water power, forms part of Entry 17 of List II of the Seventh Schedule to the Constitution, cannot be the basis to whittle down the efficacy of the Award passed by the Tribunal and as modified by this Court and, in particular, the scheme to ensure smooth, effective and efficient implementation of the Award of the Tribunal, as modified by this Court. The draft scheme has been formulated singularly for that purpose and the same will have to be taken forward to its logical end in accordance with law with promptitudeThat is wholly unnecessary as the Award passed by the Tribunal quantifies the volume of river water to be shared and apportioned between the States. This objection does not commend us inasmuch as the necessity to furnish/place an indent of water demand and about the total water reservoir is to work out the quantity of river water to be released during the relevant period in consonance with the proportion specified in the Award as modified by this Court and, in particular, on the principles delineated in the decision of this Court under Point No. X about the method and manner of apportionment to be followed. That is to further the rights of the States/U.T. for just and reasonable use of water from the allocable water on equitable basis and not to impinge upon their rights and moreso for smooth and effective implementation of the Award as modified by this CourtThe Assessors had advised that 10 TMC each as carry-over storage in the reservoirs of the two States may be provided to take care of any delay in onset of South-West monsoon. That may be the recommendation of the Assessors but the allocation and distribution of river water will have to be in full conformity with the Award as modified by this Court and as aforementioned on the principles of apportionment to be followed as delineated in Point No. X of the judgment of this Court17. Needless to observe, we cannot allow the parties to reopen the issues already settled in the Award and as modified by this Court, indirectly in the guise of questioning the appropriateness of Clause 9(3)(iii) in the draft scheme. The Authority constituted under the scheme will be bound by the contours regarding apportionment of river water in terms of the Award as modified by this Court and while doing so, is expected to take into account all factors that may be relevant at the given point of time, including to identify the situation of distress in the basin caused due to identifiable factors before quantifying the water quantity for being released or allotted to the party States/U.T. for the relevant period18. We appreciate the stand taken by Mr. Nambiar, learned Senior Counsel appearing for Union Territory of Puducherry, that the Authority cannot be expected to issue directions mechanically and that the Authority must have complete power to enforce its directions so as to comply with the Award, as modified by this Court, in its letter and spirit, concerning the apportionment of water between the party States/U.T. We say no more19. Considering the fact that the Union of India has already formulated the draft scheme and has also offered explanation in I.A. No. 47065 of 2018 and the affidavit filed on 7th May, 2018 in M.A. No. 934/2018 about the reasons which were beyond the control of the appropriate authority dealing with framing of the scheme, we do not wish to continue the contempt action any further. For the same reason, the directions sought in I. As. filed by the concerned party also need not detain us. For, the corrected draft scheme is in consonance with the dictum and directions in the Award as modified by this Court and also in conformity with Section 6A of the 1956 Act. The draft scheme ought to be taken forward to its logical end in accordance with law with utmost dispatch.

Oriental Insurance Co. Ltd Vs. Bhoop Singh & Others

Insurance Co. Ltd. has challenged the order passed by the High Court in which direction is issued to the appellant to pay the entire compensation to the injured. It holds that the policy was comprehensive with no limitation to the third party. The submission on behalf of the appellant is that its statutory liability is limited to the extent of Rs 50,000 and any finding over and above that is to be set aside. 2. The appellant issued insurance policy, the Commercial Vehicle (Comprehensive) Policy for which it charged Rs 125 as premium towards third party risk, in terms of S.95(2) of the Motor Vehicles Act, 1939. The said vehicle later was transferred in the name of Respondents 2 and 3. The incident is said to have taken place on 18-3-1982 at about 10.15 a.m. When Respondent 4 was driving his motorcycle on Ring Road, when he reached hot mix plant a truck dashed against his motorcycle causing injury, for which he submitted his claim of rupees ten lakhs. The Tribunal awarded rupees one lakh sixty thousand and further recorded the following finding:"In the first instance I find that the policy appears to be a comprehensive policy as it is mentioned at the top of this document .... Under the circumstances, I hold that the Insurance Company has not produced the insurance policy in accordance with the law and so I hold that the Insurance Company is liable to pay the entire amount of compensation to the petitioner under the law and it cannot be said that the liability of the Insurance Company is limited up to Rs 50,000 only."3. Aggrieved by this, the appellant filed an appeal before the High Court. The High Court also dismissed the appeal by holding that the policy was a comprehensive policy and the liability of the Insurance Company was unlimited. The reason for disbelieving the appellant was that the copy which was produced was held not to be the carbon copy of the policy as it was signed by one Mr K.K. Anand, ADM. The Court records on the basis of his personal knowledge that there is no ADM by that name in Delhi and even if there was any, he knows that none worked as Branch Manager of this Insurance Company. Hence, the Court disbelieved the carbon copy and held that the insurance policy was comprehensive and the appellants liability was unlimited. 4. It is not in dispute that at the relevant time, under S.95(2) of the Motor Vehicles Act, 1939, the statutory liability of the Insurance Company towards the third party is limited to the extent of Rs 50,000. However, submission on behalf of the respondent owner is that the payment has been made over and above the statutory liability (sic) which is Rs 125. In addition he has paid Rs 240 which is recorded by a pen on the top of the copy which is produced by the Insurance Company. The submission is, the courts below rightly held based on this that the liability is unlimited.5. Firstly, we find the High Court fell into error in recording his finding for disbelieving the copy based onhis own personal knowledge, which cannot be sustained. We also scrutinised the said copy filed by the appellant. The reliance on the other hand for disbelieving this is based on the annexure of his own application dated 3-12-1982 copy of which is placed before us by the learned counsel. Through this he tried to show that the number of the policy in question referred to in this annexure is different from the number which is recorded in the copy produced by the appellant. This annexure which has been placed before us, is not to be found on the record of this case. Learned counsel could not show that the said annexure was ever placed on the record of this case. On this no reliance could be placed. 6. In this regard, we find the testimony of one Shri U. B. Kapoor, the Assistant of the appellant Company who has explained this difference i.e. difference of amount between Rs 125 and Rs 240 recorded in the copy of the policy produced in court. The witness states: "... the total premium charged was Rs 125. The portion encircled shows the revised premium, which we intimated to the insured before expiry of the policy made." 7. We have examined the document, the encircling is of Rs 240. 8. The submission on behalf of the appellant is, this actually indicates that what is written by pen was purely an intimation to the insured for its payment for future renewal, but this enhancement was not charged from the insured. This also explains as to why on a carbon copy, some inscription by pen has come, which is the reason for its disbelief of this document by the High Court. The writing with pen obviously is after issuance of the original policy, hence cannot form part of the original copy. This clearly indicates that what is recorded by pen is not what was charged. We find the aforesaid witness was not cross examined on this point. Hence for all these reasons the submission that the insurance premium paid was over and above Rs 125 by the figure of Rs 240 cannot be accepted. For this there is no other evidence. Accordingly, we find that the finding recorded by both the courts i.e. the Tribunal and the High Court is unsustainable, as it was based on conjectures and surmises. Firstly, the original of the policy is with the insured which has not been produced and the copy produced by the appellant could not have been disbelieved on the basis of the personal knowledge of the Court that there is no ADM and because in the carbon copy there were writings by pen.So, there is nothing on the record to show that insurance policy to the third party was for covering unlimited liability.9. In view of this, we find that this appeal has merit.

1[ds]The submission is, the courts below rightly held based on this that the liability is unlimited.5. Firstly, we find the High Court fell into error in recording his finding for disbelieving the copy based onhis own personal knowledge, which cannot be sustained. We also scrutinised the said copy filed by the appellant. The reliance on the other hand for disbelieving this is based on the annexure of his own application datedcopy of which is placed before us by the learned counsel. Through this he tried to show that the number of the policy in question referred to in this annexure is different from the number which is recorded in the copy produced by the appellant. This annexure which has been placed before us, is not to be found on the record of this case. Learned counsel could not show that the said annexure was ever placed on the record of this case. On this no reliance could befind the aforesaid witness was not cross examined on this point. Hence for all these reasons the submission that the insurance premium paid was over and above Rs 125 by the figure of Rs 240 cannot be accepted. For this there is no other evidence. Accordingly, we find that the finding recorded by both the courts i.e. the Tribunal and the High Court is unsustainable, as it was based on conjectures and surmises. Firstly, the original of the policy is with the insured which has not been produced and the copy produced by the appellant could not have been disbelieved on the basis of the personal knowledge of the Court that there is no ADM and because in the carbon copy there were writings by pen.So, there is nothing on the record to show that insurance policy to the third party was for covering unlimited liability.9. In view of this, we find that this appeal has merit.

### 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: Insurance Co. Ltd. has challenged the order passed by the High Court in which direction is issued to the appellant to pay the entire compensation to the injured. It holds that the policy was comprehensive with no limitation to the third party. The submission on behalf of the appellant is that its statutory liability is limited to the extent of Rs 50,000 and any finding over and above that is to be set aside. 2. The appellant issued insurance policy, the Commercial Vehicle (Comprehensive) Policy for which it charged Rs 125 as premium towards third party risk, in terms of S.95(2) of the Motor Vehicles Act, 1939. The said vehicle later was transferred in the name of Respondents 2 and 3. The incident is said to have taken place on 18-3-1982 at about 10.15 a.m. When Respondent 4 was driving his motorcycle on Ring Road, when he reached hot mix plant a truck dashed against his motorcycle causing injury, for which he submitted his claim of rupees ten lakhs. The Tribunal awarded rupees one lakh sixty thousand and further recorded the following finding:"In the first instance I find that the policy appears to be a comprehensive policy as it is mentioned at the top of this document .... Under the circumstances, I hold that the Insurance Company has not produced the insurance policy in accordance with the law and so I hold that the Insurance Company is liable to pay the entire amount of compensation to the petitioner under the law and it cannot be said that the liability of the Insurance Company is limited up to Rs 50,000 only."3. Aggrieved by this, the appellant filed an appeal before the High Court. The High Court also dismissed the appeal by holding that the policy was a comprehensive policy and the liability of the Insurance Company was unlimited. The reason for disbelieving the appellant was that the copy which was produced was held not to be the carbon copy of the policy as it was signed by one Mr K.K. Anand, ADM. The Court records on the basis of his personal knowledge that there is no ADM by that name in Delhi and even if there was any, he knows that none worked as Branch Manager of this Insurance Company. Hence, the Court disbelieved the carbon copy and held that the insurance policy was comprehensive and the appellants liability was unlimited. 4. It is not in dispute that at the relevant time, under S.95(2) of the Motor Vehicles Act, 1939, the statutory liability of the Insurance Company towards the third party is limited to the extent of Rs 50,000. However, submission on behalf of the respondent owner is that the payment has been made over and above the statutory liability (sic) which is Rs 125. In addition he has paid Rs 240 which is recorded by a pen on the top of the copy which is produced by the Insurance Company. The submission is, the courts below rightly held based on this that the liability is unlimited.5. Firstly, we find the High Court fell into error in recording his finding for disbelieving the copy based onhis own personal knowledge, which cannot be sustained. We also scrutinised the said copy filed by the appellant. The reliance on the other hand for disbelieving this is based on the annexure of his own application dated 3-12-1982 copy of which is placed before us by the learned counsel. Through this he tried to show that the number of the policy in question referred to in this annexure is different from the number which is recorded in the copy produced by the appellant. This annexure which has been placed before us, is not to be found on the record of this case. Learned counsel could not show that the said annexure was ever placed on the record of this case. On this no reliance could be placed. 6. In this regard, we find the testimony of one Shri U. B. Kapoor, the Assistant of the appellant Company who has explained this difference i.e. difference of amount between Rs 125 and Rs 240 recorded in the copy of the policy produced in court. The witness states: "... the total premium charged was Rs 125. The portion encircled shows the revised premium, which we intimated to the insured before expiry of the policy made." 7. We have examined the document, the encircling is of Rs 240. 8. The submission on behalf of the appellant is, this actually indicates that what is written by pen was purely an intimation to the insured for its payment for future renewal, but this enhancement was not charged from the insured. This also explains as to why on a carbon copy, some inscription by pen has come, which is the reason for its disbelief of this document by the High Court. The writing with pen obviously is after issuance of the original policy, hence cannot form part of the original copy. This clearly indicates that what is recorded by pen is not what was charged. We find the aforesaid witness was not cross examined on this point. Hence for all these reasons the submission that the insurance premium paid was over and above Rs 125 by the figure of Rs 240 cannot be accepted. For this there is no other evidence. Accordingly, we find that the finding recorded by both the courts i.e. the Tribunal and the High Court is unsustainable, as it was based on conjectures and surmises. Firstly, the original of the policy is with the insured which has not been produced and the copy produced by the appellant could not have been disbelieved on the basis of the personal knowledge of the Court that there is no ADM and because in the carbon copy there were writings by pen.So, there is nothing on the record to show that insurance policy to the third party was for covering unlimited liability.9. In view of this, we find that this appeal has merit. ### Response: 1 ### Explanation: The submission is, the courts below rightly held based on this that the liability is unlimited.5. Firstly, we find the High Court fell into error in recording his finding for disbelieving the copy based onhis own personal knowledge, which cannot be sustained. We also scrutinised the said copy filed by the appellant. The reliance on the other hand for disbelieving this is based on the annexure of his own application datedcopy of which is placed before us by the learned counsel. Through this he tried to show that the number of the policy in question referred to in this annexure is different from the number which is recorded in the copy produced by the appellant. This annexure which has been placed before us, is not to be found on the record of this case. Learned counsel could not show that the said annexure was ever placed on the record of this case. On this no reliance could befind the aforesaid witness was not cross examined on this point. Hence for all these reasons the submission that the insurance premium paid was over and above Rs 125 by the figure of Rs 240 cannot be accepted. For this there is no other evidence. Accordingly, we find that the finding recorded by both the courts i.e. the Tribunal and the High Court is unsustainable, as it was based on conjectures and surmises. Firstly, the original of the policy is with the insured which has not been produced and the copy produced by the appellant could not have been disbelieved on the basis of the personal knowledge of the Court that there is no ADM and because in the carbon copy there were writings by pen.So, there is nothing on the record to show that insurance policy to the third party was for covering unlimited liability.9. In view of this, we find that this appeal has merit.

Nandkishore Shravan Ahirrao Vs. Kosan Industries (P) Ltd

Dr Dhananjaya Y Chandrachud, J.1. Leave granted.2. The appellant was employed in the Assembly department of the respondent. He was served with a charge-sheet on 26 June 1992. The charge against the appellant was of causing disruption of work between 1050 am and 12 noon on 17 June 1992. Following a departmental enquiry, the appellant was dismissed from service on 26 November 1997. In pursuance of a reference made under the Industrial Disputes Act 1947, the Labour Court by its award dated 27 February 2008 came to the conclusion that the findings in the enquiry were perverse; that the order of dismissal was harsh and granted reinstatement in service with 25% back wages for the surplus days.3. The order of the Labour Court was questioned before the High Court of Gujarat by the employer. A learned Single Judge of the High Court, by a judgment dated 5 February 2013, partly allowed the Special Civil Application. While affirming the order of reinstatement, the Single Judge set aside the order for payment of 25% back wages. The appellant then filed a Letters Patent Appeal. The Division Bench of the High Court dismissed the appeal on the ground that it was not maintainable.4. Notice was issued in these proceedings on 16 October 2015. The office report indicates that the respondent has been served. Since the respondent has failed to appear, we have proceeded to deal with the appeal on merits.5. The learned Single Judge held that the Labour Court rightly observed that the punishment which was imposed on the appellant was harsh. It appears that even the salary of the appellant was deducted for the period in question during which work was disrupted. However, the learned Single Judge held that the payment of back wages would not follow as a matter of course upon an award of reinstatement. Hence, the direction for the payment of 25% back wages was interfered with and set aside. The Single Judge also observed that the Labour Court has ?rightly passed the judgment and award reinstating the respondent without continuity of service?.6. The first grievance of the learned counsel appearing on behalf of the appellant is that the High Court was in error in misconstruing the award of the Labour Court as having denied continuity of service. We find merit in the submission. The award of the Labour Court is in the following terms:?The reference of second party Nandkishor Shravan Ahirrao, 94, Shriram Kutir, near Chikuvadi, Post Office – Fatehnagar, Udhna, Surat – 304220 – C/o. Bombay foods Ltd. and Kosan Industries Ltd., Worker/Employee Union, Surat is hereby partly allowed.And the first party of this case is hereby ordered that, they have to reinstate the second party in service with 25% back-wages for his surplus days within 30 days from the publication of this order.? 7. Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. Hence the observation of the High Court to the effect that the Labour Court had denied continuity of service is erroneous and would accordingly stand corrected in terms of what has been observed herein-above. The appellant would be entitled to continuity of service.8. On the question of back wages, the Labour Court had confined the award of back wages to 25%. Having come to the conclusion that the findings in the disciplinary enquiry was perverse, the Labour Court observed that it was a matter of record that the workman has been gainfully employed over a part of the period after dismissal, between 3 March 1990 to 9 September 1992 with another employer. It was in the above circumstances, that the entire component of back wages was not awarded to the appellant and only 25% was awarded. The High Court has no justification to set aside the award of 25% back wages awarded by the Labour Court which was eminently fair and proper.

1[ds]We find merit in the submission7. Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. Hence the observation of the High Court to the effect that the Labour Court had denied continuity of service is erroneous and would accordingly stand corrected in terms of what has been observed herein-above. The appellant would be entitled to continuity of service8. On the question of back wages, the Labour Court had confined the award of back wages to 25%. Having come to the conclusion that the findings in the disciplinary enquiry was perverse, the Labour Court observed that it was a matter of record that the workman has been gainfully employed over a part of the period after dismissal, between 3 March 1990 to 9 September 1992 with another employer. It was in the above circumstances, that the entire component of back wages was not awarded to the appellant and only 25% was awarded. The High Court has no justification to set aside the award of 25% back wages awarded by the Labour Court which was eminently fair and proper.

### 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: Dr Dhananjaya Y Chandrachud, J.1. Leave granted.2. The appellant was employed in the Assembly department of the respondent. He was served with a charge-sheet on 26 June 1992. The charge against the appellant was of causing disruption of work between 1050 am and 12 noon on 17 June 1992. Following a departmental enquiry, the appellant was dismissed from service on 26 November 1997. In pursuance of a reference made under the Industrial Disputes Act 1947, the Labour Court by its award dated 27 February 2008 came to the conclusion that the findings in the enquiry were perverse; that the order of dismissal was harsh and granted reinstatement in service with 25% back wages for the surplus days.3. The order of the Labour Court was questioned before the High Court of Gujarat by the employer. A learned Single Judge of the High Court, by a judgment dated 5 February 2013, partly allowed the Special Civil Application. While affirming the order of reinstatement, the Single Judge set aside the order for payment of 25% back wages. The appellant then filed a Letters Patent Appeal. The Division Bench of the High Court dismissed the appeal on the ground that it was not maintainable.4. Notice was issued in these proceedings on 16 October 2015. The office report indicates that the respondent has been served. Since the respondent has failed to appear, we have proceeded to deal with the appeal on merits.5. The learned Single Judge held that the Labour Court rightly observed that the punishment which was imposed on the appellant was harsh. It appears that even the salary of the appellant was deducted for the period in question during which work was disrupted. However, the learned Single Judge held that the payment of back wages would not follow as a matter of course upon an award of reinstatement. Hence, the direction for the payment of 25% back wages was interfered with and set aside. The Single Judge also observed that the Labour Court has ?rightly passed the judgment and award reinstating the respondent without continuity of service?.6. The first grievance of the learned counsel appearing on behalf of the appellant is that the High Court was in error in misconstruing the award of the Labour Court as having denied continuity of service. We find merit in the submission. The award of the Labour Court is in the following terms:?The reference of second party Nandkishor Shravan Ahirrao, 94, Shriram Kutir, near Chikuvadi, Post Office – Fatehnagar, Udhna, Surat – 304220 – C/o. Bombay foods Ltd. and Kosan Industries Ltd., Worker/Employee Union, Surat is hereby partly allowed.And the first party of this case is hereby ordered that, they have to reinstate the second party in service with 25% back-wages for his surplus days within 30 days from the publication of this order.? 7. Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. Hence the observation of the High Court to the effect that the Labour Court had denied continuity of service is erroneous and would accordingly stand corrected in terms of what has been observed herein-above. The appellant would be entitled to continuity of service.8. On the question of back wages, the Labour Court had confined the award of back wages to 25%. Having come to the conclusion that the findings in the disciplinary enquiry was perverse, the Labour Court observed that it was a matter of record that the workman has been gainfully employed over a part of the period after dismissal, between 3 March 1990 to 9 September 1992 with another employer. It was in the above circumstances, that the entire component of back wages was not awarded to the appellant and only 25% was awarded. The High Court has no justification to set aside the award of 25% back wages awarded by the Labour Court which was eminently fair and proper. ### Response: 1 ### Explanation: We find merit in the submission7. Ex facie, the Labour Court having awarded reinstatement to the appellant, continuity of service would follow as a matter of law. The award of the Labour Court dated 27 February 2008 does not specifically deny continuity of service. Hence the observation of the High Court to the effect that the Labour Court had denied continuity of service is erroneous and would accordingly stand corrected in terms of what has been observed herein-above. The appellant would be entitled to continuity of service8. On the question of back wages, the Labour Court had confined the award of back wages to 25%. Having come to the conclusion that the findings in the disciplinary enquiry was perverse, the Labour Court observed that it was a matter of record that the workman has been gainfully employed over a part of the period after dismissal, between 3 March 1990 to 9 September 1992 with another employer. It was in the above circumstances, that the entire component of back wages was not awarded to the appellant and only 25% was awarded. The High Court has no justification to set aside the award of 25% back wages awarded by the Labour Court which was eminently fair and proper.

Union Of India Vs. S Tata Teleservices (Maharashtra) Ltd

given to it in the Notice Inviting Tenders. The argument of learned Senior Counsel on behalf of the respondent is that the expressions licensor and licensee are defined in the Act and the respondent had not become a licensee and the appellant had not become a licensor since the agreement was never entered into between the parties for providing telecom services in the Karnataka Telecom circle and the attempt to rope in an intending licensee to whom a Letter of Intent has been issued or the entering into a contract is proposed, cannot be countenanced since the respondent has not become a licensee within the meaning of the Act and consequently this was not a dispute that came within the purview of Section 14 (1) of the Act. ( 15 ) WE have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the government and who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a notice Inviting Tender, would also normally come within the purview of a dispute that is liable to be settled by the specialised tribunal. We see no reason to restrict the expressions "licensor" or "licensee" occurring in Section 14 (a) (i) of the Act and to exclude a person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle, who had accepted the Letter of Intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. To exclude disputes arising between the parties thereafter on the failure of the contract to go through, does not appear to be warranted or justified considering the purpose for which the TDSAT has been established and the object sought to be achieved by the creation of a specialised tribunal. In Cellular Operators Association of India and others vs. Union of India and others [ (2003) 3 SCC 186 ] this Court had occasion to consider the spread of Sections 14 and 14a of the Act. This Court held that the scope of Sections 14 and 14a are very wide and is not confined by restrictions generally imposed by judge made law on the tribunal exercising an appellate jurisdiction. Of course, their lordships were considering in particular, the case of appellate jurisdiction. But this court further said that the tribunal has the power to adjudicate on any dispute but while answering the dispute, due weight had to be given to the recommendations of the authority under the Act which consists of experts. This decision, though it did not directly deal with the power of the TDSAT as the original authority but was dealing with the power of the TDSAT as an appellate authority and the power of this court in appeal, clearly gives an indication that there is no need to whittle down the scope of Sections 14 and 14a of the Act. ( 16 ) IT has also to be noted that while prescribing the procedure under Section 16 of the Act, what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment of specific powers in terms of sub-section (2) of that Section. It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII, Rule 6a of the Code of civil Procedure which could be applied by the TDSAT. The sweep of Order VIII, rule 6a of the Code now takes in even claims independent of the one put forward in the application if it is one the respondent therein has against the applicant. On the whole, we are of the view that the TDSAT was in error in dismissing the counter claim as not maintainable. ( 17 ) IN the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter-claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter-claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law.

1[ds]If we hold that the counter claim is maintainable, necessarily the same would have to be adjudicated on, on merits and the result of such an adjudication would have impact on the plea of set off put forward by the appellant. Of course, if our answer to the said question is that the counter claim is not maintainable, then we have to decide independently whether the finding entered by the TDSAT on the plea of set off is vitiated by a substantial error of law or not. We will, therefore, first tackle the question whether the counter claim made by the Union of India was maintainable.( 4 ) IT may be true that in the prayer portion in the written statement an order or decree in terms of the counter claim had not been sought for by the appellant. But the claim as made in the written statement relates to the claim based on the failure of the respondent, after having conveyed its acceptance of the Letter of Intent to provide service in the Karnataka Telecom Circle and the damages allegedly suffered by the appellant as a consequence and the entitlement of the appellant to reimbursement of the specified sum from the respondent. Even if there is some vagueness in the counter claim, as felt by the TDSAT, we think that the TDSAT might have directed the appellant before us, to make its counter claim more specific and in a proper manner. After all, a defect of deficiency could be permitted to be cured. We are, therefore, not impressed by the argument on behalf of the respondent before us that the counter claim was rather vague and the same was rightly rejected for that reason by the TDSAT. After all, this vagueness can be directed to be removed in the interests of justice, if it were to be held that the counter claim can be maintained by the Union of India.(9 ) THE conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of the TDSAT. A plain reading of the relevant provisions of the Act in the light of the preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the concerned parties, which would involve significant technical aspects, are to be determined by a specialised tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which the TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The constitution of the TDSAT itself indicates that it is chaired by a sitting or retired Judge of the Supreme court or sitting or a retired Chief Justice of the High Court, one of the highest judicial officers in the hierarchy and the members thereof have to be of the cadre of secretaries to the Government, obviously well experienced in administration and administrative matters.( 10 ) THE Act is seen to be a self contained Code intended to deal with all disputes arising out of telecommunication services provided in this country in the light of the national Telecom Policy, 1994. This is emphasised by the Objects and Reasons also.( 11 ) NORMALLY, when a specialised tribunal is constituted for dealing with disputes coming under it of a particular nature taking in serious technical aspects, the attempt must be to construe the jurisdiction conferred on it in a manner as not to frustrate the object sought to be achieved by the Act. In this context, the ousting of the jurisdiction of the Civil Court contained in Section 15 and Section 27 of the Act has also to be kept in mind. The subject to be dealt with under the Act, has considerable technical overtones which normally a civil court, at least as of now, is ill-equipped to handle and this aspect cannot be ignored while defining the jurisdiction of thethe purpose for which the Act is brought into force and the tdsat is created, we think that there is no warrant for accepting such a narrow approach or to adopt such a narrow construction. It will be appropriate to understand the scope of Section 14 (a) (i) of the Act and for that matter Section 14 (a) (ii) of the Act also, as including those to whom licenses were intended to be issued and as taking in also disputes that commence on the tender or offer of a person being accepted. In other words, a dispute commencing with the acceptance of a tender leading to the possible issue of a licence and disputes arising out of the grant of licence even after the period has expired would all come within the purview of Section 14 (a)of the Act. To put it differently, Section 14 takes within its sweep disputes following the issue of a Letter of Intent pre grant of actual licence as also disputes arising out of a licence granted between a quondam licensee and the licensor.(17 ) IN the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter-claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter-claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: given to it in the Notice Inviting Tenders. The argument of learned Senior Counsel on behalf of the respondent is that the expressions licensor and licensee are defined in the Act and the respondent had not become a licensee and the appellant had not become a licensor since the agreement was never entered into between the parties for providing telecom services in the Karnataka Telecom circle and the attempt to rope in an intending licensee to whom a Letter of Intent has been issued or the entering into a contract is proposed, cannot be countenanced since the respondent has not become a licensee within the meaning of the Act and consequently this was not a dispute that came within the purview of Section 14 (1) of the Act. ( 15 ) WE have already indicated that a specialised tribunal has been constituted for the purpose of dealing with specialised matters and disputes arising out of licenses granted under the Act. We therefore do not think that there is any reason to restrict the jurisdiction of the tribunal so constituted by keeping out of its purview a person whose offer has been accepted and to whom a letter of intent is issued by the government and who had even accepted that letter of intent. Any breach or alleged breach of obligation arising after acceptance of the offer made in response to a notice Inviting Tender, would also normally come within the purview of a dispute that is liable to be settled by the specialised tribunal. We see no reason to restrict the expressions "licensor" or "licensee" occurring in Section 14 (a) (i) of the Act and to exclude a person like the respondent who had been given a Letter of Intent regarding the Karnataka Circle, who had accepted the Letter of Intent but was trying to negotiate some further terms of common interest before a formal contract was entered into and the work was to be started. To exclude disputes arising between the parties thereafter on the failure of the contract to go through, does not appear to be warranted or justified considering the purpose for which the TDSAT has been established and the object sought to be achieved by the creation of a specialised tribunal. In Cellular Operators Association of India and others vs. Union of India and others [ (2003) 3 SCC 186 ] this Court had occasion to consider the spread of Sections 14 and 14a of the Act. This Court held that the scope of Sections 14 and 14a are very wide and is not confined by restrictions generally imposed by judge made law on the tribunal exercising an appellate jurisdiction. Of course, their lordships were considering in particular, the case of appellate jurisdiction. But this court further said that the tribunal has the power to adjudicate on any dispute but while answering the dispute, due weight had to be given to the recommendations of the authority under the Act which consists of experts. This decision, though it did not directly deal with the power of the TDSAT as the original authority but was dealing with the power of the TDSAT as an appellate authority and the power of this court in appeal, clearly gives an indication that there is no need to whittle down the scope of Sections 14 and 14a of the Act. ( 16 ) IT has also to be noted that while prescribing the procedure under Section 16 of the Act, what is said is that the TDSAT shall not be bound by the procedure laid down by the Code of Civil Procedure but it shall be guided by the principles of natural justice. It is significant to note that it is not a case of exclusion of the powers under the Code of Civil Procedure and conferment of specific powers in terms of sub-section (2) of that Section. It is really a right given to the TDSAT even to go outside the procedural shackles imposed by the Code of Civil Procedure while dealing with a dispute before it. Therefore, it will be difficult to keep out the provisions for the filing of a counter claim enshrined in Order VIII, Rule 6a of the Code of civil Procedure which could be applied by the TDSAT. The sweep of Order VIII, rule 6a of the Code now takes in even claims independent of the one put forward in the application if it is one the respondent therein has against the applicant. On the whole, we are of the view that the TDSAT was in error in dismissing the counter claim as not maintainable. ( 17 ) IN the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter-claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter-claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law. ### Response: 1 ### Explanation: terms of the counter claim had not been sought for by the appellant. But the claim as made in the written statement relates to the claim based on the failure of the respondent, after having conveyed its acceptance of the Letter of Intent to provide service in the Karnataka Telecom Circle and the damages allegedly suffered by the appellant as a consequence and the entitlement of the appellant to reimbursement of the specified sum from the respondent. Even if there is some vagueness in the counter claim, as felt by the TDSAT, we think that the TDSAT might have directed the appellant before us, to make its counter claim more specific and in a proper manner. After all, a defect of deficiency could be permitted to be cured. We are, therefore, not impressed by the argument on behalf of the respondent before us that the counter claim was rather vague and the same was rightly rejected for that reason by the TDSAT. After all, this vagueness can be directed to be removed in the interests of justice, if it were to be held that the counter claim can be maintained by the Union of India.(9 ) THE conspectus of the provisions of the Act clearly indicates that disputes between the licensee or licensor, between two or more service providers which takes in the Government and includes a licensee and between a service provider and a group of consumers are within the purview of the TDSAT. A plain reading of the relevant provisions of the Act in the light of the preamble to the Act and the Objects and Reasons for enacting the Act, indicates that disputes between the concerned parties, which would involve significant technical aspects, are to be determined by a specialised tribunal constituted for that purpose. There is also an ouster of jurisdiction of the civil court to entertain any suit or proceeding in respect of any matter which the TDSAT is empowered by or under the Act to determine. The civil court also has no jurisdiction to grant an injunction in respect of any action taken or to be taken in pursuance of any power conferred by or under the Act. The constitution of the TDSAT itself indicates that it is chaired by a sitting or retired Judge of the Supreme court or sitting or a retired Chief Justice of the High Court, one of the highest judicial officers in the hierarchy and the members thereof have to be of the cadre of secretaries to the Government, obviously well experienced in administration and administrative matters.( 10 ) THE Act is seen to be a self contained Code intended to deal with all disputes arising out of telecommunication services provided in this country in the light of the national Telecom Policy, 1994. This is emphasised by the Objects and Reasons also.( 11 ) NORMALLY, when a specialised tribunal is constituted for dealing with disputes coming under it of a particular nature taking in serious technical aspects, the attempt must be to construe the jurisdiction conferred on it in a manner as not to frustrate the object sought to be achieved by the Act. In this context, the ousting of the jurisdiction of the Civil Court contained in Section 15 and Section 27 of the Act has also to be kept in mind. The subject to be dealt with under the Act, has considerable technical overtones which normally a civil court, at least as of now, is ill-equipped to handle and this aspect cannot be ignored while defining the jurisdiction of thethe purpose for which the Act is brought into force and the tdsat is created, we think that there is no warrant for accepting such a narrow approach or to adopt such a narrow construction. It will be appropriate to understand the scope of Section 14 (a) (i) of the Act and for that matter Section 14 (a) (ii) of the Act also, as including those to whom licenses were intended to be issued and as taking in also disputes that commence on the tender or offer of a person being accepted. In other words, a dispute commencing with the acceptance of a tender leading to the possible issue of a licence and disputes arising out of the grant of licence even after the period has expired would all come within the purview of Section 14 (a)of the Act. To put it differently, Section 14 takes within its sweep disputes following the issue of a Letter of Intent pre grant of actual licence as also disputes arising out of a licence granted between a quondam licensee and the licensor.(17 ) IN the light of our finding that the counter claim was maintainable and it requires to be investigated, we think that the proper course is to set aside the finding rendered by the TDSAT on the plea of set off raised by the appellant. This is in view of the fact that acceptance of the counter-claim or even a part thereof might throw open the question of legal or equitable set-off, to be considered in the light of the finding on the counter-claim. Therefore, we think this to be an appropriate case where we should reopen the whole matter without going into the merits of the contentions of parties on the plea of set off raised by the appellant and leave the question to be decided by the TDSAT along with the counter claim that has been made by the appellant. On taking note of the objection that the counter claim has not been made specific and has not been put forward in a proper manner, we are satisfied that it would be appropriate to direct the appellant to make a proper counter claim before the TDSAT within three months from today. The TDSAT thereafter will give the respondent an opportunity to file its written statement to the counter claim and then decide the claim made by the respondent and the counter claim afresh in accordance with law.

Asikali Akbarali Gilani Etc Vs. Nasirhusain Mahebubbhai Chauhan

is contended that the direction given by the High Court to the Collector transcends beyond the mandate of Section 258 of the Act. It is also contended that persons affected by the directions given by the High Court, therefore, have approached the High Court by way of civil applications.6. The respondent-Municipality and the State Authorities have supported the view taken by the High Court. The learned counsel for the State also pointed out that no previous permission of the State Government was taken by the Municipality before granting 869 stated leases to concerned persons, which was imperative in terms of Section 65(2) of the Act. It was contended that mere passing of a resolution by the Executive Committee of the Municipality is not enough; and in any case no structure can be permitted on public streets in terms of Section 146 of the Act.7. We have heard the learned counsel appearing for the parties at length. It is indisputable that no formal lease has been executed in favour of the appellant or similarly placed persons for allotting the subject plot of land. Further, no prior permission was obtained from the State Government before allotting any portion of the municipal land or public property, much less on the land earmarked as public street. The High Court, in paragraph 2 of the impugned judgment, has encapsulated the substance of the matters in issue, which reads thus:“The sum and substance of the allegation contained in these applications is that by virtue of the Resolution passed by the Executive Committee of the Virangam Municipality, 869 different leases have been given to different persons even authorizing them to make construction, but no formal lease-deed has been executed, nor have this decision been approved by the State Government in terms of Section 65 of the Gujarat Municipalities Act, 1963[the Act, hereinafter].”8. The fact that a resolution has been passed by the Executive Committee of the Municipality or a letter of allotment is issued by the Municipality, cannot legitimize the occupation of a public property in absence of a formal lease deed executed in that behalf and moreso in respect of a land falling within the public street. It is indisputable that the respondent-Municipality has been making such allotments since 1956 without any prior approval of the State Government. The break-up of such allotments made year wise by the respondent-Municipality has been given as under:VIRAMGAM MUNICIPALITYTHE LIST OF THE RESOLUTIONS PASSED BY THE EXECUTIVE COMMITTEEYear* No.Year* No.Year* No.195631977197719885819629197842198951963319792219904196920198032199141970601981119921819711301982819933219729619833199631973821984241998341974151985152000321975319863020079197617198740Total438Total232Total199Note: * The number of tenants that are provided property on rent by executive committee resolutions.9. We have no hesitation in accepting the argument of the State Authorities that no right can enure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of the State Government for such allotment and grant of lease has been obtained by the Municipality. Understood thus, the direction issued by the High Court in paragraphs 14 and 15 of the impugned judgment, does not merit any interference.10. The argument of the appellant that the direction given by the High Court transcends beyond the mandate of Section 258 will be of no avail. Section 258 of the Gujarat Municipalities Act, 1963 reads thus:“258(1) If, in the opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work”.11. On a plain reading of this provision, it is evident that the Municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector. The direction given by the High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure is not in derogation of the said provision; and particularly when the Collector is expected to exercise that power by following due process.12. Indeed, the Collector may have to take action on case to case basis in relation to the stated 869 leases or unauthorized occupation of the concerned public property and structures put up thereon without a sanctioned plan. However, considering the fact that some of the structures may be in existence for quite some time and have been tolerated for all these years, it may warrant a humane approach to be taken by the State Authorities. For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property.13. If such a policy is already in place then the Collector may proceed in conformity with the existing policy.14. However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorized occupants to alternative location, if the unauthorized structure in occupation of a given person has been tolerated for quite some time or has been erected before the cut off date to be specified in that regard. If the structure has been erected after the cut off date, no right of rehabilitation would enure to the occupant(s) of the unauthorized structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy within six months from today, if already not in existence.

1[ds]9. We have no hesitation in accepting the argument of the State Authorities that no right can enure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of the State Government for such allotment and grant of lease has been obtained by the Municipality. Understood thus, the direction issued by the High Court in paragraphs 14 and 15 of the impugned judgment, does not merit any interference.On a plain reading of this provision, it is evident that the Municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector. The direction given by the High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure is not in derogation of the said provision; and particularly when the Collector is expected to exercise that power by following due process.12. Indeed, the Collector may have to take action on case to case basis in relation to the stated 869 leases or unauthorized occupation of the concerned public property and structures put up thereon without a sanctioned plan. However, considering the fact that some of the structures may be in existence for quite some time and have been tolerated for all these years, it may warrant a humane approach to be taken by the State Authorities. For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property.13. If such a policy is already in place then the Collector may proceed in conformity with the existing policy.14. However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorized occupants to alternative location, if the unauthorized structure in occupation of a given person has been tolerated for quite some time or has been erected before the cut off date to be specified in that regard. If the structure has been erected after the cut off date, no right of rehabilitation would enure to the occupant(s) of the unauthorized structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy within six months from today, if already not in existence.

### 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: is contended that the direction given by the High Court to the Collector transcends beyond the mandate of Section 258 of the Act. It is also contended that persons affected by the directions given by the High Court, therefore, have approached the High Court by way of civil applications.6. The respondent-Municipality and the State Authorities have supported the view taken by the High Court. The learned counsel for the State also pointed out that no previous permission of the State Government was taken by the Municipality before granting 869 stated leases to concerned persons, which was imperative in terms of Section 65(2) of the Act. It was contended that mere passing of a resolution by the Executive Committee of the Municipality is not enough; and in any case no structure can be permitted on public streets in terms of Section 146 of the Act.7. We have heard the learned counsel appearing for the parties at length. It is indisputable that no formal lease has been executed in favour of the appellant or similarly placed persons for allotting the subject plot of land. Further, no prior permission was obtained from the State Government before allotting any portion of the municipal land or public property, much less on the land earmarked as public street. The High Court, in paragraph 2 of the impugned judgment, has encapsulated the substance of the matters in issue, which reads thus:“The sum and substance of the allegation contained in these applications is that by virtue of the Resolution passed by the Executive Committee of the Virangam Municipality, 869 different leases have been given to different persons even authorizing them to make construction, but no formal lease-deed has been executed, nor have this decision been approved by the State Government in terms of Section 65 of the Gujarat Municipalities Act, 1963[the Act, hereinafter].”8. The fact that a resolution has been passed by the Executive Committee of the Municipality or a letter of allotment is issued by the Municipality, cannot legitimize the occupation of a public property in absence of a formal lease deed executed in that behalf and moreso in respect of a land falling within the public street. It is indisputable that the respondent-Municipality has been making such allotments since 1956 without any prior approval of the State Government. The break-up of such allotments made year wise by the respondent-Municipality has been given as under:VIRAMGAM MUNICIPALITYTHE LIST OF THE RESOLUTIONS PASSED BY THE EXECUTIVE COMMITTEEYear* No.Year* No.Year* No.195631977197719885819629197842198951963319792219904196920198032199141970601981119921819711301982819933219729619833199631973821984241998341974151985152000321975319863020079197617198740Total438Total232Total199Note: * The number of tenants that are provided property on rent by executive committee resolutions.9. We have no hesitation in accepting the argument of the State Authorities that no right can enure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of the State Government for such allotment and grant of lease has been obtained by the Municipality. Understood thus, the direction issued by the High Court in paragraphs 14 and 15 of the impugned judgment, does not merit any interference.10. The argument of the appellant that the direction given by the High Court transcends beyond the mandate of Section 258 will be of no avail. Section 258 of the Gujarat Municipalities Act, 1963 reads thus:“258(1) If, in the opinion of the Collector, the execution of any order or resolution of a municipality, or the doing of anything which is about to be done or is being done by or on behalf of a municipality, is causing or is likely to cause injury or annoyance to the public or to lead to a breach of the peace or is unlawful, he may by order in writing under his signature suspend the execution or prohibit the doing thereof and where the execution of any work in pursuance of the order or resolution of the municipality is already commenced or completed direct the municipality to restore the position in which it was before the commencement of the work”.11. On a plain reading of this provision, it is evident that the Municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector. The direction given by the High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure is not in derogation of the said provision; and particularly when the Collector is expected to exercise that power by following due process.12. Indeed, the Collector may have to take action on case to case basis in relation to the stated 869 leases or unauthorized occupation of the concerned public property and structures put up thereon without a sanctioned plan. However, considering the fact that some of the structures may be in existence for quite some time and have been tolerated for all these years, it may warrant a humane approach to be taken by the State Authorities. For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property.13. If such a policy is already in place then the Collector may proceed in conformity with the existing policy.14. However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorized occupants to alternative location, if the unauthorized structure in occupation of a given person has been tolerated for quite some time or has been erected before the cut off date to be specified in that regard. If the structure has been erected after the cut off date, no right of rehabilitation would enure to the occupant(s) of the unauthorized structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy within six months from today, if already not in existence. ### Response: 1 ### Explanation: 9. We have no hesitation in accepting the argument of the State Authorities that no right can enure in favour of the allottees/occupants of the structure on a public property, in respect of which no formal lease deed has been executed and that too when no prior approval of the State Government for such allotment and grant of lease has been obtained by the Municipality. Understood thus, the direction issued by the High Court in paragraphs 14 and 15 of the impugned judgment, does not merit any interference.On a plain reading of this provision, it is evident that the Municipality is obliged to restore the public property as it had originally existed, if such direction is issued by the Collector. The direction given by the High Court to take possession of the concerned property and remove illegal occupants therefrom and to demolish the unauthorized structure is not in derogation of the said provision; and particularly when the Collector is expected to exercise that power by following due process.12. Indeed, the Collector may have to take action on case to case basis in relation to the stated 869 leases or unauthorized occupation of the concerned public property and structures put up thereon without a sanctioned plan. However, considering the fact that some of the structures may be in existence for quite some time and have been tolerated for all these years, it may warrant a humane approach to be taken by the State Authorities. For that the State Government must evolve a comprehensive policy, if already not in existence; and thereafter the Collector may proceed to take action in respect of such unauthorized occupation and encroachment on the public property.13. If such a policy is already in place then the Collector may proceed in conformity with the existing policy.14. However, if a new policy is required to be formulated, it may provide for rehabilitation of the unauthorized occupants to alternative location, if the unauthorized structure in occupation of a given person has been tolerated for quite some time or has been erected before the cut off date to be specified in that regard. If the structure has been erected after the cut off date, no right of rehabilitation would enure to the occupant(s) of the unauthorized structure(s) on the public property; and such structure(s), in any case will have to be removed in terms of the direction given by the High Court. The State Government may formulate an appropriate policy within six months from today, if already not in existence.

Delhi Cloth and General Mills Company Limited Vs. Ganesh Dutt and Others

also very severely cross-examined them. Therefore, the view of the Industrial Tribunal that full particulars have not been given in the reports and, therefore, the enquiry proceedings are vitiated, is also equally erroneous.29. It must be stated that the charge-sheets clearly show the nature of the allegations made against the workmen and their explanations also shown that they understood very well the nature of the allegations that they had to meet. In fact, even the cross-examination made by some of the workmen, of the witnesses, clearly shows that they were attempting to establish that no such incident took place as spoken to by the witnesses. No doubt, this attempt miserably failed.30. In view of what is stated above, it follows that the approach made by the Special Industrial Tribunal in refusing permission is absolutely erroneous. In fact, a reading of the order gives an impression that it was constituting itself as an authority sitting in appeal over the proceedings conducted by the enquiry officer. The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. The legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide : (vide The Punjab National Bank Ltd. v. Its Workmen, [1959 - II L.L.J. 666]; (1960) 1 S.C.R. 806, Bharat Sugar Mills Ltd. v. Jai Singh, [1961 - II L.L.J. 644], Management of Ritz Theatre (P.) Ltd. v. Its Workmen, [1962 - II L.L.J. 498]; (1963) 3 S.C.R. 461, and Mysore Steel Works v. Jitendra Chandra Kar & others, [1971 - I L.L.J. 543]).31. Mr. Sharma refereed us to paragraph 40 of the certified standing orders of the appellant-company Ex. M. 4 to the effect that in the order deciding to dismiss the workmen, the appellant-company has not taken into account, as it is bound to, the previous record, if any, of the workmen. This contention cannot be accepted because in the order dated May 9, 1966, communicated to each of the workmen, in the penultimate paragraph it has been stated that while arriving at the decision to dismiss the employees from the service for misconduct, all relevant circumstances, including the past record of service, have been fully taken into consideration. So far as we could see, no challenge has been made by the workmen that the appellant has not taken into account his past record.32. Before we conclude we must refer to one other contention raised by Mr. Sharma, learned counsel for the respondents. He pointed out that the order dated May 9, 1966 passed by the company clearly shows that the workman concerned was suspended without wages with immediate effect pending permission of the Industrial Tribunal for dismissing the workman. This, he pointed out, is illegal as by suspending the workman, the management has imposed a punishment, which it could not do under S. 33(1)(b) without obtaining previous permission of the Industrial Tribunal. Therefore, according to Mr. Sharma, there has been a violation of S. 33(1)(b) of the Act and hence the said order is illegal and void.33. Mr. Sharma quite fairly conceded that the above contention has not been raised before the Industrial Tribunal. If the appellant-company had contravened the provisions of S. 33(1)(b) of the Act, during the pendency of the proceedings before the Industrial Tribunal, the employee aggrieved by such contravention is entitled to make a complaint under S.33A of the Act. Even otherwise such a contention has been rejected by this Court in The Management of Hotel Imperial, New Delhi and others v. Hotel Workers Union, [1959 - II L.L.J. 544]; (1960) 1 S.C.R. 476, as follows :"We are, therefore, of opinion that the ordinary law of master and servant as to suspension can be and should be held to have been modified in view of the fundamental change introduced by S. 33 in that law and a term should be implied by Industrial Tribunals in the contract of employment that if the master has held proper enquiry and come to the conclusion that the servant should be dismissed and in consequence suspends him pending the permission required under S. 33, he has the power to order such suspension, thus suspending the contract of employment temporarily, so that there is no obligation on him to pay wages and no obligation on the servant to work. In dealing with this point the basic and decisive consideration introduced by S. 33 must be borne in mind. The undisputed common law right of the master to dismiss his servant by proper cause has been subjected by S. 33 to a ban and that in fairness must mean that, pending the removal of the said statutory ban, the master can after holding a proper enquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under S. 33. It follows therefore, that if the Tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay any wages after the date of suspension.If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension."Therefore, the contention of Mr. Sharma that the order is bad in view of the fact that the workman has been suspended without the previous permission of the Tribunal, on the basis of the above ruling, has to be rejected.34. For all the reasons given above, the order of the Special Industrial Tribunal is set aside and the application filed by the appellant-company No. 24 of 1966, before the Industrial Tribunal, is ordered as prayed for.

1[ds]15. In view of the fact that we are accepting the first contention of Mr. Anand, that the enquiry proceedings are not vitiated by any of the circumstances pointed out by the Tribunal, we do not think it necessary to deal with the second contention of the learned counsel.16. So far as the first contention is concerned, the Industrial Tribunal has held that the domestic enquiry conducted by the management not valid in view of the following circumstances : (1) That the copies of the reports sent by the three employees in the spinning A department Exs. M. 32 to M. 34 were not furnished to the workmen at any stage either before the commencement of the enquiry or even during the course of the enquiry; (2) The appellant did not furnish the workmen a list of witnesses, whom it proposed to examine in the domestic enquiry; (3) The workmen, whose misconduct was being enquired into wereon the side of the management; and (4) The reports Exs. M. 32 to M. 34 did not give full and complete details regarding the part played by the workmen concerned. We can deal with all the circumstances given by the Tribunal together.17. We have gone through the enquiry proceedings as well as the report of the enquiry officer. The enquiry proceedings commenced on April 1, 1966. There is no controversy that the workmen concerned were present before the enquiry officer throughout the enquiry proceedings. In fact it is seen that there was one Babu Ram Mishra, representing two workmen namely, Rati Ram and Hari Chand on April 1, 1966. But Babu Ram Mishra represented only Rati Ram from the next day. From April 2, 1966 onwards, Hari Chand conducted his own defence. The other two workmen Ganesh Dutt and Bhoop Singh represented that they did not want to bring anyone to represent them it the enquiry proceedings and that they would themselves defend their cases. The charges as well as the explanations furnished by the workmen were read over to them by the enquiry officer and the workmen pleaded not guilty. Babu Ram Mishra, who was representing some of the workmen in the enquiry proceeding requested the enquiry officer that the evidence, on the basis of whichwere issued may be furnished to the workmen. This request was reiterated by the other workmen also. The enquiry officer directed copies of such evidence to be furnished to the workmen by 2.30 p.m. that day in order to enable the workmen to prepare their defence. The proceedings were adjourned to the next day, i.e. April 2, 1966. Before 2.30 P.M. on April 1, 1966, copies of the reports Exs. M. 32 to M. 34 were furnished to the workmen and there is a further endorsement by the enquiry officer that the enquiry proceedings are adjourned to the next day, i.e., April 2, 1966 and that copies of the reports have been furnished to the workmen. All the workmen have signed the endorsement in token of having received the copies of the reports, as well as about the proceedings being adjourned to the next day.We are not inclined to accept this contention of Mr. Sharma, learned counsel for the respondents. There can be no controversy that the three persons who made the reports Exs. M. 32 to M. 34 had given evidence in full in the presence of workmen before the enquiry officer and they were alsoat length by some of the workmen themselves or by Babu Ram Mishra, on behalf of Rati Ram.22. There is no indication that Hari Chand andine because of the fact that the copies of the reports had been supplied to them only on the date of the enquiry. If they had any real grievance in that regard, they could have very well made a request to the enquiry officer for grant of time. Admittedly, they did not make any such request. Even apart from this, it is clear that the entire evidence has been given by the witnesses in the presence of the workmen and the latter knew full well the nature of the evidence that was being given against them and they had sufficient opportunity tothe witnesses, if they chose. Therefore,of the copies of the reports along with thehas never been made a grievance by any of the workmen, when the enquiry proceedings were being conducted.The Tribunal is also in error in holding that because the workmen werethe enquiry proceedings are vitiated. When the workmen have examined witnesses on their behalf and gave their statements, there is no prohibition in law for the companythe workmen concerned regarding the statements made by them.27. A perusal of the enquiry proceedings clearly shows that the company has only asked them questions regarding some of the matters referred to by the workmen in their statements. We were referred to the decisions of this Court in Associated Cement Co. Ltd. v. Their Workmen and another, [1963II L.L.J. 396]; (1964) 3 S.C.R. 652, Central Bank of India Ltd. v. Karunamoy Banerjee, [1967II L.L.J. 739]; (1968) 1 S.C.R. 251, and Employers of Firestone Tyre and Rubber Co. Ltd. v. Their Workmen [1967II L.L.J. 715]; (1968) 1 S.C.R. 307, as laying down the proposition that the workman against whom an enquiry for misconduct is being conducted, cannot beWe are satisfied that none of the decisions referred to above, lay down any such proposition.It must be stated that theclearly show the nature of the allegations made against the workmen and their explanations also shown that they understood very well the nature of the allegations that they had to meet. In fact, even themade by some of the workmen, of the witnesses, clearly shows that they were attempting to establish that no such incident took place as spoken to by the witnesses. No doubt, this attempt miserablylegal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide : (vide The Punjab National Bank Ltd. v. Its Workmen, [1959II L.L.J. 666]; (1960) 1 S.C.R. 806, Bharat Sugar Mills Ltd. v. Jai Singh, [1961II L.L.J. 644], Management of Ritz Theatre (P.) Ltd. v. Its Workmen, [1962II L.L.J. 498]; (1963) 3 S.C.R. 461, and Mysore Steel Works v. Jitendra Chandra Kar & others, [1971is contention cannot be accepted because in the order dated May 9, 1966, communicated to each of the workmen, in the penultimate paragraph it has been stated that while arriving at the decision to dismiss the employees from the service for misconduct, all relevant circumstances, including the past record of service, have been fully taken into consideration. So far as we could see, no challenge has been made by the workmen that the appellant has not taken into account his pastthe contention of Mr. Sharma that the order is bad in view of the fact that the workman has been suspended without the previous permission of the Tribunal, on the basis of the above ruling, has to be rejected.34. For all the reasons given above, the order of the Special Industrial Tribunal is set aside and the application filed by theNo. 24 of 1966, before the Industrial Tribunal, is ordered as prayed for.

### 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: also very severely cross-examined them. Therefore, the view of the Industrial Tribunal that full particulars have not been given in the reports and, therefore, the enquiry proceedings are vitiated, is also equally erroneous.29. It must be stated that the charge-sheets clearly show the nature of the allegations made against the workmen and their explanations also shown that they understood very well the nature of the allegations that they had to meet. In fact, even the cross-examination made by some of the workmen, of the witnesses, clearly shows that they were attempting to establish that no such incident took place as spoken to by the witnesses. No doubt, this attempt miserably failed.30. In view of what is stated above, it follows that the approach made by the Special Industrial Tribunal in refusing permission is absolutely erroneous. In fact, a reading of the order gives an impression that it was constituting itself as an authority sitting in appeal over the proceedings conducted by the enquiry officer. The nature of the jurisdiction exercised by an Industrial Tribunal in such circumstances is a very limited one and it has been laid down by several decisions of this Court. The legal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide : (vide The Punjab National Bank Ltd. v. Its Workmen, [1959 - II L.L.J. 666]; (1960) 1 S.C.R. 806, Bharat Sugar Mills Ltd. v. Jai Singh, [1961 - II L.L.J. 644], Management of Ritz Theatre (P.) Ltd. v. Its Workmen, [1962 - II L.L.J. 498]; (1963) 3 S.C.R. 461, and Mysore Steel Works v. Jitendra Chandra Kar & others, [1971 - I L.L.J. 543]).31. Mr. Sharma refereed us to paragraph 40 of the certified standing orders of the appellant-company Ex. M. 4 to the effect that in the order deciding to dismiss the workmen, the appellant-company has not taken into account, as it is bound to, the previous record, if any, of the workmen. This contention cannot be accepted because in the order dated May 9, 1966, communicated to each of the workmen, in the penultimate paragraph it has been stated that while arriving at the decision to dismiss the employees from the service for misconduct, all relevant circumstances, including the past record of service, have been fully taken into consideration. So far as we could see, no challenge has been made by the workmen that the appellant has not taken into account his past record.32. Before we conclude we must refer to one other contention raised by Mr. Sharma, learned counsel for the respondents. He pointed out that the order dated May 9, 1966 passed by the company clearly shows that the workman concerned was suspended without wages with immediate effect pending permission of the Industrial Tribunal for dismissing the workman. This, he pointed out, is illegal as by suspending the workman, the management has imposed a punishment, which it could not do under S. 33(1)(b) without obtaining previous permission of the Industrial Tribunal. Therefore, according to Mr. Sharma, there has been a violation of S. 33(1)(b) of the Act and hence the said order is illegal and void.33. Mr. Sharma quite fairly conceded that the above contention has not been raised before the Industrial Tribunal. If the appellant-company had contravened the provisions of S. 33(1)(b) of the Act, during the pendency of the proceedings before the Industrial Tribunal, the employee aggrieved by such contravention is entitled to make a complaint under S.33A of the Act. Even otherwise such a contention has been rejected by this Court in The Management of Hotel Imperial, New Delhi and others v. Hotel Workers Union, [1959 - II L.L.J. 544]; (1960) 1 S.C.R. 476, as follows :"We are, therefore, of opinion that the ordinary law of master and servant as to suspension can be and should be held to have been modified in view of the fundamental change introduced by S. 33 in that law and a term should be implied by Industrial Tribunals in the contract of employment that if the master has held proper enquiry and come to the conclusion that the servant should be dismissed and in consequence suspends him pending the permission required under S. 33, he has the power to order such suspension, thus suspending the contract of employment temporarily, so that there is no obligation on him to pay wages and no obligation on the servant to work. In dealing with this point the basic and decisive consideration introduced by S. 33 must be borne in mind. The undisputed common law right of the master to dismiss his servant by proper cause has been subjected by S. 33 to a ban and that in fairness must mean that, pending the removal of the said statutory ban, the master can after holding a proper enquiry temporarily terminate the relationship of master and servant by suspending his employee pending proceedings under S. 33. It follows therefore, that if the Tribunal grants permission, the suspended contract would come to an end and there will be no further obligation to pay any wages after the date of suspension.If, on the other hand, the permission is refused, the suspension would be wrong and the workman would be entitled to all his wages from the date of suspension."Therefore, the contention of Mr. Sharma that the order is bad in view of the fact that the workman has been suspended without the previous permission of the Tribunal, on the basis of the above ruling, has to be rejected.34. For all the reasons given above, the order of the Special Industrial Tribunal is set aside and the application filed by the appellant-company No. 24 of 1966, before the Industrial Tribunal, is ordered as prayed for. ### Response: 1 ### Explanation: throughout the enquiry proceedings. In fact it is seen that there was one Babu Ram Mishra, representing two workmen namely, Rati Ram and Hari Chand on April 1, 1966. But Babu Ram Mishra represented only Rati Ram from the next day. From April 2, 1966 onwards, Hari Chand conducted his own defence. The other two workmen Ganesh Dutt and Bhoop Singh represented that they did not want to bring anyone to represent them it the enquiry proceedings and that they would themselves defend their cases. The charges as well as the explanations furnished by the workmen were read over to them by the enquiry officer and the workmen pleaded not guilty. Babu Ram Mishra, who was representing some of the workmen in the enquiry proceeding requested the enquiry officer that the evidence, on the basis of whichwere issued may be furnished to the workmen. This request was reiterated by the other workmen also. The enquiry officer directed copies of such evidence to be furnished to the workmen by 2.30 p.m. that day in order to enable the workmen to prepare their defence. The proceedings were adjourned to the next day, i.e. April 2, 1966. Before 2.30 P.M. on April 1, 1966, copies of the reports Exs. M. 32 to M. 34 were furnished to the workmen and there is a further endorsement by the enquiry officer that the enquiry proceedings are adjourned to the next day, i.e., April 2, 1966 and that copies of the reports have been furnished to the workmen. All the workmen have signed the endorsement in token of having received the copies of the reports, as well as about the proceedings being adjourned to the next day.We are not inclined to accept this contention of Mr. Sharma, learned counsel for the respondents. There can be no controversy that the three persons who made the reports Exs. M. 32 to M. 34 had given evidence in full in the presence of workmen before the enquiry officer and they were alsoat length by some of the workmen themselves or by Babu Ram Mishra, on behalf of Rati Ram.22. There is no indication that Hari Chand andine because of the fact that the copies of the reports had been supplied to them only on the date of the enquiry. If they had any real grievance in that regard, they could have very well made a request to the enquiry officer for grant of time. Admittedly, they did not make any such request. Even apart from this, it is clear that the entire evidence has been given by the witnesses in the presence of the workmen and the latter knew full well the nature of the evidence that was being given against them and they had sufficient opportunity tothe witnesses, if they chose. Therefore,of the copies of the reports along with thehas never been made a grievance by any of the workmen, when the enquiry proceedings were being conducted.The Tribunal is also in error in holding that because the workmen werethe enquiry proceedings are vitiated. When the workmen have examined witnesses on their behalf and gave their statements, there is no prohibition in law for the companythe workmen concerned regarding the statements made by them.27. A perusal of the enquiry proceedings clearly shows that the company has only asked them questions regarding some of the matters referred to by the workmen in their statements. We were referred to the decisions of this Court in Associated Cement Co. Ltd. v. Their Workmen and another, [1963II L.L.J. 396]; (1964) 3 S.C.R. 652, Central Bank of India Ltd. v. Karunamoy Banerjee, [1967II L.L.J. 739]; (1968) 1 S.C.R. 251, and Employers of Firestone Tyre and Rubber Co. Ltd. v. Their Workmen [1967II L.L.J. 715]; (1968) 1 S.C.R. 307, as laying down the proposition that the workman against whom an enquiry for misconduct is being conducted, cannot beWe are satisfied that none of the decisions referred to above, lay down any such proposition.It must be stated that theclearly show the nature of the allegations made against the workmen and their explanations also shown that they understood very well the nature of the allegations that they had to meet. In fact, even themade by some of the workmen, of the witnesses, clearly shows that they were attempting to establish that no such incident took place as spoken to by the witnesses. No doubt, this attempt miserablylegal position is that where a proper enquiry has been held by the management, the Tribunal has to accept the finding arrived at in that enquiry unless it is perverse or unreasonable and should give the permission asked for unless it has reason to believe that the management is guilty of victimisation or has been guilty of unfair labour practice or is acting mala fide : (vide The Punjab National Bank Ltd. v. Its Workmen, [1959II L.L.J. 666]; (1960) 1 S.C.R. 806, Bharat Sugar Mills Ltd. v. Jai Singh, [1961II L.L.J. 644], Management of Ritz Theatre (P.) Ltd. v. Its Workmen, [1962II L.L.J. 498]; (1963) 3 S.C.R. 461, and Mysore Steel Works v. Jitendra Chandra Kar & others, [1971is contention cannot be accepted because in the order dated May 9, 1966, communicated to each of the workmen, in the penultimate paragraph it has been stated that while arriving at the decision to dismiss the employees from the service for misconduct, all relevant circumstances, including the past record of service, have been fully taken into consideration. So far as we could see, no challenge has been made by the workmen that the appellant has not taken into account his pastthe contention of Mr. Sharma that the order is bad in view of the fact that the workman has been suspended without the previous permission of the Tribunal, on the basis of the above ruling, has to be rejected.34. For all the reasons given above, the order of the Special Industrial Tribunal is set aside and the application filed by theNo. 24 of 1966, before the Industrial Tribunal, is ordered as prayed for.

Basakha Singh and Company Limited Vs. Collector of Central Excise and Land Customs, New Delhi

K. S. Hegde, J.1. This is an appeal by special leave from the decision of the Division Bench of the Punjab High Court. The Division Bench reversed the decision of D. K. Mahajan, J. allowing the writ petition filed by the appellant herein and quashing the order confiscating the goods imported by the appellant. 2. The appellant is a private limited company. It is an established importer and has been importing arms and ammunition for a number of years. On the strength of a licence issued on April 3, 1957, it imported from Holland some articles worth $ 84. The customs authorities confiscated those articles on the ground that they were 12 bore guns and the licence granted to the appellant did not permit it to import 12 bore guns. They were of the opinion that the articles imported are 12 bore guns and not the spare parts of 12 bore guns. The decision of the Customs Collector has been affirmed by the Central Board of Revenue as well as by the Government. 3. Mahajan, J. came to the conclusion that the articles imported are parts of 12 bore guns and that they cannot be considered as 12 bore guns. He held that the appellant was authorised to import those articles under the licence granted to it but the Division Bench of the Punjab High Court came to the conclusion that the finding of the authorities under the Sea Customs Act that the articles imported are 12 bore guns is binding on the Court.2. The learned Judges constituting the Division Bench of the High Court also took the view that those articles were 12 bore guns and that the import of 12 bore guns is prohibited by Items 314 and 315 of the Import Trade Schedule. 4. Items 314 and 315 of the Import Trade Schedule permit the import of barrels whether single or double for firearms and actions. Clause (d) of the licence says that the licence will not be valid for import of 12 bore shot guns single or double barrel. Therefore all that we have to see is whether the articles imported are 12 bore guns or whether they are merely barrels and actions. The parts of a gun can be broadly categorised under four heads, viz. (1) Butt; (2) Barrel; (3) Action; and (4) Forehand. According to the appellant, the articles imported are only Barrels and Actions. It did not import either Butts of Forehands. Even according to the Collector of Customs, Butts were not imported. Without a Butt a gun cannot be used. Therefore the Collector of Customs, Board of Revenue and the Government were not right in concluding that the articles imported by the appellant are 12 bore guns. They are obviously parts of gun. Division Bench of the High Court was in error in thinking that every finding of the authorities under the Sea Customs Act, however, wrong it may be is binding on the Court. 5.

1[ds]The parts of a gun can be broadly categorised under four heads, viz. (1) Butt; (2) Barrel; (3) Action; and (4) Forehand. According to the appellant, the articles imported are only Barrels and Actions. It did not import either Butts of Forehands. Even according to the Collector of Customs, Butts were not imported. Without a Butt a gun cannot be used. Therefore the Collector of Customs, Board of Revenue and the Government were not right in concluding that the articles imported by the appellant are 12 bore guns. They are obviously parts of gun. Division Bench of the High Court was in error in thinking that every finding of the authorities under the Sea Customs Act, however, wrong it may be is binding on the Court. 5.

### 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: K. S. Hegde, J.1. This is an appeal by special leave from the decision of the Division Bench of the Punjab High Court. The Division Bench reversed the decision of D. K. Mahajan, J. allowing the writ petition filed by the appellant herein and quashing the order confiscating the goods imported by the appellant. 2. The appellant is a private limited company. It is an established importer and has been importing arms and ammunition for a number of years. On the strength of a licence issued on April 3, 1957, it imported from Holland some articles worth $ 84. The customs authorities confiscated those articles on the ground that they were 12 bore guns and the licence granted to the appellant did not permit it to import 12 bore guns. They were of the opinion that the articles imported are 12 bore guns and not the spare parts of 12 bore guns. The decision of the Customs Collector has been affirmed by the Central Board of Revenue as well as by the Government. 3. Mahajan, J. came to the conclusion that the articles imported are parts of 12 bore guns and that they cannot be considered as 12 bore guns. He held that the appellant was authorised to import those articles under the licence granted to it but the Division Bench of the Punjab High Court came to the conclusion that the finding of the authorities under the Sea Customs Act that the articles imported are 12 bore guns is binding on the Court.2. The learned Judges constituting the Division Bench of the High Court also took the view that those articles were 12 bore guns and that the import of 12 bore guns is prohibited by Items 314 and 315 of the Import Trade Schedule. 4. Items 314 and 315 of the Import Trade Schedule permit the import of barrels whether single or double for firearms and actions. Clause (d) of the licence says that the licence will not be valid for import of 12 bore shot guns single or double barrel. Therefore all that we have to see is whether the articles imported are 12 bore guns or whether they are merely barrels and actions. The parts of a gun can be broadly categorised under four heads, viz. (1) Butt; (2) Barrel; (3) Action; and (4) Forehand. According to the appellant, the articles imported are only Barrels and Actions. It did not import either Butts of Forehands. Even according to the Collector of Customs, Butts were not imported. Without a Butt a gun cannot be used. Therefore the Collector of Customs, Board of Revenue and the Government were not right in concluding that the articles imported by the appellant are 12 bore guns. They are obviously parts of gun. Division Bench of the High Court was in error in thinking that every finding of the authorities under the Sea Customs Act, however, wrong it may be is binding on the Court. 5. ### Response: 1 ### Explanation: The parts of a gun can be broadly categorised under four heads, viz. (1) Butt; (2) Barrel; (3) Action; and (4) Forehand. According to the appellant, the articles imported are only Barrels and Actions. It did not import either Butts of Forehands. Even according to the Collector of Customs, Butts were not imported. Without a Butt a gun cannot be used. Therefore the Collector of Customs, Board of Revenue and the Government were not right in concluding that the articles imported by the appellant are 12 bore guns. They are obviously parts of gun. Division Bench of the High Court was in error in thinking that every finding of the authorities under the Sea Customs Act, however, wrong it may be is binding on the Court. 5.

Collector Of Customs, Madras & Anr Vs. C.Tarachand

in the official Gazette. The Imports Control Order, 1955, as applicable to the relevant year, did not specify, as far as our attention was drawn, the goods imported in the instant case. Section 3 in the order does not prohibit the import of any goods whatever, if it is done under a licence. But what it does is to prohibit a person from importing any goods of the description specified in Schedule I, except as specified and permitted by the proper authority. It follows, therefore, that there was no prohibition or restricting during the relevant period to the importation of domestic sewing machine needles. The word nil in the policy book does not mean anything in the nature of prohibition or restriction".5. We regret that we are unable to concur with the reasoning of the Division Bench. We find that Section 3 of the Act clearly provides for prohibition and restriction of imports and that clause 3 of the Control Order directly prohibits, in unambiguous and mandatory terms that "no person shall import any goods of the description specified in Schedule I except under and in accordance with the licence or a Customs clearance permit granted by the Central Government or by any officer specified in Schedule 2". This language cannot have a meaning other than that the prohibition is there so long as goods of the description given in the schedule are not imported in accordance with the import licence. The case of the Department is that the import licence of the respondent does not cover" needles for domestic sewing machines" which the respondent had imported.6. It was urged on behalf of the respondent that it was demonstrated that the needles actually imported could be used in both domestic and industrial sewing machines or were interchangeable. According to the respondent, the prohibition was not meant for such interchangeable needles which could be used for "domestic" as well as "industrial" sewing machines but was confined to needles capable of being used only for domestic sewing machines. This question, among other questions, was not specifically considered or decided by the Division Bench. The Division Bench did not consider it necessary to decide whether any rules of natural justice were violated at the inquiry held. If the Customs authorities had not acted in accordance with law in holding the imported goods to be of the prohibited category the High Court could correct its error of law. If they had violated any rule of natural justice the case could be remitted to them for decision afresh. It is agreed by learned Counsel for both sides that the Division Bench should decide questions of law left undecided by it if the Division Bench was in error in holding on a preliminary question, that no prohibition to import needles for domestic sewing machines without a licence had been imported at all. As we are of opinion that the prohibition is conditional, inasmuch as it can be lifted by a licence which permits it, the real question which will, ultimately have to be decided is whether the respondents licence covers the particular goods imported.7. Before proceeding further, we may observe that there were references in the order of the learned Single Judge as well as of the Division Bench to what is known as the "Red Book" containing the "Import Trade Control Policy" with regard to various types of goods including needles for domestic sewing machines. In the "Red Book" the word nil appeared against the item in question in the column for "policy" for the relevant year. Therefore, the learned Single Judge of the Madras High Court had relied upon a decision of this Court in the Joint Chief Controller of Imports and Exports, Madras v. M/s. Aminchand Mutha, (1966) 1 SCR 262 at p. 272 = (AIR 1966 SC 478 ) where it was held (at page 272):"The last point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it was urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it January-June 1957, after the import of fountain pens had been banned from October 1957. Now there is no doubt that it is open to the Central Government under Section 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under Section 3. The High Court has found that no such order under Section 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pens unless there is an order of the Central Government to that effect published in the official gazette. We therefore agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January-June 1957 even after October 1, 1957".8. We do not think that the above mentioned reference to the Red Book was at all necessary here or that a decision in a case where the Customs authorities relied merely on something found in the Red Book assists us in the case before us. Here, we have the item No. 288 in Schedule I read with clause 3 of the Control Order which was duly published in the Official Gazette. This had the effect of a categorical prohibition against needles satisfying the description but not covered by a licence. We think that a reference to the Red Book in the Instant case, seems to have misled learned Judges in the High Court.

1[ds]5. We regret that we are unable to concur with the reasoning of the Division Bench. We find that Section 3 of the Act clearly provides for prohibition and restriction of imports and that clause 3 of the Control Order directly prohibits, in unambiguous and mandatory terms that "no person shall import any goods of the description specified in Schedule I except under and in accordance with the licence or a Customs clearance permit granted by the Central Government or by any officer specified in Schedule 2". This language cannot have a meaning other than that the prohibition is there so long as goods of the description given in the schedule are not imported in accordance with the import licence. The case of the Department is that the import licence of the respondent does not cover" needles for domestic sewing machines" which the respondent hadquestion, among other questions, was not specifically considered or decided by the Division Bench. The Division Bench did not consider it necessary to decide whether any rules of natural justice were violated at the inquiry held. If the Customs authorities had not acted in accordance with law in holding the imported goods to be of the prohibited category the High Court could correct its error of law. If they had violated any rule of natural justice the case could be remitted to them for decision afresh. It is agreed by learned Counsel for both sides that the Division Bench should decide questions of law left undecided by it if the Division Bench was in error in holding on a preliminary question, that no prohibition to import needles for domestic sewing machines without a licence had been imported at all. As we are of opinion that the prohibition is conditional, inasmuch as it can be lifted by a licence which permits it, the real question which will, ultimately have to be decided is whether the respondents licence covers the particular goods imported.7. Before proceeding further, we may observe that there were references in the order of the learned Single Judge as well as of the Division Bench to what is known as the "Red Book" containing the "Import Trade Control Policy" with regard to various types of goods including needles for domestic sewing machines. In the "Red Book" the word nil appeared against the item in question in the column for "policy" for the relevant year. Therefore, the learned Single Judge of the Madras High Court had relied upon a decision of this Court in the Joint Chief Controller of Imports and Exports, Madras v. M/s. Aminchand Mutha, (1966) 1 SCR 262 at p. 272 = (AIR 1966 SC 478 ) where it was held (at pagelast point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it was urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it1957, after the import of fountain pens had been banned from October 1957. Now there is no doubt that it is open to the Central Government under Section 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under Section 3. The High Court has found that no such order under Section 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pens unless there is an order of the Central Government to that effect published in the official gazette. We therefore agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of1957 even after October 1, 1957".We do not think that the above mentioned reference to the Red Book was at all necessary here or that a decision in a case where the Customs authorities relied merely on something found in the Red Book assists us in the case before us. Here, we have the item No. 288 in Schedule I read with clause 3 of the Control Order which was duly published in the Official Gazette. This had the effect of a categorical prohibition against needles satisfying the description but not covered by a licence. We think that a reference to the Red Book in the Instant case, seems to have misled learned Judges in the High Court.

### Instruction: Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding. ### Input: in the official Gazette. The Imports Control Order, 1955, as applicable to the relevant year, did not specify, as far as our attention was drawn, the goods imported in the instant case. Section 3 in the order does not prohibit the import of any goods whatever, if it is done under a licence. But what it does is to prohibit a person from importing any goods of the description specified in Schedule I, except as specified and permitted by the proper authority. It follows, therefore, that there was no prohibition or restricting during the relevant period to the importation of domestic sewing machine needles. The word nil in the policy book does not mean anything in the nature of prohibition or restriction".5. We regret that we are unable to concur with the reasoning of the Division Bench. We find that Section 3 of the Act clearly provides for prohibition and restriction of imports and that clause 3 of the Control Order directly prohibits, in unambiguous and mandatory terms that "no person shall import any goods of the description specified in Schedule I except under and in accordance with the licence or a Customs clearance permit granted by the Central Government or by any officer specified in Schedule 2". This language cannot have a meaning other than that the prohibition is there so long as goods of the description given in the schedule are not imported in accordance with the import licence. The case of the Department is that the import licence of the respondent does not cover" needles for domestic sewing machines" which the respondent had imported.6. It was urged on behalf of the respondent that it was demonstrated that the needles actually imported could be used in both domestic and industrial sewing machines or were interchangeable. According to the respondent, the prohibition was not meant for such interchangeable needles which could be used for "domestic" as well as "industrial" sewing machines but was confined to needles capable of being used only for domestic sewing machines. This question, among other questions, was not specifically considered or decided by the Division Bench. The Division Bench did not consider it necessary to decide whether any rules of natural justice were violated at the inquiry held. If the Customs authorities had not acted in accordance with law in holding the imported goods to be of the prohibited category the High Court could correct its error of law. If they had violated any rule of natural justice the case could be remitted to them for decision afresh. It is agreed by learned Counsel for both sides that the Division Bench should decide questions of law left undecided by it if the Division Bench was in error in holding on a preliminary question, that no prohibition to import needles for domestic sewing machines without a licence had been imported at all. As we are of opinion that the prohibition is conditional, inasmuch as it can be lifted by a licence which permits it, the real question which will, ultimately have to be decided is whether the respondents licence covers the particular goods imported.7. Before proceeding further, we may observe that there were references in the order of the learned Single Judge as well as of the Division Bench to what is known as the "Red Book" containing the "Import Trade Control Policy" with regard to various types of goods including needles for domestic sewing machines. In the "Red Book" the word nil appeared against the item in question in the column for "policy" for the relevant year. Therefore, the learned Single Judge of the Madras High Court had relied upon a decision of this Court in the Joint Chief Controller of Imports and Exports, Madras v. M/s. Aminchand Mutha, (1966) 1 SCR 262 at p. 272 = (AIR 1966 SC 478 ) where it was held (at page 272):"The last point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it was urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it January-June 1957, after the import of fountain pens had been banned from October 1957. Now there is no doubt that it is open to the Central Government under Section 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under Section 3. The High Court has found that no such order under Section 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pens unless there is an order of the Central Government to that effect published in the official gazette. We therefore agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January-June 1957 even after October 1, 1957".8. We do not think that the above mentioned reference to the Red Book was at all necessary here or that a decision in a case where the Customs authorities relied merely on something found in the Red Book assists us in the case before us. Here, we have the item No. 288 in Schedule I read with clause 3 of the Control Order which was duly published in the Official Gazette. This had the effect of a categorical prohibition against needles satisfying the description but not covered by a licence. We think that a reference to the Red Book in the Instant case, seems to have misled learned Judges in the High Court. ### Response: 1 ### Explanation: 5. We regret that we are unable to concur with the reasoning of the Division Bench. We find that Section 3 of the Act clearly provides for prohibition and restriction of imports and that clause 3 of the Control Order directly prohibits, in unambiguous and mandatory terms that "no person shall import any goods of the description specified in Schedule I except under and in accordance with the licence or a Customs clearance permit granted by the Central Government or by any officer specified in Schedule 2". This language cannot have a meaning other than that the prohibition is there so long as goods of the description given in the schedule are not imported in accordance with the import licence. The case of the Department is that the import licence of the respondent does not cover" needles for domestic sewing machines" which the respondent hadquestion, among other questions, was not specifically considered or decided by the Division Bench. The Division Bench did not consider it necessary to decide whether any rules of natural justice were violated at the inquiry held. If the Customs authorities had not acted in accordance with law in holding the imported goods to be of the prohibited category the High Court could correct its error of law. If they had violated any rule of natural justice the case could be remitted to them for decision afresh. It is agreed by learned Counsel for both sides that the Division Bench should decide questions of law left undecided by it if the Division Bench was in error in holding on a preliminary question, that no prohibition to import needles for domestic sewing machines without a licence had been imported at all. As we are of opinion that the prohibition is conditional, inasmuch as it can be lifted by a licence which permits it, the real question which will, ultimately have to be decided is whether the respondents licence covers the particular goods imported.7. Before proceeding further, we may observe that there were references in the order of the learned Single Judge as well as of the Division Bench to what is known as the "Red Book" containing the "Import Trade Control Policy" with regard to various types of goods including needles for domestic sewing machines. In the "Red Book" the word nil appeared against the item in question in the column for "policy" for the relevant year. Therefore, the learned Single Judge of the Madras High Court had relied upon a decision of this Court in the Joint Chief Controller of Imports and Exports, Madras v. M/s. Aminchand Mutha, (1966) 1 SCR 262 at p. 272 = (AIR 1966 SC 478 ) where it was held (at pagelast point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it was urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it1957, after the import of fountain pens had been banned from October 1957. Now there is no doubt that it is open to the Central Government under Section 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under Section 3. The High Court has found that no such order under Section 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pens unless there is an order of the Central Government to that effect published in the official gazette. We therefore agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of1957 even after October 1, 1957".We do not think that the above mentioned reference to the Red Book was at all necessary here or that a decision in a case where the Customs authorities relied merely on something found in the Red Book assists us in the case before us. Here, we have the item No. 288 in Schedule I read with clause 3 of the Control Order which was duly published in the Official Gazette. This had the effect of a categorical prohibition against needles satisfying the description but not covered by a licence. We think that a reference to the Red Book in the Instant case, seems to have misled learned Judges in the High Court.

Purushottam Dashrath Borate & Another Vs. State of Maharashtra

of the moment, but meticulously executes a deliberate, cold-blooded and pre-planned crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. This Court is mindful of the settled principle that criminal law requires strict adherence to the rule of proportionality in awarding punishment, and the same must be in accordance with the culpability of the criminal act. Furthermore, this Court is also conscious to the effect, of not awarding just punishment, on the society. 35. In the present factual matrix, Accused No.1 abducted the deceased with help of Accused No.2, and subsequently they raped and murdered her. They did not show any regret, sorrow or repentance at any point of time during the commission of the heinous offence, nor thereafter, rather they acted in a disturbingly normal manner after commission of crime. It has been established by strong and cogent evidence that after the commission of the gruesome crime, Accused No.2 accompanied Accused No.1 for the second pick up and exited the cab only prior to reaching the gate of the Company. Further, it has been brought on record that the Accused No.1 attempted to create false record of the whereabouts of the cab and the cause of the delay in arriving at the workplace. In addition, it has been noticed that even though the accused-appellants were seen by PW-12, that the deceased repeatedly questioned them of the unusual route, or that the deceased was talking to a friend on the phone during the journey, nothing deterred them from committing the heinous offences. In fact the Sessions Court has noticed that during the commission of the offences, the accused-appellants were contacted by PW-11 seeking an explanation for the delay in picking him up, however even this did not deter them. 36. Thus, the manner in which the commission of the offence was so meticulously and carefully planned coupled with the sheer brutality and apathy for humanity in the execution of the offence, in every probability they have potency to commit similar offence in future. It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they can be reformed or rehabilitated. In our considered opinion, the mitigating circumstances are wholly absent in the present factual matrix. This appeal is not a case where the offence was committed by the accused persons under influence of extreme mental or emotional disorder, nor is it a case where the offence may be argued to be a crime of passion or one committed at the spur of the moment. There is no question of accused persons believing that they were morally justified in committing the offence on helpless and defenceless young woman. 37. Therefore, in view of the above and keeping the aforesaid principle of proportionality of sentence in mind, this Court is in agreement with the reasoning of the Courts below that the extreme depravity with which the deceased was done to death coupled with the other factors including the position of trust held by the Accused No.1, would tilt the balance between the aggravating and mitigating circumstances greatly against the accused-appellants. The gruesome act of raping a victim who had reposed her trust in the accused followed by a cold-blooded and brutal murder of the said victim coupled with the calculated and remorseless conduct of the accused persons after the commission of the offence, we cannot resist from concluding that the depravity of the appellants’ offence would attract no lesser sentence than the death penalty. 38. In addition to the above, it would be necessary for this Court to notice the impact of the crime on the community and particularly women working in the night shifts at Pune, which is considered as a hub of Information Technology Centre. In recent years, the rising crime rate, particularly violent crimes against women has made the criminal sentencing by the Courts a subject of concern. The sentencing policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent. There are a shockingly large number of cases where the sentence of punishment awarded to the accused is not in proportion to the gravity and magnitude of the offence thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. The object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In the case of Machhi Singh (supra), this Court observed that the extreme punishment of death would be justified and necessary in cases where the collective conscience of society is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion. 39. It is true that any case of rape and murder would cause a shock to the society but all such offences may not cause revulsion in society. Certain offences shock the collective conscience of the court and community. The heinous offence of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded murder and calculated attempt of cover-up is one such instance of a crime which shocks and repulses the collective conscience of the community and the court. Therefore, in light of the aforesaid settled principle, this Court has no hesitation in holding that this case falls within the category of “rarest of rare”, which merits death penalty and none else. The collective conscience of the community is so shocked by this crime that imposing alternate sentence, i.e. a sentence of life imprisonment on the accused persons would not meet the ends of justice. Rather, it would tempt other potential offenders to commit such crime and get away with the lesser/lighter punishment of life imprisonment.

0[ds]23. It is an established position that law regulates social interests and arbitrates conflicting claims and demands. Security of persons is a fundamental function of the State which can be achieved through instrumentality of criminal law. The society today has been infected with a lawlessness that has gravely undermined social order. Protection of society and stamping out criminal proclivity must be the object of law which may be achieved by imposing appropriate sentence. Therefore, in this context, the vital function that this Court is required to discharge is to mould the sentencing system to meet this challenge. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. Based on the facts of the case, this Court is required to be stern where it should be and tempered with mercy where warranted.The High Court, by the impugned judgment and order, has concurred with the findings recorded by the Sessions Court in respect of the chain of circumstances being clearly and incontrovertibly established by the prosecution. With regard to the balance sheet of aggravating and mitigating circumstances, the High Court has, in addition to the finding and observations of the Sessions Court, held that the aggravating circumstances far outweigh the mitigating circumstances. Therefore, the High Court has recorded that there is no alternative but to confirm the death sentence as awarded by the Sessionsthe instant case, the learned counsel for thehas laid stress upon the age of the accused persons, their family background and lack of criminal antecedents. Further, the learned counsel has fervently contended that theare capable of reformation and therefore should be awarded the lighter punishment of life imprisonment.33. In our considered view, in the facts of the present case, age alone cannot be a paramount consideration as a mitigating circumstance. Similarly, family background of the accused also could not be said to be a mitigating circumstance. Insofar as Accused No.1 is concerned, it has been contended that he was happily married and his wife was pregnant at the relevant time. However, the Accused No.1 did not take into consideration the condition of his wife or his mother while committing the said offence and, as a result, his wife deserted him and his widowed mother is being looked after by his nephew and niece. Insofar as Accused No.2 is concerned, he has two sisters who are looking after his widowed mother. Lack of criminal antecedents also cannot be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons.34. In our considered view, thecase exists when an accused would be a menace or, threat to and incompatible with harmony in the society. In a case where the accused does not act on provocation or on the spur of the moment, but meticulously executes a deliberate,d crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. This Court is mindful of the settled principle that criminal law requires strict adherence to the rule of proportionality in awarding punishment, and the same must be in accordance with the culpability of the criminal act. Furthermore, this Court is also conscious to the effect, of not awarding just punishment, on the society.Thus, the manner in which the commission of the offence was so meticulously and carefully planned coupled with the sheer brutality and apathy for humanity in the execution of the offence, in every probability they have potency to commit similar offence in future. It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they can be reformed or rehabilitated. In our considered opinion, the mitigating circumstances are wholly absent in the present factual matrix. This appeal is not a case where the offence was committed by the accused persons under influence of extreme mental or emotional disorder, nor is it a case where the offence may be argued to be a crime of passion or one committed at the spur of the moment. There is no question of accused persons believing that they were morally justified in committing the offence on helpless and defenceless young woman.It is true that any case of rape and murder would cause a shock to the society but all such offences may not cause revulsion in society. Certain offences shock the collective conscience of the court and community. The heinous offence of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded murder and calculated attempt of cover-up is one such instance of a crime which shocks and repulses the collective conscience of the community and the court. Therefore, in light of the aforesaid settled principle, this Court has no hesitation in holding that this case falls within the category ofwhich merits death penalty and none else. The collective conscience of the community is so shocked by this crime that imposing alternate sentence, i.e. a sentence of life imprisonment on the accused persons would not meet the ends of justice. Rather, it would tempt other potential offenders to commit such crime and get away with the lesser/lighter punishment of life imprisonment.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: of the moment, but meticulously executes a deliberate, cold-blooded and pre-planned crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. This Court is mindful of the settled principle that criminal law requires strict adherence to the rule of proportionality in awarding punishment, and the same must be in accordance with the culpability of the criminal act. Furthermore, this Court is also conscious to the effect, of not awarding just punishment, on the society. 35. In the present factual matrix, Accused No.1 abducted the deceased with help of Accused No.2, and subsequently they raped and murdered her. They did not show any regret, sorrow or repentance at any point of time during the commission of the heinous offence, nor thereafter, rather they acted in a disturbingly normal manner after commission of crime. It has been established by strong and cogent evidence that after the commission of the gruesome crime, Accused No.2 accompanied Accused No.1 for the second pick up and exited the cab only prior to reaching the gate of the Company. Further, it has been brought on record that the Accused No.1 attempted to create false record of the whereabouts of the cab and the cause of the delay in arriving at the workplace. In addition, it has been noticed that even though the accused-appellants were seen by PW-12, that the deceased repeatedly questioned them of the unusual route, or that the deceased was talking to a friend on the phone during the journey, nothing deterred them from committing the heinous offences. In fact the Sessions Court has noticed that during the commission of the offences, the accused-appellants were contacted by PW-11 seeking an explanation for the delay in picking him up, however even this did not deter them. 36. Thus, the manner in which the commission of the offence was so meticulously and carefully planned coupled with the sheer brutality and apathy for humanity in the execution of the offence, in every probability they have potency to commit similar offence in future. It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they can be reformed or rehabilitated. In our considered opinion, the mitigating circumstances are wholly absent in the present factual matrix. This appeal is not a case where the offence was committed by the accused persons under influence of extreme mental or emotional disorder, nor is it a case where the offence may be argued to be a crime of passion or one committed at the spur of the moment. There is no question of accused persons believing that they were morally justified in committing the offence on helpless and defenceless young woman. 37. Therefore, in view of the above and keeping the aforesaid principle of proportionality of sentence in mind, this Court is in agreement with the reasoning of the Courts below that the extreme depravity with which the deceased was done to death coupled with the other factors including the position of trust held by the Accused No.1, would tilt the balance between the aggravating and mitigating circumstances greatly against the accused-appellants. The gruesome act of raping a victim who had reposed her trust in the accused followed by a cold-blooded and brutal murder of the said victim coupled with the calculated and remorseless conduct of the accused persons after the commission of the offence, we cannot resist from concluding that the depravity of the appellants’ offence would attract no lesser sentence than the death penalty. 38. In addition to the above, it would be necessary for this Court to notice the impact of the crime on the community and particularly women working in the night shifts at Pune, which is considered as a hub of Information Technology Centre. In recent years, the rising crime rate, particularly violent crimes against women has made the criminal sentencing by the Courts a subject of concern. The sentencing policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent. There are a shockingly large number of cases where the sentence of punishment awarded to the accused is not in proportion to the gravity and magnitude of the offence thereby encouraging the criminal and in the ultimate making justice suffer by weakening the system’s credibility. The object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it. In the case of Machhi Singh (supra), this Court observed that the extreme punishment of death would be justified and necessary in cases where the collective conscience of society is so shocked that it will expect the holders of judicial power to inflict death penalty irrespective of their personal opinion. 39. It is true that any case of rape and murder would cause a shock to the society but all such offences may not cause revulsion in society. Certain offences shock the collective conscience of the court and community. The heinous offence of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded murder and calculated attempt of cover-up is one such instance of a crime which shocks and repulses the collective conscience of the community and the court. Therefore, in light of the aforesaid settled principle, this Court has no hesitation in holding that this case falls within the category of “rarest of rare”, which merits death penalty and none else. The collective conscience of the community is so shocked by this crime that imposing alternate sentence, i.e. a sentence of life imprisonment on the accused persons would not meet the ends of justice. Rather, it would tempt other potential offenders to commit such crime and get away with the lesser/lighter punishment of life imprisonment. ### Response: 0 ### Explanation: 23. It is an established position that law regulates social interests and arbitrates conflicting claims and demands. Security of persons is a fundamental function of the State which can be achieved through instrumentality of criminal law. The society today has been infected with a lawlessness that has gravely undermined social order. Protection of society and stamping out criminal proclivity must be the object of law which may be achieved by imposing appropriate sentence. Therefore, in this context, the vital function that this Court is required to discharge is to mould the sentencing system to meet this challenge. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration. Based on the facts of the case, this Court is required to be stern where it should be and tempered with mercy where warranted.The High Court, by the impugned judgment and order, has concurred with the findings recorded by the Sessions Court in respect of the chain of circumstances being clearly and incontrovertibly established by the prosecution. With regard to the balance sheet of aggravating and mitigating circumstances, the High Court has, in addition to the finding and observations of the Sessions Court, held that the aggravating circumstances far outweigh the mitigating circumstances. Therefore, the High Court has recorded that there is no alternative but to confirm the death sentence as awarded by the Sessionsthe instant case, the learned counsel for thehas laid stress upon the age of the accused persons, their family background and lack of criminal antecedents. Further, the learned counsel has fervently contended that theare capable of reformation and therefore should be awarded the lighter punishment of life imprisonment.33. In our considered view, in the facts of the present case, age alone cannot be a paramount consideration as a mitigating circumstance. Similarly, family background of the accused also could not be said to be a mitigating circumstance. Insofar as Accused No.1 is concerned, it has been contended that he was happily married and his wife was pregnant at the relevant time. However, the Accused No.1 did not take into consideration the condition of his wife or his mother while committing the said offence and, as a result, his wife deserted him and his widowed mother is being looked after by his nephew and niece. Insofar as Accused No.2 is concerned, he has two sisters who are looking after his widowed mother. Lack of criminal antecedents also cannot be considered as mitigating circumstance, particularly taking into consideration, the nature of heinous offence and cold and calculated manner in which it was committed by the accused persons.34. In our considered view, thecase exists when an accused would be a menace or, threat to and incompatible with harmony in the society. In a case where the accused does not act on provocation or on the spur of the moment, but meticulously executes a deliberate,d crime, giving scant regard to the consequences of the same, the precarious balance in the sentencing policy evolved by our criminal jurisprudence would tilt heavily towards the death sentence. This Court is mindful of the settled principle that criminal law requires strict adherence to the rule of proportionality in awarding punishment, and the same must be in accordance with the culpability of the criminal act. Furthermore, this Court is also conscious to the effect, of not awarding just punishment, on the society.Thus, the manner in which the commission of the offence was so meticulously and carefully planned coupled with the sheer brutality and apathy for humanity in the execution of the offence, in every probability they have potency to commit similar offence in future. It is clear that both the accused persons have been proved to be a menace to society which strongly negates the probability that they can be reformed or rehabilitated. In our considered opinion, the mitigating circumstances are wholly absent in the present factual matrix. This appeal is not a case where the offence was committed by the accused persons under influence of extreme mental or emotional disorder, nor is it a case where the offence may be argued to be a crime of passion or one committed at the spur of the moment. There is no question of accused persons believing that they were morally justified in committing the offence on helpless and defenceless young woman.It is true that any case of rape and murder would cause a shock to the society but all such offences may not cause revulsion in society. Certain offences shock the collective conscience of the court and community. The heinous offence of gang-rape of an innocent and helpless young woman by those in whom she had reposed trust, followed by a cold-blooded murder and calculated attempt of cover-up is one such instance of a crime which shocks and repulses the collective conscience of the community and the court. Therefore, in light of the aforesaid settled principle, this Court has no hesitation in holding that this case falls within the category ofwhich merits death penalty and none else. The collective conscience of the community is so shocked by this crime that imposing alternate sentence, i.e. a sentence of life imprisonment on the accused persons would not meet the ends of justice. Rather, it would tempt other potential offenders to commit such crime and get away with the lesser/lighter punishment of life imprisonment.

Sun Export Corpn. Vs. Board Of Trustees Of Port Of Bombay

of the evidence of this witness and the documents on the record, submitted that Appellant 1 was the "consignee" or the "owner" or the "agent" for the goods in question and, therefore, the Port Trust was justified in fastening the liability of recovering demurrage charges from it. 11. Section 3(5) of the Bombay Port Trust Act defines an "owner" as "3. (5) Owner, when used in relation to goods, includes any consignor, consignee, shipper or agent for the sale or custody of such goods; and when used in relation to any vessel or any aircraft making use of the port includes any part-owner, chartered, consignee or mortgagee in possession thereof;" * 12. Section 2(o) of the Major Port Trusts Act defines an "owner" in the following terms "2. (o) owner, (i) in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods; and (ii) in relation to any vessel or any aircraft making use of any port, includes any part-owner, charter, consignee, or mortgagee in possession thereof;" * 13. Bare reading of the definition of the expression "owner" under both the Acts, goes to show that the expression includes a "consignee" as also an "agent for sale or custody" of such goods. Thus, both under the Bombay Port Trust Act as well as under the Major Port Trusts Act, the expression "owner" includes an "agent for the custody of such goods". Therefore, irrespective of the question whether the expression "owner" could only imply the title holder in the goods as canvassed by Mr. Tripathi, from the definitions noticed above it follows that the expression "owner" would include within its ambit a "consignee" as well as the "agent for the custody of the goods" in question. We are in agreement with the view of the Division Bench of the High Court that on the endorsement made by the "consignee" on the Bill of Lading, Appellant 1 became the "consignee" and in view of the letters of authority issued to it, Appellant 1 was obliged to clear the goods as an "agent". Appellant 1 would therefore squarely fall within the definition of "owner" both under the Bombay Port Trust Act as also under the Major Port I Trusts Act, more particularly since it is not disputed that Appellant 1 had secured an endorsement on the Bill of Lading with a view to obtain custody of the consignment. It is, therefore, not available to Mr. Tripathi to contend that the appellants could not be considered even to be the "agents for the custody" of the consignment. This being the fact situation, the liability to pay demurrage and other charges to the Port Trust would squarely lie on the party which was obliged to remove the goods from the warehouse but failed to do so. 14. The expression "demurrage" has not been defined under the Port Trusts Act. In the context of the goods remaining in the wharfage, it implies the charges which the Port Trust can levy at a particular rate if the goods remain on the docks beyond a specified time. The Port Trust with a view to recover those dues would ordinarily have a lien on the goods and can refuse to deliver the goods till the demurrage charges are paid. This, however, presupposes that the Port Trust continues to hold the goods, but where the goods have been confiscated by the Customs authority, it cannot be said that the Port Trust had any hold over those goods after their "confiscation". The obligation to pay the charges of the Port Trust, till the confiscation of the goods as already observed, was that of the party which had the duty to remove/receive the goods and had failed to do so. In the instant case it was the appellants, who admittedly had acted as holders of the letters of authority and were the licensees agents for clearance of the consignment from the Customs and entitled to receive the goods which they failed to receive and clear. They could therefore be fastened with the liability to pay charges by way of demurrage, etc. to the Port Trust. 15. We do not find any merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to offset the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs authority vide order dated 28-2-1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of Rs. 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs authority within a fortnight to redeem the goods. That option was never exercised. Since the goods stood already confiscated, the submission that those goods could have been sold to offset the demurrage charges is fallacious. The goods confiscated by the Customs authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Insofar as Board of Trustees, Bombay Port v. Sriyansh Knitters 1983 AIR(Bom) 88) on which reliance is placed by learned counsel for the appellants is concerned, that judgment has been considered and rightly distinguished by the Division Bench of the High Court. 16. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay a the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High Court.

0[ds]15. We do not find any merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to offset the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs authority vide order dated 28-2-1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of Rs. 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs authority within a fortnight to redeem the goods. That option was never exercised. Since the goods stood already confiscated, the submission that those goods could have been sold to offset the demurrage charges is fallacious. The goods confiscated by the Customs authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Insofar as Board of Trustees, Bombay Port v. Sriyansh Knitters 1983 AIR(Bom) 88) on which reliance is placed by learned counsel for the appellants is concerned, that judgment has been considered and rightly distinguished by the Division Bench of the High Court16. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay a the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High CourtMajor Port Trusts Act, 1963

### 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: of the evidence of this witness and the documents on the record, submitted that Appellant 1 was the "consignee" or the "owner" or the "agent" for the goods in question and, therefore, the Port Trust was justified in fastening the liability of recovering demurrage charges from it. 11. Section 3(5) of the Bombay Port Trust Act defines an "owner" as "3. (5) Owner, when used in relation to goods, includes any consignor, consignee, shipper or agent for the sale or custody of such goods; and when used in relation to any vessel or any aircraft making use of the port includes any part-owner, chartered, consignee or mortgagee in possession thereof;" * 12. Section 2(o) of the Major Port Trusts Act defines an "owner" in the following terms "2. (o) owner, (i) in relation to goods, includes any consignor, consignee, shipper or agent for the sale, custody, loading or unloading of such goods; and (ii) in relation to any vessel or any aircraft making use of any port, includes any part-owner, charter, consignee, or mortgagee in possession thereof;" * 13. Bare reading of the definition of the expression "owner" under both the Acts, goes to show that the expression includes a "consignee" as also an "agent for sale or custody" of such goods. Thus, both under the Bombay Port Trust Act as well as under the Major Port Trusts Act, the expression "owner" includes an "agent for the custody of such goods". Therefore, irrespective of the question whether the expression "owner" could only imply the title holder in the goods as canvassed by Mr. Tripathi, from the definitions noticed above it follows that the expression "owner" would include within its ambit a "consignee" as well as the "agent for the custody of the goods" in question. We are in agreement with the view of the Division Bench of the High Court that on the endorsement made by the "consignee" on the Bill of Lading, Appellant 1 became the "consignee" and in view of the letters of authority issued to it, Appellant 1 was obliged to clear the goods as an "agent". Appellant 1 would therefore squarely fall within the definition of "owner" both under the Bombay Port Trust Act as also under the Major Port I Trusts Act, more particularly since it is not disputed that Appellant 1 had secured an endorsement on the Bill of Lading with a view to obtain custody of the consignment. It is, therefore, not available to Mr. Tripathi to contend that the appellants could not be considered even to be the "agents for the custody" of the consignment. This being the fact situation, the liability to pay demurrage and other charges to the Port Trust would squarely lie on the party which was obliged to remove the goods from the warehouse but failed to do so. 14. The expression "demurrage" has not been defined under the Port Trusts Act. In the context of the goods remaining in the wharfage, it implies the charges which the Port Trust can levy at a particular rate if the goods remain on the docks beyond a specified time. The Port Trust with a view to recover those dues would ordinarily have a lien on the goods and can refuse to deliver the goods till the demurrage charges are paid. This, however, presupposes that the Port Trust continues to hold the goods, but where the goods have been confiscated by the Customs authority, it cannot be said that the Port Trust had any hold over those goods after their "confiscation". The obligation to pay the charges of the Port Trust, till the confiscation of the goods as already observed, was that of the party which had the duty to remove/receive the goods and had failed to do so. In the instant case it was the appellants, who admittedly had acted as holders of the letters of authority and were the licensees agents for clearance of the consignment from the Customs and entitled to receive the goods which they failed to receive and clear. They could therefore be fastened with the liability to pay charges by way of demurrage, etc. to the Port Trust. 15. We do not find any merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to offset the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs authority vide order dated 28-2-1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of Rs. 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs authority within a fortnight to redeem the goods. That option was never exercised. Since the goods stood already confiscated, the submission that those goods could have been sold to offset the demurrage charges is fallacious. The goods confiscated by the Customs authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Insofar as Board of Trustees, Bombay Port v. Sriyansh Knitters 1983 AIR(Bom) 88) on which reliance is placed by learned counsel for the appellants is concerned, that judgment has been considered and rightly distinguished by the Division Bench of the High Court. 16. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay a the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High Court. ### Response: 0 ### Explanation: 15. We do not find any merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to offset the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs authority vide order dated 28-2-1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Imports and Exports (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of Rs. 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs authority within a fortnight to redeem the goods. That option was never exercised. Since the goods stood already confiscated, the submission that those goods could have been sold to offset the demurrage charges is fallacious. The goods confiscated by the Customs authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Insofar as Board of Trustees, Bombay Port v. Sriyansh Knitters 1983 AIR(Bom) 88) on which reliance is placed by learned counsel for the appellants is concerned, that judgment has been considered and rightly distinguished by the Division Bench of the High Court16. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay a the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High CourtMajor Port Trusts Act, 1963

RAJASTHAN STATE ROADWAYS TRANSPORT CORPORATION Vs. PARAMJEET SINGH

Dr Dhananjaya Y Chandrachud, J1. Leave granted.2. The respondent was appointed as a conductor on a contractual basis on 21 January 2006 by the appellant. The contractual appointment was for a period of one year or until the shortage of drivers was met, whichever was earlier. The agreement (described as the contract letter) which was entered into between the appellant and the respondent stipulated as follows:“11. While working as a conductor if on inspection of vehicle en-route if any passenger is found without a ticket then in such a situation the second party would be removed from the temporary employment and to fulfill the loss, he would also be liable to pay the amount as determined by the Head Quarter. Apart from this the first party would be at liberty to proceed against the second party under the prevention of without ticket travel act.”3. Clause 16 of the agreement stipulated that:“16. The first party will have the right to terminate the temporary appointment of the first party at any time without any notice.”4. The services of the respondent were dispensed with on 21 March 2007.5. Challenging the order of termination, the respondent filed a writ petition, which was allowed by a learned Single Judge of the Rajasthan High Court on 6 April 2016. The writ appeal was dismissed on 19 September 2016 by a Division Bench of the High Court.6. The respondent has been served, but has not entered appearance.7. The sole ground on which the writ petition was allowed was that there was a breach of the principle of natural justice.8. Learned counsel appearing on behalf of the appellant submits that the High Court was in error, having regard to the fact that the nature of the appointment was purely contractual for a period of one year or until the shortage of drivers was met, whichever was earlier. Moreover, the contract stipulates that the services of the respondent could be dispensed with without any notice.9. We find merit in the submission. The terms of the appointment indicate that the respondent was on a purely contractual appointment and that the services could be dispensed with without notice at any stage.10. The learned Single Judge of the High Court relied upon a decision of this Court in Hari Ram Maurya v Union of India and others 1 . That case is, however, distinguishable since it was found by this Court that the removal was on the ground that the employee, though he was engaged on a temporary basis, was guilty of a charge of bribery.11. Having regard to the terms of the contractual engagement, we are of the view that the action of the appellant cannot be faulted.

1[ds]9. We find merit in the submission. The terms of the appointment indicate that the respondent was on a purely contractual appointment and that the services could be dispensed with without notice at any stage.10. The learned Single Judge of the High Court relied upon a decision of this Court in Hari Ram Maurya v Union of India and others 1 . That case is, however, distinguishable since it was found by this Court that the removal was on the ground that the employee, though he was engaged on a temporary basis, was guilty of a charge of bribery.11. Having regard to the terms of the contractual engagement, we are of the view that the action of the appellant cannot be faulted.

### 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: Dr Dhananjaya Y Chandrachud, J1. Leave granted.2. The respondent was appointed as a conductor on a contractual basis on 21 January 2006 by the appellant. The contractual appointment was for a period of one year or until the shortage of drivers was met, whichever was earlier. The agreement (described as the contract letter) which was entered into between the appellant and the respondent stipulated as follows:“11. While working as a conductor if on inspection of vehicle en-route if any passenger is found without a ticket then in such a situation the second party would be removed from the temporary employment and to fulfill the loss, he would also be liable to pay the amount as determined by the Head Quarter. Apart from this the first party would be at liberty to proceed against the second party under the prevention of without ticket travel act.”3. Clause 16 of the agreement stipulated that:“16. The first party will have the right to terminate the temporary appointment of the first party at any time without any notice.”4. The services of the respondent were dispensed with on 21 March 2007.5. Challenging the order of termination, the respondent filed a writ petition, which was allowed by a learned Single Judge of the Rajasthan High Court on 6 April 2016. The writ appeal was dismissed on 19 September 2016 by a Division Bench of the High Court.6. The respondent has been served, but has not entered appearance.7. The sole ground on which the writ petition was allowed was that there was a breach of the principle of natural justice.8. Learned counsel appearing on behalf of the appellant submits that the High Court was in error, having regard to the fact that the nature of the appointment was purely contractual for a period of one year or until the shortage of drivers was met, whichever was earlier. Moreover, the contract stipulates that the services of the respondent could be dispensed with without any notice.9. We find merit in the submission. The terms of the appointment indicate that the respondent was on a purely contractual appointment and that the services could be dispensed with without notice at any stage.10. The learned Single Judge of the High Court relied upon a decision of this Court in Hari Ram Maurya v Union of India and others 1 . That case is, however, distinguishable since it was found by this Court that the removal was on the ground that the employee, though he was engaged on a temporary basis, was guilty of a charge of bribery.11. Having regard to the terms of the contractual engagement, we are of the view that the action of the appellant cannot be faulted. ### Response: 1 ### Explanation: 9. We find merit in the submission. The terms of the appointment indicate that the respondent was on a purely contractual appointment and that the services could be dispensed with without notice at any stage.10. The learned Single Judge of the High Court relied upon a decision of this Court in Hari Ram Maurya v Union of India and others 1 . That case is, however, distinguishable since it was found by this Court that the removal was on the ground that the employee, though he was engaged on a temporary basis, was guilty of a charge of bribery.11. Having regard to the terms of the contractual engagement, we are of the view that the action of the appellant cannot be faulted.

C.R.KARIYAPPA Vs. STATE OF KARNATAKA

R. BANUMATHI,J.1. This appeal arises out of the judgment of the High Court in and by which the High Court has reversed the order of acquittal and convicted the appellant under Section 326 IPC and sentenced him to undergo imprisonment for a period of two years.2. It is an unfortunate case where the appellant working as a teacher in Rani Chennamma School, Hospet had assaulted PW-2, a second standard student, with wooden stick for not wearing uniform shoes resulting in injury to the left eye of the said student. The injured PW-2 was taken to the hospital at Hospet and, thereafter, taken to the M.M. Joshi Hospital at Hubli where PW-2 had undergone surgery twice. In spite of the treatment, there was loss of eye-sight on the left eye of PW-2. On the complaint lodged by PW-1 who is father of PW-2, law was set in motion.3. Upon consideration of the evidence adduced by the prosecution, the Trial Court acquitted the appellant holding that there are contradictions in the evidence of eye witnesses viz. PW-3 and PW-4. The Trial Court also observed that the injured child (PW-2) was tutored before he was examined in the witness box and therefore, the evidence of child witness (PW-2) can not form the basis for conviction. The Trial Court also held that eye witnesses viz. PW-3 and PW-4 are related to PW-1 and that there was delay of 25 days in lodging the FIR and on those findings, the trial Court acquitted the accused-appellant.4. The High Court set aside the order of acquittal and convicted the appellant as stated in para 1.5. We have heard Mr. Basava Prabhu S.Patil, learned senior counsel appearing for the appellant and Mr. Joseph Aristotle S., learned counsel appearing for the respondent- State.6. Learned senior counsel appearing for the appellant has taken us through the judgment of the Trial Court and submitted that the Trial Court has rightly taken note that PW-2 injured child witness was tutored and that evidence of PW-3 and PW-4 is fraught with contradiction and the trial Court has rightly acquitted the accused and while so the High Court erred in reversing the order of acquittal.7. Learned senior counsel further submitted that the inordinate delay of 25 days in lodging the FIR was rightly considered as fatal to the prosecution case. Learned senior counsel urged that when the conclusion arrived at by the trial court was a plausible view, based upon the evidence, the High Court was not right in reversing the order of acquittal.8. Learned counsel appearing for the State supported the impugned judgment of the High Court and submitted that based upon the evidence, the High Court has rightly convicted the appellant-accused.9. The evidence of PW-2 injured-child witness in his cross examination stated that the admitted suggestions put to him by the defence counsel that he was tutored, in our considered view, the same cannot be the reason for discarding the evidence of PW-2. When PW-2 was examined in the Court some time after the occurrence, being a child witness(PW-2) who is not conversant with the court?s proceedings, has to be necessarily apprised about the court?s proceedings and that he has to speak about the occurrence. It cannot be said that he was tutored about the occurrence itself to depose against the appellant.10. So far as contradiction pointed out between the evidence of PW-3 and PW-4 who were examined as eye witnesses, as observed by the High Court those contradictions do not affect the version of PW-3 and PW-4 and their credibility, more so, when their evidence is supported by PW-5 who is father of another student studying in the same school who has also stated about the assault by the appellant on PW-2 with the stick and that PW-2 sat down holding his eye with hands.11. The High Court has rightly held that evidence of P.Ws 3 to 5 has been consistent through out. Their evidence is also supported by the medical evidence of PW-13 Doctor Guruprasad, the medical officer, in the hospital at Hospet; PW-14 (H. Neelakantha Swamy) – lecturer in Bellary Medical College and PW-16 (Dr.S.R. Kotekar) medical officer in the Government Hospital at Hospet. Upon appreciation of evidence, the High Court has rightly reversed the order of acquittal and convicted the appellant.12. The only question falling for consideration is the correctness of the conviction under Section 326 and the nature of the offence. Though the stick wielded by the appellant has been marked as MO1, there is no material to show that the stick that was wielded by the appellant was a dangerous weapon.13. In the absence of such evidence, in our view, the conviction of the appellant under Section 326 may not be warranted; but the offence would fall under Section 325 IPC, ?voluntarily causing grievous hurt?.

1[ds]9. The evidence ofd witness in his cross examination stated that the admitted suggestions put to him by the defence counsel that he was tutored, in our considered view, the same cannot be the reason for discarding the evidence ofwas examined in the Court some time after the occurrence, being a childwho is not conversant with the court?s proceedings, has to be necessarily apprised about the court?s proceedings and that he has to speak about the occurrence. It cannot be said that he was tutored about the occurrence itself to depose against the appellant.The High Court has rightly held that evidence of P.Ws 3 to 5 has been consistent through out. Their evidence is also supported by the medical evidence ofDoctor Guruprasad, the medical officer, in the hospital at Hospet;(H. Neelakantha Swamy) – lecturer in Bellary Medical College and(Dr.S.R. Kotekar) medical officer in the Government Hospital at Hospet. Upon appreciation of evidence, the High Court has rightly reversed the order of acquittal and convicted the appellant.In the absence of such evidence, in our view, the conviction of the appellant under Section 326 may not be warranted; but the offence would fall under Section 325 IPC, ?voluntarily causing grievous hurt?.

### 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: R. BANUMATHI,J.1. This appeal arises out of the judgment of the High Court in and by which the High Court has reversed the order of acquittal and convicted the appellant under Section 326 IPC and sentenced him to undergo imprisonment for a period of two years.2. It is an unfortunate case where the appellant working as a teacher in Rani Chennamma School, Hospet had assaulted PW-2, a second standard student, with wooden stick for not wearing uniform shoes resulting in injury to the left eye of the said student. The injured PW-2 was taken to the hospital at Hospet and, thereafter, taken to the M.M. Joshi Hospital at Hubli where PW-2 had undergone surgery twice. In spite of the treatment, there was loss of eye-sight on the left eye of PW-2. On the complaint lodged by PW-1 who is father of PW-2, law was set in motion.3. Upon consideration of the evidence adduced by the prosecution, the Trial Court acquitted the appellant holding that there are contradictions in the evidence of eye witnesses viz. PW-3 and PW-4. The Trial Court also observed that the injured child (PW-2) was tutored before he was examined in the witness box and therefore, the evidence of child witness (PW-2) can not form the basis for conviction. The Trial Court also held that eye witnesses viz. PW-3 and PW-4 are related to PW-1 and that there was delay of 25 days in lodging the FIR and on those findings, the trial Court acquitted the accused-appellant.4. The High Court set aside the order of acquittal and convicted the appellant as stated in para 1.5. We have heard Mr. Basava Prabhu S.Patil, learned senior counsel appearing for the appellant and Mr. Joseph Aristotle S., learned counsel appearing for the respondent- State.6. Learned senior counsel appearing for the appellant has taken us through the judgment of the Trial Court and submitted that the Trial Court has rightly taken note that PW-2 injured child witness was tutored and that evidence of PW-3 and PW-4 is fraught with contradiction and the trial Court has rightly acquitted the accused and while so the High Court erred in reversing the order of acquittal.7. Learned senior counsel further submitted that the inordinate delay of 25 days in lodging the FIR was rightly considered as fatal to the prosecution case. Learned senior counsel urged that when the conclusion arrived at by the trial court was a plausible view, based upon the evidence, the High Court was not right in reversing the order of acquittal.8. Learned counsel appearing for the State supported the impugned judgment of the High Court and submitted that based upon the evidence, the High Court has rightly convicted the appellant-accused.9. The evidence of PW-2 injured-child witness in his cross examination stated that the admitted suggestions put to him by the defence counsel that he was tutored, in our considered view, the same cannot be the reason for discarding the evidence of PW-2. When PW-2 was examined in the Court some time after the occurrence, being a child witness(PW-2) who is not conversant with the court?s proceedings, has to be necessarily apprised about the court?s proceedings and that he has to speak about the occurrence. It cannot be said that he was tutored about the occurrence itself to depose against the appellant.10. So far as contradiction pointed out between the evidence of PW-3 and PW-4 who were examined as eye witnesses, as observed by the High Court those contradictions do not affect the version of PW-3 and PW-4 and their credibility, more so, when their evidence is supported by PW-5 who is father of another student studying in the same school who has also stated about the assault by the appellant on PW-2 with the stick and that PW-2 sat down holding his eye with hands.11. The High Court has rightly held that evidence of P.Ws 3 to 5 has been consistent through out. Their evidence is also supported by the medical evidence of PW-13 Doctor Guruprasad, the medical officer, in the hospital at Hospet; PW-14 (H. Neelakantha Swamy) – lecturer in Bellary Medical College and PW-16 (Dr.S.R. Kotekar) medical officer in the Government Hospital at Hospet. Upon appreciation of evidence, the High Court has rightly reversed the order of acquittal and convicted the appellant.12. The only question falling for consideration is the correctness of the conviction under Section 326 and the nature of the offence. Though the stick wielded by the appellant has been marked as MO1, there is no material to show that the stick that was wielded by the appellant was a dangerous weapon.13. In the absence of such evidence, in our view, the conviction of the appellant under Section 326 may not be warranted; but the offence would fall under Section 325 IPC, ?voluntarily causing grievous hurt?. ### Response: 1 ### Explanation: 9. The evidence ofd witness in his cross examination stated that the admitted suggestions put to him by the defence counsel that he was tutored, in our considered view, the same cannot be the reason for discarding the evidence ofwas examined in the Court some time after the occurrence, being a childwho is not conversant with the court?s proceedings, has to be necessarily apprised about the court?s proceedings and that he has to speak about the occurrence. It cannot be said that he was tutored about the occurrence itself to depose against the appellant.The High Court has rightly held that evidence of P.Ws 3 to 5 has been consistent through out. Their evidence is also supported by the medical evidence ofDoctor Guruprasad, the medical officer, in the hospital at Hospet;(H. Neelakantha Swamy) – lecturer in Bellary Medical College and(Dr.S.R. Kotekar) medical officer in the Government Hospital at Hospet. Upon appreciation of evidence, the High Court has rightly reversed the order of acquittal and convicted the appellant.In the absence of such evidence, in our view, the conviction of the appellant under Section 326 may not be warranted; but the offence would fall under Section 325 IPC, ?voluntarily causing grievous hurt?.

United India Insurance Co. Ltd Vs. Jyotsnaben Sudhirbhai Patel

the appeal need not be dismissed and the insured may proceed with the appeal. This Court stated as under: Thus, the decision of this court in the case of Chinnama Gerorge can be of no avail to the appellant and we do not find any merit in the submission that joint appeal by the insurer as well as the insured was not maintainable. In such an eventuality, the course which a Court should adopt is as noticed in the case of Narendra Kumar to delete the name of the insurer from the cause title and proceed with the appeal of the insured and decide the same on merit. 10. The lone dissenting view was expressed by this Court in United India Insurance Co. Ltd. vs. Bhushan Sachdeva & others (2002) 2 SCC 265 . There, it was held that it is open to the Insurance Company to invoke the right under Section 173 of the Act and maintain an appeal against the award made by the Tribunal. It was held that the insurer shall be treated as a person aggrieved by the award as the amount of compensation is to be paid by the insurance company. The Court also went on the observe that failure to file an appeal by the insurer would amount to failed to contest and therefore, the Insurer can maintain an appeal under Section 173 of the Act. 11. The view taken in the above decision was not accepted by a three Judge bench of this Court in National Insurance Co. Ltd. Chandigarh vs. Nicolletta Rohtagi and others (2002) 7 SCC 456, which considered the question elaborately and held that the right of appeal is not an inherent right and as the Insurance Company is permitted to contest only on the grounds stated in Section 149(2) of the Motor Vehicles Act, the insurer cannot file an appeal on any other ground, except in accordance with the procedure prescribed under Section 170 of the Act. In that case, this Court observed as follows: The aforesaid provisions show two aspects. Firstly, that the insurer has only statutory defences available as provided in sub-section (2) of Section 149 of the 1988 Act and secondly, where the tribunal is of the view that there is a collusion between the claimant and the insured, or the insured does not contest the claim, the insurer can be made a party and on such impleadment the insurer shall have al defences available to it. Then comes the provision of Section 173 which provides for an appeal against the award given by the Tribunal Under Section 173, any person aggrieved by an award is entitled to prefer an appeal to the High Court. Very often the question has arisen as to whether an insurer is entitled to file an appeal on the grounds available to the insured when either there is a collusion between the claimants and the insured or when the insured has not filed an appeal before the High Court questioning the quantum of compensation. The consistent view of this Court had been that the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence or contributory negligence of offending vehicle. 12. In view of the aforesaid decisions on the point and on a consideration of the relevant provisions under the Motor Vehicles Act, it is plain and clear that the Insurance Company can contest the claim preferred before the Tribunal only on the statutory grounds prescribed under Section 149(2) of the Act, but, if there is collusion between the person making the claim and the person resisting the claim or if the person against whom the claim is made has failed to contest the claim, the Insurance Company can step in and seek permission of the Tribunal and make a prayer for getting itself impleaded as a party to the proceeding and the insurer so impleaded can then contest the proceeding on grounds other than the grounds enumerated in sub-section 2 Section 149 of the Act. This is an enabling provision in the event of a collusion between the claimant and the insured or the tortfeaser. 13. In the instant case, the Insurance Company was impleaded as third respondent. The driver and owner of the vehicle, though appeared before the Tribunal, did not contest the proceedings. They did not file the written statement nor did they choose to give evidence before the Tribunal. Admittedly, the appellant filed an application under Section 170 of the Act seeking permission of the Tribunal to contest the proceedings giving the necessary details. The award passed by the Tribunal also evidently shows that pursuant to this permission, the counsel for the appellant-Insurance Company cross-examined the witnesses produced by the claimant to prove the negligence of the offending vehicle. Unfortunately, however, the Tribunal, while passing its orders on the petition filed under Section 170 of the Act only stated that the prayer was granted, though the mandate of Section 170(b) of the Motor Vehicles Act states that the Tribunal while passing an order shall record its reasons. This Court in Shankaravvas case (supra) had emphasised this aspect. But it is very much evident in this case that the driver and the owner of the motor vehicle did not file the written statement and failed to contest the proceedings. The Tribunal could have merely recorded that fact while allowing the application. In a situation contemplated by clause (b) of Section 170, nothing more was required than recording that indisputable fact. For failure to do so, the appellant shall not suffer prejudice. Therefore, the appellant-Insurance Company was justified in contesting the proceedings on the grounds other than those enumerated under sub-Section (2) of Section 149 of the Act, pursuant to the permission granted by Court. For the same reason, the Insurance Company can be legitimately considered to be person aggrieved within the meaning of Section 173 of the Act. 14. Having regard to the above facts,

0[ds]13. In the instant case, the Insurance Company was impleaded as third respondent. The driver and owner of the vehicle, though appeared before the Tribunal, did not contest the proceedings. They did not file the written statement nor did they choose to give evidence before the Tribunal. Admittedly, the appellant filed an application under Section 170 of the Act seeking permission of the Tribunal to contest the proceedings giving the necessary details. The award passed by the Tribunal also evidently shows that pursuant to this permission, the counsel for the appellant-Insurance Company cross-examined the witnesses produced by the claimant to prove the negligence of the offending vehicle. Unfortunately, however, the Tribunal, while passing its orders on the petition filed under Section 170 of the Act only stated that the prayer was granted, though the mandate of Section 170(b) of the Motor Vehicles Act states that the Tribunal while passing an order shall record its reasons. This Court in Shankaravvas case (supra) had emphasised this aspect. But it is very much evident in this case that the driver and the owner of the motor vehicle did not file the written statement and failed to contest the proceedings. The Tribunal could have merely recorded that fact while allowing the application. In a situation contemplated by clause (b) of Section 170, nothing more was required than recording that indisputable fact. For failure to do so, the appellant shall not suffer prejudice. Therefore, the appellant-Insurance Company was justified in contesting the proceedings on the grounds other than those enumerated under sub-Section (2) of Section 149 of the Act, pursuant to the permission granted by Court. For the same reason, the Insurance Company can be legitimately considered to be person aggrieved within the meaning of Section 173 of the Act

### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: the appeal need not be dismissed and the insured may proceed with the appeal. This Court stated as under: Thus, the decision of this court in the case of Chinnama Gerorge can be of no avail to the appellant and we do not find any merit in the submission that joint appeal by the insurer as well as the insured was not maintainable. In such an eventuality, the course which a Court should adopt is as noticed in the case of Narendra Kumar to delete the name of the insurer from the cause title and proceed with the appeal of the insured and decide the same on merit. 10. The lone dissenting view was expressed by this Court in United India Insurance Co. Ltd. vs. Bhushan Sachdeva & others (2002) 2 SCC 265 . There, it was held that it is open to the Insurance Company to invoke the right under Section 173 of the Act and maintain an appeal against the award made by the Tribunal. It was held that the insurer shall be treated as a person aggrieved by the award as the amount of compensation is to be paid by the insurance company. The Court also went on the observe that failure to file an appeal by the insurer would amount to failed to contest and therefore, the Insurer can maintain an appeal under Section 173 of the Act. 11. The view taken in the above decision was not accepted by a three Judge bench of this Court in National Insurance Co. Ltd. Chandigarh vs. Nicolletta Rohtagi and others (2002) 7 SCC 456, which considered the question elaborately and held that the right of appeal is not an inherent right and as the Insurance Company is permitted to contest only on the grounds stated in Section 149(2) of the Motor Vehicles Act, the insurer cannot file an appeal on any other ground, except in accordance with the procedure prescribed under Section 170 of the Act. In that case, this Court observed as follows: The aforesaid provisions show two aspects. Firstly, that the insurer has only statutory defences available as provided in sub-section (2) of Section 149 of the 1988 Act and secondly, where the tribunal is of the view that there is a collusion between the claimant and the insured, or the insured does not contest the claim, the insurer can be made a party and on such impleadment the insurer shall have al defences available to it. Then comes the provision of Section 173 which provides for an appeal against the award given by the Tribunal Under Section 173, any person aggrieved by an award is entitled to prefer an appeal to the High Court. Very often the question has arisen as to whether an insurer is entitled to file an appeal on the grounds available to the insured when either there is a collusion between the claimants and the insured or when the insured has not filed an appeal before the High Court questioning the quantum of compensation. The consistent view of this Court had been that the insurer has no right to file an appeal to challenge the quantum of compensation or finding of the Tribunal as regards the negligence or contributory negligence of offending vehicle. 12. In view of the aforesaid decisions on the point and on a consideration of the relevant provisions under the Motor Vehicles Act, it is plain and clear that the Insurance Company can contest the claim preferred before the Tribunal only on the statutory grounds prescribed under Section 149(2) of the Act, but, if there is collusion between the person making the claim and the person resisting the claim or if the person against whom the claim is made has failed to contest the claim, the Insurance Company can step in and seek permission of the Tribunal and make a prayer for getting itself impleaded as a party to the proceeding and the insurer so impleaded can then contest the proceeding on grounds other than the grounds enumerated in sub-section 2 Section 149 of the Act. This is an enabling provision in the event of a collusion between the claimant and the insured or the tortfeaser. 13. In the instant case, the Insurance Company was impleaded as third respondent. The driver and owner of the vehicle, though appeared before the Tribunal, did not contest the proceedings. They did not file the written statement nor did they choose to give evidence before the Tribunal. Admittedly, the appellant filed an application under Section 170 of the Act seeking permission of the Tribunal to contest the proceedings giving the necessary details. The award passed by the Tribunal also evidently shows that pursuant to this permission, the counsel for the appellant-Insurance Company cross-examined the witnesses produced by the claimant to prove the negligence of the offending vehicle. Unfortunately, however, the Tribunal, while passing its orders on the petition filed under Section 170 of the Act only stated that the prayer was granted, though the mandate of Section 170(b) of the Motor Vehicles Act states that the Tribunal while passing an order shall record its reasons. This Court in Shankaravvas case (supra) had emphasised this aspect. But it is very much evident in this case that the driver and the owner of the motor vehicle did not file the written statement and failed to contest the proceedings. The Tribunal could have merely recorded that fact while allowing the application. In a situation contemplated by clause (b) of Section 170, nothing more was required than recording that indisputable fact. For failure to do so, the appellant shall not suffer prejudice. Therefore, the appellant-Insurance Company was justified in contesting the proceedings on the grounds other than those enumerated under sub-Section (2) of Section 149 of the Act, pursuant to the permission granted by Court. For the same reason, the Insurance Company can be legitimately considered to be person aggrieved within the meaning of Section 173 of the Act. 14. Having regard to the above facts, ### Response: 0 ### Explanation: 13. In the instant case, the Insurance Company was impleaded as third respondent. The driver and owner of the vehicle, though appeared before the Tribunal, did not contest the proceedings. They did not file the written statement nor did they choose to give evidence before the Tribunal. Admittedly, the appellant filed an application under Section 170 of the Act seeking permission of the Tribunal to contest the proceedings giving the necessary details. The award passed by the Tribunal also evidently shows that pursuant to this permission, the counsel for the appellant-Insurance Company cross-examined the witnesses produced by the claimant to prove the negligence of the offending vehicle. Unfortunately, however, the Tribunal, while passing its orders on the petition filed under Section 170 of the Act only stated that the prayer was granted, though the mandate of Section 170(b) of the Motor Vehicles Act states that the Tribunal while passing an order shall record its reasons. This Court in Shankaravvas case (supra) had emphasised this aspect. But it is very much evident in this case that the driver and the owner of the motor vehicle did not file the written statement and failed to contest the proceedings. The Tribunal could have merely recorded that fact while allowing the application. In a situation contemplated by clause (b) of Section 170, nothing more was required than recording that indisputable fact. For failure to do so, the appellant shall not suffer prejudice. Therefore, the appellant-Insurance Company was justified in contesting the proceedings on the grounds other than those enumerated under sub-Section (2) of Section 149 of the Act, pursuant to the permission granted by Court. For the same reason, the Insurance Company can be legitimately considered to be person aggrieved within the meaning of Section 173 of the Act

Ponnayal @ Lakshmi Vs. Karuppannan (Dead) Thr. L.R. Sengoda Gounder & Anr

dated 15th September, 1949 executed by Athappa Gounder in favour of Defendant No.1 in O.S. No.130 of 1987. The High Court took notice of the averments made in O.S. No.18 of 1953 by the Plaintiffs to the effect that Athappa ill-treated his wife and daughter i.e. the Plaintiffs-herein and forced them out of the house and refused to maintain them. It was the case of the Plaintiffs in O.S. No.18 of 1953 that the Sale Deed dated 15th September, 1949 was brought into existence only for the purpose of defeating their claim over the property. The terms of compromise were to the effect that the Defendants in O.S. No.18 of 1953 shall convey the entire properties specified in the schedule therein in favour of Plaintiff No.2 on deposit of Rs.6,000/- within a period of six months. In the event of registration of the said Sale Deed, Plaintiff No.2 would not have any right to claim maintenance against the Defendants-therein. In the event of Plaintiff No.2 not depositing the amount of Rs.6,000/- within the stipulated time, she would forfeit maintenance due to her and Plaintiff No.1. Plaintiffs shall be entitled only to future maintenance at the rate of Rs.10/- for Plaintiff No.2 and Rs.5/- for Plaintiff No.1 until her marriage and Rs.500/- for the marriage expenses of Plaintiff No.1. There is no dispute that Plaintiff No.2 did not deposit Rs.6,000/- as per the terms of the compromise within the stipulated time. On the basis of the above discussion, the High Court concluded that the Plaintiffs lost their right to challenge the Sale Deed dated 15th September, 1949. The High Court, further, held that the said Sale Deed which was challenged in the year 1953 by filing the O.S. No. 18 of 1953 cannot be the subject matter of another challenge after a lapse of over 30 years. The High Court, thus, approved the judgment of the trial court that the suit is barred by limitation. The contention of the Plaintiffs that the Defendants took advantage of the mental illness of Athappa Gounder and manipulated the documents in their favour was also not accepted by the High Court. The High Court referred to the suit filed by the Plaintiffs in O.S. No.18 of 1953 in which they did not even whisper about the mental illness of Athappa Gounder. The conclusion of the trial court regarding adverse possession in favour of the Defendants was also upheld by the High Court in view of the peculiar facts of the case.11. We have perused the written submissions filed by the Appellant in-person. The Appellant has relied upon the Partition Deed dated 6th December, 1937 and the Deed of Settlement dated 6th August 1942. According to the Appellant, the Deed of Partition dated 6 th December, 1937 was entered into between her grandfather late Shri Appavu Gounder and his two sons late Shri Karunappanan Gounder (Defendant No.1) and late Shri Athappa Gounder. The Deed of Settlement dated 6th August 1942 executed by her father Athappa Gounder in favour of her grandfather Appavu Gounder showed the inability of Athappa Gounder to cultivate his land. According to the said Settlement Deed dated 6.8.1942, the property should be handed over to the legal heirs of Athappa Gounder. As the said two documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents, we are afraid that we cannot adjudicate on the issues pertaining to the said documents. Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings ((1987) 2 SCC 555 – Ram Swarup Gupta v. Bishun Narain Inter College and AIR 1956 SC 231 - J.K. Iron & Steel Co. Ltd. v. Mazdoor Union).12. The dispute raised by the Appellant pertains to her right to partition of ancestral properties that fell to the share of her father late Athappa Gounder pursuant to the registered Partition Deed dated 22nd April 1948. The Plaintiffs prayed for division of the suit properties on the basis of the registered Partition Deed dated 22nd April 1948. The Appellant cannot be permitted to contend that the Plaintiffs are not bound by the Partition Deed dated 22nd April 1948 when the foundation for the claim of the Plaintiffs is the said Partition Deed.13. The registered Sale Deed dated 15th September 1949 executed by Athappa Gounder in favour of Defendant No.1 is challenged on the ground that there was no necessity for Athappa Gounder to take loans from third parties. The Appellant further stated in the written submissions that the Compromise Decree in O.S. No. 18 of 1953 cannot preclude her from challenging the Sale Deed dated 15th September 1949. There is no dispute that the Sale Deed dated 15th September 1949 was challenged in O.S. No. 18 of 1953. The Plaintiff No.2 did not comply with the condition of the Compromise Decree regarding the deposit of Rs.6000/- within the stipulated time whereafter she was entitled for transfer of property in her favour. The High Court held that the Appellant has lost her right to question the Sale Deed dated 15th September 1949 again, that too, after an inordinate delay. As such, the Suit filed in 1987 was barred by limitation. The High Court rejected the submissions of the Appellant that Athappa Gounder was of unsound mind and the Defendant No.1 took advantage and manipulated the Sale Deed dated. 15th September 1949. We are in agreement with the findings of the High Court.14. What remains to be seen is whether the Settlement Deed dated 6th December 1958 executed by Appavu Gounder in favour of Defendant No.2 is valid and binding on the Appellants. There is no evidence adduced by the Appellant to prove the contrary. The High Court is right in its conclusion that Appavu Gounder had a right to settle the property that fell to his share in the Partition Deed dated 22nd April 1948 in favour of his grandson.

0[ds]The Deed of Settlement dated 6th August 1942 executed by her father Athappa Gounder in favour of her grandfather Appavu Gounder showed the inability of Athappa Gounder to cultivate his land. According to the said Settlement Deed dated 6.8.1942, the property should be handed over to the legal heirs of Athappa Gounder. As the said two documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents, we are afraid that we cannot adjudicate on the issues pertaining to the said documents. Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings ((1987) 2 SCC 555 – Ram Swarup Gupta v. Bishun Narain Inter College and AIR 1956 SC 231 - J.K. Iron & Steel Co. Ltd. v. Mazdoor Union)12. The dispute raised by the Appellant pertains to her right to partition of ancestral properties that fell to the share of her father late Athappa Gounder pursuant to the registered Partition Deed dated 22nd April 1948. The Plaintiffs prayed for division of the suit properties on the basis of the registered Partition Deed dated 22nd April 1948. The Appellant cannot be permitted to contend that the Plaintiffs are not bound by the Partition Deed dated 22nd April 1948 when the foundation for the claim of the Plaintiffs is the said Partition Deed13. The registered Sale Deed dated 15th September 1949 executed by Athappa Gounder in favour of Defendant No.1 is challenged on the ground that there was no necessity for Athappa Gounder to take loans from third parties. The Appellant further stated in the written submissions that the Compromise Decree in O.S. No. 18 of 1953 cannot preclude her from challenging the Sale Deed dated 15th September 1949. There is no dispute that the Sale Deed dated 15th September 1949 was challenged in O.S. No. 18 of 1953. The Plaintiff No.2 did not comply with the condition of the Compromise Decree regarding the deposit of Rs.6000/- within the stipulated time whereafter she was entitled for transfer of property in her favour. The High Court held that the Appellant has lost her right to question the Sale Deed dated 15th September 1949 again, that too, after an inordinate delay. As such, the Suit filed in 1987 was barred by limitation. The High Court rejected the submissions of the Appellant that Athappa Gounder was of unsound mind and the Defendant No.1 took advantage and manipulated the Sale Deed dated. 15th September 1949. We are in agreement with the findings of the High CourtThere is no evidence adduced by the Appellant to prove the contrary. The High Court is right in its conclusion that Appavu Gounder had a right to settle the property that fell to his share in the Partition Deed dated 22nd April 1948 in favour of his grandson.

### 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: dated 15th September, 1949 executed by Athappa Gounder in favour of Defendant No.1 in O.S. No.130 of 1987. The High Court took notice of the averments made in O.S. No.18 of 1953 by the Plaintiffs to the effect that Athappa ill-treated his wife and daughter i.e. the Plaintiffs-herein and forced them out of the house and refused to maintain them. It was the case of the Plaintiffs in O.S. No.18 of 1953 that the Sale Deed dated 15th September, 1949 was brought into existence only for the purpose of defeating their claim over the property. The terms of compromise were to the effect that the Defendants in O.S. No.18 of 1953 shall convey the entire properties specified in the schedule therein in favour of Plaintiff No.2 on deposit of Rs.6,000/- within a period of six months. In the event of registration of the said Sale Deed, Plaintiff No.2 would not have any right to claim maintenance against the Defendants-therein. In the event of Plaintiff No.2 not depositing the amount of Rs.6,000/- within the stipulated time, she would forfeit maintenance due to her and Plaintiff No.1. Plaintiffs shall be entitled only to future maintenance at the rate of Rs.10/- for Plaintiff No.2 and Rs.5/- for Plaintiff No.1 until her marriage and Rs.500/- for the marriage expenses of Plaintiff No.1. There is no dispute that Plaintiff No.2 did not deposit Rs.6,000/- as per the terms of the compromise within the stipulated time. On the basis of the above discussion, the High Court concluded that the Plaintiffs lost their right to challenge the Sale Deed dated 15th September, 1949. The High Court, further, held that the said Sale Deed which was challenged in the year 1953 by filing the O.S. No. 18 of 1953 cannot be the subject matter of another challenge after a lapse of over 30 years. The High Court, thus, approved the judgment of the trial court that the suit is barred by limitation. The contention of the Plaintiffs that the Defendants took advantage of the mental illness of Athappa Gounder and manipulated the documents in their favour was also not accepted by the High Court. The High Court referred to the suit filed by the Plaintiffs in O.S. No.18 of 1953 in which they did not even whisper about the mental illness of Athappa Gounder. The conclusion of the trial court regarding adverse possession in favour of the Defendants was also upheld by the High Court in view of the peculiar facts of the case.11. We have perused the written submissions filed by the Appellant in-person. The Appellant has relied upon the Partition Deed dated 6th December, 1937 and the Deed of Settlement dated 6th August 1942. According to the Appellant, the Deed of Partition dated 6 th December, 1937 was entered into between her grandfather late Shri Appavu Gounder and his two sons late Shri Karunappanan Gounder (Defendant No.1) and late Shri Athappa Gounder. The Deed of Settlement dated 6th August 1942 executed by her father Athappa Gounder in favour of her grandfather Appavu Gounder showed the inability of Athappa Gounder to cultivate his land. According to the said Settlement Deed dated 6.8.1942, the property should be handed over to the legal heirs of Athappa Gounder. As the said two documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents, we are afraid that we cannot adjudicate on the issues pertaining to the said documents. Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings ((1987) 2 SCC 555 – Ram Swarup Gupta v. Bishun Narain Inter College and AIR 1956 SC 231 - J.K. Iron & Steel Co. Ltd. v. Mazdoor Union).12. The dispute raised by the Appellant pertains to her right to partition of ancestral properties that fell to the share of her father late Athappa Gounder pursuant to the registered Partition Deed dated 22nd April 1948. The Plaintiffs prayed for division of the suit properties on the basis of the registered Partition Deed dated 22nd April 1948. The Appellant cannot be permitted to contend that the Plaintiffs are not bound by the Partition Deed dated 22nd April 1948 when the foundation for the claim of the Plaintiffs is the said Partition Deed.13. The registered Sale Deed dated 15th September 1949 executed by Athappa Gounder in favour of Defendant No.1 is challenged on the ground that there was no necessity for Athappa Gounder to take loans from third parties. The Appellant further stated in the written submissions that the Compromise Decree in O.S. No. 18 of 1953 cannot preclude her from challenging the Sale Deed dated 15th September 1949. There is no dispute that the Sale Deed dated 15th September 1949 was challenged in O.S. No. 18 of 1953. The Plaintiff No.2 did not comply with the condition of the Compromise Decree regarding the deposit of Rs.6000/- within the stipulated time whereafter she was entitled for transfer of property in her favour. The High Court held that the Appellant has lost her right to question the Sale Deed dated 15th September 1949 again, that too, after an inordinate delay. As such, the Suit filed in 1987 was barred by limitation. The High Court rejected the submissions of the Appellant that Athappa Gounder was of unsound mind and the Defendant No.1 took advantage and manipulated the Sale Deed dated. 15th September 1949. We are in agreement with the findings of the High Court.14. What remains to be seen is whether the Settlement Deed dated 6th December 1958 executed by Appavu Gounder in favour of Defendant No.2 is valid and binding on the Appellants. There is no evidence adduced by the Appellant to prove the contrary. The High Court is right in its conclusion that Appavu Gounder had a right to settle the property that fell to his share in the Partition Deed dated 22nd April 1948 in favour of his grandson. ### Response: 0 ### Explanation: The Deed of Settlement dated 6th August 1942 executed by her father Athappa Gounder in favour of her grandfather Appavu Gounder showed the inability of Athappa Gounder to cultivate his land. According to the said Settlement Deed dated 6.8.1942, the property should be handed over to the legal heirs of Athappa Gounder. As the said two documents were neither part of the pleadings in the Suit nor was an issue framed regarding the said documents, we are afraid that we cannot adjudicate on the issues pertaining to the said documents. Civil Suits are decided on the basis of pleadings and the issues framed and the parties to the Suit cannot be permitted to travel beyond the pleadings ((1987) 2 SCC 555 – Ram Swarup Gupta v. Bishun Narain Inter College and AIR 1956 SC 231 - J.K. Iron & Steel Co. Ltd. v. Mazdoor Union)12. The dispute raised by the Appellant pertains to her right to partition of ancestral properties that fell to the share of her father late Athappa Gounder pursuant to the registered Partition Deed dated 22nd April 1948. The Plaintiffs prayed for division of the suit properties on the basis of the registered Partition Deed dated 22nd April 1948. The Appellant cannot be permitted to contend that the Plaintiffs are not bound by the Partition Deed dated 22nd April 1948 when the foundation for the claim of the Plaintiffs is the said Partition Deed13. The registered Sale Deed dated 15th September 1949 executed by Athappa Gounder in favour of Defendant No.1 is challenged on the ground that there was no necessity for Athappa Gounder to take loans from third parties. The Appellant further stated in the written submissions that the Compromise Decree in O.S. No. 18 of 1953 cannot preclude her from challenging the Sale Deed dated 15th September 1949. There is no dispute that the Sale Deed dated 15th September 1949 was challenged in O.S. No. 18 of 1953. The Plaintiff No.2 did not comply with the condition of the Compromise Decree regarding the deposit of Rs.6000/- within the stipulated time whereafter she was entitled for transfer of property in her favour. The High Court held that the Appellant has lost her right to question the Sale Deed dated 15th September 1949 again, that too, after an inordinate delay. As such, the Suit filed in 1987 was barred by limitation. The High Court rejected the submissions of the Appellant that Athappa Gounder was of unsound mind and the Defendant No.1 took advantage and manipulated the Sale Deed dated. 15th September 1949. We are in agreement with the findings of the High CourtThere is no evidence adduced by the Appellant to prove the contrary. The High Court is right in its conclusion that Appavu Gounder had a right to settle the property that fell to his share in the Partition Deed dated 22nd April 1948 in favour of his grandson.

Parle Products Private Limited Vs. C.S. Saraswati & Another

Tribunal and in this Court where not even a return has been filed on her behalf denying the averments made by the petitioner. There is thus a serious infirmity in the finding recorded by the Tribunal that it was not proved that the money order was ever tendered to the employee and to say the least the finding appears to be wholly perverse and was liable to be quashed.28. That brings us to the second ground on which the Tribunal has decided not to grant approval to the action taken by the employer. The Tribunal has taken the view that the proceedings were not initiated against the employee by an authority competent to do so and the services of the employee have not been dispensed with by the competent authority. The Tribunal has held that there is nothing on the record to show, except the oral evidence of Jog, the Administrative Manager, that the Commercial Manager had power to pass the discharge order. Now Jog was acting as an Administrative Manager in place of Mehta. Jog has admitted that as acting Administrative Manager he did not have the power to take a decision of discharging a workman, nor did Mehta have such power. Jog has also stated that there were no standing orders governing the workmen at the head office and any custom and practice the Administrative Manager deals with the matters relating to the disciplinary action, discharge, etc. He further stated that there was nothing in writing to show that Mehta had power to initiate the disciplinary proceeding and had no power to pass the order of discharge. Now it is no doubt true that it was the petitioner company which came to the Tribunal for approval of its action and it was, therefore, for the petitioner company to satisfy the Tribunal that the action taken was legal and that the person who took the action was authorised to take it. But it is also interesting to note that at no stage had the employee herself challenged the power of the Commercial Manager to make an order of discharge, nor had she at any stage raised the question of legality of the enquiry proceedings before the Enquiry Officer. The order of the Tribunal shows its unusual insistence on every piece of evidence to be in writing. In a commercial establishment normally distribution of duties and allocation of administrative work is not always done by orders issued in writing as is done in a Government office. Ultimately it is a matter of arrangement between the top officers of a commercial concern as to how they will distribute functions between them. At no stage was the power of the Commercial Manager to take action against the employee was challenged. Indeed, it is difficult for us to appreciate the contention raised before the Tribunal and consequently raised before us also that the Commercial Manager did not have the power to discharge the employee. It is surprising that the respondent who now challenges the power of the Commercial Manager to pass the order of discharge does not went to tell us who was the officer, according to her, who could validly exercise the power to discharge the employee. On principle, it may not be difficult to dispute that a disciplinary action can effectively be taken against an employee by a person who is the head of the organisation or by the person who has appointed the employee. But we fail to see how the Tribunal could have rejected the oral statement of Jog that it was a matter of internal arrangement and that by custom and practice the Administrative Manager deals with the matters relating to a disciplinary action. If a written declaration was not necessary because these are not statutory authorities, the Tribunal could not have insisted on evidence in writing especially when it is not even established that there is any such evidence in existence and which is not produced. There is nothing illegal if an Administrative Manager, who is entrusted with the duties of administration and thus exercises control over the employees, initiates a disciplinary action. So also in the absence of any evidence to the contrary, the Tribunal should have accepted the statement of Jog that the powers to discharge lay with the Commercial Manager. Even assuming for a moment that the disciplinary proceedings could not be initiated by the Administrative Manager, in our view it was too late for the employee to challenge them, more so, when the Commercial Manager while reaching a decision to discharge the employee has merely treated those proceedings as furnishing material on which he could take a decision in the matter of discharge of the employee. There was thus no infirmity in the initiation of the disciplinary proceedings or the order of discharge.29. That brings us to the last contention advanced before us by Mr. Cama that interference with the order of the Tribunal under Articles 226 and 227 could not be permissible to us because this is not an appellate jurisdiction. Now, there can be hardly any doubt that we cannot sit in appeal over the order of the Tribunal, but the errors, which we have pointed and into which the Tribunal has fallen while dealing with the application of the petitioner are sufficient, in our view, to indicate that the entire approach of the Tribunal is vitiated. It had also clearly acted illegally in shutting out evidence, especially when that evidence would have conclusively established the case of the petitioner company. An application under section 32(2) (b) has to be judiciously dealt with and shutting out evidence which was clinching, whether it is in favour of the employer or in favour of the employee, would create a serious infirmity in the proceedings before the Tribunal. We are, therefore, satisfied that the order of the Tribunal declining to grant approval to the order of discharge made against the employee requires to be quashed and the petitioner was entitled to the approval sought.

1[ds]12. Now so far as the application for approval of action of the employer required to be taken under section 33(2)(b) is concerned, the law is now well settled and the conditions laid down in the proviso to section 33(2) of the Act have to be satisfied by the employer. The dismissal or discharge order, the payment of wages and the making of an application for approval have to be simultaneous, and whether these three things have been done simultaneously has to be judged from the employers conduct and if the employers conduct shows that these three form part of the same transaction, then the requirement of section 33(2)(b) proviso must be taken to be satisfied.Now when wages are to be tendered as required by the proviso, it would be perfectly permissible for the employer to tender that amount by sending it by money order. It is quite possible that on the date on which the order of discharge is to take effect, the employee may not be immediately available for payment and the only way by which the requirement of the proviso can be complied with is to remit the money to the employee by money order. Where such amount is remitted and consequently it is tendered to the employee through the postal authorities, that will be sufficient compliance with the requirement of the proviso.18. Now there does not seem to be any dispute in the present case that the amount of Rs. 713.95, being one months wages, was remitted by money order on 9th of March, 1976. The money order was sent on the same day on which the order of discharge was posted to the employee. The learned Member of the Tribunal has, however, taken the view that the fact that the money order was sent cannot by itself show that the opponent workman was given the amount or that he declined to take the same. There is hardly any reason to dispute this proposition. The money order which has been sent to the payee can normally result in two things : (i) if it is sent on the correct address, the money will be tendered to the payee; and (ii) the payee will either accept it or refuse to accept it. In the first case, the person who has remitted the amount will get back an acknowledgment duly signed by the payee. If the payee refuses to accept the amount, the money order will be returned back to the remitter and he will get back thethis regard the instructions which are contained in the Posts and Telegraphs Manual, Volume VI, with regard to unclaimed money orders become not only relevant, but important and it appears that the Tribunals attention was not directed to the manner in which unclaimed money orders are dealt with by the Postal Departments. It is no doubt true that at one point of time lowerportion of the money order was returned to the remitter when the money order was returned as not claimed. If that system had continued, there could not be any difficulty in holding that the Tribunal was right when it took the view that portion of the money order form which contained the endorsement of not claimed should have been returned to the company. The Postal Department, however, seems to have changed its practice since 1969. We have gone through the Posts and Telegraphs Manual and Rule 285 which deals with the unclaimed money order is to be found in volume2 of the above quoted extract from the Posts and Telegraphs Manual, therefore, clearly shows that only the coupon portion of the money order is to be given to the remitter when the amount of the money order is to be repaid to the remitter in the case of an unclaimed money order. Therefore, with effect from 1969 the acknowledgments portion is retained by the Postal Department with the signature of the remitter in token of having received back money which was sent by money order. Therefore, there was no foundation for the view which the Tribunal has taken that part of the money order coupon containing the endorsement of not claimed should have been handed over to the company.21. Therefore, the only part of the money order form which could be returned was the lower portion of the money order form called the coupon portion which is meant for writing any communication intended for the payee.22. Now, the Tribunal has held that there is nothing on record to show that Exhibitis a part of the original money order. When the Tribunal took the view that there is nothing to show that this was a part of the original money order, it is obvious from the later part of the order of the Tribunal that it had in view the fact that the central portion of the money order form intended for getting the acknowledgments from the payee should have been found along with the money order coupon. It is difficult for us to imagine what other evidence could be possible to show that this was the part of the money order coupon. The rest of the money order form has been retained by the Postal Department as required by the Rule 285. Exhibitclearly shows that the money order addressed to Miss C.S. Saraswati was sent on 9th March, 1976. It is common knowledge that the clerks in the Post Office who deal with the money orders or registered letters submitted to the Postal Authorities do not write the full address on the receipt which is given to the sender in token of having received either the money order or the registered envelope. Exhibittherefore, clearly showed that a money order was sent to Miss C.B. Saraswati, i.e., the employee. As already pointed out, only two things could have happened to this money order. It is either paid to the payee or received back unclaimed. If the address was incomplete, it could have been received back on the ground that the address is not complete. Normally, postal material which cannot be delivered to the addressee for want of correct address are returned back on the ground that the address is incomplete. This has not been done in this case. The petitioner company was quite conscious of the requirement of section 33(2)(b). The letter dated 9th March, 1976 specifically mentions that one months wages are being sent separately by money order. If all these circumstances are taken into account and which seem to have been ignored by the Tribunal, the only inference that is possible is that Exhibitis the money order coupon which was returned back to the company.23. One of the grounds on which the Tribunal declined to accept the case of the petitioner company that money was sent by money order and it was returned as not claimed, was that it was wholly unnatural that the money order coupon would be returned to Jog personally and that in normal course the money order coupon along with the money would be returned to the office. Now Jog has stated in his evidence that the money order coupon was brought to him because he had sent the money order. The Tribunal seems to have lost sight of the fact that Jog was the Administrative Manager who had despatched the letter of discharge to the employee. He had himself taken care to see that the money order is sent because it was he who had signed the communication on the money order coupon intended for the employee in which the words are "one months salary per section 33(2) (b) of the Act sent herewith". Jog was, therefore, himself dealing with the matter in order to ensure that the requirements of section 33(2) (b) are compiled with. If the reasoning of the Tribunal is correct that a returned money order should normally have been returned to the office, then on a parity of reasoning it would also have been perfectly permissible for the money order to be sent by some clerk in the office of the petitioner company. This, however, was not done and it was Jog who personally signed the money order coupon which indicated that he wanted to make sure that the requirements of section 33(2) (b) were compiled with. It is not wholly improbable that since the matter related to the compliance with the statutory requirements of the Industries Act and since Jog had himself sent the money order, even when the money order was returned, it was returned, to him personally. The evidence of Jog seems to have been rejected, in our view, on extremely flimsy and untenable grounds.Now one fails to see what writing could there be to show that the money order was sent on a certain address except the money order form. The order of the Tribunal shows that it was insisting on proof which would have really not been available at all with the petitioner. There are two documents which could show the address on which the money order was sent. The first was the money order receipt, Exhibitand the only other document would be the money order form itself. Exhibitas already pointed out, merely contains the name of the payee which is not unusual as would be anybodys experience when dealing with the post office. The second document is the money order form itself which is with the postal authorities. There could be no other direct evidence in writing to show that the money order was sent to a particular address. The Tribunal was, therefore, bound to look into the circumstances of the case which would have clearly shown that the money order could not have been sent to any other address except on which the registered letter containing the intimation of discharge was sent. Three things have been done by the petitioner on the same day, namely, 9th March, 1976. It has addressed a registered letter to the employee on her address which she has received. It has filed an application before the Labour Court Industrial Tribunal under section 33(2)(b) on which the same address of the employee as on the registered letter has been written and on the same day it has also sent a money order. The normal inference would be that the money order was also sent on the same address. It is no doubt true that the burden to show that the money order was sent on the correct address is on the petitioner. But that burden could be discharged by putting on record circumstances which would lead to that conclusion in the absence of any direct evidence to show the address on which the money order was sent. When Jog was deposing that he had nothing in writing to show that the money order was sent to the correct address he was, in our view, deposing in a most frank and straight manner because there could not be anything in writing with him to show that the money order was sent to a particular address.26. There is one circumstance which the Tribunal seems to have completely lost sight in the present case. The employee has not thought it fit to enter thein this case and rebut the evidence which has been led on record on behalf of the company. It could have been perfectly permissible for her to depose and give oral evidence to show that the money order was never tendered to her or that she never refused to accept the money order in which case the matter would have been required to be considered on a different footing. But there was only the evidence of the Administrative Manager before the Tribunal to prove the documents which clearly indicated that the money order was sent to the correct address. All this evidence has been rejected by the Tribunal, in our view, in extremely untenable grounds. It has clearly fallen in an error when it has insisted on proof of a standard higher than what is normally expected.27. To put the matter beyond controversy, as pointed out, the petitioner at the end of the evidence wanted to tender before the Tribunal a copy of the letter received from the postal authorities which has now been produced along with the petition. The petitioner has made averment in the petition that the Tribunal declined to take on record evidence in the form of a letter from the postal authorities. Even in this petition the employee has not found it either necessary or convenient to rebut the averments made on behalf of the petitioner company that the letter dated 6th October, 1976 received from the Senior Superintended of the Post Office was actually offered to be produced before the Tribunal. In the absence of those averments being traversed, we do not see any reason to reject the statement made in this petition that the letter dated 6th October, 1976 was sought to be produced before the Tribunal. Even the stage at which it was sought to be produced is significant. It was sought to be produced on the same day on which the second witness for the petitioner company had given evidence. The employee did not give any evidence. There was, therefore, no question of prejudice to the employee. If that letter is read, it is clear that the query with regard to the not claimed money order was made by the petitioner as far back as on 24th March, 1976. It appears that this query was made because by that time the money order coupon had not been returned. This letter clearly states that the money order intended for the employee whose address is given in detail in that letter had been repaid to the remitter "since the payee has not claimed the amount of the money order in question". The money order was returned to the remitter on 25th March, 1976. We do not find any justification on the part of the Tribunal to shut out this evidence which was sought to be tendered on behalf of the petitioner. Indeed plea that the story of the money order was not claimed by the employee appears to us to be unanswerable, particularly in view of the conduct of the employee both before the Tribunal and in this Court where not even a return has been filed on her behalf denying the averments made by the petitioner. There is thus a serious infirmity in the finding recorded by the Tribunal that it was not proved that the money order was ever tendered to the employee and to say the least the finding appears to be wholly perverse and was liable to be quashed.28. That brings us to the second ground on which the Tribunal has decided not to grant approval to the action taken by the employer. The Tribunal has taken the view that the proceedings were not initiated against the employee by an authority competent to do so and the services of the employee have not been dispensed with by the competent authority. The Tribunal has held that there is nothing on the record to show, except the oral evidence of Jog, the Administrative Manager, that the Commercial Manager had power to pass the discharge order. Now Jog was acting as an Administrative Manager in place of Mehta. Jog has admitted that as acting Administrative Manager he did not have the power to take a decision of discharging a workman, nor did Mehta have such power. Jog has also stated that there were no standing orders governing the workmen at the head office and any custom and practice the Administrative Manager deals with the matters relating to the disciplinary action, discharge, etc. He further stated that there was nothing in writing to show that Mehta had power to initiate the disciplinary proceeding and had no power to pass the order of discharge. Now it is no doubt true that it was the petitioner company which came to the Tribunal for approval of its action and it was, therefore, for the petitioner company to satisfy the Tribunal that the action taken was legal and that the person who took the action was authorised to take it. But it is also interesting to note that at no stage had the employee herself challenged the power of the Commercial Manager to make an order of discharge, nor had she at any stage raised the question of legality of the enquiry proceedings before the Enquiry Officer. The order of the Tribunal shows its unusual insistence on every piece of evidence to be in writing. In a commercial establishment normally distribution of duties and allocation of administrative work is not always done by orders issued in writing as is done in a Government office. Ultimately it is a matter of arrangement between the top officers of a commercial concern as to how they will distribute functions between them. At no stage was the power of the Commercial Manager to take action against the employee was challenged. Indeed, it is difficult for us to appreciate the contention raised before the Tribunal and consequently raised before us also that the Commercial Manager did not have the power to discharge the employee. It is surprising that the respondent who now challenges the power of the Commercial Manager to pass the order of discharge does not went to tell us who was the officer, according to her, who could validly exercise the power to discharge the employee. On principle, it may not be difficult to dispute that a disciplinary action can effectively be taken against an employee by a person who is the head of the organisation or by the person who has appointed the employee. But we fail to see how the Tribunal could have rejected the oral statement of Jog that it was a matter of internal arrangement and that by custom and practice the Administrative Manager deals with the matters relating to a disciplinary action. If a written declaration was not necessary because these are not statutory authorities, the Tribunal could not have insisted on evidence in writing especially when it is not even established that there is any such evidence in existence and which is not produced. There is nothing illegal if an Administrative Manager, who is entrusted with the duties of administration and thus exercises control over the employees, initiates a disciplinary action. So also in the absence of any evidence to the contrary, the Tribunal should have accepted the statement of Jog that the powers to discharge lay with the Commercial Manager. Even assuming for a moment that the disciplinary proceedings could not be initiated by the Administrative Manager, in our view it was too late for the employee to challenge them, more so, when the Commercial Manager while reaching a decision to discharge the employee has merely treated those proceedings as furnishing material on which he could take a decision in the matter of discharge of the employee. There was thus no infirmity in the initiation of the disciplinary proceedings or the order of discharge.29. That brings us to the last contention advanced before us by Mr. Cama that interference with the order of the Tribunal under Articles 226 and 227 could not be permissible to us because this is not an appellate jurisdiction. Now, there can be hardly any doubt that we cannot sit in appeal over the order of the Tribunal, but the errors, which we have pointed and into which the Tribunal has fallen while dealing with the application of the petitioner are sufficient, in our view, to indicate that the entire approach of the Tribunal is vitiated. It had also clearly acted illegally in shutting out evidence, especially when that evidence would have conclusively established the case of the petitioner company. An application under section 32(2) (b) has to be judiciously dealt with and shutting out evidence which was clinching, whether it is in favour of the employer or in favour of the employee, would create a serious infirmity in the proceedings before the Tribunal. We are, therefore, satisfied that the order of the Tribunal declining to grant approval to the order of discharge made against the employee requires to be quashed and the petitioner was entitled to the approval sought.

### 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: Tribunal and in this Court where not even a return has been filed on her behalf denying the averments made by the petitioner. There is thus a serious infirmity in the finding recorded by the Tribunal that it was not proved that the money order was ever tendered to the employee and to say the least the finding appears to be wholly perverse and was liable to be quashed.28. That brings us to the second ground on which the Tribunal has decided not to grant approval to the action taken by the employer. The Tribunal has taken the view that the proceedings were not initiated against the employee by an authority competent to do so and the services of the employee have not been dispensed with by the competent authority. The Tribunal has held that there is nothing on the record to show, except the oral evidence of Jog, the Administrative Manager, that the Commercial Manager had power to pass the discharge order. Now Jog was acting as an Administrative Manager in place of Mehta. Jog has admitted that as acting Administrative Manager he did not have the power to take a decision of discharging a workman, nor did Mehta have such power. Jog has also stated that there were no standing orders governing the workmen at the head office and any custom and practice the Administrative Manager deals with the matters relating to the disciplinary action, discharge, etc. He further stated that there was nothing in writing to show that Mehta had power to initiate the disciplinary proceeding and had no power to pass the order of discharge. Now it is no doubt true that it was the petitioner company which came to the Tribunal for approval of its action and it was, therefore, for the petitioner company to satisfy the Tribunal that the action taken was legal and that the person who took the action was authorised to take it. But it is also interesting to note that at no stage had the employee herself challenged the power of the Commercial Manager to make an order of discharge, nor had she at any stage raised the question of legality of the enquiry proceedings before the Enquiry Officer. The order of the Tribunal shows its unusual insistence on every piece of evidence to be in writing. In a commercial establishment normally distribution of duties and allocation of administrative work is not always done by orders issued in writing as is done in a Government office. Ultimately it is a matter of arrangement between the top officers of a commercial concern as to how they will distribute functions between them. At no stage was the power of the Commercial Manager to take action against the employee was challenged. Indeed, it is difficult for us to appreciate the contention raised before the Tribunal and consequently raised before us also that the Commercial Manager did not have the power to discharge the employee. It is surprising that the respondent who now challenges the power of the Commercial Manager to pass the order of discharge does not went to tell us who was the officer, according to her, who could validly exercise the power to discharge the employee. On principle, it may not be difficult to dispute that a disciplinary action can effectively be taken against an employee by a person who is the head of the organisation or by the person who has appointed the employee. But we fail to see how the Tribunal could have rejected the oral statement of Jog that it was a matter of internal arrangement and that by custom and practice the Administrative Manager deals with the matters relating to a disciplinary action. If a written declaration was not necessary because these are not statutory authorities, the Tribunal could not have insisted on evidence in writing especially when it is not even established that there is any such evidence in existence and which is not produced. There is nothing illegal if an Administrative Manager, who is entrusted with the duties of administration and thus exercises control over the employees, initiates a disciplinary action. So also in the absence of any evidence to the contrary, the Tribunal should have accepted the statement of Jog that the powers to discharge lay with the Commercial Manager. Even assuming for a moment that the disciplinary proceedings could not be initiated by the Administrative Manager, in our view it was too late for the employee to challenge them, more so, when the Commercial Manager while reaching a decision to discharge the employee has merely treated those proceedings as furnishing material on which he could take a decision in the matter of discharge of the employee. There was thus no infirmity in the initiation of the disciplinary proceedings or the order of discharge.29. That brings us to the last contention advanced before us by Mr. Cama that interference with the order of the Tribunal under Articles 226 and 227 could not be permissible to us because this is not an appellate jurisdiction. Now, there can be hardly any doubt that we cannot sit in appeal over the order of the Tribunal, but the errors, which we have pointed and into which the Tribunal has fallen while dealing with the application of the petitioner are sufficient, in our view, to indicate that the entire approach of the Tribunal is vitiated. It had also clearly acted illegally in shutting out evidence, especially when that evidence would have conclusively established the case of the petitioner company. An application under section 32(2) (b) has to be judiciously dealt with and shutting out evidence which was clinching, whether it is in favour of the employer or in favour of the employee, would create a serious infirmity in the proceedings before the Tribunal. We are, therefore, satisfied that the order of the Tribunal declining to grant approval to the order of discharge made against the employee requires to be quashed and the petitioner was entitled to the approval sought. ### Response: 1 ### Explanation: Tribunal and in this Court where not even a return has been filed on her behalf denying the averments made by the petitioner. There is thus a serious infirmity in the finding recorded by the Tribunal that it was not proved that the money order was ever tendered to the employee and to say the least the finding appears to be wholly perverse and was liable to be quashed.28. That brings us to the second ground on which the Tribunal has decided not to grant approval to the action taken by the employer. The Tribunal has taken the view that the proceedings were not initiated against the employee by an authority competent to do so and the services of the employee have not been dispensed with by the competent authority. The Tribunal has held that there is nothing on the record to show, except the oral evidence of Jog, the Administrative Manager, that the Commercial Manager had power to pass the discharge order. Now Jog was acting as an Administrative Manager in place of Mehta. Jog has admitted that as acting Administrative Manager he did not have the power to take a decision of discharging a workman, nor did Mehta have such power. Jog has also stated that there were no standing orders governing the workmen at the head office and any custom and practice the Administrative Manager deals with the matters relating to the disciplinary action, discharge, etc. He further stated that there was nothing in writing to show that Mehta had power to initiate the disciplinary proceeding and had no power to pass the order of discharge. Now it is no doubt true that it was the petitioner company which came to the Tribunal for approval of its action and it was, therefore, for the petitioner company to satisfy the Tribunal that the action taken was legal and that the person who took the action was authorised to take it. But it is also interesting to note that at no stage had the employee herself challenged the power of the Commercial Manager to make an order of discharge, nor had she at any stage raised the question of legality of the enquiry proceedings before the Enquiry Officer. The order of the Tribunal shows its unusual insistence on every piece of evidence to be in writing. In a commercial establishment normally distribution of duties and allocation of administrative work is not always done by orders issued in writing as is done in a Government office. Ultimately it is a matter of arrangement between the top officers of a commercial concern as to how they will distribute functions between them. At no stage was the power of the Commercial Manager to take action against the employee was challenged. Indeed, it is difficult for us to appreciate the contention raised before the Tribunal and consequently raised before us also that the Commercial Manager did not have the power to discharge the employee. It is surprising that the respondent who now challenges the power of the Commercial Manager to pass the order of discharge does not went to tell us who was the officer, according to her, who could validly exercise the power to discharge the employee. On principle, it may not be difficult to dispute that a disciplinary action can effectively be taken against an employee by a person who is the head of the organisation or by the person who has appointed the employee. But we fail to see how the Tribunal could have rejected the oral statement of Jog that it was a matter of internal arrangement and that by custom and practice the Administrative Manager deals with the matters relating to a disciplinary action. If a written declaration was not necessary because these are not statutory authorities, the Tribunal could not have insisted on evidence in writing especially when it is not even established that there is any such evidence in existence and which is not produced. There is nothing illegal if an Administrative Manager, who is entrusted with the duties of administration and thus exercises control over the employees, initiates a disciplinary action. So also in the absence of any evidence to the contrary, the Tribunal should have accepted the statement of Jog that the powers to discharge lay with the Commercial Manager. Even assuming for a moment that the disciplinary proceedings could not be initiated by the Administrative Manager, in our view it was too late for the employee to challenge them, more so, when the Commercial Manager while reaching a decision to discharge the employee has merely treated those proceedings as furnishing material on which he could take a decision in the matter of discharge of the employee. There was thus no infirmity in the initiation of the disciplinary proceedings or the order of discharge.29. That brings us to the last contention advanced before us by Mr. Cama that interference with the order of the Tribunal under Articles 226 and 227 could not be permissible to us because this is not an appellate jurisdiction. Now, there can be hardly any doubt that we cannot sit in appeal over the order of the Tribunal, but the errors, which we have pointed and into which the Tribunal has fallen while dealing with the application of the petitioner are sufficient, in our view, to indicate that the entire approach of the Tribunal is vitiated. It had also clearly acted illegally in shutting out evidence, especially when that evidence would have conclusively established the case of the petitioner company. An application under section 32(2) (b) has to be judiciously dealt with and shutting out evidence which was clinching, whether it is in favour of the employer or in favour of the employee, would create a serious infirmity in the proceedings before the Tribunal. We are, therefore, satisfied that the order of the Tribunal declining to grant approval to the order of discharge made against the employee requires to be quashed and the petitioner was entitled to the approval sought.

Raheja Universal Limited Vs. Nrc Limited

issue a direction or make a declaration in relation to the agreement in question in exercise of the powers vested in it under Section 22(3) of the Act of 1985 and, if answer to the above is in the affirmative, whether the order dated 16th July, 2009 of the BIFR and that of the High Court dated 29th July, 2011 are unsustainable on facts? The BIFR vide its order dated 16th July, 2009, after declaring the Respondent-Company as a sick company and appointing the Punjab National Bank as the Operating Agency, had fixed the cut off date as 30th July, 2007, as indicated in the CDR Scheme. The CDR scheme had been approved, after taking into consideration the agreement to sell and the sale proceeds likely to be received therefrom. The BIFR had passed certain directions/declarations in the order passed under Section 17(3) of the Act of 1985 requiring the company to state clearly the details of the land to be sold including survey numbers as well as the remaining land with the company and confirming if the remaining land was adequate for functioning and viability of the company on long term basis. The BIFR raised the query whether all the secured creditors who had charge over the land, had approved the sale of 350 acres of land belonging to the respondent-company at Kalyan, Thane for a sum of Rs.166.40 crore and for entering into memorandum of understanding with the appellant company in that behalf. Besides issuing a directive that assets including investments will require prior approval of the BIFR as the company was under the purview of SICA, it also issued a clear prohibitory order requiring the secured creditors not to take any coercive steps against the company without prior permission of the BIFR. This order of the BIFR was therefore passed clearly at the stage of the consideration of the revival scheme which had been approved by the CDR Group as well as the secured creditors. The scheme for revival of the company on long term basis, thus, was primarily dependent upon the sale proceeds of the land in question on the one hand and the utility of the remaining land for revival of the company on the other. To put it simply, the land was the paramount asset of the company for its revival and successful implementation of the scheme in accordance with law. The asset was duly taken into consideration in formulation of the scheme as contemplated under Sections 17 and 18 of the Act of 1985 and appropriate directions, prohibitory orders were issued within the ambit and scope of Sections 22(1), 22(3) and 22A of the Act of 1985. In view of the clear statement of law, as afore-recorded, and facts of the present case, we are unable to find any merit in the submission of the Respondent-Company that the BIFR had no jurisdiction to pass such directives. 50. AAIFR had disturbed the above order and held that the contract between the parties could not be suspended under Section 22(3) and it was not in the interest of the Respondent-Company. In other words, it had permitted the sale to be completed without any restriction. This order was set aside and the order of the BIFR was restored by the High Court. We find no jurisdictional or other error in the order of the High Court in restoring the order of the BIFR. The land being the primary asset of the Respondent-Company, could not be permitted to be dissolved by sale or otherwise without the consent and approval of the BIFR. The BIFR is the authority proprio vigore and required to oversee the entire affairs of a sick industrial company and to ensure that the same are within the framework of the scheme formulated and approved by the Board for revival of the company in accordance with the provisions of the Act of 1985. On facts as well, neither the BIFR nor the High Court had exceeded its jurisdiction in passing the impugned orders. It is not that the Respondent-Company has been divested of its right by the BIFR. All that has been done is to suspend the final transfer of the property in its favour in accordance with the provisions of the Act and the limitations imposed therein. Once the scheme is implemented or the period specified under the provisions of Sections 22(3) and 22(4) expires, the declaration would cease to exist and the appellant would be entitled to enforce its rights in accordance with law as if no such declaration or restriction ever existed. 51. The principle of law that emerges from the afore-referred discussion, which consistently has judicial benediction, is that a scheme for rehabilitation or restructuring of a sick industrial company undertaken by a specialized body like the BIFR/AAIFR should, as far as legally permissible, remain obstruction free and the events should take place as pre-ordained, during consideration and successful implementation of the formulated scheme. Wide jurisdiction is vested in BIFR/AAIFR to issue directives, declarations and prohibitory orders within the rationalized scope and limitations prescribed under Section 22(1), 22(3) and 22A of the Act of 1985. 52. An objection to the maintainability of a composite petition, taken before the High Court, has been reiterated before this Court, of course, half-heartedly. Argument is that Article 227 vests the High Court with supervisory powers while Article 226 is the reservoir of extra-ordinary jurisdiction of the High Courts to issue prerogative writs and orders and, as such, a joint petition under both these Articles could not be maintainable. 53. Reliance has been placed in this regard to the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329] . This objection was neither pressed before us during the course of arguments nor do we consider it necessary to decide this issue in view of the facts and circumstances of the present case and the fact that we have decided the entire matter on merits. 54. For the reasons afore-recorded, the

0[ds]The BIFR vide its order dated 16th July, 2009, after declaring the Respondent-Company as a sick company and appointing the Punjab National Bank as the Operating Agency, had fixed the cut off date as 30th July, 2007, as indicated in the CDR Scheme. The CDR scheme had been approved, after taking into consideration the agreement to sell and the sale proceeds likely to be received therefrom. The BIFR had passed certain directions/declarations in the order passed under Section 17(3) of the Act of 1985 requiring the company to state clearly the details of the land to be sold including survey numbers as well as the remaining land with the company and confirming if the remaining land was adequate for functioning and viability of the company on long term basis. The BIFR raised the query whether all the secured creditors who had charge over the land, had approved the sale of 350 acres of land belonging to the respondent-company at Kalyan, Thane for a sum of Rs.166.40 crore and for entering into memorandum of understanding with the appellant company in that behalf. Besides issuing a directive that assets including investments will require prior approval of the BIFR as the company was under the purview of SICA, it also issued a clear prohibitory order requiring the secured creditors not to take any coercive steps against the company without prior permission of the BIFR. This order of the BIFR was therefore passed clearly at the stage of the consideration of the revival scheme which had been approved by the CDR Group as well as the secured creditors. The scheme for revival of the company on long term basis, thus, was primarily dependent upon the sale proceeds of the land in question on the one hand and the utility of the remaining land for revival of the company on the other. To put it simply, the land was the paramount asset of the company for its revival and successful implementation of the scheme in accordance with law. The asset was duly taken into consideration in formulation of the scheme as contemplated under Sections 17 and 18 of the Act of 1985 and appropriate directions, prohibitory orders were issued within the ambit and scope of Sections 22(1), 22(3) and 22A of the Act of 1985. In view of the clear statement of law, as afore-recorded, and facts of the present case, we are unable to find any merit in the submission of the Respondent-Company that the BIFR had no jurisdiction to pass such directives50. AAIFR had disturbed the above order and held that the contract between the parties could not be suspended under Section 22(3) and it was not in the interest of the Respondent-Company. In other words, it had permitted the sale to be completed without any restriction. This order was set aside and the order of the BIFR was restored by the High Court. We find no jurisdictional or other error in the order of the High Court in restoring the order of the BIFR. The land being the primary asset of the Respondent-Company, could not be permitted to be dissolved by sale or otherwise without the consent and approval of the BIFR. The BIFR is the authority proprio vigore and required to oversee the entire affairs of a sick industrial company and to ensure that the same are within the framework of the scheme formulated and approved by the Board for revival of the company in accordance with the provisions of the Act of 1985. On facts as well, neither the BIFR nor the High Court had exceeded its jurisdiction in passing the impugned orders. It is not that the Respondent-Company has been divested of its right by the BIFR. All that has been done is to suspend the final transfer of the property in its favour in accordance with the provisions of the Act and the limitations imposed therein. Once the scheme is implemented or the period specified under the provisions of Sections 22(3) and 22(4) expires, the declaration would cease to exist and the appellant would be entitled to enforce its rights in accordance with law as if no such declaration or restriction ever existed51. The principle of law that emerges from the afore-referred discussion, which consistently has judicial benediction, is that a scheme for rehabilitation or restructuring of a sick industrial company undertaken by a specialized body like the BIFR/AAIFR should, as far as legally permissible, remain obstruction free and the events should take place as pre-ordained, during consideration and successful implementation of the formulated scheme. Wide jurisdiction is vested in BIFR/AAIFR to issue directives, declarations and prohibitory orders within the rationalized scope and limitations prescribed under Section 22(1), 22(3) and 22A of the Act of 198552. An objection to the maintainability of a composite petition, taken before the High Court, has been reiterated before this Court, of course, half-heartedly. Argument is that Article 227 vests the High Court with supervisory powers while Article 226 is the reservoir of extra-ordinary jurisdiction of the High Courts to issue prerogative writs and orders and, as such, a joint petition under both these Articles could not be maintainable

### 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: issue a direction or make a declaration in relation to the agreement in question in exercise of the powers vested in it under Section 22(3) of the Act of 1985 and, if answer to the above is in the affirmative, whether the order dated 16th July, 2009 of the BIFR and that of the High Court dated 29th July, 2011 are unsustainable on facts? The BIFR vide its order dated 16th July, 2009, after declaring the Respondent-Company as a sick company and appointing the Punjab National Bank as the Operating Agency, had fixed the cut off date as 30th July, 2007, as indicated in the CDR Scheme. The CDR scheme had been approved, after taking into consideration the agreement to sell and the sale proceeds likely to be received therefrom. The BIFR had passed certain directions/declarations in the order passed under Section 17(3) of the Act of 1985 requiring the company to state clearly the details of the land to be sold including survey numbers as well as the remaining land with the company and confirming if the remaining land was adequate for functioning and viability of the company on long term basis. The BIFR raised the query whether all the secured creditors who had charge over the land, had approved the sale of 350 acres of land belonging to the respondent-company at Kalyan, Thane for a sum of Rs.166.40 crore and for entering into memorandum of understanding with the appellant company in that behalf. Besides issuing a directive that assets including investments will require prior approval of the BIFR as the company was under the purview of SICA, it also issued a clear prohibitory order requiring the secured creditors not to take any coercive steps against the company without prior permission of the BIFR. This order of the BIFR was therefore passed clearly at the stage of the consideration of the revival scheme which had been approved by the CDR Group as well as the secured creditors. The scheme for revival of the company on long term basis, thus, was primarily dependent upon the sale proceeds of the land in question on the one hand and the utility of the remaining land for revival of the company on the other. To put it simply, the land was the paramount asset of the company for its revival and successful implementation of the scheme in accordance with law. The asset was duly taken into consideration in formulation of the scheme as contemplated under Sections 17 and 18 of the Act of 1985 and appropriate directions, prohibitory orders were issued within the ambit and scope of Sections 22(1), 22(3) and 22A of the Act of 1985. In view of the clear statement of law, as afore-recorded, and facts of the present case, we are unable to find any merit in the submission of the Respondent-Company that the BIFR had no jurisdiction to pass such directives. 50. AAIFR had disturbed the above order and held that the contract between the parties could not be suspended under Section 22(3) and it was not in the interest of the Respondent-Company. In other words, it had permitted the sale to be completed without any restriction. This order was set aside and the order of the BIFR was restored by the High Court. We find no jurisdictional or other error in the order of the High Court in restoring the order of the BIFR. The land being the primary asset of the Respondent-Company, could not be permitted to be dissolved by sale or otherwise without the consent and approval of the BIFR. The BIFR is the authority proprio vigore and required to oversee the entire affairs of a sick industrial company and to ensure that the same are within the framework of the scheme formulated and approved by the Board for revival of the company in accordance with the provisions of the Act of 1985. On facts as well, neither the BIFR nor the High Court had exceeded its jurisdiction in passing the impugned orders. It is not that the Respondent-Company has been divested of its right by the BIFR. All that has been done is to suspend the final transfer of the property in its favour in accordance with the provisions of the Act and the limitations imposed therein. Once the scheme is implemented or the period specified under the provisions of Sections 22(3) and 22(4) expires, the declaration would cease to exist and the appellant would be entitled to enforce its rights in accordance with law as if no such declaration or restriction ever existed. 51. The principle of law that emerges from the afore-referred discussion, which consistently has judicial benediction, is that a scheme for rehabilitation or restructuring of a sick industrial company undertaken by a specialized body like the BIFR/AAIFR should, as far as legally permissible, remain obstruction free and the events should take place as pre-ordained, during consideration and successful implementation of the formulated scheme. Wide jurisdiction is vested in BIFR/AAIFR to issue directives, declarations and prohibitory orders within the rationalized scope and limitations prescribed under Section 22(1), 22(3) and 22A of the Act of 1985. 52. An objection to the maintainability of a composite petition, taken before the High Court, has been reiterated before this Court, of course, half-heartedly. Argument is that Article 227 vests the High Court with supervisory powers while Article 226 is the reservoir of extra-ordinary jurisdiction of the High Courts to issue prerogative writs and orders and, as such, a joint petition under both these Articles could not be maintainable. 53. Reliance has been placed in this regard to the case of Shalini Shyam Shetty & Anr. v. Rajendra Shankar Patil [(2010) 8 SCC 329] . This objection was neither pressed before us during the course of arguments nor do we consider it necessary to decide this issue in view of the facts and circumstances of the present case and the fact that we have decided the entire matter on merits. 54. For the reasons afore-recorded, the ### Response: 0 ### Explanation: The BIFR vide its order dated 16th July, 2009, after declaring the Respondent-Company as a sick company and appointing the Punjab National Bank as the Operating Agency, had fixed the cut off date as 30th July, 2007, as indicated in the CDR Scheme. The CDR scheme had been approved, after taking into consideration the agreement to sell and the sale proceeds likely to be received therefrom. The BIFR had passed certain directions/declarations in the order passed under Section 17(3) of the Act of 1985 requiring the company to state clearly the details of the land to be sold including survey numbers as well as the remaining land with the company and confirming if the remaining land was adequate for functioning and viability of the company on long term basis. The BIFR raised the query whether all the secured creditors who had charge over the land, had approved the sale of 350 acres of land belonging to the respondent-company at Kalyan, Thane for a sum of Rs.166.40 crore and for entering into memorandum of understanding with the appellant company in that behalf. Besides issuing a directive that assets including investments will require prior approval of the BIFR as the company was under the purview of SICA, it also issued a clear prohibitory order requiring the secured creditors not to take any coercive steps against the company without prior permission of the BIFR. This order of the BIFR was therefore passed clearly at the stage of the consideration of the revival scheme which had been approved by the CDR Group as well as the secured creditors. The scheme for revival of the company on long term basis, thus, was primarily dependent upon the sale proceeds of the land in question on the one hand and the utility of the remaining land for revival of the company on the other. To put it simply, the land was the paramount asset of the company for its revival and successful implementation of the scheme in accordance with law. The asset was duly taken into consideration in formulation of the scheme as contemplated under Sections 17 and 18 of the Act of 1985 and appropriate directions, prohibitory orders were issued within the ambit and scope of Sections 22(1), 22(3) and 22A of the Act of 1985. In view of the clear statement of law, as afore-recorded, and facts of the present case, we are unable to find any merit in the submission of the Respondent-Company that the BIFR had no jurisdiction to pass such directives50. AAIFR had disturbed the above order and held that the contract between the parties could not be suspended under Section 22(3) and it was not in the interest of the Respondent-Company. In other words, it had permitted the sale to be completed without any restriction. This order was set aside and the order of the BIFR was restored by the High Court. We find no jurisdictional or other error in the order of the High Court in restoring the order of the BIFR. The land being the primary asset of the Respondent-Company, could not be permitted to be dissolved by sale or otherwise without the consent and approval of the BIFR. The BIFR is the authority proprio vigore and required to oversee the entire affairs of a sick industrial company and to ensure that the same are within the framework of the scheme formulated and approved by the Board for revival of the company in accordance with the provisions of the Act of 1985. On facts as well, neither the BIFR nor the High Court had exceeded its jurisdiction in passing the impugned orders. It is not that the Respondent-Company has been divested of its right by the BIFR. All that has been done is to suspend the final transfer of the property in its favour in accordance with the provisions of the Act and the limitations imposed therein. Once the scheme is implemented or the period specified under the provisions of Sections 22(3) and 22(4) expires, the declaration would cease to exist and the appellant would be entitled to enforce its rights in accordance with law as if no such declaration or restriction ever existed51. The principle of law that emerges from the afore-referred discussion, which consistently has judicial benediction, is that a scheme for rehabilitation or restructuring of a sick industrial company undertaken by a specialized body like the BIFR/AAIFR should, as far as legally permissible, remain obstruction free and the events should take place as pre-ordained, during consideration and successful implementation of the formulated scheme. Wide jurisdiction is vested in BIFR/AAIFR to issue directives, declarations and prohibitory orders within the rationalized scope and limitations prescribed under Section 22(1), 22(3) and 22A of the Act of 198552. An objection to the maintainability of a composite petition, taken before the High Court, has been reiterated before this Court, of course, half-heartedly. Argument is that Article 227 vests the High Court with supervisory powers while Article 226 is the reservoir of extra-ordinary jurisdiction of the High Courts to issue prerogative writs and orders and, as such, a joint petition under both these Articles could not be maintainable

The Goa Foundation Vs. M/s. Sesa Sterlite Ltd. & Others

mining projects….”.144. For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided that “the clearance granted shall be valid for a period of five years from commencement of the construction or operation”. Another notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five years “for” commencement of the construction or operation and not that the environment clearance is only for five years “from” the commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expression “for a period of five years” shall mean “for a period of five years for commencement of the construction or operation and not five years from commencement of the construction or operation.” We do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction between “for” five years and “from” five years in respect of the validity of an environmental clearance.145. It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over. We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146. Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting. In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that: “… if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C. Mehta.” This question does not arise in the context of EIA 1994.147. One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Property Owners’ Association v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February, 2002)We are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos. 32699-32727 of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa Foundation. Conclusions and directions149. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.

1[ds]41. The Court was quite obviously aware that it was concerned, inter alia, with the second renewal of mining leases and yet it chose to recount the factual situation, make a declaration and pass a direction without adverting to the possibility of a second renewal of a mining lease. The Court was also conscious that the mining lease holders had carried out indiscriminate and illegal mining for about five years (from November 2007 to September 2012) and had made profits out of the illegal mining. The Court, in our opinion, was rather charitable in not penalizing the mining lease holders for the illegal mining carried out by them. But be that as it may, quite clearly, the sequence of events from September 2012 onwards, the appointment of a Monitoring Committee to dispose of the illegally mined ore, the declaration and direction unmistakably point to the intention of the Court to end the sordid chapter of illegal mining by the lease holders and start on a clean slate. Viewed in this perspective, we have no doubt that the Court really did intend the State of Goa to consider the grant of fresh leases in accordance with law.Unfortunately, the State of Goa was overtaken by events in that the High Court delivered its judgment in Lithoferro on 13th August, 2014 and while doing so, it misunderstood or incorrectly appreciated the decision of this Court in Goa Foundation and disagreed with the view of the State of Goa. While this Court had required the State of Goa to grant fresh mining leases and the State of Goa was willing to comply with this direction, the High Court instead directed it to execute mining leases under Section 8(3) of the MMDR Act in respect of those who had paid the renewal fees or stamp duty. The High Court also directed the State of Goa to decide their pending second renewal applications within a period of three months keeping in mind the provisions of Section 8(3) of the MMDR Act (presumably after paying the renewal fees or stamp duty in terms of the Government order of 21st February, 2013). The understanding by the High Court of the decision of this Court in Goa Foundation is totally incorrect.There is no doubt that the renewal of a lease is virtually the same as the grant of a fresh lease but a converse direction to grant a mining lease cannot be understood to mean granting a renewal of a mining lease. Obviously, the grant of a fresh lease is not the same as the renewal of a lease and when the Court in Goa Foundation required the State of Goa to grant a fresh lease, it did not require the State to renew the existing (expired) lease. The Court could have explicitly declared and directed the State of Goa to grant a second renewal of the mining leases rather than to say it in a roundabout manner that it should do so by granting a fresh lease equivalent to a renewal. We simply cannot accept the submissions made by learned counsel for the mining lease holders in this regard.Learned counsel for the mining lease holders contended that the very same learned judges that decided Goa Foundation permitted the State Government in Common Cause v. Union of India (2014) 14 SCC 155 )to consider granting a second renewal of mining leases under Section 8(3) of the MMDR Act. Therefore the requirement in Goa Foundation for the grant of? must be understood in a manner similar to what was directed in Common Cause.We are unable to accept this contention. The direction given in Common Cause was an interim direction and not a final direction as in Goa Foundation. Moreover, the facts in both cases are not at all similar so as to warrant a similar order being passed or understood. Finally, the fact that the same set of learned judges thought it fit to direct the grant of „fresh leases? in one set of cases and thought it fit to direct consideration of a „second renewal? in another set of cases indicates that the learned judges were aware of the difference in directions. Therefore when the leaned judges directed the grant of „fresh leases? in Goa Foundation it was a deliberate and conscious decision distinct and different from granting a second renewal of expired mining leases.58. In our opinion, the direction in Goa Foundation is quite clear and instead of considering the grant of a second renewal of the mining leases, the State of Goa was required to consider the grant of fresh mining leases. Therefore the decision of the State of Goa to grant a second renewal of the mining leases is erroneous, contrary to the decision in Goa Foundation and must be and is quashed.As mentioned in the Grant of Mining Leases Policy there were several options available to the State of Goa. It took the view that all its options were foreclosed post the decision of the High Court and it was obliged to grant a second renewal of the mining leases. We have already held that this was not so and that the decision to grant a second renewal of the mining leases was erroneous and fresh leases were required to be granted in accordance with the decision in Goa Foundation. In view of our conclusion, the discussion on whetherthe State of Goa should have auctioned the miningleases through a process of competitive bidding is now rendered academic. However, since detailed submissions were made by learned counsel on both sides, including by the learned Additional Solicitor General, we propose to express our views on the subject.It is therefore more than explicit that there is no constitutional requirement (let alone a mandate) for allocation of natural resources through the auction method (other than spectrum) but at the same time the auction process should not be given awithout any justification – the decision to give ais judicially reviewable though the scope of judicial review might be rather restricted. The melting pot of allocation of a natural resource, a social or welfare purpose and adherence to the requirements of Articles 14 and 39(b) of the Constitution in matters of policy was a great leap forward fashioned by the Constitution Bench. Consequently, while there is no mandate, constitutional or otherwise, that natural resource allocation must be only by auction, it is certainlyThere are exceptions, such as when the natural resource allocation is for aOn the other hand if the natural resource allocation iscommercial pursuits of profit maximising privatede hors any social or welfare purpose, then judicial review would be permissible and Article 14 of the Constitution would be attracted and if the executive action is found to be arbitrary, it would be struck down. Therefore, when it comes to natural resource allocation, the executive has a somewhat limited elbow room.Notwithstanding this, a Court must exercise restraint and not set aside Government policy only because it disagrees with it or because a better policy could be framed or simply because it has the power to set aside the policy. Policies framed by the State, after due consideration, must be respected and given enough elbow room and flexibility for implementation. Of course, there would be occasions when the implementation of a policy has teething problems or some lacuna is discovered at a slightly later stage, but that does not mean that policy itself is defective. Therefore, Courts must be very cautious and circumspect in diluting or setting aside a policy and must do so only if it is constitutionally unavoidable, otherwise good governance could be a casualty.76. The conclusions that could be drawn from all these decisions are: (i) It is not obligatory, constitutionally or otherwise, that a natural resource (other than spectrum) must be disposed of or alienated or allocated only through an auction or through competitive bidding; (ii) Where the distribution, allocation, alienation or disposal of a natural resource is to a private party for a commercial pursuit of maximizing profits, then an auction is a more preferable method of such allotment; (iii) A decision to not auction a natural resource is liable to challenge and subject to restricted and limited judicial review under Article 14 of the Constitution; (iv) A decision to not auction a natural resource and sacrifice maximization of revenues might be justifiable if the decision is taken, inter alia, for the social good or the public good or the common good; (v) Unless the alienation or disposal of a natural resource is for the common good or a social or welfare purpose, it cannot be dissipated in favour of a private entrepreneur virtually free of cost or for a consideration not commensurate with its worth without attracting Article 14 and Article 39(b) of the Constitution.As far as the environment, the fragile ecology of Goa and theof the average Goan and the rule of law is concerned, the Mineral Policy categorically states that the State had witnessed, from12 the peak of chaotic and unregulated mining without any concern for the fragile ecology and environment of the State or for the generalof an average Goan. Surely, all this cannot be ignored or brushed aside particularly since the exploitation of mineral resources for five years had no element of social or public purpose, no concern for society and no regard for the environment and the laws.A reading of the report of the EAC is disturbing and acutely highlights the damage to the environment and ecology by the mining lease holders. The complete indifference by all concerned is evident from a careful reading of the report.88. The decision of the High Court does not at all discuss the options available to the State of Goa, namely, second renewal of the mining leases versus auction of a natural resource. In fact it appears that the High Court was not at all alive to the possibility of an auction of the mining leases, notwithstanding the view canvassed by the learned Advocate General of the State of Goa.A consideration of the contemporaneous facts beginning with the Budget Speech given by the Hon?ble Minister of Finance of the Government of India on 10th July, 2014 makes it clear that an amendment to the MMDR Act was to be effected sooner than later. The Grant of Mining Leases Policy overlooks that and proceeds on the basis that the judgment of the High Court delivered on 13th August, 2014 left the Government of Goa with no choice but to abandon the grant of mining leases through competitive bidding, even though that might be the most appropriate method of obtaining the best revenue for the public good. The Government of Goa had thereforeruled out the process of going in for competitive bidding keeping also in mind that the State was virtually starved of funds and had to balance the equities and needs of all, including the labour class, working class and other staff, markets in mining localities, public sector, mining lease holders, welfare needs of the State, environment and fragile ecology of the State and generalof the average Goan.Be that as it may, there is no doubt that iron ore mining in Goa was solely for commercial purposes – it was extracted primarily for export to China and Japan without any value addition to the domestic industry. True this brought in considerable foreign exchange – nevertheless iron ore extraction gave insignificant value addition (if at all) to Indian industry. The only advantage that iron ore extraction gave to the State was in terms of royalty, but the larger benefit accrued to the private mining lease holder who could obtain a mining lease on renewal virtually free and without any social or welfare purpose. In other words, the State sacrificed maximizing revenue for no apparent positive reason, virtually surrendering itself to the commercial and profit making motives of private entrepreneurs and ignoring the interests of Goan society in general. Therefore, in principle, the decision of the State of Goa to not auction the grant of mining leases was flawed in that it did not serve the common or public or social good but primarily assisted in filling the coffers of private entrepreneurs. We are not inclined to go so far as to describe the decision as arbitrary since it is not necessary to do so.94. However, we make it clear that we have dealt with this issue because it was canvassed before us. We are not inclined to quash the decision of the State of Goa of not going in for competitive bidding for the grant of fresh mining leases since it is not necessary in view of our conclusion that fresh mining leases were required to be granted by the State of Goa.The controversy in Sandur Manganese related to the grant of mining leases contrary to the provisions of Section 11 of the MMDR Act in that acriterion was taken into consideration de hors Section 11 of the MMDR Act for evaluating the applications and seeking approval of the Central Government for granting a mining lease. This was held to be impermissible and it may be so. In any event, paragraph 44 of the Report makes it clear that there is a distinction between the requirements of Section 11(3) of the MMDR Act and Section 8(3) of the MMDR Act. Sandur Manganese is not applicable to the facts of the present case.97. Similarly, reference was made to the Statement of Objects and Reasons for the Bill introduced in 2015 to amend the MMDR Act. It was stated therein thatpresent legal framework of the MMDR Act, 1957, does not permit the auctioning of mineral concessions.This submission need not detain us since we are not required to adjudicate whetherthe State of Goa should have auctioned the miningleases or not. The State of Goa decided to renew the mining leases and we are only called upon to decide (i) Whether the policy decision not to auction the grant of mining leases was arbitrary (we have already held that we are not required to express a final opinion on this). We may, however, recall en passant that the Goa Grant of Mining Leases Policy proceeded on the basis that the auction of mining leases was permissible and that had the sanction of the Court in Goa Foundation. It may be added that the MMDR Act did not prohibit the auction of mining leases. (ii) Whether the second renewals were in accordance with law and the constitutional principles.In view of decisions of this Court, including in Natural Resources Allocation it is permissible for this Court to judicially review, to a limited and restricted extent, the Grant of Mining Leases Policy, among other things, if it falls foul of Article 14 read with Article 39(b) of the Constitution and if it ignores the common or public or social good but benefits private entrepreneurs, particularly when it involves the natural resources, by sacrificing the maximization of revenue for the State.Despite the dicta of the Constitution Bench and the declaration made by this Court in Goa Foundation we do not propose to judicially review the Grant of Mining Leases Policy but to consider on merits whether the grant of second renewal to the mining leases was in accordance with the Grant of Mining Leases Policy and the law.104. In our opinion, in renewing the mining leases, the State of Goa completely ignored several relevant and important and significant factors giving the impression that the renewals were not quite fair or reasonable.105. For one, the State ignored the fact that every single mining lease holder had committed some illegality or the other in varying degrees. To identify these illegalities (although they had already been identified by the Justice Shah Commission and by the EAC), a Special Investigation Team had been set up as also a team of Chartered Accountants. Instead of waiting for a report from any one of these teams, the State acted in violation of the Grant of Mining Leases Policy and renewed the mining leases.Unfortunately, the undue haste in which the State acted gives the impression that it was willing to sacrifice the rule of law for the benefit of the mining lease holders and the explanation of satisfying the needs of some sections of society for their livelihood (after keeping them in the lurch for more than two years) was a mere fig leaf. The real intention of the second renewal was to satisfy the avariciousness of the mining lease holders who were motivated by profits to be made through the exploitation of naturalpolicy of the Government of India proposed to introduce Section 10B by way of an amendment to the MMDR Act and the proposed amendment made it very clear that if it were to be accepted, auction of mining leases in respect of notified minerals (including iron ore) would become a reality if not an obligation. It appears that to circumvent this rather uncomfortable policy, the State pressed the accelerator on the renewal of mining leases from December 2014 onward to benefit mining lease holders. So much so that in respect of 5 mining leases, the State overstepped the law and granted a second renewal in early January 2015 to some entities without even waiting for any approval or deemed approval of the mining plan from the Indian Bureau of Mines or any other authority.109. This sequence of events acquires further significance when it is recalled that an Ordinance to amend the MMDR Act was made known to the general public on 5th January, 2015 and promulgated by the President on 12th January, 2015 thereby mandating competitive bidding or auction for the grant of mining leases. The State of Goa perhaps anticipated this in view of the publication of the draft Mines and Minerals (Development and Regulation) Act, 2014 and therefore hurried into the second renewal of mining leases (notwithstanding the Grant of Mining Leases Policy) to defeat the introduction of the auction process. In fact in the period from 5th January, 2015 to 12th January, 2015 the Government of Goa granted a second renewal to as many as 56 mining leases and from 17th November, 2014 the State of Goa granted a second renewal to as many as 75 mining leases. The sudden spurt of renewal of mining leases is beyond comprehension. The judgment and order of the High Court in Lithoferro cannot be used as a shield for explaining the haste.110. These facts must also be appreciated in the context that mining operations were suspended in Goa with effect from 10th September, 2012 due to an order passed by the State of Goa. Therefore, mining operations having been suspended for more than two years, the State could have certainly waited for a few weeks more and taken an informed and reasoned decision on granting a second renewal to mining leases – but waiting for a few weeks could have led to an uncomfortable situation that would have compelled the State of Goa to auction the mining leases, hence theis not at all clear from the records before us that the State had applied its mind to these and other factors including the report of Justice Shah, the report of the EAC, the absence of any value addition to the domestic industry and the degradation of the environment as noted by the Expert Committee appointed by this Court in concluding that a second renewal was „in the interests of mineral development?. Mere reliance on the acceptance or deemed acceptance of the Indian Bureau of Mines is not enough, as imagined by the State of Goa. The matter of „interests of mineral development? has to be considered holistically and not in an isolationist manner.What is unfortunate about the entire commercial activity of the mining lease holders is that there was no social or public purpose attached to the mining operations. There was one and only one objective behind the mining activity and that was profit maximization. The renewal of the mining leases would give considerable profits to the mining lease holders well beyond the benefits that could accrue to the State or to the average resident of Goa. It was observed by Justice Khehar in Natural Resources Allocation that material resources of the country should not be dissipated free of cost or at a consideration lower than their actual worth. This was not kept in mind and mining leases were renewed for a small payment of stamp duty and royalty. It is therefore clear that the considerations that weighed with the State were not for the people of Goa but were for the mining lease holders. This certainly cannot be described as beingthe interests of mineral development.With the mining lease holders violating virtually every applicable law or legal requirement, it is clear that the rule of law was not their concern. The list of violations and their variety was documented by the EAC and it makes for some very sad reading. To make matters worse, it was clearly mentioned in the Grant of Mining Leases Policy that a Special Investigating Team and a team of Chartered Accountants would look into all the violations but the State chose not to wait for any of the reports. There is no explanation for this.116. In this background, there is little to suggest that the State considered the requirements of Section 8(3) of the MMDR Act in that the interests of mineral development was secondary while granting the second renewal of mining leases. The entire exercise undertaken by the State was a hasty charade, regardless of violations of the law by the mining lease holders, without any benefit to the Indian industry and without any concern for the healthof the average Goan.The undue haste with which the State granted the second renewal of mining leases particularly after the amendments proposed to the MMDR Act were placed in the public domain by the Government of India (relating to the auction of mining leases) is a clear indication that the decision of the State was not based on relevant material and not necessarily triggered bythe interests of mineral development.The very large number of renewals granted over a comparatively brief period is a clear indication that the State did not have „mineral development? in mind but had some otherinterests while taking its decision to grant a second renewal to the mining leases. The haste with which the State took its decision also needs to be understood in the background of the fact that mining had been suspended by the State in September 2012 that is more than two years prior to the grant of second renewals. The urgency suddenly exhibited by the State therefore seems to beand motivated rather than genuine.It may be recalled that the Mines and Minerals (Development and Regulation) Amendment Ordinance, 2015 came into force on 12th January, 2015 and on that day as many as 31 mining leases were renewed. In respect of 5 mining leases renewed in January, 2015 the report from the Indian Bureau of Mines was called for in January, 2015 itself and the mining leases were renewed without receipt of the report from the Indian Bureau of Mines and before expiry of the mandatory period for submitting the report in terms of the second proviso to Rule 24A(3) of the Mineral Concession Rules, 1960. In other words, without even receipt of any report from the Indian Bureau of Mines and even before the expiry of the statutory waiting period, the State of Goa renewed some mining leases. This is patently illegal.The State has projected virtual chaos (which could be an exaggeration) but that is why we have left open the issue of arbitrariness of the policy decision. Nevertheless the State is bound by the law, however uncomfortable it might be in granting a second renewal in terms of Section 8(3) of the MMDR Act. Therefore, on an overall consideration of all aspects of the case, we are of opinion that the decision of the State of Goa to quickly renew the mining leases while ostensibly complying with the requirements of Section 8(3) of the MMDR Act and thereby jettisoning the rule of law was unjustified.The question whether the mining lease holders required fresh environmental clearances arises in the context of paragraph 82 of the decision rendered in Goa Foundation quoted above. It must be stated that some mining lease holders had environmental clearances under EIA 1994 while others under EIA 2006. Notwithstanding this, since we have held that fresh mining leases were required to be granted, it follows that fresh environmental clearance is required to be obtained by those who are granted a fresh mining lease.The second order of 20th March, 2015 is an Office Memorandum to the effect that a project proponent will not be required to obtain a fresh environmental clearance at the time of renewal of the mining lease. This is misleading information and contrary to the decision of this Court in M.C. Mehta v. Union of India (2004)12 SCC 118) as well as the decision rendered in Common Cause v. Union of India. (2017) 9 SCCAs mentioned above and as held in M.C. Mehta and Common Cause, the renewal of a lease after 27th January, 1994 would require an environmental clearance. Therefore, a mining lease holder having a valid environmental clearance obtained under EIA 1994 would still require a fresh environmental clearance for renewal of the mining lease inas the case may be. That being so there is no doubt at all that the 35 cases referred to in the third order of 20th March, 2015 who had an environmental clearance under EIA 1994 did require a fresh environmental clearance at the time of renewal of the mining lease. Since they did not have such a fresh environmental clearance the renewal of these 35 mining leases is clearly bad in law. Moreover, as held in M.C. Mehta and Common Cause the validity of an environmental clearance granted under EIA 1994 is only for five years. Therefore all environmental clearances granted under EIA 1994 had lost their validity before 2015, EIA 1994 having been replaced by EIA 2006.135. As regards the 37 mining leases that had obtained environmental clearance under EIA 2006, since the validity of the environmental clearance is for the estimated project life or a maximum of 30 years in terms of paragraph 9 of EIA 2006 therefore no violation can be found on the ground of validity for the time period. To this limited extent, no interference is necessary at this stage in respect of these 37 mining leases. We make it clear, however, that this is subject to our conclusion that fresh mining leases were required to be granted by the State of Goa. Consequently, a mining lease holder obtaining a fresh mining lease would require a fresh environmental clearance in terms of EIA 2006.136. What is disturbing is that notwithstanding several and various violations, the MoEF granted environmental clearance to 72 mining leases. It seems to us that the MoEF acted without any application of mind in lifting the order placing all the environmental clearances in abeyance. Since the entire exercise carried out by the MoEF on 20th March, 2015 was mechanical, at the behest of the State of Goa, without due application of mind, without considering the multiple illegalities and irregularities committed by the mining lease holders or passing on the buck to the State of Goa and without considering relevant material such as the report of the EAC and the Expert Committee appointed by this Court, the exercise of lifting the abeyance order on 20th March, 2015 by the MoEF must be held void and as directed by the Court in Goa Foundation all the mining lease holders must obtain fresh environmental clearance for their mining project.137. We were informed by the learned Additional Solicitor General that show cause notices have now been issued to some mining lease holders demanding huge amountssome running into hundreds of crores of rupees towards value of ore extracted in excess of the environmental clearance. We were handed over some sample show cause notices (about 12) issued in September and October 2017 and the figures are quite staggering – the demand raised being about Rs. 1500 crores! Similarly, from the Summary of Mining Audit Report submitted by the auditors (and handed over to us by the learned Additional Solicitor General – for the period July 2016 to December 2016) the amount demanded (including interest) by the State of Goa from the mining lease holders through show cause notices issued is about Rs. 1500 crores! And without making any serious attempt to recover such huge amounts, the State of Goa has granted second renewal of mining leases and the MoEF played ball by lifting the abeyance order in respect of the environment clearances. The inferences that can be drawn are quitethere is no doubt that the Mineral Policy, the Grant of Mining Leases Policy, the amendment to the MMDR Act, the report of the EAC and the report of the Expert Committee must be considered in the larger context of constitutionalism, the rule of law, environmental jurisprudence as well as the fundamental right of the people of Goa to have clean air and protection of the fragile ecology. Governance cannot and should not be carried out de hors the interests of the people and some uncomfortable decisions may be inevitable for balancing the equities.139. Finally, a controversy (wholly unnecessary in our view) was raised with regard to the period of validity of the environmental clearance granted under EIA 1994. Firstly, in the view that we have taken, the validity period of an environmental clearance under EIA 1994 is academic since a fresh environmental clearance was necessary at the time of renewal of a lease. Secondly, the period of validity of an environmental clearance was considered in M.C. Mehta and it was clearly held that it is valid for 5 years only.For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided thatclearance granted shall be valid for a period of five years from commencement of the construction orAnother notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five yearscommencement of the construction or operation and not that the environment clearance is only for five yearsthe commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expressiona period of fivefor a periodrs for commencement of the construction or operation and not five years from commencement of the construction orWe do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction betweenfive years andfive years in respect of the validity of an environmental clearance.145.It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over.We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146.Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting.In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that:if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C.This question does not arise in the context of EIA 1994.147.One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Propertyn v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February,are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos.of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa49. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not inthe interests of mineral development.The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.

### 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: mining projects….”.144. For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided that “the clearance granted shall be valid for a period of five years from commencement of the construction or operation”. Another notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five years “for” commencement of the construction or operation and not that the environment clearance is only for five years “from” the commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expression “for a period of five years” shall mean “for a period of five years for commencement of the construction or operation and not five years from commencement of the construction or operation.” We do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction between “for” five years and “from” five years in respect of the validity of an environmental clearance.145. It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over. We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146. Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting. In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that: “… if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C. Mehta.” This question does not arise in the context of EIA 1994.147. One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Property Owners’ Association v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February, 2002)We are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos. 32699-32727 of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa Foundation. Conclusions and directions149. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not in the interests of mineral development. The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012. ### Response: 1 ### Explanation: academic since a fresh environmental clearance was necessary at the time of renewal of a lease. Secondly, the period of validity of an environmental clearance was considered in M.C. Mehta and it was clearly held that it is valid for 5 years only.For no apparent reason and after EIA 2006, the issue of the validity of an environmental clearance granted under EIA 1994 was raked up and a notification was issued by the MoEF on 21st August, 2013 in which it was noted that the notification of 4th May, 1994 provided thatclearance granted shall be valid for a period of five years from commencement of the construction orAnother notification of 21st August, 2013 goes on to say that the intent of the Central Government has been and has always been that the validity of the environmental clearance is for five yearscommencement of the construction or operation and not that the environment clearance is only for five yearsthe commencement of construction or operation. Therefore, the Central Government clarified in the notification of 21st August, 2013 that the expressiona period of fivefor a periodrs for commencement of the construction or operation and not five years from commencement of the construction orWe do not see how this controversy really arises or its relevance to the present case, but we refer to it since submissions were made to explain the distinction betweenfive years andfive years in respect of the validity of an environmental clearance.145.It is perhaps sought to be contended that if environmental clearance is granted and mining operations commence within the five year period, then the environmental clearance under EIA 1994 is valid till the project or the mining lease period is over.We cannot see how such an inference can be drawn. Moreover, this submission overlooks the decisions in M.C. Mehta and Common Cause which accept the view that the validity of an environmental clearance granted under EIA 1994 is only five years as also the view that a valid environmental clearance is necessary for the renewal of a mining lease. No notification of the MoEF can overrule decisions of this Court. As far as EIA 2006 is concerned this submission is academic and not relevant since paragraph 9 of EIA 2006 provides that the environmental clearance would be valid for the estimated project life subject to a maximum of 30 years.146.Learned counsel for the mining lease holders also relied upon a decision of the Delhi High Court in S. N. Mohanty v. Union of India (2012 SCC OnLine Del 4000)to contend that notwithstanding a notification issued by MoEF on 4th April, 2011 it was not obligatory for a mining lease holder to obtain a fresh environmental clearance at the time of renewal of a lease, if the environmental clearance was subsisting.In that case, the petitioner had an environmental clearance obtained under EIA 2006 on 15th January, 2007 and the first renewal of the mining lease was due on 2nd April, 2012. In that context, it was submitted that it was not necessary for the petitioner to obtain environmental clearance for renewal of the mining lease. The Delhi High Court took the view that:if a person has a valid and subsisting EC [environmental clearance] at the point of time he seeks a renewal of the mining lease, he would still be required to obtain another EC prior to the grant of renewal by the respondents. That, in our view, is not the intent and purport of the Supreme Court directions in M.C.This question does not arise in the context of EIA 1994.147.One final submission before us was that these cases be referred to a Bench of 9 learned judges since the constitutional validity of the Goa, Daman & Diu Mining Concessions (Abolition & Declaration of Mining Leases) Act, 1987 was under challenge in some cases and the decision in those cases would perhaps render the present proceedings infructuous. In some of these pending cases, this Court had passed an order on 29th October, 2002 to await the decision of 9 learned judges in Propertyn v. State of Maharashtra. (2013) 7 SCC 522 dated 20th February,are not at all inclined to accept this request and mention it only to reject it. Correctness of the decision of the High Court in Lithoferro148. As far as the SLPs are concerned (SLP (C) No. 32138 of 2015 and SLP (C) Nos.of 2015) we set aside the judgment and order dated 13th August, 2014 of the High Court in view of our conclusion that the State of Goa was required to grant fresh licences in terms of the decision of this Court in Goa Foundation. The High Court proceeded on the erroneous basis that it could direct the State of Goa to grant a second renewal of the mining leases notwithstanding the direction in Goa49. In view of our discussion, we arrive at the following conclusions:1. As a result of the decision, declaration and directions of this Court in Goa Foundation, the State of Goa was obliged to grant fresh mining leases in accordance with law and not second renewals to the mining lease holders.2. The State of Goa was not under any constitutional obligation to grant fresh mining leases through the process of competitive bidding or auction.3. The second renewal of the mining leases granted by the State of Goa was unduly hasty, without taking all relevant material into consideration and ignoring available relevant material and therefore not inthe interests of mineral development.The decision was taken only to augment the revenues of the State which is outside the purview of Section 8(3) of the MMDR Act. The second renewal of the mining leases granted by the State of Goa is liable to be set aside and is quashed.4. The Ministry of Environment and Forest was obliged to grant fresh environmental clearances in respect of fresh grant of mining leases in accordance with law and the decision of this Court in Goa Foundation and not merely lift the abeyance order of 14th September, 2012.

Themi P. Sidhwa & Ors Vs. Shib Banerjee & Sons Pvt. Ltd. & Anr

ground their Lordship think exhibit AY did not require registration, and accordingly is admissible in evidence, so far as it goes.In Sheonarain Lal, v. Ramehswari Devi, (C. A. No. 296 of 1960 decided on 6-12-1962 (SC)) a Bench of the five Judges of this Court had to deal with a document the fifth clause of which read :"Shri Sheo Narain Lal and his beirs should execute as early as possible a registered document in respect of the shop let out on rent the Beli Sao Sukhdeo Prasad, in favour of Shri Prabhu Chand for which Shri Prabhu Chand will have to pay nothing as consideration .he will pay only costs of stamp etc.This Court observed :"Does this clause purport or operate to create declare, assign, limit or extinguish any right, title or interest in immovable properties? We are clearly of opinion that it does not. The award merely provides that some right in the shop should be created in the future by means of a document to be executed by Sheonarain Lal and his heirs. That document when executed would certainly operate to create a right in favour of Prabhu Chand in immovable properties and extinguish the right of Sheonarain Lal and his heirs in the same properties. That is why the arbitrators mention that the document should be registered, as admittedly, the value of that property would be more than Rupees 100/-. It is difficult to see however how the fact that such a document that might be executed in consequence of the direction in the awards, would operate to create or extinguish a right in immoveable properties, justifies the Court to say that the award itself purports or operates to create or extinguish such a right. The position would have been otherwise if the arbitrators had directed by the award itself that this shop would go to Prabbu Chand without any further document. In that case the award itself would have created in Prabhuchand a right to these properties. That is not, however, the provision in the award. In the absence of a registered document, Prabhu Chand would get no title on the award and Sheonarains title would remain in the shop. It is clear therefore that the award does not itself create or extinguish any right, title or interest in the immovable properties. It may be said that it creates a right to obtain another document which will, when executed, create or extinguish such right in immovable properties and so is a document falling within clause 5 of Section 17 (2) of the Registration Act. The award therefore does not require registration in law. We find it unnecessary to consider the further question which the High Court has considered on the assumption - wrongly made - that the award decided questions of title to immovable properties."In Satish Kumar v. Surinder Kumar, 1969-2 SCR 244 =(AIR 1970 SC 833 ) the concurring judgment of Hegde. J. brings out the matter very clearly. He observed :"For the purpose of Section 17 (1) (b) of the Registration Act, all that we have to see is whether the award in question purport or operate to create or declare, assign, limit or extinguish whether in present of future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property. If it does, it is compulsorily registrable...There is no gain saying the fact that the award with which are concerned in this case, at any rate, purported to create rights in immovable property of the value of rupees more than one hundred. Hence it is compulsorily registrable.The other two learned Judges quoted the observations in Sheonarain Lals case C. A. No. 296 of 1960, D/- 6-12-1962 (SC) that :The position would have been otherwise if the arbitrators had directed by the award itself that this shop would go to Prabhu Chand without itself would have created in Prabhuchand a right to these properties.Thus this decision does not in any way lay down any proposition contrary to the decision which we have so far referred to.7. We may finally refer to the latest decision of this Court, to which one of us was a party, in Ratan Lal Sharma v. Purushottam Harit, C. A. No. 1625 of 1967 decided on 11-1-1974 = (reported in AIR 1974 SC 1066 ). The relevant clause read as follows :"The factory and all assets and properties of New Bengal Engineering Works are excusive allotted to Dr. Ratan Lal Sharma, who is absolutely entitles to the same. He will pay all liabilities of the factory.This court observed :It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him "absolutely entitled to the same.....So in express words it purports to create rights in immoveable property worth above Rs. 100/- in favour of the appellant. It would accordingly require registration under S. 17, Registration Act.8. The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17 (2) (v) of the Registration Act however did not arise there.9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17 (2) (v) and is, therefore, not registrable.10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable.

1[ds]It would be noticed that the award itself does not purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards in respect of the immoveable property, as contemplated under Section 17 (1) (b) of the Registration Act. It merely creates a right to obtain another document which will, when executed. create, declare, assign. limit or extinguish any such right, title or interest. The award directs Shib Banerjee and Sons Private Ltd. to execute such documents as may be necessary for declaring the one-fourth share of the appellants in the said property and also to execute such documents as may be necessary for transferring the said property and the lease from the Delhi Improvement Trust to the Joint names of themselves and the appellants. It, therefore, squarely falls under Section 17 (2) (v) of the Registration Act.The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17 (2) (v) of the Registration Act however did not arise there.9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17 (2) (v) and is, therefore, not registrable.10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable.

### 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: ground their Lordship think exhibit AY did not require registration, and accordingly is admissible in evidence, so far as it goes.In Sheonarain Lal, v. Ramehswari Devi, (C. A. No. 296 of 1960 decided on 6-12-1962 (SC)) a Bench of the five Judges of this Court had to deal with a document the fifth clause of which read :"Shri Sheo Narain Lal and his beirs should execute as early as possible a registered document in respect of the shop let out on rent the Beli Sao Sukhdeo Prasad, in favour of Shri Prabhu Chand for which Shri Prabhu Chand will have to pay nothing as consideration .he will pay only costs of stamp etc.This Court observed :"Does this clause purport or operate to create declare, assign, limit or extinguish any right, title or interest in immovable properties? We are clearly of opinion that it does not. The award merely provides that some right in the shop should be created in the future by means of a document to be executed by Sheonarain Lal and his heirs. That document when executed would certainly operate to create a right in favour of Prabhu Chand in immovable properties and extinguish the right of Sheonarain Lal and his heirs in the same properties. That is why the arbitrators mention that the document should be registered, as admittedly, the value of that property would be more than Rupees 100/-. It is difficult to see however how the fact that such a document that might be executed in consequence of the direction in the awards, would operate to create or extinguish a right in immoveable properties, justifies the Court to say that the award itself purports or operates to create or extinguish such a right. The position would have been otherwise if the arbitrators had directed by the award itself that this shop would go to Prabbu Chand without any further document. In that case the award itself would have created in Prabhuchand a right to these properties. That is not, however, the provision in the award. In the absence of a registered document, Prabhu Chand would get no title on the award and Sheonarains title would remain in the shop. It is clear therefore that the award does not itself create or extinguish any right, title or interest in the immovable properties. It may be said that it creates a right to obtain another document which will, when executed, create or extinguish such right in immovable properties and so is a document falling within clause 5 of Section 17 (2) of the Registration Act. The award therefore does not require registration in law. We find it unnecessary to consider the further question which the High Court has considered on the assumption - wrongly made - that the award decided questions of title to immovable properties."In Satish Kumar v. Surinder Kumar, 1969-2 SCR 244 =(AIR 1970 SC 833 ) the concurring judgment of Hegde. J. brings out the matter very clearly. He observed :"For the purpose of Section 17 (1) (b) of the Registration Act, all that we have to see is whether the award in question purport or operate to create or declare, assign, limit or extinguish whether in present of future any right, title or interest whether vested or contingent of the value of one hundred rupees and upwards to or in immovable property. If it does, it is compulsorily registrable...There is no gain saying the fact that the award with which are concerned in this case, at any rate, purported to create rights in immovable property of the value of rupees more than one hundred. Hence it is compulsorily registrable.The other two learned Judges quoted the observations in Sheonarain Lals case C. A. No. 296 of 1960, D/- 6-12-1962 (SC) that :The position would have been otherwise if the arbitrators had directed by the award itself that this shop would go to Prabhu Chand without itself would have created in Prabhuchand a right to these properties.Thus this decision does not in any way lay down any proposition contrary to the decision which we have so far referred to.7. We may finally refer to the latest decision of this Court, to which one of us was a party, in Ratan Lal Sharma v. Purushottam Harit, C. A. No. 1625 of 1967 decided on 11-1-1974 = (reported in AIR 1974 SC 1066 ). The relevant clause read as follows :"The factory and all assets and properties of New Bengal Engineering Works are excusive allotted to Dr. Ratan Lal Sharma, who is absolutely entitles to the same. He will pay all liabilities of the factory.This court observed :It expressly makes an exclusive allotment of the partnership assets including the factory and liabilities to the appellant. It goes further and makes him "absolutely entitled to the same.....So in express words it purports to create rights in immoveable property worth above Rs. 100/- in favour of the appellant. It would accordingly require registration under S. 17, Registration Act.8. The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17 (2) (v) of the Registration Act however did not arise there.9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17 (2) (v) and is, therefore, not registrable.10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable. ### Response: 1 ### Explanation: It would be noticed that the award itself does not purport or operate to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards in respect of the immoveable property, as contemplated under Section 17 (1) (b) of the Registration Act. It merely creates a right to obtain another document which will, when executed. create, declare, assign. limit or extinguish any such right, title or interest. The award directs Shib Banerjee and Sons Private Ltd. to execute such documents as may be necessary for declaring the one-fourth share of the appellants in the said property and also to execute such documents as may be necessary for transferring the said property and the lease from the Delhi Improvement Trust to the Joint names of themselves and the appellants. It, therefore, squarely falls under Section 17 (2) (v) of the Registration Act.The Full Bench decision of the Andhra Pradesh High Court relied upon by the learned Judge decided that an award that created a charge must be registered. That is undoubtedly correct. The question regarding the application of Section 17 (2) (v) of the Registration Act however did not arise there.9. The learned Judge does not refer to any of the decision which we have referred to, including those of this Court because he proceeded to decide the matter on the assumption that the award itself created a right in immovable property of the value of over one hundred rupees. We are clearly of opinion that the award in this case fails under Section 17 (2) (v) and is, therefore, not registrable.10. As regards the question of stamp duty, we do not propose to express any opinion as it would appear that the learned Judge of the High Court would himself have been ready to receive the stamp duty and penalty if he had held that the agreement was not compulsorily registrable.

Srinivasa Coop. House Building Society Ltd Vs. Madam Gurumurthy Sastry

Revenues, or some fund controlled or managed by a local authority. On the other hand, in the case of an acquisition for a company, the compensation has to be paid by the company. In such a case there can be an agreement under Section 41 for transfer of the land acquired by the Government to the company on payment of the cost of acquisition, as also other matters. The agreement contemplated by Section 41 is to be entered into between the company and the appropriate Government only after the latter is satisfied about the purpose of the proposed acquisition, and subject to the condition precedent that the previous consent of the appropriate Government has been given to the acquisition. Section 6 is in terms, made subject to the provisions of Part VII of the Act. The declaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII. In that case the Government have sponsored the Housing Scheme and substantial amount has been extended on the scheme out of the Government revenue in the form of subsidies and loans. The acquisition was also for the construction of the quarters for the workmen under the Government sponsoring Housing Scheme for industrial workers. Under those circumstances it was held that the acquisition for the company was for public purpose. We may make it clear at once that a token contribution from public revenue, under all circumstances cannot be considered to be colourable exercise of power. Each case must furnish its backdrop whether the acquisition is for public purpose or for a private purpose. The facts and circumstances must carefully be scrutinised to reach a finding. 13. This Court in Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 construing Section 161(1) of the Police Act and the words (under the colour of duty) interpreted to include acts done under the cloak of duty, even though not by virtue of the duty, when the police officer prepares a false panchnama or a false report, he is clearly using the existence of his legal duty as a cloak for his corrupt action or as a veil of his falsehood. The acts thus done in dereliction of his duty must be held to have been done under colour of the duty. In Strouds Judicial Dictionary, "Colour of office" was defined as is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it. In Blacks Law Dictionary, "under color of any law" of a State include not only acts done by State officials within the bounds on limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done under colour of any law, the unlawful acts must be done while such official is purporting or pretending to act in the performance of his official duties; that is to say, the unlawful acts must consist in an abuse or misuse of power which is possessed by the official only because he is an official; and the unlawful acts must be of such a nature or character, and be committed under such circumstances, that they would not have occurred but for the fact that the person committing them was an official then and there exercising his official powers outside the bounds of lawful authority. It would thus be clear that when an act is done by the State under colour of authority of law it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under Section 6 must be held to be colourable exercise of the power, though not with evil motive. It is seen that the appellant is a private society and it is not for any of the purposes under Section 40(1)(a) or under Section 3(e) of the Act. It is for the transfer of the acquired land to the members of the society who are now as per the record placed in this Court appear to be Advocates, Chartered Accountants, Businessmen and alleged to be possessed of more than one house. The Government does not appear to have bestowed its thought to these aspects while considering the report under Section 5-A in this perspective before accepting the report and contributing a sum of Rs 100 each from the public exchequer within the teeth of Sections 40; 41; 44-A and 44-B of the Act. Thus it must be held that the acquisition and declaration published under Section 6 is a colourable exercise of the power.

0[ds]It is to serve the general interest of the community as opposed to the particular interest of the individual. Public purpose broadly speaking would include the purpose in which the general interest of the society as opposed to the particular interest of the individual is directly and vitally concerned. Generally the executive would be the best judge to determine whether or not the impugned purpose is a public purpose. Yet it is not beyond the purview of judicial scrutiny. The interest of a section of the society may be public purpose when it is benefited by the acquisition. The acquisition in question must indicate that it was towards the welfare of the people and not to benefit a private individual or group of individuals joined collectively. Therefore, acquisition for anything which is not for a public purpose cannot be done compulsorily. Admittedly, there is no group housing scheme approved by the State Government. On the other hand, housing schemes are being executed by the A.P. Housing Board under the Act. We are not concerned with the public purpose as amended under the 1984plain reading of the fascicule of these provisions clearly indicates the distinction, statute has envisaged, namely, acquisition for a public purpose and acquisition for a private purpose. Even the acquisition for a company, unless utilisation of the land so acquired is integrally connected with public use, resort to the compulsory acquisition under Chapter VII cannot be had. Even when Chapter VII was invoked, the requirements of Section 40 and Section 41 are mandatory and shall be strictly complied with. It is clearly discernible from scheme of the acquisition in Chapter VII that the land can be acquired for the erection offor workmen employed by the company or for the provisions of amenities directly connected therewith or needed for the construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose or is needed for the construction of some work which is likely to prove useful to the public. Notwithstanding anything contained in the Act, i.e., despite the compliance with Chapter VII, DO land should be acquired under Chapter VII except for the purpose mentioned in clause (a) of subsection (1) of Section 40, for a private company which is not a Government company and that such company shall not be entitled after the acquisition under Chapter VII to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government. The object therefore, appears to be that the land acquired under Chapter VII shall always remain to serve the public purpose, beneficial to the public, It is not open to the Government to waive any of the provisions in Part VII. The provisions contained therein have mandatory operation. The object of Sectionsappears to be that they intend to safeguard public interest. The company acquiring the land for a public purpose in Chapter VII may, after the acquisition has become final, divert the land for private profit motive, defeating the purported public purpose for which the acquisition was made. The Government company obviously does not alienate such property for private gain since the profits merge into public fund. While the private company could get acquisition but thereafter become free to dispose of the property. Therefore, the acquisition for a private company get limited only for purposes envisaged under Section 40(1)(a) and thereby the public purposes envisaged therein get safeguarded and protected. The dominant purpose of public utility pervades the provisions in Chapter VII of thedeclaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII. In that case the Government have sponsored the Housing Scheme and substantial amount has been extended on the scheme out of the Government revenue in the form of subsidies and loans. The acquisition was also for the construction of the quarters for the workmen under the Government sponsoring Housing Scheme for industrial workers. Under those circumstances it was held that the acquisition for the company was for public purpose. We may make it clear at once that a token contribution from public revenue, under all circumstances cannot be considered to be colourable exercise of power. Each case must furnish its backdrop whether the acquisition is for public purpose or for a private purpose. The facts and circumstances must carefully be scrutinised to reach awould thus be clear that when an act is done by the State under colour of authority of law it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under Section 6 must be held to be colourable exercise of the power, though not with evil motive. It is seen that the appellant is a private society and it is not for any of the purposes under Section 40(1)(a) or under Section 3(e) of the Act. It is for the transfer of the acquired land to the members of the society who are now as per the record placed in this Court appear to be Advocates, Chartered Accountants, Businessmen and alleged to be possessed of more than one house. The Government does not appear to have bestowed its thought to these aspects while considering the report under Sectionin this perspective before accepting the report and contributing a sum of Rs 100 each from the public exchequer within the teeth of Sections 40; 41;of the Act. Thus it must be held that the acquisition and declaration published under Section 6 is a colourable exercise of the power.

### 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: Revenues, or some fund controlled or managed by a local authority. On the other hand, in the case of an acquisition for a company, the compensation has to be paid by the company. In such a case there can be an agreement under Section 41 for transfer of the land acquired by the Government to the company on payment of the cost of acquisition, as also other matters. The agreement contemplated by Section 41 is to be entered into between the company and the appropriate Government only after the latter is satisfied about the purpose of the proposed acquisition, and subject to the condition precedent that the previous consent of the appropriate Government has been given to the acquisition. Section 6 is in terms, made subject to the provisions of Part VII of the Act. The declaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII. In that case the Government have sponsored the Housing Scheme and substantial amount has been extended on the scheme out of the Government revenue in the form of subsidies and loans. The acquisition was also for the construction of the quarters for the workmen under the Government sponsoring Housing Scheme for industrial workers. Under those circumstances it was held that the acquisition for the company was for public purpose. We may make it clear at once that a token contribution from public revenue, under all circumstances cannot be considered to be colourable exercise of power. Each case must furnish its backdrop whether the acquisition is for public purpose or for a private purpose. The facts and circumstances must carefully be scrutinised to reach a finding. 13. This Court in Virupaxappa Veerappa Kadampur v. State of Mysore, AIR 1963 SC 849 construing Section 161(1) of the Police Act and the words (under the colour of duty) interpreted to include acts done under the cloak of duty, even though not by virtue of the duty, when the police officer prepares a false panchnama or a false report, he is clearly using the existence of his legal duty as a cloak for his corrupt action or as a veil of his falsehood. The acts thus done in dereliction of his duty must be held to have been done under colour of the duty. In Strouds Judicial Dictionary, "Colour of office" was defined as is always taken in the worst part, and signifies an act evil done by the countenance of an office, and it bears a dissembling face of the right of the office, whereas the office is but a veil to the falsehood, and the thing is grounded upon vice, and the office is as a shadow to it. In Blacks Law Dictionary, "under color of any law" of a State include not only acts done by State officials within the bounds on limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of an official to be done under colour of any law, the unlawful acts must be done while such official is purporting or pretending to act in the performance of his official duties; that is to say, the unlawful acts must consist in an abuse or misuse of power which is possessed by the official only because he is an official; and the unlawful acts must be of such a nature or character, and be committed under such circumstances, that they would not have occurred but for the fact that the person committing them was an official then and there exercising his official powers outside the bounds of lawful authority. It would thus be clear that when an act is done by the State under colour of authority of law it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under Section 6 must be held to be colourable exercise of the power, though not with evil motive. It is seen that the appellant is a private society and it is not for any of the purposes under Section 40(1)(a) or under Section 3(e) of the Act. It is for the transfer of the acquired land to the members of the society who are now as per the record placed in this Court appear to be Advocates, Chartered Accountants, Businessmen and alleged to be possessed of more than one house. The Government does not appear to have bestowed its thought to these aspects while considering the report under Section 5-A in this perspective before accepting the report and contributing a sum of Rs 100 each from the public exchequer within the teeth of Sections 40; 41; 44-A and 44-B of the Act. Thus it must be held that the acquisition and declaration published under Section 6 is a colourable exercise of the power. ### Response: 0 ### Explanation: which is not for a public purpose cannot be done compulsorily. Admittedly, there is no group housing scheme approved by the State Government. On the other hand, housing schemes are being executed by the A.P. Housing Board under the Act. We are not concerned with the public purpose as amended under the 1984plain reading of the fascicule of these provisions clearly indicates the distinction, statute has envisaged, namely, acquisition for a public purpose and acquisition for a private purpose. Even the acquisition for a company, unless utilisation of the land so acquired is integrally connected with public use, resort to the compulsory acquisition under Chapter VII cannot be had. Even when Chapter VII was invoked, the requirements of Section 40 and Section 41 are mandatory and shall be strictly complied with. It is clearly discernible from scheme of the acquisition in Chapter VII that the land can be acquired for the erection offor workmen employed by the company or for the provisions of amenities directly connected therewith or needed for the construction of some building or work for a company which is engaged or is taking steps for engaging itself in any industry or work which is for a public purpose or is needed for the construction of some work which is likely to prove useful to the public. Notwithstanding anything contained in the Act, i.e., despite the compliance with Chapter VII, DO land should be acquired under Chapter VII except for the purpose mentioned in clause (a) of subsection (1) of Section 40, for a private company which is not a Government company and that such company shall not be entitled after the acquisition under Chapter VII to transfer the said land or any part thereof by sale, mortgage, gift, lease or otherwise except with the previous sanction of the appropriate Government. The object therefore, appears to be that the land acquired under Chapter VII shall always remain to serve the public purpose, beneficial to the public, It is not open to the Government to waive any of the provisions in Part VII. The provisions contained therein have mandatory operation. The object of Sectionsappears to be that they intend to safeguard public interest. The company acquiring the land for a public purpose in Chapter VII may, after the acquisition has become final, divert the land for private profit motive, defeating the purported public purpose for which the acquisition was made. The Government company obviously does not alienate such property for private gain since the profits merge into public fund. While the private company could get acquisition but thereafter become free to dispose of the property. Therefore, the acquisition for a private company get limited only for purposes envisaged under Section 40(1)(a) and thereby the public purposes envisaged therein get safeguarded and protected. The dominant purpose of public utility pervades the provisions in Chapter VII of thedeclaration for acquisition for a company shall not be made unless the compensation to be awarded for the property is to be paid by a company. In the case of an acquisition for a company simpliciter, the declaration cannot be made without satisfying the requirements of Part VII. But that does not necessarily mean that an acquisition for a company for a public purpose cannot be made otherwise than under the provisions of Part VII, if the cost or a portion of the cost of the acquisition is to come out of public funds. In other words, the essential condition for acquisition is for a public purpose and that the cost of acquisition should be borne, wholly or in part, out of public funds. Hence an acquisition for a company may also be made for a public purpose, within the meaning of the Act, if a part or the whole of the cost of acquisition is met by public funds. If, on the other hand, the acquisition, for a company is to be made at the cost entirely of the company itself, such an acquisition comes under the provisions of Part VII. In that case the Government have sponsored the Housing Scheme and substantial amount has been extended on the scheme out of the Government revenue in the form of subsidies and loans. The acquisition was also for the construction of the quarters for the workmen under the Government sponsoring Housing Scheme for industrial workers. Under those circumstances it was held that the acquisition for the company was for public purpose. We may make it clear at once that a token contribution from public revenue, under all circumstances cannot be considered to be colourable exercise of power. Each case must furnish its backdrop whether the acquisition is for public purpose or for a private purpose. The facts and circumstances must carefully be scrutinised to reach awould thus be clear that when an act is done by the State under colour of authority of law it must be for the lawful purpose envisaged under the Act. If the purpose, namely, public purpose envisaged under the Act is not served then the exercise of the power of the declaration under Section 6 must be held to be colourable exercise of the power, though not with evil motive. It is seen that the appellant is a private society and it is not for any of the purposes under Section 40(1)(a) or under Section 3(e) of the Act. It is for the transfer of the acquired land to the members of the society who are now as per the record placed in this Court appear to be Advocates, Chartered Accountants, Businessmen and alleged to be possessed of more than one house. The Government does not appear to have bestowed its thought to these aspects while considering the report under Sectionin this perspective before accepting the report and contributing a sum of Rs 100 each from the public exchequer within the teeth of Sections 40; 41;of the Act. Thus it must be held that the acquisition and declaration published under Section 6 is a colourable exercise of the power.

Commissioner of Income Tax (Central), Calcutta Vs. Ashoka Marketing Limited

in the respondents hands. Accordingly, the Tribunal set aside the penalty of Rs. 15 lakhs. The Commissioner of Income-tax (Central), Calcutta, thereupon applied under section 66(1) of the Act for reference of the following three questions to the High Court :" 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in placing upon the department the onus to prove by positive evidence that the sum of Rs. 40, 05, 825 represented concealed, income of the assessee when the assessee itself had conceded that the said sum was its income ?2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in treating the sum of Rs. 40, 05, 825 on the same footing as the sum of Rs. 14, 30, 561 and in setting aside, on that view, the penalty order passed in this case ?3. Whether, in any event, on the facts and in the circumstances of the case, the Tribunal was right in setting aside the said order of penalty ? "2. The Tribunal rejected the application on the view that no question of law arose from the order of the Tribunal. The Commissioner thereafter applied under section 66(2) to the High Court for an order requiring the Income-tax Appellate Tribunal to draw up a statement of the case and to refer the aforesaid questions of law to the High Court for determination. On this application a rule nisi was issued on April 28, 1969. On September 16, 1969, the High Court discharged the rule and dismissed the application without however giving any reasons. The present appeal by special leave is directed against this order of the High Court.3. Mr. Desai, learned counsel for the appellant, submitted that the High Court having issued a rule nisi on the application under section 66(2) was wrong in dismissing the same without a speaking order. We agree that the High Court should have stated the reasons on which it dismissed the application; however, as we have heard the counsel on either side on the merits of the case, we do not think it would be proper to send the matter back to the High Court only on that ground. We, therefore, propose to dispose of the appeal on merits.4. It was argued before the Tribunal in the penalty proceeding that merely because the respondent did not press its objection to the assessment of the sum of Rs. 40, 05, 825 in its hands, it could not be said that it was admitted that the amount was the concealed income of the respondent. Before the Tribunal the explanation offered by the respondent in respect of the aforesaid sum was" To avoid protracted appeal proceedings, a compromise was entered into between the assessee company and D.J.C. Ltd., whereby the sum would be assessed in the assessees hands and omitted from the assessment of Dalmia Jain Company Limited, the latter undertaking to meet the tax liability in respect of such inclusion the balance of the profit being retained by the company. Such an arrangement was possible because D.J. Co. Ltd. was one of the companies in the Sahu Jain Group. "5. It appears, however, from the Tribunals order that it excluded the sum of Rs. 40, 05, 825, from the respondents total income "only because D. J. C. agreed to reimburse the assessee for the tax liability met on its behalf ". Mr. Desai pointed out that the judgment of the Patna High Court on the basis of which the Tribunal in the assessment proceeding had held that the sum of Rs. 14, 30, 561 could not be treated as the concealed income of the respondent was later reversed by this court (see Commissioner of Income-tax v. Ashoka Marketing Ltd.). Mr. Desai submitted that the argument that Rs. 40, 05, 825 could not be assessed in the hands of the respondent for the reasons given in the aforesaid judgment of the Patna High Court no longer held good after that judgment had been set aside. Mr. Desai relied on the decision of the Madras High Court in P.M.A.P. Ayyamperumal Nadar v. Commissioner of Income-tax to contend that the materials gathered at the stage of assessment proceeding cannot be altogether overlooked in the penalty proceeding and submitted that the Tribunal must, therefore, be held to have misdirected itself in thinking that the department had failed to bring any material to show that the amount in question was the respondents concealed income. However, as pointed out in the order of the Tribunal rejecting the application under section 66(1), the Tribunals decision in the assessment proceeding did not rest on any legal issue but really on the explanation given by the respondent that it did not question the inclusion of Rs. 40, 05, 825 in its total income because of the understanding with D. J. C. to which we have referred above. Mr. Desai submitted that the alleged understanding or agreement with D. J. C. appeared only from what the assessees counsel stated before the Tribunal, and there was no material on record in support of that statement. Assuming that the fact of agreement with D.J.C. appeared only in counsels statement, there is nothing on record to suggest that the department challenged the truth of the statement or questioned the propriety of acting on it. The agreement with D.J.C. is a fact appearing from the order of the Tribunal, and that is sufficient for the present purpose. Whether or not an assessee has concealed its income is a question to be decided on the facts of a case, and in the present case the decision is based on the respondents agreement with D.J.C. which the Tribunal accepted as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) cannot be said to be wrongThe appeal is dismissed but in the circumstances of the case without any order as to costs.

0[ds]5. It appears, however, from the Tribunals order that it excluded the sum of Rs. 40, 05, 825, from the respondents total income "only because D. J. C. agreed to reimburse the assessee for the tax liability met on its behalf ". Mr. Desai pointed out that the judgment of the Patna High Court on the basis of which the Tribunal in the assessment proceeding had held that the sum of Rs. 14, 30, 561 could not be treated as the concealed income of the respondent was later reversed by this court (see Commissioner ofv. Ashoka Marketing Ltd.). Mr. Desai submitted that the argument that Rs. 40, 05, 825 could not be assessed in the hands of the respondent for the reasons given in the aforesaid judgment of the Patna High Court no longer held good after that judgment had been set aside. Mr. Desai relied on the decision of the Madras High Court in P.M.A.P. Ayyamperumal Nadar v. Commissioner ofto contend that the materials gathered at the stage of assessment proceeding cannot be altogether overlooked in the penalty proceeding and submitted that the Tribunal must, therefore, be held to have misdirected itself in thinking that the department had failed to bring any material to show that the amount in question was the respondents concealed income. However, as pointed out in the order of the Tribunal rejecting the application under section 66(1), the Tribunals decision in the assessment proceeding did not rest on any legal issue but really on the explanation given by the respondent that it did not question the inclusion of Rs. 40, 05, 825 in its total income because of the understanding with D. J. C. to which we have referred above. Mr. Desai submitted that the alleged understanding or agreement with D. J. C. appeared only from what the assessees counsel stated before the Tribunal, and there was no material on record in support of that statement. Assuming that the fact of agreement with D.J.C. appeared only in counsels statement, there is nothing on record to suggest that the department challenged the truth of the statement or questioned the propriety of acting on it. The agreement with D.J.C. is a fact appearing from the order of the Tribunal, and that is sufficient for the present purpose. Whether or not an assessee has concealed its income is a question to be decided on the facts of a case, and in the present case the decision is based on the respondents agreement with D.J.C. which the Tribunal accepted as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) cannot be said to be wrongThe appeal is dismissed but in the circumstances of the case without any order as to costs.

### 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: in the respondents hands. Accordingly, the Tribunal set aside the penalty of Rs. 15 lakhs. The Commissioner of Income-tax (Central), Calcutta, thereupon applied under section 66(1) of the Act for reference of the following three questions to the High Court :" 1. Whether, on the facts and in the circumstances of the case, the Tribunal was right in placing upon the department the onus to prove by positive evidence that the sum of Rs. 40, 05, 825 represented concealed, income of the assessee when the assessee itself had conceded that the said sum was its income ?2. Whether, on the facts and in the circumstances of the case, the Tribunal was right in treating the sum of Rs. 40, 05, 825 on the same footing as the sum of Rs. 14, 30, 561 and in setting aside, on that view, the penalty order passed in this case ?3. Whether, in any event, on the facts and in the circumstances of the case, the Tribunal was right in setting aside the said order of penalty ? "2. The Tribunal rejected the application on the view that no question of law arose from the order of the Tribunal. The Commissioner thereafter applied under section 66(2) to the High Court for an order requiring the Income-tax Appellate Tribunal to draw up a statement of the case and to refer the aforesaid questions of law to the High Court for determination. On this application a rule nisi was issued on April 28, 1969. On September 16, 1969, the High Court discharged the rule and dismissed the application without however giving any reasons. The present appeal by special leave is directed against this order of the High Court.3. Mr. Desai, learned counsel for the appellant, submitted that the High Court having issued a rule nisi on the application under section 66(2) was wrong in dismissing the same without a speaking order. We agree that the High Court should have stated the reasons on which it dismissed the application; however, as we have heard the counsel on either side on the merits of the case, we do not think it would be proper to send the matter back to the High Court only on that ground. We, therefore, propose to dispose of the appeal on merits.4. It was argued before the Tribunal in the penalty proceeding that merely because the respondent did not press its objection to the assessment of the sum of Rs. 40, 05, 825 in its hands, it could not be said that it was admitted that the amount was the concealed income of the respondent. Before the Tribunal the explanation offered by the respondent in respect of the aforesaid sum was" To avoid protracted appeal proceedings, a compromise was entered into between the assessee company and D.J.C. Ltd., whereby the sum would be assessed in the assessees hands and omitted from the assessment of Dalmia Jain Company Limited, the latter undertaking to meet the tax liability in respect of such inclusion the balance of the profit being retained by the company. Such an arrangement was possible because D.J. Co. Ltd. was one of the companies in the Sahu Jain Group. "5. It appears, however, from the Tribunals order that it excluded the sum of Rs. 40, 05, 825, from the respondents total income "only because D. J. C. agreed to reimburse the assessee for the tax liability met on its behalf ". Mr. Desai pointed out that the judgment of the Patna High Court on the basis of which the Tribunal in the assessment proceeding had held that the sum of Rs. 14, 30, 561 could not be treated as the concealed income of the respondent was later reversed by this court (see Commissioner of Income-tax v. Ashoka Marketing Ltd.). Mr. Desai submitted that the argument that Rs. 40, 05, 825 could not be assessed in the hands of the respondent for the reasons given in the aforesaid judgment of the Patna High Court no longer held good after that judgment had been set aside. Mr. Desai relied on the decision of the Madras High Court in P.M.A.P. Ayyamperumal Nadar v. Commissioner of Income-tax to contend that the materials gathered at the stage of assessment proceeding cannot be altogether overlooked in the penalty proceeding and submitted that the Tribunal must, therefore, be held to have misdirected itself in thinking that the department had failed to bring any material to show that the amount in question was the respondents concealed income. However, as pointed out in the order of the Tribunal rejecting the application under section 66(1), the Tribunals decision in the assessment proceeding did not rest on any legal issue but really on the explanation given by the respondent that it did not question the inclusion of Rs. 40, 05, 825 in its total income because of the understanding with D. J. C. to which we have referred above. Mr. Desai submitted that the alleged understanding or agreement with D. J. C. appeared only from what the assessees counsel stated before the Tribunal, and there was no material on record in support of that statement. Assuming that the fact of agreement with D.J.C. appeared only in counsels statement, there is nothing on record to suggest that the department challenged the truth of the statement or questioned the propriety of acting on it. The agreement with D.J.C. is a fact appearing from the order of the Tribunal, and that is sufficient for the present purpose. Whether or not an assessee has concealed its income is a question to be decided on the facts of a case, and in the present case the decision is based on the respondents agreement with D.J.C. which the Tribunal accepted as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) cannot be said to be wrongThe appeal is dismissed but in the circumstances of the case without any order as to costs. ### Response: 0 ### Explanation: 5. It appears, however, from the Tribunals order that it excluded the sum of Rs. 40, 05, 825, from the respondents total income "only because D. J. C. agreed to reimburse the assessee for the tax liability met on its behalf ". Mr. Desai pointed out that the judgment of the Patna High Court on the basis of which the Tribunal in the assessment proceeding had held that the sum of Rs. 14, 30, 561 could not be treated as the concealed income of the respondent was later reversed by this court (see Commissioner ofv. Ashoka Marketing Ltd.). Mr. Desai submitted that the argument that Rs. 40, 05, 825 could not be assessed in the hands of the respondent for the reasons given in the aforesaid judgment of the Patna High Court no longer held good after that judgment had been set aside. Mr. Desai relied on the decision of the Madras High Court in P.M.A.P. Ayyamperumal Nadar v. Commissioner ofto contend that the materials gathered at the stage of assessment proceeding cannot be altogether overlooked in the penalty proceeding and submitted that the Tribunal must, therefore, be held to have misdirected itself in thinking that the department had failed to bring any material to show that the amount in question was the respondents concealed income. However, as pointed out in the order of the Tribunal rejecting the application under section 66(1), the Tribunals decision in the assessment proceeding did not rest on any legal issue but really on the explanation given by the respondent that it did not question the inclusion of Rs. 40, 05, 825 in its total income because of the understanding with D. J. C. to which we have referred above. Mr. Desai submitted that the alleged understanding or agreement with D. J. C. appeared only from what the assessees counsel stated before the Tribunal, and there was no material on record in support of that statement. Assuming that the fact of agreement with D.J.C. appeared only in counsels statement, there is nothing on record to suggest that the department challenged the truth of the statement or questioned the propriety of acting on it. The agreement with D.J.C. is a fact appearing from the order of the Tribunal, and that is sufficient for the present purpose. Whether or not an assessee has concealed its income is a question to be decided on the facts of a case, and in the present case the decision is based on the respondents agreement with D.J.C. which the Tribunal accepted as true. That being so, no question of law really arises from the order of the Tribunal and the order dismissing the application under section 66(2) cannot be said to be wrongThe appeal is dismissed but in the circumstances of the case without any order as to costs.

STAR INDIA(P) LTD Vs. SOCIETY OF CATALYSTS

ordinary business dealings of the Appellants, and the complainant has failed to establish any direct linkage between the increased SMS tariff rates and the prize money so as to show that the prize money was deceptively recovered in the guise of increased SMS rates charged to the participants. 12. Further, since the National Commission failed to conduct any inquiry whatsoever into the breakup of the price of Rs. 2.40 per SMS fixed for the purpose of participation in the HSHS contest, we are of the view that the finding of the National Commission that the SMS service offered by Airtel under the HSHS contest did not constitute a value-added service is liable to be set aside. Indeed, the services¬cum-sponsorship agreement reveals that Airtel was liable to set up the hardware and software required for the HSHS contest at its own cost, which suggests that the services regarding the participation in the HSHS contest through SMSes offered by Airtel constituted a value-added services separate from its ordinary SMS service. It is reasonable to assume that such cost would have been recovered by Airtel, at least in part, through the increased cost of SMSes sent by subscribers participating in the HSHS contest. The direction on Premium Rate Services dated 3.5.2005, issued by TRAI, which was referred to by the Appellants, also states that televoting and participating in quizzes, etc. through SMS constitutes a value added service, and that in most of these cases, the charges for these services are more than the normal tariff rate. The notification is reproduced below: F. No. 305¬8/2004¬QOSTELECOM REGULATORY AUTHORITY OF INDIA A¬2/14,Safdarjung Enclave,New Delhi¬110029Dated : 3 rd May, 2005 To, All Cellular Mobile Service ProvidersAll Unified Access Service Providers Subject : Direction on Premium Rate Services . 1. The Authority has observed that in the last few months, a number of operators and also some independent agencies have started providing value added services like quiz, ringtones, televoting etc. through SMS. In most of these cases, the charges for these services are more than the normal published tariffs. The customers are informed about these value added premium rate services through SMS, advertisements in newspaper or T.V. But in this communication, the cost implication of the service is not intimated. Sometimes the messages are only followed by wordings T&C Apply. 2. In the present multi¬operator multi service scenario, such premium rate services have increased considerably. The service provider is aware of the pulse rate for these services as either the service provider is providing such services or it has an agreement with the provider of such premium services. However, the cost for such premium services is generally known to the customer only after the service has been utilized and the bill is received. This practice of service providers is against the interest of the consumers. 3. In view of the above, in the consumers interest, the Authority in exercise of its power conferred upon it under Section 13 read with Section 11(1) (b)(i) and (v) of the Telecom Regulatory Authority of India Act, 1997 and clause 9 and 11 of the Telecommunication Tariff Order 1999 hereby directs all the Cellular Mobile Service Providers and Unified Access Service Providers to publish in all communications/advertisements relating to premium rate services, the pulse rate/tariff for the service. This issues with the approval of the Authority. (Sudhir Gupta)Advisor (QOS) 13. However, we need not dwell on this issue much longer, since not much turns upon it with regard to the determination of the commission of an unfair trade practice, except to note that the transmission of SMSes for the purpose of the HSHS contest being a value added service, the Appellants had also taken care to comply with the TRAI direction dated 3.5.2005 (supra) which mandated the communication/advertisement of any increase in the cost of cellular services on account of the rendering of such a value¬added service. Thus, even if the SMS charge is taken as the cost of participating in the contest for the purpose of Section 2(1)(r)(3)(a) of the 1986 Act, it cannot be said that the Appellants had wrongfully advertised the charges for the same. 14. Hence, we find that the complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. We are of the view that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an unfair trade practice rendered by the National Commission on this basis is liable to be set aside. 15. With regard to the award of punitive damages made by the National Commission, the same could not have been done in as much as the complainant in the present case had not prayed for punitive damages in the complaint or proved that any actual loss was suffered by consumers (See General Motors (India) Private Limited v. Ashok Ramnik Lal Tolat, (2015) 1 SCC 429 ). However, we need not delve further into this aspect since we have found that there was no unfair trade practice committed by the Appellants in the first place. 16. On an ancillary note, it was briefly contended before us by the learned counsels for the Appellants, as mentioned supra, that the National Commission did not have jurisdiction over the complaint and it should have been referred to the TDSAT. However, this argument was not seriously pressed by either of the parties. Hence, we do not find it relevant to adjudicate upon this issue for the purpose of the present matter. However, the question of law, as regards the maintainability of complaints filed by consumer organisations against telecom service providers before consumer fora may be kept open.

1[ds]We hasten to emphasize at this juncture itself that though the complainant had also pleaded violation of Section 2(1)(r)(3)(b) of the 1986 Act in their complaint, there was no express finding rendered on this issue by the National Commission, and subsequently, no contentions were made before us in this respect8.2 In the instant matter, the controversy regarding the commission of an unfair trade practice pertains to the second part of the clause. This is because the Appellants are questioning the conclusion of the National Commission that the amount of prize money paid in the HSHS contest was in fact at least partly covered by the increased SMS tariff rate charged to participate in the contest, and that the Appellants had created a false impression to the contrary, i.e., that participation in the HSHS contest was free of charge. Thus, the primary bone of contention between the parties is the source of the funds out of which the prize money has been paid by Star India9. At the outset, after going through the written submissions of the Appellants before the National Commission, we are compelled to conclude that the National Commission had no basis to hold that the Appellants had admitted that the prize money for the HSHS contest was distributed out of the revenue collected from the SMSes sent in pursuance of the contest. It is true that the Appellants had not specifically denied that the prize money was paid out of the increased SMS charges. However, they had clarified in their submissions that Airtel was merely a sponsor/advertiser of the program, and the commercial arrangement between the parties was that Airtel would pay sponsorship charges, whereas Star India would be independently liable for paying the prize money out of its pocket regardless of the revenue earned by Airtel10. Importantly, we further find that apart from the aforementioned facts, there is no other cogent material on record upon which the National Commission could have placed reliance to render the finding of unfair trade practice under Section 2(1)(r)(3) (a) of the 1986 Act. The National Commission had sought to rely on the newspaper report dated 15.7.2007 published in the Hindustan Times (supra) regarding the amount of revenue and profit earned by the appellants from the HSHS contest. We are of the considered opinion that such reliance was unwarranted, inasmuch as there was absolutely no corroboration for the allegations therein with respect to the number of SMSes received, and the breakup of revenue earned into cost, value addition from service, and profit. Moreover, the survey report on the basis of which these allegations were made was not even produced before the National Commission or before us11. It is further relevant to note that there exists a services¬cum¬ sponsorship agreement between the Appellants, which contains the specific details of the commercial arrangement between them. They did not produce the same before the National Commission, claiming that the said agreement contained a confidentiality clause, and could only be produced in accordance with law if required. The Appellants case is that they would have offered to produce the agreement if the National Commission had given a specific direction to that effect. However, no such direction was rendered at any point during the proceedings before the National Commission. Even the complainant did not, throughout the course of the proceedings, seek a direction to the Appellants to produce the services¬cum¬ sponsorship agreement. Be that as it may, to establish whether there was any substance in the National Commissions conclusion that the prize money was paid out of the revenue earned from Airtels SMS services during the HSHS contest, we deemed it fit to examine the agreement ourselves11.1 Our perusal of the services¬cum¬sponsorship agreement reveals that Airtel had the sole and exclusive right to charge fees or charges towards the services rendered by it to facilitate participation in the HSHS contest, through SMS, telecalling, etc., and thus, Star India had no role in determining the same. Further, Airtel was liable to pay a monthly lumpsum as fees to Star India, irrespective of whether such amount was realized from its subscribers or not. There is no provision in the agreement for revenue-sharing between the parties, or requiring Airtel to finance any part of the prize money paid by Star India towards the HSHS contest11.2 Thus, it is evident that Star India was liable to pay the prize money irrespective of the profits earned by Airtel. It is needless to say that the sponsorship money paid by Airtel would come from various sources of revenue, which includes the money earned from the tariff rates for the HSHS contest. Similarly, Star India may have had many sources of revenue from which the prize money could have been paid. This is a part and parcel of the ordinary business dealings of the Appellants, and the complainant has failed to establish any direct linkage between the increased SMS tariff rates and the prize money so as to show that the prize money was deceptively recovered in the guise of increased SMS rates charged to the participants12. Further, since the National Commission failed to conduct any inquiry whatsoever into the breakup of the price of Rs. 2.40 per SMS fixed for the purpose of participation in the HSHS contest, we are of the view that the finding of the National Commission that the SMS service offered by Airtel under the HSHS contest did not constitute a value-added service is liable to be set aside. Indeed, the services¬cum-sponsorship agreement reveals that Airtel was liable to set up the hardware and software required for the HSHS contest at its own cost, which suggests that the services regarding the participation in the HSHS contest through SMSes offered by Airtel constituted a value-added services separate from its ordinary SMS service. It is reasonable to assume that such cost would have been recovered by Airtel, at least in part, through the increased cost of SMSes sent by subscribers participating in the HSHS contest. The direction on Premium Rate Services dated 3.5.2005, issued by TRAI, which was referred to by the Appellants, also states that televoting and participating in quizzes, etc. through SMS constitutes a value added service, and that in most of these cases, the charges for these services are more than the normal tariff rate13. However, we need not dwell on this issue much longer, since not much turns upon it with regard to the determination of the commission of an unfair trade practice, except to note that the transmission of SMSes for the purpose of the HSHS contest being a value added service, the Appellants had also taken care to comply with the TRAI direction dated 3.5.2005 (supra) which mandated the communication/advertisement of any increase in the cost of cellular services on account of the rendering of such a value¬added service. Thus, even if the SMS charge is taken as the cost of participating in the contest for the purpose of Section 2(1)(r)(3)(a) of the 1986 Act, it cannot be said that the Appellants had wrongfully advertised the charges for the same14. Hence, we find that the complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. We are of the view that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an unfair trade practice rendered by the National Commission on this basis is liable to be set aside15. With regard to the award of punitive damages made by the National Commission, the same could not have been done in as much as the complainant in the present case had not prayed for punitive damages in the complaint or proved that any actual loss was suffered by consumers (See General Motors (India) Private Limited v. Ashok Ramnik Lal Tolat, (2015) 1 SCC 429 ). However, we need not delve further into this aspect since we have found that there was no unfair trade practice committed by the Appellants in the first place16. On an ancillary note, it was briefly contended before us by the learned counsels for the Appellants, as mentioned supra, that the National Commission did not have jurisdiction over the complaint and it should have been referred to the TDSAT. However, this argument was not seriously pressed by either of the parties. Hence, we do not find it relevant to adjudicate upon this issue for the purpose of the present matter. However, the question of law, as regards the maintainability of complaints filed by consumer organisations against telecom service providers before consumer fora may be kept open.

### 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: ordinary business dealings of the Appellants, and the complainant has failed to establish any direct linkage between the increased SMS tariff rates and the prize money so as to show that the prize money was deceptively recovered in the guise of increased SMS rates charged to the participants. 12. Further, since the National Commission failed to conduct any inquiry whatsoever into the breakup of the price of Rs. 2.40 per SMS fixed for the purpose of participation in the HSHS contest, we are of the view that the finding of the National Commission that the SMS service offered by Airtel under the HSHS contest did not constitute a value-added service is liable to be set aside. Indeed, the services¬cum-sponsorship agreement reveals that Airtel was liable to set up the hardware and software required for the HSHS contest at its own cost, which suggests that the services regarding the participation in the HSHS contest through SMSes offered by Airtel constituted a value-added services separate from its ordinary SMS service. It is reasonable to assume that such cost would have been recovered by Airtel, at least in part, through the increased cost of SMSes sent by subscribers participating in the HSHS contest. The direction on Premium Rate Services dated 3.5.2005, issued by TRAI, which was referred to by the Appellants, also states that televoting and participating in quizzes, etc. through SMS constitutes a value added service, and that in most of these cases, the charges for these services are more than the normal tariff rate. The notification is reproduced below: F. No. 305¬8/2004¬QOSTELECOM REGULATORY AUTHORITY OF INDIA A¬2/14,Safdarjung Enclave,New Delhi¬110029Dated : 3 rd May, 2005 To, All Cellular Mobile Service ProvidersAll Unified Access Service Providers Subject : Direction on Premium Rate Services . 1. The Authority has observed that in the last few months, a number of operators and also some independent agencies have started providing value added services like quiz, ringtones, televoting etc. through SMS. In most of these cases, the charges for these services are more than the normal published tariffs. The customers are informed about these value added premium rate services through SMS, advertisements in newspaper or T.V. But in this communication, the cost implication of the service is not intimated. Sometimes the messages are only followed by wordings T&C Apply. 2. In the present multi¬operator multi service scenario, such premium rate services have increased considerably. The service provider is aware of the pulse rate for these services as either the service provider is providing such services or it has an agreement with the provider of such premium services. However, the cost for such premium services is generally known to the customer only after the service has been utilized and the bill is received. This practice of service providers is against the interest of the consumers. 3. In view of the above, in the consumers interest, the Authority in exercise of its power conferred upon it under Section 13 read with Section 11(1) (b)(i) and (v) of the Telecom Regulatory Authority of India Act, 1997 and clause 9 and 11 of the Telecommunication Tariff Order 1999 hereby directs all the Cellular Mobile Service Providers and Unified Access Service Providers to publish in all communications/advertisements relating to premium rate services, the pulse rate/tariff for the service. This issues with the approval of the Authority. (Sudhir Gupta)Advisor (QOS) 13. However, we need not dwell on this issue much longer, since not much turns upon it with regard to the determination of the commission of an unfair trade practice, except to note that the transmission of SMSes for the purpose of the HSHS contest being a value added service, the Appellants had also taken care to comply with the TRAI direction dated 3.5.2005 (supra) which mandated the communication/advertisement of any increase in the cost of cellular services on account of the rendering of such a value¬added service. Thus, even if the SMS charge is taken as the cost of participating in the contest for the purpose of Section 2(1)(r)(3)(a) of the 1986 Act, it cannot be said that the Appellants had wrongfully advertised the charges for the same. 14. Hence, we find that the complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. We are of the view that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an unfair trade practice rendered by the National Commission on this basis is liable to be set aside. 15. With regard to the award of punitive damages made by the National Commission, the same could not have been done in as much as the complainant in the present case had not prayed for punitive damages in the complaint or proved that any actual loss was suffered by consumers (See General Motors (India) Private Limited v. Ashok Ramnik Lal Tolat, (2015) 1 SCC 429 ). However, we need not delve further into this aspect since we have found that there was no unfair trade practice committed by the Appellants in the first place. 16. On an ancillary note, it was briefly contended before us by the learned counsels for the Appellants, as mentioned supra, that the National Commission did not have jurisdiction over the complaint and it should have been referred to the TDSAT. However, this argument was not seriously pressed by either of the parties. Hence, we do not find it relevant to adjudicate upon this issue for the purpose of the present matter. However, the question of law, as regards the maintainability of complaints filed by consumer organisations against telecom service providers before consumer fora may be kept open. ### Response: 1 ### Explanation: contained a confidentiality clause, and could only be produced in accordance with law if required. The Appellants case is that they would have offered to produce the agreement if the National Commission had given a specific direction to that effect. However, no such direction was rendered at any point during the proceedings before the National Commission. Even the complainant did not, throughout the course of the proceedings, seek a direction to the Appellants to produce the services¬cum¬ sponsorship agreement. Be that as it may, to establish whether there was any substance in the National Commissions conclusion that the prize money was paid out of the revenue earned from Airtels SMS services during the HSHS contest, we deemed it fit to examine the agreement ourselves11.1 Our perusal of the services¬cum¬sponsorship agreement reveals that Airtel had the sole and exclusive right to charge fees or charges towards the services rendered by it to facilitate participation in the HSHS contest, through SMS, telecalling, etc., and thus, Star India had no role in determining the same. Further, Airtel was liable to pay a monthly lumpsum as fees to Star India, irrespective of whether such amount was realized from its subscribers or not. There is no provision in the agreement for revenue-sharing between the parties, or requiring Airtel to finance any part of the prize money paid by Star India towards the HSHS contest11.2 Thus, it is evident that Star India was liable to pay the prize money irrespective of the profits earned by Airtel. It is needless to say that the sponsorship money paid by Airtel would come from various sources of revenue, which includes the money earned from the tariff rates for the HSHS contest. Similarly, Star India may have had many sources of revenue from which the prize money could have been paid. This is a part and parcel of the ordinary business dealings of the Appellants, and the complainant has failed to establish any direct linkage between the increased SMS tariff rates and the prize money so as to show that the prize money was deceptively recovered in the guise of increased SMS rates charged to the participants12. Further, since the National Commission failed to conduct any inquiry whatsoever into the breakup of the price of Rs. 2.40 per SMS fixed for the purpose of participation in the HSHS contest, we are of the view that the finding of the National Commission that the SMS service offered by Airtel under the HSHS contest did not constitute a value-added service is liable to be set aside. Indeed, the services¬cum-sponsorship agreement reveals that Airtel was liable to set up the hardware and software required for the HSHS contest at its own cost, which suggests that the services regarding the participation in the HSHS contest through SMSes offered by Airtel constituted a value-added services separate from its ordinary SMS service. It is reasonable to assume that such cost would have been recovered by Airtel, at least in part, through the increased cost of SMSes sent by subscribers participating in the HSHS contest. The direction on Premium Rate Services dated 3.5.2005, issued by TRAI, which was referred to by the Appellants, also states that televoting and participating in quizzes, etc. through SMS constitutes a value added service, and that in most of these cases, the charges for these services are more than the normal tariff rate13. However, we need not dwell on this issue much longer, since not much turns upon it with regard to the determination of the commission of an unfair trade practice, except to note that the transmission of SMSes for the purpose of the HSHS contest being a value added service, the Appellants had also taken care to comply with the TRAI direction dated 3.5.2005 (supra) which mandated the communication/advertisement of any increase in the cost of cellular services on account of the rendering of such a value¬added service. Thus, even if the SMS charge is taken as the cost of participating in the contest for the purpose of Section 2(1)(r)(3)(a) of the 1986 Act, it cannot be said that the Appellants had wrongfully advertised the charges for the same14. Hence, we find that the complainant has clearly failed to discharge the burden to prove that the prize money was paid out of SMS revenue, and its averments on this aspect appear to be based on pure conjecture and surmise. We are of the view that there is no basis to conclude that the prize money for the HSHS contest was paid directly out of the SMS revenue earned by Airtel, or that Airtel and Star India had colluded to increase the SMS rates so as to finance the prize money and share the SMS revenue, and the finding of the commission of an unfair trade practice rendered by the National Commission on this basis is liable to be set aside15. With regard to the award of punitive damages made by the National Commission, the same could not have been done in as much as the complainant in the present case had not prayed for punitive damages in the complaint or proved that any actual loss was suffered by consumers (See General Motors (India) Private Limited v. Ashok Ramnik Lal Tolat, (2015) 1 SCC 429 ). However, we need not delve further into this aspect since we have found that there was no unfair trade practice committed by the Appellants in the first place16. On an ancillary note, it was briefly contended before us by the learned counsels for the Appellants, as mentioned supra, that the National Commission did not have jurisdiction over the complaint and it should have been referred to the TDSAT. However, this argument was not seriously pressed by either of the parties. Hence, we do not find it relevant to adjudicate upon this issue for the purpose of the present matter. However, the question of law, as regards the maintainability of complaints filed by consumer organisations against telecom service providers before consumer fora may be kept open.

Gujarat Electricity Board Vs. Shantilal R. Desai

right. His argument on this question proceeds thus: Section 7 (1) prior to its amendment in 1959 empowered the local authority or the State Government to make the purchase contemplated under that Section; the Electricity Board is not within the contemplation of that Section; the finding of the High Court that the provisions contained in sub-ss. (1), (2) and (4) of S. 7 of the Act read with S. 71 of the Electricity (Supply) Act 1948, confers on the appellant such a power is not correct because the right or option to purchase the undertaking was conferred on the State Government or the appropriate local authority under the licence and not under the provisions of the Act; in other words the said right is merely a contractual right and not a right flowing from the provisions contained in S. 7 of the Act as held by this Court in Fazilka Electric Supply Co., Ltd. v. Commr. of Income-tax, Delhi, 1962 (3) Supp SCR 496 = (AIR 1963 SC 464 ) and therefore the appellant cannot take any assistance from S. 71 of the Electricity (Supply) Act, 1948. This contention did not commend itself to the High Court. We shall now proceed to examine how far the same is correct.13. Section 71 of the Electricity (Supply) Act, 1948 provides:"Rights and options to purchase under Act 9 of 1910 to vest in Board.-Where under the provisions of the Indian Electricity Act 1910 (9 of 1910), any right or option to purchase the undertaking of a licensee vests in the State Government or a local authority such right or option shall be deemed to be transferred to the Board, and shall be exercisable by the Board in accordance with the provisions of the said Act applicable to the exercise of such right or option by the State Government or a local authority, as the case may be."Board is defined in S. 2 (2) of that Act as meaning State Electricity Board constituted under S. 5 tbereof. It is true that before S. 71 can be held to be attracted to a case it must be shown that the right or option to purchase the undertaking of the licensee vested in the State Government or a local authority under the provisions of the Act.It is also true that this Court had held in Fazilka Electric Supply Companys case, 1962 (3) Supp SCR 496 = (AIR 1963 SC 464 ) that from the provisions of the Act read with the rules made thereunder it is manifest that the condition as to the option of purchase either by the local authority or by the Government is the result of an agreement between the applicant who had applied for licence and the Government who granted the licence.In that case this Court was considering whether the sale concerned in that case fell within the scope of S. 10 (2), (7) of the Indian Income Tax Act or whether it can be held to be compulsory acquisition as contended by the assessee. A sale compelled by law may also be a sale under the Sale of Goods Act.But that does not mean that the right to purchase the undertaking does not vest in the concerned authority by virtue of S. 7. That right may accrue either because it is directly conferred by S. 7 or because it is obtained as a result of a contract compelled by that Section. In either case it is a right obtained by the authority by virtue of S. 7. There is no dispute that the licence granted must conform to the requirements of S. 7.14. In Okara Electric Supply Ltd. v. State of Punjab, 1960-2 SCE 239 = (AIR 1960 SC 284 ) this Court observed that Ss. 5, 6 and 7 show that in the case of a licensee,specific provisions have been made for the acquisition of the undertaking in cases o revocation or cancellation of licenses. For the aforementioned reasons we hold that appellant had acquired the right to purchase the undertaking by the combined operation of S. 7 of Act and S. 71 of the Electricity (Supply) Act, 1948.15. It was next contended on behalf of the respondent that by the time the licence period expired, S. 7 of the Act had been amended and S. 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking. It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier. That being so S. 6 of the General Clauses Act comes to the aid of the appellant.That Section provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals an enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.16.The right to purchase the respondents undertaking came to vest firstly in the Bombay State Electricity Board subsequently in the appellant in view of the various notifications referred to earlier. That right has to be worked on the basis of law as it stood on the date the notice under S. 7 (4) of the Act was given.17. In this Court a new contention was taken on behalf of the respondent namely that in any case, the appellants right to purchase is conditional on the payment of the price as provided in S. 7 and hence the appellant cannot demand possession of the undertaking without paying the price after the same is determined according to law. This contention had not been taken before the High Court. The High Court may go into this question while deciding the writ petition.

1[ds]9. In our opinion sub-s. (4) of S. 4 is complementary to sub-ss. (1) and (2) of that Section and therefore they must be read together. On an analysis of these provisions it is seen that before a licensee can be compelled to sell his undertaking, the authority entitled to purchase must elect to purchase the same by exercise of the option given to it under the licence read with S. 7 of the Act followed by a notice as required by S. 7 (4) of the Act. In S. 7 the expression "option of purchasing an undertaking" merely means the right of purchasing the undertaking. The word option is used because two courses are open to the concerned authority namely, either to purchase the undertaking or renew the licence. Once the authority elects to purchase then the notice prescribed in sub-s. (4) should be given before the period mentioned therein. We are not able to agree with the High Court that the Section contemplates two stages namely (1) to elect to purchase the undertaking at least two years before the expiration of the licence and (2) exercise the option to purchase at the end of the licence period. The exercise of option to purchase as well as electing to purchase is one integral process and not two independent steps. By the very act of electing to purchase the authority exercises its option to purchase. In our opinion sub-ss. (1), (2) and (4) of S. 7 are plain and unambiguous. They do not lend themselves to any subtleties.10. In construing a provision, all its relevant parts should be considered together and their true effect ascertained.One can easily find out the reasons behind the procedure prescribed in S. 7. In view of the terms of the licence read with S. 7 (1) and (2) the concerned authority has two courses open before it. It can either decide to purchase the undertaking or renew the licence on the expiration of the period for which the licence is granted. The licensee must know in good time what course the authority is going to adopt so that he may so arrange his affairs as to cause least inconvenience to himself. Hence though the power to exercise the option to purchase arises on the expiration of the period of licence as per the terms of the licence, S. 7 lays down that if the authority wants to purchase the undertaking it must elect to do so at least two years before the expiration of the licence and communicate the same to the licensee. Once the concerned authority exercises its option and communicates the same to the licensee, the same is binding on the authority as well as the licensee. Otherwise there is bound to be considerable inconvenience both to the licensee and to the public.We are not able to find any good reason for reading into S. 7 a requirement that after a notice under S. 7 (4) is issued the authority must again exercise its option to purchase on the expiration of the period of licence. It is no doubt true that the right to purchase the undertaking accrues only at the expiration of the period of licence but for exercising that right, the authority must make its election within the period prescribed in S. 7 (4) and issue a notice as required by that sub-section. The requirements of S. 7 were fully complied with by the notice issued by the Bombay State Electricity Board on January 8, 1959.It was next contended on behalf of the respondent that by the time the licence period expired, S. 7 of the Act had been amended and S. 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking. It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier. That being so S. 6 of the General Clauses Act comes to the aid of the appellant.That Section provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals an enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.16.The right to purchase the respondents undertaking came to vest firstly in the Bombay State Electricity Board subsequently in the appellant in view of the various notifications referred to earlier. That right has to be worked on the basis of law as it stood on the date the notice under S. 7 (4) of the Act was given.17. In this Court a new contention was taken on behalf of the respondent namely that in any case, the appellants right to purchase is conditional on the payment of the price as provided in S. 7 and hence the appellant cannot demand possession of the undertaking without paying the price after the same is determined according to law. This contention had not been taken before the High Court. The High Court may go into this question while deciding the writ petition.

### 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: right. His argument on this question proceeds thus: Section 7 (1) prior to its amendment in 1959 empowered the local authority or the State Government to make the purchase contemplated under that Section; the Electricity Board is not within the contemplation of that Section; the finding of the High Court that the provisions contained in sub-ss. (1), (2) and (4) of S. 7 of the Act read with S. 71 of the Electricity (Supply) Act 1948, confers on the appellant such a power is not correct because the right or option to purchase the undertaking was conferred on the State Government or the appropriate local authority under the licence and not under the provisions of the Act; in other words the said right is merely a contractual right and not a right flowing from the provisions contained in S. 7 of the Act as held by this Court in Fazilka Electric Supply Co., Ltd. v. Commr. of Income-tax, Delhi, 1962 (3) Supp SCR 496 = (AIR 1963 SC 464 ) and therefore the appellant cannot take any assistance from S. 71 of the Electricity (Supply) Act, 1948. This contention did not commend itself to the High Court. We shall now proceed to examine how far the same is correct.13. Section 71 of the Electricity (Supply) Act, 1948 provides:"Rights and options to purchase under Act 9 of 1910 to vest in Board.-Where under the provisions of the Indian Electricity Act 1910 (9 of 1910), any right or option to purchase the undertaking of a licensee vests in the State Government or a local authority such right or option shall be deemed to be transferred to the Board, and shall be exercisable by the Board in accordance with the provisions of the said Act applicable to the exercise of such right or option by the State Government or a local authority, as the case may be."Board is defined in S. 2 (2) of that Act as meaning State Electricity Board constituted under S. 5 tbereof. It is true that before S. 71 can be held to be attracted to a case it must be shown that the right or option to purchase the undertaking of the licensee vested in the State Government or a local authority under the provisions of the Act.It is also true that this Court had held in Fazilka Electric Supply Companys case, 1962 (3) Supp SCR 496 = (AIR 1963 SC 464 ) that from the provisions of the Act read with the rules made thereunder it is manifest that the condition as to the option of purchase either by the local authority or by the Government is the result of an agreement between the applicant who had applied for licence and the Government who granted the licence.In that case this Court was considering whether the sale concerned in that case fell within the scope of S. 10 (2), (7) of the Indian Income Tax Act or whether it can be held to be compulsory acquisition as contended by the assessee. A sale compelled by law may also be a sale under the Sale of Goods Act.But that does not mean that the right to purchase the undertaking does not vest in the concerned authority by virtue of S. 7. That right may accrue either because it is directly conferred by S. 7 or because it is obtained as a result of a contract compelled by that Section. In either case it is a right obtained by the authority by virtue of S. 7. There is no dispute that the licence granted must conform to the requirements of S. 7.14. In Okara Electric Supply Ltd. v. State of Punjab, 1960-2 SCE 239 = (AIR 1960 SC 284 ) this Court observed that Ss. 5, 6 and 7 show that in the case of a licensee,specific provisions have been made for the acquisition of the undertaking in cases o revocation or cancellation of licenses. For the aforementioned reasons we hold that appellant had acquired the right to purchase the undertaking by the combined operation of S. 7 of Act and S. 71 of the Electricity (Supply) Act, 1948.15. It was next contended on behalf of the respondent that by the time the licence period expired, S. 7 of the Act had been amended and S. 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking. It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier. That being so S. 6 of the General Clauses Act comes to the aid of the appellant.That Section provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals an enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.16.The right to purchase the respondents undertaking came to vest firstly in the Bombay State Electricity Board subsequently in the appellant in view of the various notifications referred to earlier. That right has to be worked on the basis of law as it stood on the date the notice under S. 7 (4) of the Act was given.17. In this Court a new contention was taken on behalf of the respondent namely that in any case, the appellants right to purchase is conditional on the payment of the price as provided in S. 7 and hence the appellant cannot demand possession of the undertaking without paying the price after the same is determined according to law. This contention had not been taken before the High Court. The High Court may go into this question while deciding the writ petition. ### Response: 1 ### Explanation: 9. In our opinion sub-s. (4) of S. 4 is complementary to sub-ss. (1) and (2) of that Section and therefore they must be read together. On an analysis of these provisions it is seen that before a licensee can be compelled to sell his undertaking, the authority entitled to purchase must elect to purchase the same by exercise of the option given to it under the licence read with S. 7 of the Act followed by a notice as required by S. 7 (4) of the Act. In S. 7 the expression "option of purchasing an undertaking" merely means the right of purchasing the undertaking. The word option is used because two courses are open to the concerned authority namely, either to purchase the undertaking or renew the licence. Once the authority elects to purchase then the notice prescribed in sub-s. (4) should be given before the period mentioned therein. We are not able to agree with the High Court that the Section contemplates two stages namely (1) to elect to purchase the undertaking at least two years before the expiration of the licence and (2) exercise the option to purchase at the end of the licence period. The exercise of option to purchase as well as electing to purchase is one integral process and not two independent steps. By the very act of electing to purchase the authority exercises its option to purchase. In our opinion sub-ss. (1), (2) and (4) of S. 7 are plain and unambiguous. They do not lend themselves to any subtleties.10. In construing a provision, all its relevant parts should be considered together and their true effect ascertained.One can easily find out the reasons behind the procedure prescribed in S. 7. In view of the terms of the licence read with S. 7 (1) and (2) the concerned authority has two courses open before it. It can either decide to purchase the undertaking or renew the licence on the expiration of the period for which the licence is granted. The licensee must know in good time what course the authority is going to adopt so that he may so arrange his affairs as to cause least inconvenience to himself. Hence though the power to exercise the option to purchase arises on the expiration of the period of licence as per the terms of the licence, S. 7 lays down that if the authority wants to purchase the undertaking it must elect to do so at least two years before the expiration of the licence and communicate the same to the licensee. Once the concerned authority exercises its option and communicates the same to the licensee, the same is binding on the authority as well as the licensee. Otherwise there is bound to be considerable inconvenience both to the licensee and to the public.We are not able to find any good reason for reading into S. 7 a requirement that after a notice under S. 7 (4) is issued the authority must again exercise its option to purchase on the expiration of the period of licence. It is no doubt true that the right to purchase the undertaking accrues only at the expiration of the period of licence but for exercising that right, the authority must make its election within the period prescribed in S. 7 (4) and issue a notice as required by that sub-section. The requirements of S. 7 were fully complied with by the notice issued by the Bombay State Electricity Board on January 8, 1959.It was next contended on behalf of the respondent that by the time the licence period expired, S. 7 of the Act had been amended and S. 71 of the Electric (Supply) Act, 1948 repealed, no provision was made to preserve the rights already acquired under those provisions, hence the appellant is not entitled to purchase the undertaking. It is not the case of the respondent that either expressly or by necessary implication, the new law had taken away the right acquired earlier. That being so S. 6 of the General Clauses Act comes to the aid of the appellant.That Section provides that where that Act or any Central Act or Regulation made after the commencement of that Act repeals an enactment hitherto made or hereafter to be made then unless a different intention appears, the repeal shall not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed. It also saves the previous operation of any enactment so repealed or anything duly done or suffered thereunder.16.The right to purchase the respondents undertaking came to vest firstly in the Bombay State Electricity Board subsequently in the appellant in view of the various notifications referred to earlier. That right has to be worked on the basis of law as it stood on the date the notice under S. 7 (4) of the Act was given.17. In this Court a new contention was taken on behalf of the respondent namely that in any case, the appellants right to purchase is conditional on the payment of the price as provided in S. 7 and hence the appellant cannot demand possession of the undertaking without paying the price after the same is determined according to law. This contention had not been taken before the High Court. The High Court may go into this question while deciding the writ petition.

The Bombay Gas Company Limited, A Company At Bombay Vs. R.N. Kulkarni, Presiding Officer, First Labour Court, Bombay & Another

loss of wages and (2) loss of leave or absence from work or rest. What the applicant has claimed in this case is wages for the leave period or days of privilege leave to which the applicant was entitled to and which the opponent refused to give. Now it seems to its that in this passage, the Labour Court has made an assumption which is not warranted upon the facts, viz. that the workers in these two petitions asked for privilege leave and were refused privilege leave by the employer. That is completely contrary to the facts. In tact, in paragraph 6 of the petition, it was the complaint of the employed that, at no time prior to the filing of the said application, did the second respondents complain that they had not been given privilege leave to which they were entitled. Thus, it was the employer who was making a grievance of the fact that the workers had never asked for privilege leave before and that their application under S. 330(2) was not maintainable. Therefore, it is clear that there could have been no possible refusal to grant privilege leave. Indeed, the statement, to which we have referred above, made in the petition, was never controverted on behalf of the workers in this Court. They have mil filed any return whatsoever, and, therefore, the statement in paragraph 6 must he accepted as correct. If so, the one principal assumption which the Labour Court made that privilege leave was asked for and refused by the employer is contrary to the facts. 12. But then, even assuming that a refusal of privilege leave has taken place, we are unable to understand the further reasoning of the Labour Court. It seems to have taken the view that when privilege leave is refused by the employer, he is automatically entitled to compensation or the money equivalent, that is to say, to have the benefit computed. The other remark which the Labour Court made that it involved the employee in two losses, viz., the loss of wages and loss of leave or absence from work or rest is also not correct, because for the period of the leave the employee does work and is actually paid for it, Therefore, there is no loss of wages involved. All that is involved is the loss of the privilege itself. If no privilege leave is granted, the employee continues to work and receives his pay. The Labour Court, moreover, did not at all advert to the grounds upon which and the purpose for which his benefit was given by the award itself.We are unable to sustain the decision of the Labour Court that the privilege leave was a benefit which was capable of being computed in terms of money. In our opinion, the privilege leave by its very nature cannot be computed in terms of money. 13. Then we turn to the other point which was argued before us which, upon the view we have taken, is really not necessary to decide, but since it has been argued in full, we merely state the point here. Paragraph 26 of the award granted privilege leave to the workmen at the rate of 21 days in a year. Now, it must have struck the Labour Court that when the award says a year, it could not possibly mean a calendar year or 365 clays, because the employee, having regard to the other benefits which he receives of non-working days, such as Sundays, paid holidays, unpaid holidays, etc., could not possibly work for the whole of the calendar year. Then arose the question as to what was involved in the direction of the award that the privilege leave shall be at the rate of 21 days in a year. The Labour Court has, it seems, after a considerable amount of hesitation come to its own conclusion that the year must be 291 days, and the manner in which it arrived at 291 days is by calculating various benefits which the workers had of non-working days including seven days of casual leave, 15 days of sick leave, 10 paid holidays and 10 unpaid festival days and other benefits. The employer has in his petition computed the year as being of 800 days, a calculation which the Labour Court did not accept. Before us several other interpretations have been advanced. The extreme one is that so long as a worker works for a single day in a year, he would be entitled to the whole of the privilege leave so long as his name continues on the muster roll of the Company. Then it was variously argued that sick leave and casual leave cannot be computed for the purpose of arriving at the year for calculation of privilege leave. As we have said if is unnecessary for us to go into these rival contentions, because we have shown that, in the first place, the privilege leave was not a benefit which was capable of being computed in terms of money. But we may say it here that the very fact that the expression used in the award of Mr. Naik is capable of such varied interpretations shows that initially the use of the word year in the award not having been defined, we would be, undoubtedly, adding to the award, were we today to hold that though a year is mentioned, it is something less than a year. That again, as has been clearly held upon the authorities would be beyond the jurisdiction of the Labour Court to do. In the view we have taken it is also not necessary to decide whether Sundays and paid holidays should be included or excluded in the computation of a year. In our opinion, the question which was before the Labour Court clearly did not fall within the ambit of Section 330(2). The Labour Court thus had no jurisdiction to adjudicate upon the question, nor to award monetary compensation in lieu of the privilege leave.

1[ds]We shall presently advert to those cases, but it seems to us that so far as the expression benefit which is capable of being computed in terms of money is concerned, in the absence of any definition of the word benefit or of the words capable of being computed, we can only give those words the normal connotation that they carry in the English language. By the word capable, according to the Oxford Dictionary is meant susceptible and by the word compute is meant to estimate or determine by arithmetical or mathematical reckoning. The question then is, whether the benefit with which we are concerned, viz., privilege leave, is susceptible of being estimated or determined in terms of money by any arithmetical or mathematical reckoning that, is a question which in our opinion would fall to be determined upon a consideration of the nature of the benefit and the purpose for which it was granted to the workmen11. The paragraphs of the award by which this benefit was conferred upon the workers do not at all refer to any money equivalent or computation of any money equivalent in the event that privilege leave is not granted to any worker. Now, no doubt, in the discharge of its function as executing Court, the Labour Court can interpret the award, but howsoever it may interpret the award, it cannot read into that award any terms that a monetary compensation equivalent to the benefit of privilege leave was to be granted.Such a question was not even considered by Mr. Naik when making the award. Therefore, it seems to us that when, for the first time, about five years after the award was made, the workers are asking for computation of the money equivalent of that benefit, there is no question here involved of interpreting any term of the award. What in effect is being asked for is that the workers be given an additional benefit, which was not the subject matter of the award and was not within the consideration of the Tribunal which made the award. To that extent it seems to us that the Labour Court went beyond its jurisdictionthe Labour Court put the argument thusBy refusing to give the privilege leave the employer deprives an employee of the benefit to slay away from work by getting the wages. By refusing the privilege leave the employer puts the employee to two losses viz. (1) loss of wages and (2) loss of leave or absence from work or rest. What the applicant has claimed in this case is wages for the leave period or days of privilege leave to which the applicant was entitled to and which the opponent refused to giveNow it seems to its that in this passage, the Labour Court has made an assumption which is not warranted upon the facts, viz. that the workers in these two petitions asked for privilege leave and were refused privilege leave by the employer. That is completely contrary to the facts. In tact, in paragraph 6 of the petition, it was the complaint of the employed that, at no time prior to the filing of the said application, did the second respondents complain that they had not been given privilege leave to which they were entitled. Thus, it was the employer who was making a grievance of the fact that the workers had never asked for privilege leave before and that their application under S. 330(2) was not maintainable. Therefore, it is clear that there could have been no possible refusal to grant privilege leave. Indeed, the statement, to which we have referred above, made in the petition, was never controverted on behalf of the workers in this Court. They have mil filed any return whatsoever, and, therefore, the statement in paragraph 6 must he accepted as correct. If so, the one principal assumption which the Labour Court made that privilege leave was asked for and refused by the employer is contrary to the facts12. But then, even assuming that a refusal of privilege leave has taken place, we are unable to understand the further reasoning of the Labour Court. It seems to have taken the view that when privilege leave is refused by the employer, he is automatically entitled to compensation or the money equivalent, that is to say, to have the benefit computed. The other remark which the Labour Court made that it involved the employee in two losses, viz., the loss of wages and loss of leave or absence from work or rest is also not correct, because for the period of the leave the employee does work and is actually paid for it, Therefore, there is no loss of wages involved. All that is involved is the loss of the privilege itself. If no privilege leave is granted, the employee continues to work and receives his pay. The Labour Court, moreover, did not at all advert to the grounds upon which and the purpose for which his benefit was given by the award itself.We are unable to sustain the decision of the Labour Court that the privilege leave was a benefit which was capable of being computed in terms of money. In our opinion, the privilege leave by its very nature cannot be computed in terms of money13. Then we turn to the other point which was argued before us which, upon the view we have taken, is really not necessary to decide, but since it has been argued in full, we merely state the point here. Paragraph 26 of the award granted privilege leave to the workmen at the rate of 21 days in a year. Now, it must have struck the Labour Court that when the award says a year, it could not possibly mean a calendar year or 365 clays, because the employee, having regard to the other benefits which he receives ofg days, such as Sundays, paid holidays, unpaid holidays, etc., could not possibly work for the whole of the calendar year. Then arose the question as to what was involved in the direction of the award that the privilege leave shall be at the rate of 21 days in a year. The Labour Court has, it seems, after a considerable amount of hesitation come to its own conclusion that the year must be 291 days, and the manner in which it arrived at 291 days is by calculating various benefits which the workers had ofg days including seven days of casual leave, 15 days of sick leave, 10 paid holidays and 10 unpaid festival days and other benefits. The employer has in his petition computed the year as being of 800 days, a calculation which the Labour Court did not accept. Before us several other interpretations have been advanced. The extreme one is that so long as a worker works for a single day in a year, he would be entitled to the whole of the privilege leave so long as his name continues on the muster roll of the Company. Then it was variously argued that sick leave and casual leave cannot be computed for the purpose of arriving at the year for calculation of privilege leave. As we have said if is unnecessary for us to go into these rival contentions, because we have shown that, in the first place, the privilege leave was not a benefit which was capable of being computed in terms of money. But we may say it here that the very fact that the expression used in the award of Mr. Naik is capable of such varied interpretations shows that initially the use of the word year in the award not having been defined, we would be, undoubtedly, adding to the award, were we today to hold that though a year is mentioned, it is something less than a year. That again, as has been clearly held upon the authorities would be beyond the jurisdiction of the Labour Court to do. In the view we have taken it is also not necessary to decide whether Sundays and paid holidays should be included or excluded in the computation of a year. In our opinion, the question which was before the Labour Court clearly did not fall within the ambit of Section 330(2). The Labour Court thus had no jurisdiction to adjudicate upon the question, nor to award monetary compensation in lieu of the privilege leave.

### 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: loss of wages and (2) loss of leave or absence from work or rest. What the applicant has claimed in this case is wages for the leave period or days of privilege leave to which the applicant was entitled to and which the opponent refused to give. Now it seems to its that in this passage, the Labour Court has made an assumption which is not warranted upon the facts, viz. that the workers in these two petitions asked for privilege leave and were refused privilege leave by the employer. That is completely contrary to the facts. In tact, in paragraph 6 of the petition, it was the complaint of the employed that, at no time prior to the filing of the said application, did the second respondents complain that they had not been given privilege leave to which they were entitled. Thus, it was the employer who was making a grievance of the fact that the workers had never asked for privilege leave before and that their application under S. 330(2) was not maintainable. Therefore, it is clear that there could have been no possible refusal to grant privilege leave. Indeed, the statement, to which we have referred above, made in the petition, was never controverted on behalf of the workers in this Court. They have mil filed any return whatsoever, and, therefore, the statement in paragraph 6 must he accepted as correct. If so, the one principal assumption which the Labour Court made that privilege leave was asked for and refused by the employer is contrary to the facts. 12. But then, even assuming that a refusal of privilege leave has taken place, we are unable to understand the further reasoning of the Labour Court. It seems to have taken the view that when privilege leave is refused by the employer, he is automatically entitled to compensation or the money equivalent, that is to say, to have the benefit computed. The other remark which the Labour Court made that it involved the employee in two losses, viz., the loss of wages and loss of leave or absence from work or rest is also not correct, because for the period of the leave the employee does work and is actually paid for it, Therefore, there is no loss of wages involved. All that is involved is the loss of the privilege itself. If no privilege leave is granted, the employee continues to work and receives his pay. The Labour Court, moreover, did not at all advert to the grounds upon which and the purpose for which his benefit was given by the award itself.We are unable to sustain the decision of the Labour Court that the privilege leave was a benefit which was capable of being computed in terms of money. In our opinion, the privilege leave by its very nature cannot be computed in terms of money. 13. Then we turn to the other point which was argued before us which, upon the view we have taken, is really not necessary to decide, but since it has been argued in full, we merely state the point here. Paragraph 26 of the award granted privilege leave to the workmen at the rate of 21 days in a year. Now, it must have struck the Labour Court that when the award says a year, it could not possibly mean a calendar year or 365 clays, because the employee, having regard to the other benefits which he receives of non-working days, such as Sundays, paid holidays, unpaid holidays, etc., could not possibly work for the whole of the calendar year. Then arose the question as to what was involved in the direction of the award that the privilege leave shall be at the rate of 21 days in a year. The Labour Court has, it seems, after a considerable amount of hesitation come to its own conclusion that the year must be 291 days, and the manner in which it arrived at 291 days is by calculating various benefits which the workers had of non-working days including seven days of casual leave, 15 days of sick leave, 10 paid holidays and 10 unpaid festival days and other benefits. The employer has in his petition computed the year as being of 800 days, a calculation which the Labour Court did not accept. Before us several other interpretations have been advanced. The extreme one is that so long as a worker works for a single day in a year, he would be entitled to the whole of the privilege leave so long as his name continues on the muster roll of the Company. Then it was variously argued that sick leave and casual leave cannot be computed for the purpose of arriving at the year for calculation of privilege leave. As we have said if is unnecessary for us to go into these rival contentions, because we have shown that, in the first place, the privilege leave was not a benefit which was capable of being computed in terms of money. But we may say it here that the very fact that the expression used in the award of Mr. Naik is capable of such varied interpretations shows that initially the use of the word year in the award not having been defined, we would be, undoubtedly, adding to the award, were we today to hold that though a year is mentioned, it is something less than a year. That again, as has been clearly held upon the authorities would be beyond the jurisdiction of the Labour Court to do. In the view we have taken it is also not necessary to decide whether Sundays and paid holidays should be included or excluded in the computation of a year. In our opinion, the question which was before the Labour Court clearly did not fall within the ambit of Section 330(2). The Labour Court thus had no jurisdiction to adjudicate upon the question, nor to award monetary compensation in lieu of the privilege leave. ### Response: 1 ### Explanation: to two losses viz. (1) loss of wages and (2) loss of leave or absence from work or rest. What the applicant has claimed in this case is wages for the leave period or days of privilege leave to which the applicant was entitled to and which the opponent refused to giveNow it seems to its that in this passage, the Labour Court has made an assumption which is not warranted upon the facts, viz. that the workers in these two petitions asked for privilege leave and were refused privilege leave by the employer. That is completely contrary to the facts. In tact, in paragraph 6 of the petition, it was the complaint of the employed that, at no time prior to the filing of the said application, did the second respondents complain that they had not been given privilege leave to which they were entitled. Thus, it was the employer who was making a grievance of the fact that the workers had never asked for privilege leave before and that their application under S. 330(2) was not maintainable. Therefore, it is clear that there could have been no possible refusal to grant privilege leave. Indeed, the statement, to which we have referred above, made in the petition, was never controverted on behalf of the workers in this Court. They have mil filed any return whatsoever, and, therefore, the statement in paragraph 6 must he accepted as correct. If so, the one principal assumption which the Labour Court made that privilege leave was asked for and refused by the employer is contrary to the facts12. But then, even assuming that a refusal of privilege leave has taken place, we are unable to understand the further reasoning of the Labour Court. It seems to have taken the view that when privilege leave is refused by the employer, he is automatically entitled to compensation or the money equivalent, that is to say, to have the benefit computed. The other remark which the Labour Court made that it involved the employee in two losses, viz., the loss of wages and loss of leave or absence from work or rest is also not correct, because for the period of the leave the employee does work and is actually paid for it, Therefore, there is no loss of wages involved. All that is involved is the loss of the privilege itself. If no privilege leave is granted, the employee continues to work and receives his pay. The Labour Court, moreover, did not at all advert to the grounds upon which and the purpose for which his benefit was given by the award itself.We are unable to sustain the decision of the Labour Court that the privilege leave was a benefit which was capable of being computed in terms of money. In our opinion, the privilege leave by its very nature cannot be computed in terms of money13. Then we turn to the other point which was argued before us which, upon the view we have taken, is really not necessary to decide, but since it has been argued in full, we merely state the point here. Paragraph 26 of the award granted privilege leave to the workmen at the rate of 21 days in a year. Now, it must have struck the Labour Court that when the award says a year, it could not possibly mean a calendar year or 365 clays, because the employee, having regard to the other benefits which he receives ofg days, such as Sundays, paid holidays, unpaid holidays, etc., could not possibly work for the whole of the calendar year. Then arose the question as to what was involved in the direction of the award that the privilege leave shall be at the rate of 21 days in a year. The Labour Court has, it seems, after a considerable amount of hesitation come to its own conclusion that the year must be 291 days, and the manner in which it arrived at 291 days is by calculating various benefits which the workers had ofg days including seven days of casual leave, 15 days of sick leave, 10 paid holidays and 10 unpaid festival days and other benefits. The employer has in his petition computed the year as being of 800 days, a calculation which the Labour Court did not accept. Before us several other interpretations have been advanced. The extreme one is that so long as a worker works for a single day in a year, he would be entitled to the whole of the privilege leave so long as his name continues on the muster roll of the Company. Then it was variously argued that sick leave and casual leave cannot be computed for the purpose of arriving at the year for calculation of privilege leave. As we have said if is unnecessary for us to go into these rival contentions, because we have shown that, in the first place, the privilege leave was not a benefit which was capable of being computed in terms of money. But we may say it here that the very fact that the expression used in the award of Mr. Naik is capable of such varied interpretations shows that initially the use of the word year in the award not having been defined, we would be, undoubtedly, adding to the award, were we today to hold that though a year is mentioned, it is something less than a year. That again, as has been clearly held upon the authorities would be beyond the jurisdiction of the Labour Court to do. In the view we have taken it is also not necessary to decide whether Sundays and paid holidays should be included or excluded in the computation of a year. In our opinion, the question which was before the Labour Court clearly did not fall within the ambit of Section 330(2). The Labour Court thus had no jurisdiction to adjudicate upon the question, nor to award monetary compensation in lieu of the privilege leave.

SHRE CHAITANYA CONSTRUCTIONS Vs. SUDHIR POONUMCHAND PARAKH

appeared for the family members/close relatives of Respondent No.1 against Respondent No.1, who was the contempt petitioner in those proceedings; she referred to and relied upon an order dated 18.04.2006 in this behalf. According to her, the only argument that should have been made and that was never made on behalf of Respondent No.1 in the appeal, is the fact that the property, which is the subject-matter of the specific performance suit, could not possibly have been alienated inasmuch as there was an interim injunction interdicting the same. This argument has never been made, and had it been made, according to her, the result in the appeal would have been against decreeing specific performance. She also stated that earlier orders that were passed would show that the parties were exploring a settlement, and that, for this reason, the Respondent No.1 could not appear is another important factor to be taken into account before the judgment dated 14.02.2018 was passed. Also, according to her, in point of fact, the Respondent No.1 did not have any knowledge of the appeal proceeding and, therefore, this Court ought to be not to interfere with the impugned judgment, which has only ultimately done justice in favour of her client. 10. Having heard the learned counsel for both parties one thing stands out. What is clear is that notices of the appeal were repeatedly served on respondent No.1. The first time when service was effected, the bailiff remarked that since Respondent No.1 was not found at the address at which he resides, service was effected by ?affixation on the door? of his residence. The High Court still felt that it was necessary under the rules to effect proper service, as a result of which, by its order dated 27.10.2015, it directed that service be made by Registered Post A.D. This was ultimately done on 03.11.2015, and notices were returned unserved with postal remarks ?unclaimed, hence returned to sender?. Not only this, after this happened, steps were then taken for service through paper publication, which was duly done by a notice issued in the Newspaper ?Prabhat? which has a wide circulation in Pune, on 18.01.2016. Pursuant to all these steps, by a formal order dated 22.02.2016 in First Appeal No. 295 of 2013, it was stated that service to the respondents was complete. 11. It is in this backdrop that the present appeal needs to be considered. As correctly contended by Mr. Basant, after service is effected, had respondent No.1 not appeared at all, he could not have complained of the same since, after service has been effected, he has chosen not to appear, and this being the position, he cannot then turn around and say that as he was not heard and that the appellate judgment should be set aside and the appeal restored. We have also perused the impugned judgment dated 14.02.2018. A large portion thereof is the recording of the submissions of Mr. Dani, learned Senior Advocate, on behalf of Respondent No.1, which are all submissions ranging from maintainability of the specific performance suit; the MoU being unstamped and therefore not admissible in evidence; and otherwise that on facts it would be inequitable to enforce specific performance in favour of the plaintiff. On the facts of the case, not a single argument has been pointed out which could be said to be ?collusive? in nature; that is while appearing to defend the Respondent No.1, an argument was made in the nature of a ?hit wicket? which would really favour the plaintiff. 12. It may also be pointed out that even in equity, the Respondent No.1 has no case. We have perused the affidavit of Mr. Vinit Jain dated 26.07.2018 in which Mr. Jain states that being a son-in-law/close relative of one of the brothers of Respondent No.1, he was in charge of and handling this litigation. According to him, he was given an express oral assurance by all the brothers, including Respondent No.1, to engage the services of Mandar Soman, Advocate who would then brief a Senior Advocate and appear on behalf of Respondent No.1. Mr. Soman, in an affidavit of the same date, has affirmed these facts. Even otherwise, the father of Respondent No.1 has also, by an affidavit dated 02.08.2018 stated the same thing which has been agreed to by all the family members/close relatives, save and except Respondent No.1. We have no reason to disbelieve these affidavits. The only point in favour of the Respondent No.1 is the fact that there is no written Vakalatnama in favour of the counsel who represented him in the above appeal. The fact that Mr. Dani appeared against him in a contempt petition filed by Respondent No.1, which was disposed of in 2006, does not lead us very far. At that point of time, when the parties were at loggerheads, Mr. Dani did appeared for family members against the Respondent No.1. However, when the parties i.e. the Respondent No.1?s father and his brothers were all co- defendants in a specific performance suit in which their interest was common (that is, to oppose specific performance) it is difficult to appreciate that Mr. Dani?s appearance of 2006 should be put against his appearing in 2018 when Mr. Dani contested the specific performance suit tooth and nail. 13. We also fail to appreciate Ms. Anjani Aiyagari?s other argument that had an argument based on the injunction granted in the partition suit been made, the appeal would have been decided differently. As correctly pointed out by Mr. Basant even this is incorrect. Para 33 of the judgment dated 14.02.2018 makes it clear that this aspect was argued and considered. The point about the parties exploring settlement earlier to the impugned judgment is again neither here nor there inasmuch as obviously when such settlement talks failed, the appeal had to be set down for hearing. 14. It is clear that had the Respondent No.1 not chosen to appear at all, the judgment dated 14.02.2018 could not possibly have been recalled.

1[ds]What is clear is that notices of the appeal were repeatedly served on respondent No.1. The first time when service was effected, the bailiff remarked that since Respondent No.1 was not found at the address at which he resides, service was effected by ?affixation on the door? of his residence. The High Court still felt that it was necessary under the rules to effect proper service, as a result of which, by its order dated 27.10.2015, it directed that service be made by Registered Post A.D. This was ultimately done on 03.11.2015, and notices were returned unserved with postal remarks ?unclaimed, hence returned to sender?. Not only this, after this happened, steps were then taken for service through paper publication, which was duly done by a notice issued in the Newspaper ?Prabhat? which has a wide circulation in Pune, on 18.01.2016. Pursuant to all these steps, by a formal order dated 22.02.2016 in First Appeal No. 295 of 2013, it was stated that service to the respondents wascorrectly contended by Mr. Basant, after service is effected, had respondent No.1 not appeared at all, he could not have complained of the same since, after service has been effected, he has chosen not to appear, and this being the position, he cannot then turn around and say that as he was not heard and that the appellate judgment should be set aside and the appeal restored. We have also perused the impugned judgment dated 14.02.2018. A large portion thereof is the recording of the submissions of Mr. Dani, learned Senior Advocate, on behalf of Respondent No.1, which are all submissions ranging from maintainability of the specific performance suit; the MoU being unstamped and therefore not admissible in evidence; and otherwise that on facts it would be inequitable to enforce specific performance in favour of the plaintiff. On the facts of the case, not a single argument has been pointed out which could be said to be ?collusive? in nature; that is while appearing to defend the Respondent No.1, an argument was made in the nature of a ?hit wicket? which would really favour the plaintiff.It may also be pointed out that even in equity, the Respondent No.1 has no case. We have perused the affidavit of Mr. Vinit Jain dated 26.07.2018 in which Mr. Jain states that being a son-in-law/close relative of one of the brothers of Respondent No.1, he was in charge of and handling this litigation. According to him, he was given an express oral assurance by all the brothers, including Respondent No.1, to engage the services of Mandar Soman, Advocate who would then brief a Senior Advocate and appear on behalf of Respondent No.1. Mr. Soman, in an affidavit of the same date, has affirmed these facts. Even otherwise, the father of Respondent No.1 has also, by an affidavit dated 02.08.2018 stated the same thing which has been agreed to by all the family members/close relatives, save and except Respondent No.1. We have no reason to disbelieve these affidavits. The only point in favour of the Respondent No.1 is the fact that there is no written Vakalatnama in favour of the counsel who represented him in the above appeal. The fact that Mr. Dani appeared against him in a contempt petition filed by Respondent No.1, which was disposed of in 2006, does not lead us very far. At that point of time, when the parties were at loggerheads, Mr. Dani did appeared for family members against the Respondent No.1. However, when the parties i.e. the Respondent No.1?s father and his brothers were all co- defendants in a specific performance suit in which their interest was common (that is, to oppose specific performance) it is difficult to appreciate that Mr. Dani?s appearance of 2006 should be put against his appearing in 2018 when Mr. Dani contested the specific performance suit tooth and nail.We also fail to appreciate Ms. Anjani Aiyagari?s other argument that had an argument based on the injunction granted in the partition suit been made, the appeal would have been decided differently. As correctly pointed out by Mr. Basant even this is incorrect. Para 33 of the judgment dated 14.02.2018 makes it clear that this aspect was argued and considered. The point about the parties exploring settlement earlier to the impugned judgment is again neither here nor there inasmuch as obviously when such settlement talks failed, the appeal had to be set down for hearing.It is clear that had the Respondent No.1 not chosen to appear at all, the judgment dated 14.02.2018 could not possibly have been recalled.

### 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: appeared for the family members/close relatives of Respondent No.1 against Respondent No.1, who was the contempt petitioner in those proceedings; she referred to and relied upon an order dated 18.04.2006 in this behalf. According to her, the only argument that should have been made and that was never made on behalf of Respondent No.1 in the appeal, is the fact that the property, which is the subject-matter of the specific performance suit, could not possibly have been alienated inasmuch as there was an interim injunction interdicting the same. This argument has never been made, and had it been made, according to her, the result in the appeal would have been against decreeing specific performance. She also stated that earlier orders that were passed would show that the parties were exploring a settlement, and that, for this reason, the Respondent No.1 could not appear is another important factor to be taken into account before the judgment dated 14.02.2018 was passed. Also, according to her, in point of fact, the Respondent No.1 did not have any knowledge of the appeal proceeding and, therefore, this Court ought to be not to interfere with the impugned judgment, which has only ultimately done justice in favour of her client. 10. Having heard the learned counsel for both parties one thing stands out. What is clear is that notices of the appeal were repeatedly served on respondent No.1. The first time when service was effected, the bailiff remarked that since Respondent No.1 was not found at the address at which he resides, service was effected by ?affixation on the door? of his residence. The High Court still felt that it was necessary under the rules to effect proper service, as a result of which, by its order dated 27.10.2015, it directed that service be made by Registered Post A.D. This was ultimately done on 03.11.2015, and notices were returned unserved with postal remarks ?unclaimed, hence returned to sender?. Not only this, after this happened, steps were then taken for service through paper publication, which was duly done by a notice issued in the Newspaper ?Prabhat? which has a wide circulation in Pune, on 18.01.2016. Pursuant to all these steps, by a formal order dated 22.02.2016 in First Appeal No. 295 of 2013, it was stated that service to the respondents was complete. 11. It is in this backdrop that the present appeal needs to be considered. As correctly contended by Mr. Basant, after service is effected, had respondent No.1 not appeared at all, he could not have complained of the same since, after service has been effected, he has chosen not to appear, and this being the position, he cannot then turn around and say that as he was not heard and that the appellate judgment should be set aside and the appeal restored. We have also perused the impugned judgment dated 14.02.2018. A large portion thereof is the recording of the submissions of Mr. Dani, learned Senior Advocate, on behalf of Respondent No.1, which are all submissions ranging from maintainability of the specific performance suit; the MoU being unstamped and therefore not admissible in evidence; and otherwise that on facts it would be inequitable to enforce specific performance in favour of the plaintiff. On the facts of the case, not a single argument has been pointed out which could be said to be ?collusive? in nature; that is while appearing to defend the Respondent No.1, an argument was made in the nature of a ?hit wicket? which would really favour the plaintiff. 12. It may also be pointed out that even in equity, the Respondent No.1 has no case. We have perused the affidavit of Mr. Vinit Jain dated 26.07.2018 in which Mr. Jain states that being a son-in-law/close relative of one of the brothers of Respondent No.1, he was in charge of and handling this litigation. According to him, he was given an express oral assurance by all the brothers, including Respondent No.1, to engage the services of Mandar Soman, Advocate who would then brief a Senior Advocate and appear on behalf of Respondent No.1. Mr. Soman, in an affidavit of the same date, has affirmed these facts. Even otherwise, the father of Respondent No.1 has also, by an affidavit dated 02.08.2018 stated the same thing which has been agreed to by all the family members/close relatives, save and except Respondent No.1. We have no reason to disbelieve these affidavits. The only point in favour of the Respondent No.1 is the fact that there is no written Vakalatnama in favour of the counsel who represented him in the above appeal. The fact that Mr. Dani appeared against him in a contempt petition filed by Respondent No.1, which was disposed of in 2006, does not lead us very far. At that point of time, when the parties were at loggerheads, Mr. Dani did appeared for family members against the Respondent No.1. However, when the parties i.e. the Respondent No.1?s father and his brothers were all co- defendants in a specific performance suit in which their interest was common (that is, to oppose specific performance) it is difficult to appreciate that Mr. Dani?s appearance of 2006 should be put against his appearing in 2018 when Mr. Dani contested the specific performance suit tooth and nail. 13. We also fail to appreciate Ms. Anjani Aiyagari?s other argument that had an argument based on the injunction granted in the partition suit been made, the appeal would have been decided differently. As correctly pointed out by Mr. Basant even this is incorrect. Para 33 of the judgment dated 14.02.2018 makes it clear that this aspect was argued and considered. The point about the parties exploring settlement earlier to the impugned judgment is again neither here nor there inasmuch as obviously when such settlement talks failed, the appeal had to be set down for hearing. 14. It is clear that had the Respondent No.1 not chosen to appear at all, the judgment dated 14.02.2018 could not possibly have been recalled. ### Response: 1 ### Explanation: What is clear is that notices of the appeal were repeatedly served on respondent No.1. The first time when service was effected, the bailiff remarked that since Respondent No.1 was not found at the address at which he resides, service was effected by ?affixation on the door? of his residence. The High Court still felt that it was necessary under the rules to effect proper service, as a result of which, by its order dated 27.10.2015, it directed that service be made by Registered Post A.D. This was ultimately done on 03.11.2015, and notices were returned unserved with postal remarks ?unclaimed, hence returned to sender?. Not only this, after this happened, steps were then taken for service through paper publication, which was duly done by a notice issued in the Newspaper ?Prabhat? which has a wide circulation in Pune, on 18.01.2016. Pursuant to all these steps, by a formal order dated 22.02.2016 in First Appeal No. 295 of 2013, it was stated that service to the respondents wascorrectly contended by Mr. Basant, after service is effected, had respondent No.1 not appeared at all, he could not have complained of the same since, after service has been effected, he has chosen not to appear, and this being the position, he cannot then turn around and say that as he was not heard and that the appellate judgment should be set aside and the appeal restored. We have also perused the impugned judgment dated 14.02.2018. A large portion thereof is the recording of the submissions of Mr. Dani, learned Senior Advocate, on behalf of Respondent No.1, which are all submissions ranging from maintainability of the specific performance suit; the MoU being unstamped and therefore not admissible in evidence; and otherwise that on facts it would be inequitable to enforce specific performance in favour of the plaintiff. On the facts of the case, not a single argument has been pointed out which could be said to be ?collusive? in nature; that is while appearing to defend the Respondent No.1, an argument was made in the nature of a ?hit wicket? which would really favour the plaintiff.It may also be pointed out that even in equity, the Respondent No.1 has no case. We have perused the affidavit of Mr. Vinit Jain dated 26.07.2018 in which Mr. Jain states that being a son-in-law/close relative of one of the brothers of Respondent No.1, he was in charge of and handling this litigation. According to him, he was given an express oral assurance by all the brothers, including Respondent No.1, to engage the services of Mandar Soman, Advocate who would then brief a Senior Advocate and appear on behalf of Respondent No.1. Mr. Soman, in an affidavit of the same date, has affirmed these facts. Even otherwise, the father of Respondent No.1 has also, by an affidavit dated 02.08.2018 stated the same thing which has been agreed to by all the family members/close relatives, save and except Respondent No.1. We have no reason to disbelieve these affidavits. The only point in favour of the Respondent No.1 is the fact that there is no written Vakalatnama in favour of the counsel who represented him in the above appeal. The fact that Mr. Dani appeared against him in a contempt petition filed by Respondent No.1, which was disposed of in 2006, does not lead us very far. At that point of time, when the parties were at loggerheads, Mr. Dani did appeared for family members against the Respondent No.1. However, when the parties i.e. the Respondent No.1?s father and his brothers were all co- defendants in a specific performance suit in which their interest was common (that is, to oppose specific performance) it is difficult to appreciate that Mr. Dani?s appearance of 2006 should be put against his appearing in 2018 when Mr. Dani contested the specific performance suit tooth and nail.We also fail to appreciate Ms. Anjani Aiyagari?s other argument that had an argument based on the injunction granted in the partition suit been made, the appeal would have been decided differently. As correctly pointed out by Mr. Basant even this is incorrect. Para 33 of the judgment dated 14.02.2018 makes it clear that this aspect was argued and considered. The point about the parties exploring settlement earlier to the impugned judgment is again neither here nor there inasmuch as obviously when such settlement talks failed, the appeal had to be set down for hearing.It is clear that had the Respondent No.1 not chosen to appear at all, the judgment dated 14.02.2018 could not possibly have been recalled.