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Chinubhai Haridas Vs. The State Of Bombay

that the occupier or the manager had failed to take all reasonable measures for preventing the entry. The burden thus is on the prosecution to prove that the occupier or the manager had not taken all reasonable steps for preventing the entry and not on the occupier or the manager to prove that he had taken all such reasonable steps. The Court will, therefore, have to consider all the facts and circumstances in a particular case to see if the burden has been discharged by the prosecution. It is in this background that we have to consider the meaning to be given to the words "be permitted to enter appearing in S. 36 (3). It seems to us that in the circumstances these words do not cast an absolute duty on the employer to prevent the entry and the mere fact that a person has entered such a pit etc. would not by itself prove that he had been permitted to enter. The Court will have to look into the facts and circumstances of the case to come to the conclusion whether the person who entered the pit was permitted to do so and mere entry would not necessarily lead to the conclusion that there was permission to enter, whether express or implied.The magistrate in this case seems to have thought that a positive act of obtaining permission must be done by the worker or a positive act of granting permission must be done by the occupier or the manager, though he has not said so in so many words.It is not necessary that there should be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or the manager.What the court has to see is whether on the facts and circumstances of a particular case it will be reasonable to infer that the entry was with permission, whether express or implied. The High Court also, with respect, seems to have gone too far on the other side when it said that it was the duty of the employer to take all the precautionary measures for safeguarding the lives of his workers, prudent or imprudent, rash or careful, against all possible danger while they are working on the premises of the factory. This would imply that there was an absolute duty cast on the employer to prevent the entry irrespective of the considerations that might arise on the facts and circumstances of a particular case.The true view of S. 36 (3), in our opinion, is that the primary duty is cast on the worker or any other person prohibiting his entry into any such pit etc. At the same time the occupier is also liable if his permission to the entry, whether express or implied, can be inferred on the facts and circumstances of the case; but this permission cannot in all cases be inferred by the mere fact of the entry.The High Court has remanded the case to the magistrate for retrial and in that retrial the magistrate will proceed to consider the liability of the occupier in the light of the observations made by us on the construction of S. 36 (3). 7. Turning now to sub-s. (4), it will be found that it is in two parts. The first part provides that suitable breathing apparatus, reviving apparatus, belts and ropes shall in every factory be kept ready for instant use beside any such confined space as aforesaid which any person has entered. This to our mind means that if for any reason a person has to enter such confined space, the apparatus etc., shall be kept ready for instant use beside such space. The duty for keeping the apparatus ready beside the space arises only when a person is entering the confined space, obviously with the permission of the occupier or the manager. We do not think that sub-s. (4) contemplates that the apparatus etc., shall always be kept ready near the confined space whether there is any occasion for any person to enter it or not. The necessity of keeping the apparatus etc. ready near the confined space arises when any person is about to enter such space, obviously with the permission of the employer. 8. The second part of the section provides that all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration.This clearly shows that the apparatus etc. must always be available in the factory, though it need not be kept near the confined space till such time as some one is about to enter it. There will be no possibility of periodical examination and training of sufficient number of persons in the use of the apparatus unless the apparatus was always available in the factory. The duty cast by sub-s. (4) is absolute. So far as the first part is concerned, the duty of keeping the apparatus read for instant use near the confined space arises as soon as a person is about to enter it, obviously with the permission of the occupier. So far as the second part is concerned, it is the duty of the occupier to see that the apparatus is always available in the factory and is periodically examined and certified fit for use and a sufficient number of persons are trained in its use.The view taken by the magistrate of the effect of this section is not correct and the view taken by the High Court is right except that it is not necessary to keep the apparatus all the time near the confined space. The High Court has ordered retrial with respect to the contravention of subs-.s (4) also and the magistrate who now retries the case will do so in accordance with the construction of the sub-section given by us.

0[ds]1. We do not think it necessary to consider these other sections in detail. It is enough to point out that there is one vital difference between the provisions of these other sections and the provision contained in S. 36 (3). Section 36 (3) prohibits the worker from entering the pit etc. while these other sections have no such prohibition against the worker and cast the entire duty on the employer.Section 36 (3), therefore, will have to be construed in the context of the words used therein. It begins with prohibiting any person from entering any such pit, etc. The primary prohibition, therefore, is of the person working in the factory and others and the effect of this prohibition is worked out in S. 97 of the Act.Sub-s. (1) of S. 97 provides that if a worker employed in a factory contravenes any provision of this Act imposing any duty or liability on workers, he shall be punishable with fine. Sub-section (2) of this section then lays down that if a worker is convicted of an offence under sub-s. (1), the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention unless it is proved that he failed to take all reasonable measures for its prevention.Reading S. 36 (3) with S. 97, it is clear that the prohibition of the worker against entering any such pit etc. is absolute and if any worker enters such a pit etc. he is guilty under S. 97 (1). In this case, if the five workers who are dead, were alive, they would have been guilty under S. 97 (1) for contravening S. 36 (3) by entering the pit. Then S. 97 (2) would come into operation and it would be for the prosecution to prove that the occupier or the manager had failed to take all reasonable measures for preventing the entry. The burden thus is on the prosecution to prove that the occupier or the manager had not taken all reasonable steps for preventing the entry and not on the occupier or the manager to prove that he had taken all such reasonable steps. The Court will, therefore, have to consider all the facts and circumstances in a particular case to see if the burden has been discharged by the prosecution. It is in this background that we have to consider the meaning to be given to the words "be permitted to enter appearing in S. 36 (3). It seems to us that in the circumstances these words do not cast an absolute duty on the employer to prevent the entry and the mere fact that a person has entered such a pit etc. would not by itself prove that he had been permitted to enter. The Court will have to look into the facts and circumstances of the case to come to the conclusion whether the person who entered the pit was permitted to do so and mere entry would not necessarily lead to the conclusion that there was permission to enter, whether express or implied.The magistrate in this case seems to have thought that a positive act of obtaining permission must be done by the worker or a positive act of granting permission must be done by the occupier or the manager, though he has not said so in so many words.It is not necessary that there should be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or thet the court has to see is whether on the facts and circumstances of a particular case it will be reasonable to infer that the entry was with permission, whether express or implied.8. The second part of the section provides that all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration.This clearly shows that the apparatus etc. must always be available in the factory, though it need not be kept near the confined space till such time as some one is about to enter it. There will be no possibility of periodical examination and training of sufficient number of persons in the use of the apparatus unless the apparatus was always available in the factory. The duty cast by sub-s. (4) is absolute. So far as the first part is concerned, the duty of keeping the apparatus read for instant use near the confined space arises as soon as a person is about to enter it, obviously with the permission of the occupier. So far as the second part is concerned, it is the duty of the occupier to see that the apparatus is always available in the factory and is periodically examined and certified fit for use and a sufficient number of persons are trained in its use.The view taken by the magistrate of the effect of this section is not correct and the view taken by the High Court is right except that it is not necessary to keep the apparatus all the time near the confined space. The High Court has ordered retrial with respect to the contravention of subs-.s (4) also and the magistrate who now retries the case will do so in accordance with the construction of the sub-section given by us. We have carefully refrained from saying anything on the facts of this case as there is going to be a retrial and it will be for the magistrate to consider all the facts and circumstances before coming to a decision one way or the other.

### 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: that the occupier or the manager had failed to take all reasonable measures for preventing the entry. The burden thus is on the prosecution to prove that the occupier or the manager had not taken all reasonable steps for preventing the entry and not on the occupier or the manager to prove that he had taken all such reasonable steps. The Court will, therefore, have to consider all the facts and circumstances in a particular case to see if the burden has been discharged by the prosecution. It is in this background that we have to consider the meaning to be given to the words "be permitted to enter appearing in S. 36 (3). It seems to us that in the circumstances these words do not cast an absolute duty on the employer to prevent the entry and the mere fact that a person has entered such a pit etc. would not by itself prove that he had been permitted to enter. The Court will have to look into the facts and circumstances of the case to come to the conclusion whether the person who entered the pit was permitted to do so and mere entry would not necessarily lead to the conclusion that there was permission to enter, whether express or implied.The magistrate in this case seems to have thought that a positive act of obtaining permission must be done by the worker or a positive act of granting permission must be done by the occupier or the manager, though he has not said so in so many words.It is not necessary that there should be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or the manager.What the court has to see is whether on the facts and circumstances of a particular case it will be reasonable to infer that the entry was with permission, whether express or implied. The High Court also, with respect, seems to have gone too far on the other side when it said that it was the duty of the employer to take all the precautionary measures for safeguarding the lives of his workers, prudent or imprudent, rash or careful, against all possible danger while they are working on the premises of the factory. This would imply that there was an absolute duty cast on the employer to prevent the entry irrespective of the considerations that might arise on the facts and circumstances of a particular case.The true view of S. 36 (3), in our opinion, is that the primary duty is cast on the worker or any other person prohibiting his entry into any such pit etc. At the same time the occupier is also liable if his permission to the entry, whether express or implied, can be inferred on the facts and circumstances of the case; but this permission cannot in all cases be inferred by the mere fact of the entry.The High Court has remanded the case to the magistrate for retrial and in that retrial the magistrate will proceed to consider the liability of the occupier in the light of the observations made by us on the construction of S. 36 (3). 7. Turning now to sub-s. (4), it will be found that it is in two parts. The first part provides that suitable breathing apparatus, reviving apparatus, belts and ropes shall in every factory be kept ready for instant use beside any such confined space as aforesaid which any person has entered. This to our mind means that if for any reason a person has to enter such confined space, the apparatus etc., shall be kept ready for instant use beside such space. The duty for keeping the apparatus ready beside the space arises only when a person is entering the confined space, obviously with the permission of the occupier or the manager. We do not think that sub-s. (4) contemplates that the apparatus etc., shall always be kept ready near the confined space whether there is any occasion for any person to enter it or not. The necessity of keeping the apparatus etc. ready near the confined space arises when any person is about to enter such space, obviously with the permission of the employer. 8. The second part of the section provides that all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration.This clearly shows that the apparatus etc. must always be available in the factory, though it need not be kept near the confined space till such time as some one is about to enter it. There will be no possibility of periodical examination and training of sufficient number of persons in the use of the apparatus unless the apparatus was always available in the factory. The duty cast by sub-s. (4) is absolute. So far as the first part is concerned, the duty of keeping the apparatus read for instant use near the confined space arises as soon as a person is about to enter it, obviously with the permission of the occupier. So far as the second part is concerned, it is the duty of the occupier to see that the apparatus is always available in the factory and is periodically examined and certified fit for use and a sufficient number of persons are trained in its use.The view taken by the magistrate of the effect of this section is not correct and the view taken by the High Court is right except that it is not necessary to keep the apparatus all the time near the confined space. The High Court has ordered retrial with respect to the contravention of subs-.s (4) also and the magistrate who now retries the case will do so in accordance with the construction of the sub-section given by us. ### Response: 0 ### Explanation: 1. We do not think it necessary to consider these other sections in detail. It is enough to point out that there is one vital difference between the provisions of these other sections and the provision contained in S. 36 (3). Section 36 (3) prohibits the worker from entering the pit etc. while these other sections have no such prohibition against the worker and cast the entire duty on the employer.Section 36 (3), therefore, will have to be construed in the context of the words used therein. It begins with prohibiting any person from entering any such pit, etc. The primary prohibition, therefore, is of the person working in the factory and others and the effect of this prohibition is worked out in S. 97 of the Act.Sub-s. (1) of S. 97 provides that if a worker employed in a factory contravenes any provision of this Act imposing any duty or liability on workers, he shall be punishable with fine. Sub-section (2) of this section then lays down that if a worker is convicted of an offence under sub-s. (1), the occupier or manager of the factory shall not be deemed to be guilty of an offence in respect of that contravention unless it is proved that he failed to take all reasonable measures for its prevention.Reading S. 36 (3) with S. 97, it is clear that the prohibition of the worker against entering any such pit etc. is absolute and if any worker enters such a pit etc. he is guilty under S. 97 (1). In this case, if the five workers who are dead, were alive, they would have been guilty under S. 97 (1) for contravening S. 36 (3) by entering the pit. Then S. 97 (2) would come into operation and it would be for the prosecution to prove that the occupier or the manager had failed to take all reasonable measures for preventing the entry. The burden thus is on the prosecution to prove that the occupier or the manager had not taken all reasonable steps for preventing the entry and not on the occupier or the manager to prove that he had taken all such reasonable steps. The Court will, therefore, have to consider all the facts and circumstances in a particular case to see if the burden has been discharged by the prosecution. It is in this background that we have to consider the meaning to be given to the words "be permitted to enter appearing in S. 36 (3). It seems to us that in the circumstances these words do not cast an absolute duty on the employer to prevent the entry and the mere fact that a person has entered such a pit etc. would not by itself prove that he had been permitted to enter. The Court will have to look into the facts and circumstances of the case to come to the conclusion whether the person who entered the pit was permitted to do so and mere entry would not necessarily lead to the conclusion that there was permission to enter, whether express or implied.The magistrate in this case seems to have thought that a positive act of obtaining permission must be done by the worker or a positive act of granting permission must be done by the occupier or the manager, though he has not said so in so many words.It is not necessary that there should be a positive act of obtaining permission by the worker or a positive act of granting permission by the occupier or thet the court has to see is whether on the facts and circumstances of a particular case it will be reasonable to infer that the entry was with permission, whether express or implied.8. The second part of the section provides that all such apparatus shall be periodically examined and certified by a competent person to be fit for use and a sufficient number of persons employed in every factory shall be trained and practised in the use of all such apparatus and in the method of restoring respiration.This clearly shows that the apparatus etc. must always be available in the factory, though it need not be kept near the confined space till such time as some one is about to enter it. There will be no possibility of periodical examination and training of sufficient number of persons in the use of the apparatus unless the apparatus was always available in the factory. The duty cast by sub-s. (4) is absolute. So far as the first part is concerned, the duty of keeping the apparatus read for instant use near the confined space arises as soon as a person is about to enter it, obviously with the permission of the occupier. So far as the second part is concerned, it is the duty of the occupier to see that the apparatus is always available in the factory and is periodically examined and certified fit for use and a sufficient number of persons are trained in its use.The view taken by the magistrate of the effect of this section is not correct and the view taken by the High Court is right except that it is not necessary to keep the apparatus all the time near the confined space. The High Court has ordered retrial with respect to the contravention of subs-.s (4) also and the magistrate who now retries the case will do so in accordance with the construction of the sub-section given by us. We have carefully refrained from saying anything on the facts of this case as there is going to be a retrial and it will be for the magistrate to consider all the facts and circumstances before coming to a decision one way or the other.

Urmila Roy Vs. M/S Bengal Peerless Hng.Devt.Co.Ltd.&Ors

sector company with the Housing Board; the constitution of the Board of Directors of the joint sector company; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project; control on the fixation of prices of the flats to be constructed by the joint sector company; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for those people to acquire a house of their own with escalating real estate prices; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company, viz. Bengal Peerless Housing Development Co. Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstances, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government oversees the housing project and has also imposed certain terms and conditions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Housing Board to get the housing project executed through a joint sector company is quite understandable. We also find the impugned action is within the purview of law and is valid." 20. In view of what has been observed above, and in the background of the present case, it becomes crystal clear that though the execution of the housing scheme has been entrusted to a Joint Sector Company, the overall control over the project has been retained by the Government controlled Board of Directors, full details of the scheme have been provided with large provisions for the benefit of the poorer sections of society, with the allotment of tenements either on a subsidized price or on "no profit no loss" basis for the low and middle income groups respectively, allotment by draw of lots to avoid any arbitrariness and a complete freeze on the price of residential accommodation with no escalation whatsoever for whatever reason and the provision of facilities for effective and comfortable living such as schools, roads, sewage etc. We are, therefore, of the opinion that the housing scheme fully satisfies the tests laid down by the Supreme Court in the two cases cited immediately above.21. There is yet another aspect which needs to be dealt with. It appears from the record, and it was so pointed out during the course of arguments, that the appellants had not filed any objection to the acquisition on the plea that some assurance had been held out that they too would be allowed to participate in the housing scheme. This fact has been denied by the respondents and it has been emphasized that as per letter dated 8th March 2001 the land-owners had, in fact, waived their right to challenge the acquisition. This letter is reproduced hereunder in extenso: "To Date:8th March 2001The Special Land Acquisition Officer,South 24 - Parganas, 5th Floor,New Treasury Buildings,Alipore, Kolkata - 700027.Sir,Re: Barakhola Mouza J.L.No.21 P.S.KasbaThis has reference to your acquisition notice dated 12.1.2001 for 12.67 acres land in Plot No.125 & 126 of the subject mouza.In this connection, I would like to submit that I am the Power of Attorney (Registered) holder of the successors of late Abhay Pada Pain who was the owner of the aforesaid plots as evident from the ROR. A copy of the P/A is enclosed for your kind perusal. Incidentally Plot No.126 was duly demarcated showing the vested portions and the retained portions by the District Authorities as per copy of the Map enclosed along with a copy of the Minutes of the meetings held in Chamber of the then ADM & L.R.O.South 24 - Parganas on 20.3.1996.Subsequently 13.56 acres of land was sold to the following parties and registered under section 41 on 25.6.1999 of which deed copies are enclosed. Since the tax has not been assessed, as yet for value to ascertain additional stamp duty, the same have not been paid so far.However, enquiries are under way, but in the meantime Khazna has been paid up - to - date as per copies of receipts dt.18.1.2001 enclosed herewith.The transfers are:-a) Sri Debabrata Choudhary :b) Sri Shreekanta Ray : 6.00 acresc) M/s. Anarean Estate Co. Ltd. :d) Sri Swadesh Ghosh :e) Sri Swapan Dey :f) Smt.Ila Dey : 6.58 acresg) Sri Saptashi Dey :h) Smt.Basanti Ghosh :The aforesaid transferees did not raise any objection to govt. acquiring. The land for housing, in face, I had moved an idea to West Bengal Housing Board and willing to negotiate along with the transferees price for your acquisition.Please do let me known for any further information and clarification / assistance, a may be required.Thanking you, I amYours faithfullySd/-Urmila RayConstituted Attorney ofSmt. Lily PaulSmt. Dolly PaulSmt. Mira RaniBasuEncloseda) Copies of 8 nos.deedb) Copy of power of attorneyc) Copy of witness by ADM,DL,LROd) Copy of Minutes of meeting dt.26.3.96e) Copy of Khana receiptsC 735407 dt.Rs.32,277/-C 735408 dt.18.1.01 for Rs.2709" 22. It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4th December 2000). It is also significant that the declaration under Section 6 had been issued on 29th November 2001 and the award rendered on 27th December 2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law.

0[ds]The learned counsel for the respondent has on the contrary referred us to Sections 17, 18 and 27A of the 1972 Act to submit that the said Act specifically provided for the transfer of the acquired land to a Joint Sector Company for the purpose of the execution of the Housing Scheme with the previous approval of the State Government and that the scheme had indeed been framed under Sections 17 and 18 and thereafter entrusted for execution to the Bengal Peerless. It has been submitted that though Bengal Peerless had been entrusted with the execution of the scheme the overall control remained with the Housing Board which was, in fact, an extension of the State Government itself and the State Government a fortiori retained overall control in the execution of the scheme.We find merit in this submission. The record indicates that as a consequence of a Memorandum of Understanding dated 13th September 1993 a Joint Sector Company for the execution of the housing scheme had been created on 20th May 1994 and it was provided that 49.5% of the shares capital would be held by each of the two i.e. the Housing Board and Bengal Peerless and the balance 1% would be held by the public and the company would be run independently by nine Directors, of whom five including the Chairman were to be nominated by the State Government. It is also relevant that the scheme had, in fact, been prepared by the State Government after due deliberation and had been initiated as per the provisions of the 1972 Act by virtue of a meeting held on 17th May 2000 in the Office of the Secretary, Housing Department, the Commissioner of the Housing Board, the Land Acquisition Collector and several other senior officials and the proposal had been mooted for the acquisition of the land for the purpose of a scheme for weaker sections of society and others with modest incomes. The scheme also provided for the construction of 1800 dwelling units of various categories with at least 50% to be earmarked for the lower and middle income groups with the price subsidized for the former and all flats for the middle income group to be provided on "no profit no loss" basis, and for facilities for schools, roads etc. for the benefit of those who were ultimately to reside in the dwelling units. Significantly also, the scheme provided that there would be no escalation on account of any reason whatsoever for the price charged for the dwelling units and that the allotment of the dwelling units would be on the basis of a lottery.We observe that Sectionspecifically authorizes the Housing Board in public interest to entrust a housing scheme to a Joint Sector Company with the previous approval of the State Government. We find that there is no warrant for the proposition that unless a budgetary provision is made by the Housing Board or that a final scheme is prepared in accordance with Section 23 of the 1972 Act, no land can be acquired for the purpose of execution of a housing scheme. It is significant that Section 17 of the 1972 Act itself gives the power to the Housing Board to make a scheme and that Section 27A further authorizes the Board in public interest to entrust a housing scheme to a Joint Sector Company for execution and for that purpose Section 28(2) of the Act further authorizes the Housing Board to take steps for compulsory acquisition of any land required for the purpose of a housing scheme.In view of what has been observed above, and in the background of the present case, it becomes crystal clear that though the execution of the housing scheme has been entrusted to a Joint Sector Company, the overall control over the project has been retained by the Government controlled Board of Directors, full details of the scheme have been provided with large provisions for the benefit of the poorer sections of society, with the allotment of tenements either on a subsidized price or on "no profit no loss" basis for the low and middle income groups respectively, allotment by draw of lots to avoid any arbitrariness and a complete freeze on the price of residential accommodation with no escalation whatsoever for whatever reason and the provision of facilities for effective and comfortable living such as schools, roads, sewage etc. We are, therefore, of the opinion that the housing scheme fully satisfies the tests laid down by the Supreme Court in the two cases cited immediately above.21. There is yet another aspect which needs to be dealt with. It appears from the record, and it was so pointed out during the course of arguments, that the appellants had not filed any objection to the acquisition on the plea that some assurance had been held out that they too would be allowed to participate in the housing scheme. This fact has been denied by the respondents and it has been emphasized that as per letter dated 8th March 2001 thehad, in fact, waived their right to challenge the acquisition.It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4th December 2000). It is also significant that the declaration under Section 6 had been issued on 29th November 2001 and the award rendered on 27th December 2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law.

### 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: sector company with the Housing Board; the constitution of the Board of Directors of the joint sector company; the control of the Housing Board and the State Government over the joint sector company to execute the scheme of the housing project; control on the fixation of prices of the flats to be constructed by the joint sector company; relevant factors taken into consideration for execution of the housing project and all these to tackle the urgent and growing need of providing shelter to the LIG and MIG people when it is not possible for those people to acquire a house of their own with escalating real estate prices; it cannot be said that the public purpose is not being served or the incorporation of the joint sector company, viz. Bengal Peerless Housing Development Co. Ltd. and the execution of the housing project "Anupama" by this joint sector company, in the given circumstances, on the land in question which is part of the bigger piece of land is not in public interest. The Housing Board acts as regulatory body and the State Government oversees the housing project and has also imposed certain terms and conditions. No ulterior purpose has been alleged and it cannot be said that the power exercised by the State authorities are in any way arbitrary or irrational or there is any abuse of power. Rather the legal compulsion of the State and the Housing Board to get the housing project executed through a joint sector company is quite understandable. We also find the impugned action is within the purview of law and is valid." 20. In view of what has been observed above, and in the background of the present case, it becomes crystal clear that though the execution of the housing scheme has been entrusted to a Joint Sector Company, the overall control over the project has been retained by the Government controlled Board of Directors, full details of the scheme have been provided with large provisions for the benefit of the poorer sections of society, with the allotment of tenements either on a subsidized price or on "no profit no loss" basis for the low and middle income groups respectively, allotment by draw of lots to avoid any arbitrariness and a complete freeze on the price of residential accommodation with no escalation whatsoever for whatever reason and the provision of facilities for effective and comfortable living such as schools, roads, sewage etc. We are, therefore, of the opinion that the housing scheme fully satisfies the tests laid down by the Supreme Court in the two cases cited immediately above.21. There is yet another aspect which needs to be dealt with. It appears from the record, and it was so pointed out during the course of arguments, that the appellants had not filed any objection to the acquisition on the plea that some assurance had been held out that they too would be allowed to participate in the housing scheme. This fact has been denied by the respondents and it has been emphasized that as per letter dated 8th March 2001 the land-owners had, in fact, waived their right to challenge the acquisition. This letter is reproduced hereunder in extenso: "To Date:8th March 2001The Special Land Acquisition Officer,South 24 - Parganas, 5th Floor,New Treasury Buildings,Alipore, Kolkata - 700027.Sir,Re: Barakhola Mouza J.L.No.21 P.S.KasbaThis has reference to your acquisition notice dated 12.1.2001 for 12.67 acres land in Plot No.125 & 126 of the subject mouza.In this connection, I would like to submit that I am the Power of Attorney (Registered) holder of the successors of late Abhay Pada Pain who was the owner of the aforesaid plots as evident from the ROR. A copy of the P/A is enclosed for your kind perusal. Incidentally Plot No.126 was duly demarcated showing the vested portions and the retained portions by the District Authorities as per copy of the Map enclosed along with a copy of the Minutes of the meetings held in Chamber of the then ADM & L.R.O.South 24 - Parganas on 20.3.1996.Subsequently 13.56 acres of land was sold to the following parties and registered under section 41 on 25.6.1999 of which deed copies are enclosed. Since the tax has not been assessed, as yet for value to ascertain additional stamp duty, the same have not been paid so far.However, enquiries are under way, but in the meantime Khazna has been paid up - to - date as per copies of receipts dt.18.1.2001 enclosed herewith.The transfers are:-a) Sri Debabrata Choudhary :b) Sri Shreekanta Ray : 6.00 acresc) M/s. Anarean Estate Co. Ltd. :d) Sri Swadesh Ghosh :e) Sri Swapan Dey :f) Smt.Ila Dey : 6.58 acresg) Sri Saptashi Dey :h) Smt.Basanti Ghosh :The aforesaid transferees did not raise any objection to govt. acquiring. The land for housing, in face, I had moved an idea to West Bengal Housing Board and willing to negotiate along with the transferees price for your acquisition.Please do let me known for any further information and clarification / assistance, a may be required.Thanking you, I amYours faithfullySd/-Urmila RayConstituted Attorney ofSmt. Lily PaulSmt. Dolly PaulSmt. Mira RaniBasuEncloseda) Copies of 8 nos.deedb) Copy of power of attorneyc) Copy of witness by ADM,DL,LROd) Copy of Minutes of meeting dt.26.3.96e) Copy of Khana receiptsC 735407 dt.Rs.32,277/-C 735408 dt.18.1.01 for Rs.2709" 22. It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4th December 2000). It is also significant that the declaration under Section 6 had been issued on 29th November 2001 and the award rendered on 27th December 2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law. ### Response: 0 ### Explanation: The learned counsel for the respondent has on the contrary referred us to Sections 17, 18 and 27A of the 1972 Act to submit that the said Act specifically provided for the transfer of the acquired land to a Joint Sector Company for the purpose of the execution of the Housing Scheme with the previous approval of the State Government and that the scheme had indeed been framed under Sections 17 and 18 and thereafter entrusted for execution to the Bengal Peerless. It has been submitted that though Bengal Peerless had been entrusted with the execution of the scheme the overall control remained with the Housing Board which was, in fact, an extension of the State Government itself and the State Government a fortiori retained overall control in the execution of the scheme.We find merit in this submission. The record indicates that as a consequence of a Memorandum of Understanding dated 13th September 1993 a Joint Sector Company for the execution of the housing scheme had been created on 20th May 1994 and it was provided that 49.5% of the shares capital would be held by each of the two i.e. the Housing Board and Bengal Peerless and the balance 1% would be held by the public and the company would be run independently by nine Directors, of whom five including the Chairman were to be nominated by the State Government. It is also relevant that the scheme had, in fact, been prepared by the State Government after due deliberation and had been initiated as per the provisions of the 1972 Act by virtue of a meeting held on 17th May 2000 in the Office of the Secretary, Housing Department, the Commissioner of the Housing Board, the Land Acquisition Collector and several other senior officials and the proposal had been mooted for the acquisition of the land for the purpose of a scheme for weaker sections of society and others with modest incomes. The scheme also provided for the construction of 1800 dwelling units of various categories with at least 50% to be earmarked for the lower and middle income groups with the price subsidized for the former and all flats for the middle income group to be provided on "no profit no loss" basis, and for facilities for schools, roads etc. for the benefit of those who were ultimately to reside in the dwelling units. Significantly also, the scheme provided that there would be no escalation on account of any reason whatsoever for the price charged for the dwelling units and that the allotment of the dwelling units would be on the basis of a lottery.We observe that Sectionspecifically authorizes the Housing Board in public interest to entrust a housing scheme to a Joint Sector Company with the previous approval of the State Government. We find that there is no warrant for the proposition that unless a budgetary provision is made by the Housing Board or that a final scheme is prepared in accordance with Section 23 of the 1972 Act, no land can be acquired for the purpose of execution of a housing scheme. It is significant that Section 17 of the 1972 Act itself gives the power to the Housing Board to make a scheme and that Section 27A further authorizes the Board in public interest to entrust a housing scheme to a Joint Sector Company for execution and for that purpose Section 28(2) of the Act further authorizes the Housing Board to take steps for compulsory acquisition of any land required for the purpose of a housing scheme.In view of what has been observed above, and in the background of the present case, it becomes crystal clear that though the execution of the housing scheme has been entrusted to a Joint Sector Company, the overall control over the project has been retained by the Government controlled Board of Directors, full details of the scheme have been provided with large provisions for the benefit of the poorer sections of society, with the allotment of tenements either on a subsidized price or on "no profit no loss" basis for the low and middle income groups respectively, allotment by draw of lots to avoid any arbitrariness and a complete freeze on the price of residential accommodation with no escalation whatsoever for whatever reason and the provision of facilities for effective and comfortable living such as schools, roads, sewage etc. We are, therefore, of the opinion that the housing scheme fully satisfies the tests laid down by the Supreme Court in the two cases cited immediately above.21. There is yet another aspect which needs to be dealt with. It appears from the record, and it was so pointed out during the course of arguments, that the appellants had not filed any objection to the acquisition on the plea that some assurance had been held out that they too would be allowed to participate in the housing scheme. This fact has been denied by the respondents and it has been emphasized that as per letter dated 8th March 2001 thehad, in fact, waived their right to challenge the acquisition.It is significant that this letter written by the Attorney Urmila Roy, on behalf of all the land owners spells out that the owners had in fact been willing to negotiate the price for the land at the time when the acquisition were still incomplete as only the Notification under Section 4 of the Act had, at that stage, been issued (4th December 2000). It is also significant that the declaration under Section 6 had been issued on 29th November 2001 and the award rendered on 27th December 2003. It is, therefore, evident that the land owners had, in fact, acquiesced to the acquisition and cannot now turn around to say that the acquisition was bad in law.

M/s. Jai Vijai Metal Udyog Pvt. Ltd. Industrial Estate, Varanasi Vs. The Commissioner, Trade Tax, U.P. Lucknow

further enquiry. It is asserted that the said decision does not conclude the issue against the Dealer as pleaded on behalf of the Revenue. Learned counsel also points out that pursuant to the remand by the High Court in the case of HINDALCO, the Assessing Officer examined the entire issue afresh; by summoning the representatives of other manufacturers to understand the manufacturing process as also the commercial value, and then came to the conclusion that `properzi redraw rod is like an ingot - a form of primary metal and, therefore, falls in the category of metal and alloy, covered under Entry 24. According to the learned counsel, the assessment made in the case of HINDALCO on remand has attained finality. It is, thus, pleaded that since the item, viz. `properzi redraw rod manufactured by the Dealer and HINDALCO are similar, the Revenue cannot treat two dealers differently for the purpose of levying sales tax under the Regional Act as well as the Central Act. Learned counsel appearing on behalf of the Revenue, on the other hand, supported the decision of the High Court and submitted that `properzi redraw rods are manufactured from aluminium ingots and billets; being commercially different commodities, the same cannot be considered as primary metal and, therefore, these have been correctly taxed in the category of unclassified item. Learned counsel urged that after this Court had passed order on 2nd December, 2009, directing the Revenue to disclose its stand with regard to the assessment in the case of HINDALCO, assessments in the case of the said company in respect of assessment years 2003-04 to 2006-07 have been re-opened under Section 21(2) of the U.P. Act and, therefore, the plea of discrimination is not available to the Dealer. It is, however, conceded that in so far as assessment in the case of HINDALCO for the assessment year 1988-89 is concerned, it has attained finality and cannot be re-opened. The questions falling for consideration are: (i) whether the aluminium `properzi redraw rods can be classified as metal under Entry 24 of the aforementioned Notification dated 30th September, 1983 and (ii) when admittedly, the foundation for re-opening Dealers assessment in respect of assessment year 1988-89 was the assessment in the case of HINDALCO, in which case, after the remand by the High Court, assessment for that year has attained finality, can the Revenue be permitted to take a different view in the case of the Dealer from that taken in the case of HINDALCO in respect of the same assessment year? In so far as the first question is concerned, we are of the opinion that in the light of the decision of this Court in Hindustan Aluminium Company Ltd . (supra) wherein, while examining the question whether aluminium rolled products and extrusions could be described as `Metal under Item No.6 (as it then existed) in the Schedule attached with the U.P. Act which is materially similar to Entry 24, this Court has observed that expression `Metal has been generally employed to refer to the metal in its primary sense, i.e. the metal in the form in which it is marketable as a primary commodity, it is unnecessary for us to delve deep into the issue. The only question for our consideration is whether the said decision conclusively holds that `properzi redraw rods are not `metal in the primary form as such constituting new commercial commodity as held by the High Court. Having carefully gone through the judgment, particularly the observations in para 7 thereof, we are convinced that in so far as `properzi redraw rods are concerned, a distinction has been drawn by this Court between `properzi redraw rods and other aluminium rolled products and extrusions and precisely for this reason, the issue was kept open to be re-examined by the Sales Tax Officer after further enquiry. As noted above, learned counsel for the Revenue candidly conceded before us that in so far as assessment year 1988-89 is concerned, after fresh enquiry, the Assessing Officer treated `properzi redraw rods as primary metal, classifiable under Entry 24. Admittedly, this decision of the Assessing Officer was not questioned by the higher authorities and thus, attained finality. Moreover, bearing in mind the fact that the same issue has now been re-opened in the case of HINDALCO, in respect of assessment years 2003-04 to 2006-07, we feel that expression of any opinion on the issue, at this juncture, would be prejudicial to the interest of either of the parties, particularly when HINDALCO is not before us. Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution.In the present case, as stated above, the basis for re-opening the assessment of the Dealer in respect of assessment year 1988-89, was the view taken by the Assessing Officer in the case of HINDALCO that `properzi redraw rods were not primary metal in terms of Entry 24. Therefore, subsequently when on remand by the High Court as affirmed by this Court, in HINDALCOs fresh assessment in respect of the said assessment year, the said product was held to be a `metal falling under Entry 24, the entire foundation for re-opening of the assessment vanished. Having accepted the view of the Assessing Officer in the case of HINDALCO, the Sales Tax Authorities in the State cannot be permitted to take a different stand in the case of the Dealer in respect of a similar item for the same assessment year.

1[ds]Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution.In the present case, as stated above, the basis forthe assessment of the Dealer in respect of assessment yearwas the view taken by the Assessing Officer in the case of HINDALCO that `properzi redraw rods were not primary metal in terms of Entry 24. Therefore, subsequently when on remand by the High Court as affirmed by this Court, in HINDALCOs fresh assessment in respect of the said assessment year, the said product was held to be a `metal falling under Entry 24, the entire foundation forof the assessment vanished. Having accepted the view of the Assessing Officer in the case of HINDALCO, the Sales Tax Authorities in the State cannot be permitted to take a different stand in the case of the Dealer in respect of a similar item for the same assessment year.

### 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: further enquiry. It is asserted that the said decision does not conclude the issue against the Dealer as pleaded on behalf of the Revenue. Learned counsel also points out that pursuant to the remand by the High Court in the case of HINDALCO, the Assessing Officer examined the entire issue afresh; by summoning the representatives of other manufacturers to understand the manufacturing process as also the commercial value, and then came to the conclusion that `properzi redraw rod is like an ingot - a form of primary metal and, therefore, falls in the category of metal and alloy, covered under Entry 24. According to the learned counsel, the assessment made in the case of HINDALCO on remand has attained finality. It is, thus, pleaded that since the item, viz. `properzi redraw rod manufactured by the Dealer and HINDALCO are similar, the Revenue cannot treat two dealers differently for the purpose of levying sales tax under the Regional Act as well as the Central Act. Learned counsel appearing on behalf of the Revenue, on the other hand, supported the decision of the High Court and submitted that `properzi redraw rods are manufactured from aluminium ingots and billets; being commercially different commodities, the same cannot be considered as primary metal and, therefore, these have been correctly taxed in the category of unclassified item. Learned counsel urged that after this Court had passed order on 2nd December, 2009, directing the Revenue to disclose its stand with regard to the assessment in the case of HINDALCO, assessments in the case of the said company in respect of assessment years 2003-04 to 2006-07 have been re-opened under Section 21(2) of the U.P. Act and, therefore, the plea of discrimination is not available to the Dealer. It is, however, conceded that in so far as assessment in the case of HINDALCO for the assessment year 1988-89 is concerned, it has attained finality and cannot be re-opened. The questions falling for consideration are: (i) whether the aluminium `properzi redraw rods can be classified as metal under Entry 24 of the aforementioned Notification dated 30th September, 1983 and (ii) when admittedly, the foundation for re-opening Dealers assessment in respect of assessment year 1988-89 was the assessment in the case of HINDALCO, in which case, after the remand by the High Court, assessment for that year has attained finality, can the Revenue be permitted to take a different view in the case of the Dealer from that taken in the case of HINDALCO in respect of the same assessment year? In so far as the first question is concerned, we are of the opinion that in the light of the decision of this Court in Hindustan Aluminium Company Ltd . (supra) wherein, while examining the question whether aluminium rolled products and extrusions could be described as `Metal under Item No.6 (as it then existed) in the Schedule attached with the U.P. Act which is materially similar to Entry 24, this Court has observed that expression `Metal has been generally employed to refer to the metal in its primary sense, i.e. the metal in the form in which it is marketable as a primary commodity, it is unnecessary for us to delve deep into the issue. The only question for our consideration is whether the said decision conclusively holds that `properzi redraw rods are not `metal in the primary form as such constituting new commercial commodity as held by the High Court. Having carefully gone through the judgment, particularly the observations in para 7 thereof, we are convinced that in so far as `properzi redraw rods are concerned, a distinction has been drawn by this Court between `properzi redraw rods and other aluminium rolled products and extrusions and precisely for this reason, the issue was kept open to be re-examined by the Sales Tax Officer after further enquiry. As noted above, learned counsel for the Revenue candidly conceded before us that in so far as assessment year 1988-89 is concerned, after fresh enquiry, the Assessing Officer treated `properzi redraw rods as primary metal, classifiable under Entry 24. Admittedly, this decision of the Assessing Officer was not questioned by the higher authorities and thus, attained finality. Moreover, bearing in mind the fact that the same issue has now been re-opened in the case of HINDALCO, in respect of assessment years 2003-04 to 2006-07, we feel that expression of any opinion on the issue, at this juncture, would be prejudicial to the interest of either of the parties, particularly when HINDALCO is not before us. Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution.In the present case, as stated above, the basis for re-opening the assessment of the Dealer in respect of assessment year 1988-89, was the view taken by the Assessing Officer in the case of HINDALCO that `properzi redraw rods were not primary metal in terms of Entry 24. Therefore, subsequently when on remand by the High Court as affirmed by this Court, in HINDALCOs fresh assessment in respect of the said assessment year, the said product was held to be a `metal falling under Entry 24, the entire foundation for re-opening of the assessment vanished. Having accepted the view of the Assessing Officer in the case of HINDALCO, the Sales Tax Authorities in the State cannot be permitted to take a different stand in the case of the Dealer in respect of a similar item for the same assessment year. ### Response: 1 ### Explanation: Now, coming to the second issue, it is trite that in view of the inherent complexity of fiscal adjustment of diverse elements, a wider discretion is given to the Revenue for the purpose of taxation and ordinarily different interpretations of a particular tariff entry by different authorities as such cannot be assailed as violative of Article 14 of the Constitution. Nonetheless, in our opinion, two different interpretations of a particular entry by the same authority on same set of facts, cannot be immunised from the equality clause under Article 14 of the Constitution. It would be a case of operating law unequally, attracting Article 14 of the Constitution.In the present case, as stated above, the basis forthe assessment of the Dealer in respect of assessment yearwas the view taken by the Assessing Officer in the case of HINDALCO that `properzi redraw rods were not primary metal in terms of Entry 24. Therefore, subsequently when on remand by the High Court as affirmed by this Court, in HINDALCOs fresh assessment in respect of the said assessment year, the said product was held to be a `metal falling under Entry 24, the entire foundation forof the assessment vanished. Having accepted the view of the Assessing Officer in the case of HINDALCO, the Sales Tax Authorities in the State cannot be permitted to take a different stand in the case of the Dealer in respect of a similar item for the same assessment year.

Tamil Nadu Electricity Board Vs. M/S.Rasipuram Textile (P) Ltd

(1) of section 24; or (b) lays, or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee, (***); or (c) maliciously injures any meter referred to in section 26,sub-section(1) or any meter, indicator or apparatus referred to in section 26,sub-section (7) or willfully or fraudulently alters the index of any such meter, indicator or apparatus, or prevents any such meter, indicator or apparatus from duly registering; or (d) improperly uses the energy of a licensee. [shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both], and , in the case of a continuing offence, with a daily fine which may extend to [fifty] rupees and[ if it is proved that any artificial means exists] for making such connection as is referred to in clause(a) (or such re-connection as is referred to in clause(aa)] or such communication as is referred to in clause(b) or for causing such alteration or prevention as is referred to in clause (c) or for facilitating such improper use as is referred to in clause (d) (and that) the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not [ it shall be presumed, until the contrary is proved] [that such connection, reconnection, communication], alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer." 12. Section 49A which was inserted by Act 32 of 1959 provides for offence by companies. It reads as under: "49A Offence by companies- (1) If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: PROVIDED that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purposes of this section- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm, means a partner in the firm." 13. In terms of the aforesaid provision, therefore, it was obligatory on the part of the complainant not only to make requisite averments in the complaint petition but also to prove that any of the Directors who had been prosecuted for alleged commission of the aforementioned offence was incharge of and was otherwise responsible for the conduct or the affairs of the Company. 14. We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect. Learned trial Judge has misconstrued and misinterpreted the provisions of Section 49A of the Act. 15. In terms of Sub-section (1) of Section 49A, it is for the complainant to prove that the Director of the Company at the time when the theft was committed was in charge of and/or was responsible for the conduct of its business. Only in the event such an averment is made and sufficient and cogent evidence is brought on record to prove the said allegations, the proviso appended to Section 49 A would be attracted; meaning thereby only in the event it is proved that a Director or a Group of Directors of the Company were in charge of and/or were responsible for the conduct of the business of the company, the burden would shift on the accused to establish the ingredients contained in the proviso appended to Section 49A of the Act. 16 Learned Additional Sessions Judge as well as the High Court, in our opinion, therefore, were right in holding that in the absence of any averment made in the complaint petition as also in the absence of any evidence brought on record by the complainant to satisfy the requirements of Section 49A of the Act, the respondents could not have been convicted. 17 This aspect of the matter has been considered by a series of decisions of this Court including S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. - (2005) 8 SCC 89. Following the said decision this Court in K.Srikanth Singh Vs. North East Securities Ltd. and Anr. -(2007) 12 SCC 788 in a case arising under Section 138 of the Negotiable Instrument Act, held as under: " 4. It is not in dispute that for showing a vicarious liability of a Director of a company upon the complaint it is incumbent to plead that the accused was responsible to the company for the conduct of the business of the company. No such allegation having been made in the complaint petition, in our opinion, the High Court was not correct in passing the impugned judgment. The allegation contained in the complaint petition was that all the accused Directors, participated in the negotiations for obtaining financial help for Accused 1, which in our opinion, would not give rise to an inference that the appellant was responsible for day-today affairs of the company....." See: Saroj Kumar Poddar Vs. State (NCT of Delhi)- (2007)3 SCC 693 Average Advertising Pvt. Ltd. Vs. State, Govt. of N.C.T. & Ors. - (2007) 5 SCC 54. 18. For the reasons aforementioned, there

0[ds]We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect. Learned trial Judge has misconstrued and misinterpreted the provisions of Section 49A of the ActIn terms of Sub-section (1) of Section 49A, it is for the complainant to prove that the Director of the Company at the time when the theft was committed was in charge of and/or was responsible for the conduct of its business. Only in the event such an averment is made and sufficient and cogent evidence is brought on record to prove the said allegations, the proviso appended to Section 49 A would be attracted; meaning thereby only in the event it is proved that a Director or a Group of Directors of the Company were in charge of and/or were responsible for the conduct of the business of the company, the burden would shift on the accused to establish the ingredients contained in the proviso appended to Section 49A of the ActLearned Additional Sessions Judge as well as the High Court, in our opinion, therefore, were right in holding that in the absence of any averment made in the complaint petition as also in the absence of any evidence brought on record by the complainant to satisfy the requirements of Section 49A of the Act, the respondents could not have been convicted.

### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: (1) of section 24; or (b) lays, or causes to be laid, or connects up any works for the purpose of communicating with any other works belonging to a licensee, (***); or (c) maliciously injures any meter referred to in section 26,sub-section(1) or any meter, indicator or apparatus referred to in section 26,sub-section (7) or willfully or fraudulently alters the index of any such meter, indicator or apparatus, or prevents any such meter, indicator or apparatus from duly registering; or (d) improperly uses the energy of a licensee. [shall be punishable with imprisonment for a term which may extend to three years, or with fine which may extend to five thousand rupees, or with both], and , in the case of a continuing offence, with a daily fine which may extend to [fifty] rupees and[ if it is proved that any artificial means exists] for making such connection as is referred to in clause(a) (or such re-connection as is referred to in clause(aa)] or such communication as is referred to in clause(b) or for causing such alteration or prevention as is referred to in clause (c) or for facilitating such improper use as is referred to in clause (d) (and that) the meter, indicator or apparatus is under the custody or control of the consumer, whether it is his property or not [ it shall be presumed, until the contrary is proved] [that such connection, reconnection, communication], alteration, prevention or improper use, as the case may be, has been knowingly and willfully caused by such consumer." 12. Section 49A which was inserted by Act 32 of 1959 provides for offence by companies. It reads as under: "49A Offence by companies- (1) If the person committing an offence under this Act is a company, every person who at the time the offence was committed was in charge of, and was responsible to the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: PROVIDED that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in sub-section (1), where an offence under this Act has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director or manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation- For the purposes of this section- (a) "company" means any body corporate and includes a firm or other association of individuals; and (b) "director" in relation to a firm, means a partner in the firm." 13. In terms of the aforesaid provision, therefore, it was obligatory on the part of the complainant not only to make requisite averments in the complaint petition but also to prove that any of the Directors who had been prosecuted for alleged commission of the aforementioned offence was incharge of and was otherwise responsible for the conduct or the affairs of the Company. 14. We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect. Learned trial Judge has misconstrued and misinterpreted the provisions of Section 49A of the Act. 15. In terms of Sub-section (1) of Section 49A, it is for the complainant to prove that the Director of the Company at the time when the theft was committed was in charge of and/or was responsible for the conduct of its business. Only in the event such an averment is made and sufficient and cogent evidence is brought on record to prove the said allegations, the proviso appended to Section 49 A would be attracted; meaning thereby only in the event it is proved that a Director or a Group of Directors of the Company were in charge of and/or were responsible for the conduct of the business of the company, the burden would shift on the accused to establish the ingredients contained in the proviso appended to Section 49A of the Act. 16 Learned Additional Sessions Judge as well as the High Court, in our opinion, therefore, were right in holding that in the absence of any averment made in the complaint petition as also in the absence of any evidence brought on record by the complainant to satisfy the requirements of Section 49A of the Act, the respondents could not have been convicted. 17 This aspect of the matter has been considered by a series of decisions of this Court including S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & Anr. - (2005) 8 SCC 89. Following the said decision this Court in K.Srikanth Singh Vs. North East Securities Ltd. and Anr. -(2007) 12 SCC 788 in a case arising under Section 138 of the Negotiable Instrument Act, held as under: " 4. It is not in dispute that for showing a vicarious liability of a Director of a company upon the complaint it is incumbent to plead that the accused was responsible to the company for the conduct of the business of the company. No such allegation having been made in the complaint petition, in our opinion, the High Court was not correct in passing the impugned judgment. The allegation contained in the complaint petition was that all the accused Directors, participated in the negotiations for obtaining financial help for Accused 1, which in our opinion, would not give rise to an inference that the appellant was responsible for day-today affairs of the company....." See: Saroj Kumar Poddar Vs. State (NCT of Delhi)- (2007)3 SCC 693 Average Advertising Pvt. Ltd. Vs. State, Govt. of N.C.T. & Ors. - (2007) 5 SCC 54. 18. For the reasons aforementioned, there ### Response: 0 ### Explanation: We have noticed hereinbefore that how the learned trial Judge has dealt with the entire aspect. Learned trial Judge has misconstrued and misinterpreted the provisions of Section 49A of the ActIn terms of Sub-section (1) of Section 49A, it is for the complainant to prove that the Director of the Company at the time when the theft was committed was in charge of and/or was responsible for the conduct of its business. Only in the event such an averment is made and sufficient and cogent evidence is brought on record to prove the said allegations, the proviso appended to Section 49 A would be attracted; meaning thereby only in the event it is proved that a Director or a Group of Directors of the Company were in charge of and/or were responsible for the conduct of the business of the company, the burden would shift on the accused to establish the ingredients contained in the proviso appended to Section 49A of the ActLearned Additional Sessions Judge as well as the High Court, in our opinion, therefore, were right in holding that in the absence of any averment made in the complaint petition as also in the absence of any evidence brought on record by the complainant to satisfy the requirements of Section 49A of the Act, the respondents could not have been convicted.

M/s Ambience Infrastructure Private Limited (Now known as) Ambience Developers and Infrastructure Pvt Ltd and Another Vs. Ambience Island Apartment Owners and Others

1. These appeals are from an order of the National Consumer Disputes Redressal Commission dated 3 November 2015. The order of the NCDRC is in execution proceedings arising out of an original judgment and order dated 19 March 2014 in Consumer Case No 93 of 2004. By its order dated 19 March 2014, the NCDRC directed the appellants to pay 70% of the maintenance charges from November 2002 with interest at 9 % per annum within 90 days or else pay at an enhanced rate of 12 % per annum. 2. The order of the NCDRC was challenged before this Court in a civil appeal which was dismissed on 29 August 2014. An execution proceeding was initiated before the NCDRC which has resulted in an order dated 3 November 2015. The NCDRC has, by its order, come to the conclusion that under the original order the decretal amount would cover sixty-six persons and that the appellants are liable to pay seventy per cent of the total maintenance charges. 3. The grievance of the appellants is that since the complaint before the NCDRC pertained only to the deficiency in service as regards the provision of lifts, the order of the NCDRC directing the payment of seventy per cent of the total maintenance amount (as opposed to seventy percent of the maintenance charges collected for lifts) is contrary to the tenor of the complaint and the original order. 4. A preliminary objection has been raised in the counter affidavit to the maintainability of the appeals. 5. Section 23 of the Consumer Protection Act 1986 provides as follows: 23 Appeal.- Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by subclause (i) of clause (a) section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in prescribed manner fifty per cent of that amount or fifty thousand rupees, whichever is less. 6. An appeal under Section 23 lies against an order which is passed by the NCDRC in exercise of its jurisdiction under Section 21(a)(i). Section 21(a)(i) provides as follows: 21. Jurisdiction of the National Commission.- Subject to the other provisions of this Act, the National Commission shall have jurisdiction-(a) to entertain- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore]; 7. From the above provision, it is evident that an appeal under Section 23 is maintainable against an order which has been passed by the NCDRC on a complaint where the value of the goods or services and compensation, if any, claimed, exceeds the threshold which is prescribed. 8. In a recent judgment in Karnataka Housing Board vs K.A. Nagamani (2019) 6 SCC 424 , this Court made a distinction between execution proceedings and original proceedings and held that the former are separate and independent. In our view, having regard to Section 23 of the Consumer Protection Act 1986, an appeal will not lie to this court against an order which has been passed in the course of execution proceedings. The appeals are hence dismissed as not being maintainable. 9. Ms Kamini Jaiswal, learned counsel appearing on behalf of the respondents has submitted that the objections which were raised on behalf of the appellants in the course of the execution proceedings before the NCDRC were without any merit having regard to the fact that the same objections to the original order of the NCDRC were raised in the proceedings in review as well as in the civil appeal which was filed before and dismissed by this Court. Ms Jaiswal has submitted that since a review and the civil appeal against the original order have been dismissed, similar objections could not have been raised in the course of execution proceedings.

0[ds]7. From the above provision, it is evident that an appeal under Section 23 is maintainable against an order which has been passed by the NCDRC on a complaint where the value of the goods or services and compensation, if any, claimed, exceeds the threshold which is prescribed.8. In a recent judgment in Karnataka Housing Board vs K.A. Nagamani (2019) 6 SCC 424 , this Court made a distinction between execution proceedings and original proceedings and held that the former are separate and independent. In our view, having regard to Section 23 of the Consumer Protection Act 1986, an appeal will not lie to this court against an order which has been passed in the course of execution proceedings. The appeals are hence dismissed as not being maintainable.

### 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: 1. These appeals are from an order of the National Consumer Disputes Redressal Commission dated 3 November 2015. The order of the NCDRC is in execution proceedings arising out of an original judgment and order dated 19 March 2014 in Consumer Case No 93 of 2004. By its order dated 19 March 2014, the NCDRC directed the appellants to pay 70% of the maintenance charges from November 2002 with interest at 9 % per annum within 90 days or else pay at an enhanced rate of 12 % per annum. 2. The order of the NCDRC was challenged before this Court in a civil appeal which was dismissed on 29 August 2014. An execution proceeding was initiated before the NCDRC which has resulted in an order dated 3 November 2015. The NCDRC has, by its order, come to the conclusion that under the original order the decretal amount would cover sixty-six persons and that the appellants are liable to pay seventy per cent of the total maintenance charges. 3. The grievance of the appellants is that since the complaint before the NCDRC pertained only to the deficiency in service as regards the provision of lifts, the order of the NCDRC directing the payment of seventy per cent of the total maintenance amount (as opposed to seventy percent of the maintenance charges collected for lifts) is contrary to the tenor of the complaint and the original order. 4. A preliminary objection has been raised in the counter affidavit to the maintainability of the appeals. 5. Section 23 of the Consumer Protection Act 1986 provides as follows: 23 Appeal.- Any person, aggrieved by an order made by the National Commission in exercise of its powers conferred by subclause (i) of clause (a) section 21, may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order: Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period: Provided further that no appeal by a person who is required to pay any amount in terms of an order of the National Commission shall be entertained by the Supreme Court unless that person has deposited in prescribed manner fifty per cent of that amount or fifty thousand rupees, whichever is less. 6. An appeal under Section 23 lies against an order which is passed by the NCDRC in exercise of its jurisdiction under Section 21(a)(i). Section 21(a)(i) provides as follows: 21. Jurisdiction of the National Commission.- Subject to the other provisions of this Act, the National Commission shall have jurisdiction-(a) to entertain- (i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees one crore]; 7. From the above provision, it is evident that an appeal under Section 23 is maintainable against an order which has been passed by the NCDRC on a complaint where the value of the goods or services and compensation, if any, claimed, exceeds the threshold which is prescribed. 8. In a recent judgment in Karnataka Housing Board vs K.A. Nagamani (2019) 6 SCC 424 , this Court made a distinction between execution proceedings and original proceedings and held that the former are separate and independent. In our view, having regard to Section 23 of the Consumer Protection Act 1986, an appeal will not lie to this court against an order which has been passed in the course of execution proceedings. The appeals are hence dismissed as not being maintainable. 9. Ms Kamini Jaiswal, learned counsel appearing on behalf of the respondents has submitted that the objections which were raised on behalf of the appellants in the course of the execution proceedings before the NCDRC were without any merit having regard to the fact that the same objections to the original order of the NCDRC were raised in the proceedings in review as well as in the civil appeal which was filed before and dismissed by this Court. Ms Jaiswal has submitted that since a review and the civil appeal against the original order have been dismissed, similar objections could not have been raised in the course of execution proceedings. ### Response: 0 ### Explanation: 7. From the above provision, it is evident that an appeal under Section 23 is maintainable against an order which has been passed by the NCDRC on a complaint where the value of the goods or services and compensation, if any, claimed, exceeds the threshold which is prescribed.8. In a recent judgment in Karnataka Housing Board vs K.A. Nagamani (2019) 6 SCC 424 , this Court made a distinction between execution proceedings and original proceedings and held that the former are separate and independent. In our view, having regard to Section 23 of the Consumer Protection Act 1986, an appeal will not lie to this court against an order which has been passed in the course of execution proceedings. The appeals are hence dismissed as not being maintainable.

Commissioner,Delhi Value Added Tax Vs. M/S Abb Ltd

Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within Section 5(2) of the Act, and are, therefore, exempt from taxation." 12. For analysing the main contention advanced on behalf of the appellant that the present case is identical to that of the assessee in the case of Binani Bros. (supra), we have examined the facts of Binani Bros. (supra) with meticulous care. In para 13 of that judgment the most peculiar and conspicuous aspect of K.G. Khosla case (supra) was noticed and highlighted that "under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India." In the same paragraph it was further highlighted with the help of a quotation from K.G. Khosla case (supra) that movement of goods imported to India was in pursuance of the conditions of the contract between the assessee and the Director General of Supplies. There was no possibility of such goods being used by the assessee for any other purpose. In the next paragraph of the Report the peculiar facts of Binani Bros. (supra) were highlighted in the following words, "..... the sale by the petitioner to the DGS&D did not occasion the import. It was purchase made by the petitioner from the foreign sellers which occasioned the import of the goods". In paragraph 16 it was further pointed out that there was no obligation on the DGS&D to procure import licences for the petitioner. 13. There is no difficulty in holding that Binani Bros. (supra) did not differ with the earlier judgment of a Constitution Bench in the case of K.G. Khosla (supra). A careful analysis of the facts in Binani Bros. (supra) leads to a conclusion that the case of West Bengal Sales Tax authorities in that matter that there were two sales involved in the transactions in question, one by the foreign seller to the assessee and the second by the assessee to the DGS&D, because there was no privity of contract between the DGS&D and the foreign sellers, was accepted mainly because the assessee was found entitled to supply the goods to any person, even other than DGS&D because there was no specification of the goods in such a way as to render it useable only by the DGS&D. This was coupled with the fact that the latter had imposed no obligation on the assessee to supply the goods only to itself. Further, there were no obligations of testing and approving the goods during the course of manufacture or for that matter, even at a later stage with a right of rejection. Such a right of rejecting the specific goods in the present case is identical to the similar right in respect of goods in K.G. Khosla case (supra). Hence we are unable to accept the main contention of the appellant that this case is similar to that of Binani Bros (supra). To the contrary, we agree with the reasonings of the High Court for coming to the view that the present case is fit to be governed by the ratio laid down in K.G. Khoslas case (supra). 14. The legal principles enunciated in K.G. Khosla (supra) have been reiterated in State of Maharashtra v. Embee Corporation, Bombay, 1997 (7) SCC 190 and stand supported by the judgment in the case of Deputy Commissioner of Agricultural Income Tax and Sales Tax, Ernakulam v. Indian Explosives Ltd., 1985 (4) SCC 119 , as well as in Indure Ltd. and Anr. v. CTO & Ors., 2010 (9) SCC 461. In these cases, sale in course of imports was accepted without requiring privity of contract between the foreign supplier and the ultimate consumer in India. 15. The aforesaid conclusion leading to our concurrence with the views of the High Court is also based upon the salient facts, particularly the various conditions in the contract and other related covenants between DMRC and the respondent which have been spelt out in paragraph 31 of the High Court judgment, enumerated and described as follows : "(1) Specifications were spelt out by DMRC;(2) Suppliers of the goods were approved by the DMRC;(3) Pre-inspection of goods was mandated;(4) The goods were custom made, for use by DMRC in its project;(5) Excise duty and Customs duty exemptions were given, specifically to the goods, because of a perceived public interest, and its need by DMRC;(6) The Project Authority Certificate issued by DMRC the name of the subcontractors as well as the equipment/goods to be supplied by them were expressly stipulated;(7) DMRC issued a Certificate certifying its approval of foreign suppliers located in Italy, Germany, Korea etc. from whom the goods were to be procured.(8) Packed goods were especially marked as meant for DMRCs use in its project." 16. Before us there was no attempt to assail the aforesaid features and to even remotely suggest any factual error on the part of the High Court in noting those features.17. The salient features flowing out as conditions in the contract and the entire conspectus of law on the issues as notice earlier, leave us with no option but to hold that the movement of goods by way of imports or by way of inter-state trade in this case was in pursuance of the conditions and/or as an incident of the contract between the assessee and DMRC. The goods were of specific quality and description for being used in the works contract awarded on turn key basis to the assessee and there was no possibility of such goods being diverted by the assessee for any other purpose. Hence the law laid down in K.G. Khoslas (supra) case has rightly been applied to this case by the High Court. We find no reasons to take a different view.

0[ds]11. A Constitution Bench of this Court had the occasion to consider in the case of M/s. K.G. Khosla & Co. (supra) whether sales in that case were in the course of imports. The assessee in that case had a contract with the Director General of Supplies, New Delhi for supply of axle bodies manufactured by its principals in Belgium. Although goods were inspected in Belgium also but under the contract they could be rejected on further inspection in India. After supplying the goods the assessee claimed the sales to be in course of import. After losing up to High Court, the assessee succeeded before the Supreme Court. The Constitution Bench held that Section 5(2) of the CST Act does not prescribe any condition that before the sale could be said to have occasioned import, it is necessary that the sale should precede the import. The sale is only required to be incidental to the contract. In other words the movement of goods from another country to India should be in pursuance of the conditions of the contract. The incident was held to be import of goods within Section 5(2) on the reasoning that the entire transaction was an integrated one by which a foreign seller through its Indian agent namely the assessee sold the goods to Indian purchaser namely the Director General of Civilagree with the reasonings of the High Court for coming to the view that the present case is fit to be governed by the ratio laid down in K.G. Khoslas caseconcurrence with the views of the High Court is also based upon the salient facts, particularly the various conditions in the contract and other related covenants between DMRC and the respondent which have been spelt out in paragraph 31 of the High Court judgment, enumerated and described as followsSpecifications were spelt out by DMRC;(2) Suppliers of the goods were approved by the DMRC;(3) Pre-inspection of goods was mandated;(4) The goods were custom made, for use by DMRC in its project;(5) Excise duty and Customs duty exemptions were given, specifically to the goods, because of a perceived public interest, and its need by DMRC;(6) The Project Authority Certificate issued by DMRC the name of the subcontractors as well as the equipment/goods to be supplied by them were expressly stipulated;(7) DMRC issued a Certificate certifying its approval of foreign suppliers located in Italy, Germany, Korea etc. from whom the goods were to be procured.(8) Packed goods were especially marked as meant for DMRCs use in its project.Before us there was no attempt to assail the aforesaid features and to even remotely suggest any factual error on the part of the High Court in noting those features.17. The salient features flowing out as conditions in the contract and the entire conspectus of law on the issues as notice earlier, leave us with no option but to hold that the movement of goods by way of imports or by way of inter-state trade in this case was in pursuance of the conditions and/or as an incident of the contract between the assessee and DMRC. The goods were of specific quality and description for being used in the works contract awarded on turn key basis to the assessee and there was no possibility of such goods being diverted by the assessee for any other purpose. Hence the law laid down in K.G. Khoslas (supra) case has rightly been applied to this case by the High Court. We find no reasons to take a different view.

### 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: Movement of goods from Belgium to India was in pursuance of the conditions of the contract between the assessee and the Director-General of Supplies. There was no possibility of these goods being diverted by the assessee for any other purpose. Consequently we hold that the sales took place in the course of import of goods within Section 5(2) of the Act, and are, therefore, exempt from taxation." 12. For analysing the main contention advanced on behalf of the appellant that the present case is identical to that of the assessee in the case of Binani Bros. (supra), we have examined the facts of Binani Bros. (supra) with meticulous care. In para 13 of that judgment the most peculiar and conspicuous aspect of K.G. Khosla case (supra) was noticed and highlighted that "under the contract of sale the goods were liable to be rejected after a further inspection by the buyer in India." In the same paragraph it was further highlighted with the help of a quotation from K.G. Khosla case (supra) that movement of goods imported to India was in pursuance of the conditions of the contract between the assessee and the Director General of Supplies. There was no possibility of such goods being used by the assessee for any other purpose. In the next paragraph of the Report the peculiar facts of Binani Bros. (supra) were highlighted in the following words, "..... the sale by the petitioner to the DGS&D did not occasion the import. It was purchase made by the petitioner from the foreign sellers which occasioned the import of the goods". In paragraph 16 it was further pointed out that there was no obligation on the DGS&D to procure import licences for the petitioner. 13. There is no difficulty in holding that Binani Bros. (supra) did not differ with the earlier judgment of a Constitution Bench in the case of K.G. Khosla (supra). A careful analysis of the facts in Binani Bros. (supra) leads to a conclusion that the case of West Bengal Sales Tax authorities in that matter that there were two sales involved in the transactions in question, one by the foreign seller to the assessee and the second by the assessee to the DGS&D, because there was no privity of contract between the DGS&D and the foreign sellers, was accepted mainly because the assessee was found entitled to supply the goods to any person, even other than DGS&D because there was no specification of the goods in such a way as to render it useable only by the DGS&D. This was coupled with the fact that the latter had imposed no obligation on the assessee to supply the goods only to itself. Further, there were no obligations of testing and approving the goods during the course of manufacture or for that matter, even at a later stage with a right of rejection. Such a right of rejecting the specific goods in the present case is identical to the similar right in respect of goods in K.G. Khosla case (supra). Hence we are unable to accept the main contention of the appellant that this case is similar to that of Binani Bros (supra). To the contrary, we agree with the reasonings of the High Court for coming to the view that the present case is fit to be governed by the ratio laid down in K.G. Khoslas case (supra). 14. The legal principles enunciated in K.G. Khosla (supra) have been reiterated in State of Maharashtra v. Embee Corporation, Bombay, 1997 (7) SCC 190 and stand supported by the judgment in the case of Deputy Commissioner of Agricultural Income Tax and Sales Tax, Ernakulam v. Indian Explosives Ltd., 1985 (4) SCC 119 , as well as in Indure Ltd. and Anr. v. CTO & Ors., 2010 (9) SCC 461. In these cases, sale in course of imports was accepted without requiring privity of contract between the foreign supplier and the ultimate consumer in India. 15. The aforesaid conclusion leading to our concurrence with the views of the High Court is also based upon the salient facts, particularly the various conditions in the contract and other related covenants between DMRC and the respondent which have been spelt out in paragraph 31 of the High Court judgment, enumerated and described as follows : "(1) Specifications were spelt out by DMRC;(2) Suppliers of the goods were approved by the DMRC;(3) Pre-inspection of goods was mandated;(4) The goods were custom made, for use by DMRC in its project;(5) Excise duty and Customs duty exemptions were given, specifically to the goods, because of a perceived public interest, and its need by DMRC;(6) The Project Authority Certificate issued by DMRC the name of the subcontractors as well as the equipment/goods to be supplied by them were expressly stipulated;(7) DMRC issued a Certificate certifying its approval of foreign suppliers located in Italy, Germany, Korea etc. from whom the goods were to be procured.(8) Packed goods were especially marked as meant for DMRCs use in its project." 16. Before us there was no attempt to assail the aforesaid features and to even remotely suggest any factual error on the part of the High Court in noting those features.17. The salient features flowing out as conditions in the contract and the entire conspectus of law on the issues as notice earlier, leave us with no option but to hold that the movement of goods by way of imports or by way of inter-state trade in this case was in pursuance of the conditions and/or as an incident of the contract between the assessee and DMRC. The goods were of specific quality and description for being used in the works contract awarded on turn key basis to the assessee and there was no possibility of such goods being diverted by the assessee for any other purpose. Hence the law laid down in K.G. Khoslas (supra) case has rightly been applied to this case by the High Court. We find no reasons to take a different view. ### Response: 0 ### Explanation: 11. A Constitution Bench of this Court had the occasion to consider in the case of M/s. K.G. Khosla & Co. (supra) whether sales in that case were in the course of imports. The assessee in that case had a contract with the Director General of Supplies, New Delhi for supply of axle bodies manufactured by its principals in Belgium. Although goods were inspected in Belgium also but under the contract they could be rejected on further inspection in India. After supplying the goods the assessee claimed the sales to be in course of import. After losing up to High Court, the assessee succeeded before the Supreme Court. The Constitution Bench held that Section 5(2) of the CST Act does not prescribe any condition that before the sale could be said to have occasioned import, it is necessary that the sale should precede the import. The sale is only required to be incidental to the contract. In other words the movement of goods from another country to India should be in pursuance of the conditions of the contract. The incident was held to be import of goods within Section 5(2) on the reasoning that the entire transaction was an integrated one by which a foreign seller through its Indian agent namely the assessee sold the goods to Indian purchaser namely the Director General of Civilagree with the reasonings of the High Court for coming to the view that the present case is fit to be governed by the ratio laid down in K.G. Khoslas caseconcurrence with the views of the High Court is also based upon the salient facts, particularly the various conditions in the contract and other related covenants between DMRC and the respondent which have been spelt out in paragraph 31 of the High Court judgment, enumerated and described as followsSpecifications were spelt out by DMRC;(2) Suppliers of the goods were approved by the DMRC;(3) Pre-inspection of goods was mandated;(4) The goods were custom made, for use by DMRC in its project;(5) Excise duty and Customs duty exemptions were given, specifically to the goods, because of a perceived public interest, and its need by DMRC;(6) The Project Authority Certificate issued by DMRC the name of the subcontractors as well as the equipment/goods to be supplied by them were expressly stipulated;(7) DMRC issued a Certificate certifying its approval of foreign suppliers located in Italy, Germany, Korea etc. from whom the goods were to be procured.(8) Packed goods were especially marked as meant for DMRCs use in its project.Before us there was no attempt to assail the aforesaid features and to even remotely suggest any factual error on the part of the High Court in noting those features.17. The salient features flowing out as conditions in the contract and the entire conspectus of law on the issues as notice earlier, leave us with no option but to hold that the movement of goods by way of imports or by way of inter-state trade in this case was in pursuance of the conditions and/or as an incident of the contract between the assessee and DMRC. The goods were of specific quality and description for being used in the works contract awarded on turn key basis to the assessee and there was no possibility of such goods being diverted by the assessee for any other purpose. Hence the law laid down in K.G. Khoslas (supra) case has rightly been applied to this case by the High Court. We find no reasons to take a different view.

Vikram Singh @ Vicky & Another Vs. Union of India & Others

must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable”. 49. To sum up: (a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.(b) Prescribing punishments is the function of the legislature and not the Courts’.(c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs.(d) Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.(e) Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.(f) Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult.(g) Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.(h) In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate. 50. Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities. Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional. Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution. 51. It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the IPC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court. It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative.

0[ds]8. There is no gainsaying that in an appeal directed against an order of conviction and sentence, the appellant is entitled to urge all such contentions as are open to him in law and on facts.One of the contentions open to the aggrieved convict in such cases is that the provision under which he has been convicted has no application to his case or that the ingredients of the offence with which he has been charged are not established to justify his conviction. It follows that the contention that Section 364A was not attracted in the present case was open to the appellants and was in fact advanced on their behalf in the appeal filed by them. Not only that, the contention was examined and rejected. So long as that rejection holds the field, there is no room for this Court or any other court for that matter to take a contrary view. The writ petition filed by the appellants to the extent the same sought to urge that section 364A was not attracted to the case at hand was, thus, not maintainable in law.In the case at hand, the writ petition filed by the appellants under Article 32 of the Constitution of India was dismissed as withdrawn with liberty reserved to the appellants to approach the High Court. Even so, in the light of the pronouncement of this Court in Rupa Ashokcase (supra), if against a final judgment of this Court, a remedy was not available under Article 32 of the Constitution the same would also not be available under Article 226. If this Court could not take resort to Article 32 for reopening for examination its final judgement, the High Court could also not do so under Article 226. The only remedy which the appellants could resort to in terms of the view taken in Rupa Ashokcase (supra) is by invoking thisinherent powers under Articles 129 and 142 of the Constitution of India for recall, reversal or modification of the order passed by this Court in the criminal appeal filed by the appellants. A writ petition before the High Court for that relief was clearly untenable in law.11. Legal impediments in the choice of the remedy available to the appellants have not dissuaded the High Court from examining and answering the contentions sought to be raised on the merits of the case. We too propose to go into the merits of the contentions urged on behalf of the appellants, no matter it may not be necessary to do so in the light of what we have said about the maintainability of the proceedings brought by the appellants.appellants.12. Any attempt to properly understand the true scope and purport of Section 364A must, in our opinion, start with the historical background in which the provision came on the statute book. When we do so, we find that the proposal for addition of Section 364A to the Indian Penal Code was first modified by the Law Commission of India in its 42nd Report submitted in 1971.It is evident from the above that Section 364A came on the statute book initially in the year 1993 not only because kidnapping and abduction for ransom were becoming rampant and the Law Commission had recommended that a separate provision making the same punishable be incorporated but also because activities of terrorist organisations had acquired menacing dimensions that called for an effective legal framework to prevent such ransom situations and punish those responsible for the same. It is also manifest that the further amendment to Section 364A in the year 1994 simply added the expressionsstate or internationalto the provision without deleting theThe argument though attractive does not stand on closer scrutiny. The reasons are not far to seek. Section 364A has three distinct components viz. (i) the person concerned kidnaps or abducts or keeps the victim in detention after kidnapping or abduction; (ii) threatens to cause death or hurt or causes apprehension of death or hurt or actually hurts or causes death; and (iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 of the IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364A proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above. The argument that kidnapping or abduction for ransom was effectively covered under the existing provisions of the IPC must, therefore,rule of ejusdem generis is a rule of construction and not a rule of law. Courts have to be very careful in applying the rule while interpreting statutory provisions. Having said that the rule applies in situations where specific words forming a distinct genus class or category are followed by general words. The first stage of any forensic application of the rule, therefore, has to be to find out whether the preceding words constitute a genus class or category so that the general words that follow them can be given the same colour as the words preceding. In cases where it is not possible to find the genus in the use of the words preceding the general words, the rule of ejusdem generis will have no application.Applying the above to the case at hand, we find that Section 364A added to the IPC made use of only two expressions viz.or ‘any otherThe Parliament did not use multiple expressions in the provision constituting a distinct genus class or category. It used only one single expression viz.which does not constitute a genus, even when it may be a specie.On behalf of the respondents, it was argued thatcase (supra) was clearly distinguishable inasmuch as the Court was in that case dealing with Section 303 IPC which did not leave any option for the Court except to award death sentence to a convict who while undergoing life imprisonment committed a murder. That is not the position in the case at hand where the Parliament has prescribed alternative sentences leaving it for the courts concerned to award what is considered suitable in the facts and circumstances of a given case. It was also submitted that there was nothing outrageous about the sentence provided under Section 364A, keeping in view the nature and gravity of the offence and the fact that kidnappings and abductions for ransom had assumed alarming dimensions in the country apart from the fact that terrorists were also using that method to achieve their nefarious ends. Similar sentences were prescribed for several offences under the IPC that were considered grave by the Parliament who represent the will of the people. There was at any rate no reason for this Court to go into the question of quantum of sentence after the matter had been thoroughly examined in the criminal appeal filed by the appellants including on the question of sentence to be awarded to them.The third principle recognised that divergences, both in underlying theories of sentencing and in the length of prescribed prison terms, is inevitable, because of the federal structure. The fourth principle shaped by the court was that proportionality review by federal courts must be informed by objective factors to the maximum possible extent. While saying so, the Court held that penalty of death differs from all other forms of criminal punishments and that the easiest comparison between different sentences is the comparison between capital punishment and non capital punishment. The decision also recognised that objective standards to distinguish between sentences for different terms of years are lacking with the result that outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare.Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment.It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the IPC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court. It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative.

### 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: must be “so excessive as to outrage standards of decency” and disproportionate to the extent that Canadians “would find the punishment abhorrent or intolerable”. 49. To sum up: (a) Punishments must be proportionate to the nature and gravity of the offences for which the same are prescribed.(b) Prescribing punishments is the function of the legislature and not the Courts’.(c) The legislature is presumed to be supremely wise and aware of the needs of the people and the measures that are necessary to meet those needs.(d) Courts show deference to the legislative will and wisdom and are slow in upsetting the enacted provisions dealing with the quantum of punishment prescribed for different offences.(e) Courts, however, have the jurisdiction to interfere when the punishment prescribed is so outrageously disproportionate to the offence or so inhuman or brutal that the same cannot be accepted by any standard of decency.(f) Absence of objective standards for determining the legality of the prescribed sentence makes the job of the Court reviewing the punishment difficult.(g) Courts cannot interfere with the prescribed punishment only because the punishment is perceived to be excessive.(h) In dealing with questions of proportionality of sentences, capital punishment is considered to be different in kind and degree from sentence of imprisonment. The result is that while there are several instances when capital punishment has been considered to be disproportionate to the offence committed, there are very few and rare cases of sentences of imprisonment being held disproportionate. 50. Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment. While those recommendations were pending with the government, the specter of terrorism started raising its head threatening not only the security and safety of the citizens but the very sovereignty and integrity of the country, calling for adequate measures to curb what has the potential of destabilizing any country. With terrorism assuming international dimensions, the need to further amend the law arose, resulting in the amendment to Section 364A, in the year 1994. The gradual growth of the challenges posed by kidnapping and abductions for ransom, not only by ordinary criminals for monetary gain or as an organized activity for economic gains but by terrorist organizations is what necessitated the incorporation of Section 364A of the IPC and a stringent punishment for those indulging in such activities. Given the background in which the law was enacted and the concern shown by the Parliament for the safety and security of the citizens and the unity, sovereignty and integrity of the country, the punishment prescribed for those committing any act contrary to Section 364A cannot be dubbed as so outrageously disproportionate to the nature of the offence as to call for the same being declared unconstitutional. Judicial discretion available to the Courts to choose one of the two sentences prescribed for those falling foul of Section 364A will doubtless be exercised by the Courts along judicially recognized lines and death sentences awarded only in the rarest of rare cases. But just because the sentence of death is a possible punishment that may be awarded in appropriate cases cannot make it per se inhuman or barbaric. In the ordinary course and in cases which qualify to be called rarest of the rare, death may be awarded only where kidnapping or abduction has resulted in the death either of the victim or anyone else in the course of the commission of the offence. Fact situations where the act which the accused is charged with is proved to be an act of terrorism threatening the very essence of our federal, secular and democratic structure may possibly be the only other situations where Courts may consider awarding the extreme penalty. But, short of death in such extreme and rarest of rare cases, imprisonment for life for a proved case of kidnapping or abduction will not qualify for being described as barbaric or inhuman so as to infringe the right to life guaranteed under Article 21 of the Constitution. 51. It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the IPC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court. It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative. ### Response: 0 ### Explanation: (iii) the kidnapping, abduction or detention and the threats of death or hurt, apprehension for such death or hurt or actual death or hurt is caused to coerce the person concerned or someone else to do something or to forbear from doing something or to pay ransom. These ingredients are, in our opinion, distinctly different from the offence of extortion under Section 383 of the IPC. The deficiency in the existing legal framework was noticed by the Law Commission and a separate provision in the form of Section 364A proposed for incorporation to cover the ransom situations embodying the ingredients mentioned above. The argument that kidnapping or abduction for ransom was effectively covered under the existing provisions of the IPC must, therefore,rule of ejusdem generis is a rule of construction and not a rule of law. Courts have to be very careful in applying the rule while interpreting statutory provisions. Having said that the rule applies in situations where specific words forming a distinct genus class or category are followed by general words. The first stage of any forensic application of the rule, therefore, has to be to find out whether the preceding words constitute a genus class or category so that the general words that follow them can be given the same colour as the words preceding. In cases where it is not possible to find the genus in the use of the words preceding the general words, the rule of ejusdem generis will have no application.Applying the above to the case at hand, we find that Section 364A added to the IPC made use of only two expressions viz.or ‘any otherThe Parliament did not use multiple expressions in the provision constituting a distinct genus class or category. It used only one single expression viz.which does not constitute a genus, even when it may be a specie.On behalf of the respondents, it was argued thatcase (supra) was clearly distinguishable inasmuch as the Court was in that case dealing with Section 303 IPC which did not leave any option for the Court except to award death sentence to a convict who while undergoing life imprisonment committed a murder. That is not the position in the case at hand where the Parliament has prescribed alternative sentences leaving it for the courts concerned to award what is considered suitable in the facts and circumstances of a given case. It was also submitted that there was nothing outrageous about the sentence provided under Section 364A, keeping in view the nature and gravity of the offence and the fact that kidnappings and abductions for ransom had assumed alarming dimensions in the country apart from the fact that terrorists were also using that method to achieve their nefarious ends. Similar sentences were prescribed for several offences under the IPC that were considered grave by the Parliament who represent the will of the people. There was at any rate no reason for this Court to go into the question of quantum of sentence after the matter had been thoroughly examined in the criminal appeal filed by the appellants including on the question of sentence to be awarded to them.The third principle recognised that divergences, both in underlying theories of sentencing and in the length of prescribed prison terms, is inevitable, because of the federal structure. The fourth principle shaped by the court was that proportionality review by federal courts must be informed by objective factors to the maximum possible extent. While saying so, the Court held that penalty of death differs from all other forms of criminal punishments and that the easiest comparison between different sentences is the comparison between capital punishment and non capital punishment. The decision also recognised that objective standards to distinguish between sentences for different terms of years are lacking with the result that outside the context of capital punishment, successful challenges to the proportionality of particular sentences are exceedingly rare.Applying the above to the case at hand, we find that the need to bring in Section 364A of the IPC arose initially because of the increasing incidence of kidnapping and abduction for ransom. This is evident from the recommendations made by the Law Commission to which we have made reference in the earlier part of this judgment.It was argued that in certain situations even imprisonment for life may be disproportionate to the gravity of the offence committed by the accused. Hypothetical situations are pressed into service to bring home the force of the contention. The question, however, is whether the Court can merely on a hypothetical situation strike down a provision disregarding the actual facts in which the challenge has been mounted. Our answer is in the negative. Assumed hypothetical situations cannot, in our opinion, be brought to bear upon the vires of Section 364A. The stark facts that have been held proved in the present case would at any rate take the case out of the purview of any such hypothetical situation. We say so because the appellants in the case at hand have been held guilty not only under Section 364A, but even for murder punishable under Section 302 of the IPC. Sentence of death awarded to them for both was considered to be just, fair and reasonable, even by the standards of rarest of rare cases, evolved and applied by this Court. It is not a case where the victim had escaped his fate and lived to tell his woeful tale. It is a case where he was done to death, which is what appears to have weighed with the ourts in awarding to the appellants the capital punishment. We are not in this round of litigation sitting in judgment over what has already attained finality. All that we are concerned with is whether the provisions of Section 364A in so far as the same prescribes death or life imprisonment is unconstitutional on account of the punishment being disproportionate to the gravity of the crime committed by the appellants. Our answer to that question is in the negative.

Sri Biswanath Banik & Anr Vs. Smt. Sulanga Bose & Ors

held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under:- 21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint. 7.1 From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint. 7.2 Applying the law laid down by this Court in the case of Ram Prakash Gupta (supra) to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. The necessary averments in the plaint on the cause of action are in paragraphs 6, 7 and 10, which read as under:- 6. That the aforesaid defendant now consequent upon the escalation of the land value of the area has been more aggrieve to drive out the plaintiffs from the suit property by hook and crook and various insertion in the newspapers dated 10.8.2010, 24.8.2010 at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph, coming up from the different parts with intent to purchase and get transfer of the property by the third party. 7. That the aforesaid defendant and his men and agent concretely on 29.8.2010 tried to forcefully enter into the suit property and manhandle the Durwan but owing to the resistance the defendant did not succeed in their attempt to dispossess, but defendant with his associate is determined to dispossess the plaintiffs from his lawful possession by any means even by using force and violence. That the proforma defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter. 10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court. 7.3 In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments. 7.4 While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC. 8. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.

1[ds]As observed and held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under:-21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint.7.1 From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.7.2 Applying the law laid down by this Court in the case of Ram Prakash Gupta (supra) to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. The necessary averments in the plaint on the cause of action are in paragraphs 6, 7 and 10, which read as under:-6. That the aforesaid defendant now consequent upon the escalation of the land value of the area has been more aggrieve to drive out the plaintiffs from the suit property by hook and crook and various insertion in the newspapers dated 10.8.2010, 24.8.2010 at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph, coming up from the different parts with intent to purchase and get transfer of the property by the third party.7. That the aforesaid defendant and his men and agent concretely on 29.8.2010 tried to forcefully enter into the suit property and manhandle the Durwan but owing to the resistance the defendant did not succeed in their attempt to dispossess, but defendant with his associate is determined to dispossess the plaintiffs from his lawful possession by any means even by using force and violence. That the proforma defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter.10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court.7.3 In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments.7.4 While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC.8. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.

### 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: held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under:- 21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint. 7.1 From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint. 7.2 Applying the law laid down by this Court in the case of Ram Prakash Gupta (supra) to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. The necessary averments in the plaint on the cause of action are in paragraphs 6, 7 and 10, which read as under:- 6. That the aforesaid defendant now consequent upon the escalation of the land value of the area has been more aggrieve to drive out the plaintiffs from the suit property by hook and crook and various insertion in the newspapers dated 10.8.2010, 24.8.2010 at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph, coming up from the different parts with intent to purchase and get transfer of the property by the third party. 7. That the aforesaid defendant and his men and agent concretely on 29.8.2010 tried to forcefully enter into the suit property and manhandle the Durwan but owing to the resistance the defendant did not succeed in their attempt to dispossess, but defendant with his associate is determined to dispossess the plaintiffs from his lawful possession by any means even by using force and violence. That the proforma defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter. 10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court. 7.3 In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments. 7.4 While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC. 8. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts. ### Response: 1 ### Explanation: As observed and held by this Court in the case of Ram Prakash Gupta (supra), rejection of a plaint under Order VII Rule 11(d) CPC by reading only few lines and passages and ignoring the other relevant parts of the plaint is impermissible. In the said decision, in paragraph 21, it is observed and held as under:-21. As observed earlier, before passing an order in an application filed for rejection of the plaint under Order 7 Rule 11(d), it is but proper to verify the entire plaint averments. The abovementioned materials clearly show that the decree passed in Suit No. 183 of 1974 came to the knowledge of the plaintiff in the year 1986, when Suit No. 424 of 1989 titled Assema Architect v. Ram Prakash was filed in which a copy of the earlier decree was placed on record and thereafter he took steps at the earliest and filed the suit for declaration and in the alternative for possession. It is not in dispute that as per Article 59 of the Limitation Act, 1963, a suit ought to have been filed within a period of three years from the date of the knowledge. The knowledge mentioned in the plaint cannot be termed as inadequate and incomplete as observed by the High Court. While deciding the application under Order 7 Rule 11, few lines or passage should not be read in isolation and the pleadings have to be read as a whole to ascertain its true import. We are of the view that both the trial court as well as the High Court failed to advert to the relevant averments as stated in the plaint.7.1 From the aforesaid decision and even otherwise as held by this Court in a catena of decisions, while considering an application under Order VII Rule 11 CPC, the Court has to go through the entire plaint averments and cannot reject the plaint by reading only few lines/passages and ignoring the other relevant parts of the plaint.7.2 Applying the law laid down by this Court in the case of Ram Prakash Gupta (supra) to the facts of the case on hand and on going through the entire plaint averments, it cannot be said at this stage that the suit is barred by limitation on the face of it. The necessary averments in the plaint on the cause of action are in paragraphs 6, 7 and 10, which read as under:-6. That the aforesaid defendant now consequent upon the escalation of the land value of the area has been more aggrieve to drive out the plaintiffs from the suit property by hook and crook and various insertion in the newspapers dated 10.8.2010, 24.8.2010 at the Ananda Bazar Patrika and on 22.8.2010 at The Telegraph, coming up from the different parts with intent to purchase and get transfer of the property by the third party.7. That the aforesaid defendant and his men and agent concretely on 29.8.2010 tried to forcefully enter into the suit property and manhandle the Durwan but owing to the resistance the defendant did not succeed in their attempt to dispossess, but defendant with his associate is determined to dispossess the plaintiffs from his lawful possession by any means even by using force and violence. That the proforma defendants have made parties in the suit without any claim against them but for proper adjudication of the said matter.10. That the cause of action for this suit arose on 29.08.2010 at Premises No. 3/3A, formerly 3, Gurudas Dutta Garden Lane, P.S. Ultadanga, Kolkata- 700067, which is within the jurisdiction of this Ld. Court.7.3 In the present case, while holding that the suit is barred by limitation, the High Court has considered only the averments made in paragraph 4 and has not considered the entire plaint averments.7.4 While rejecting the plaint, the High Court has also observed and held that the suit for a declaration simpliciter under Section 53A of the Transfer of Property Act against the original owner would not be maintainable and for that reliance is placed upon the decision of this Court in the case of Delhi Motor Company (supra). However, it is required to be noted that even the plaintiffs have also prayed for the decree for a permanent injunction claiming to be in possession and the declaration and permanent injunction as such invoking Section 53A of the Transfer of Property Act. When the suit is for a decree of permanent injunction and it is averred that the plaintiffs are in possession of the suit property pursuant to the agreement and thereafter, they have developed the land and that they are in continuous possession since more than twelve years and they are also paying taxes to the Corporation, the cause of action can be said to have arisen on the date on which the possession is sought to be disturbed. If that be so, the suit for decree for permanent injunction cannot be said to be barred by limitation. It is the settled proposition of law that the plaint cannot be rejected partially. Even otherwise, the reliefs sought are interconnected. Whether the plaintiffs shall be entitled to any relief under Section 53A of the Transfer of Property Act or not has to be considered at the time of trial, but at this stage it cannot be said that the suit for the relief sought under Section 53A would not be maintainable at all and therefore the plaint is liable to be rejected in exercise of powers under Order VII Rule 11 CPC.8. In view of the above and for the reasons stated above, the High Court has committed a grave error in allowing the application under Order VII Rule 11 CPC and rejecting the plaint. The High Court has exceeded in its jurisdiction in rejecting the plaint while exercising the powers under Order VII Rule 11 CPC. The impugned judgment and order passed by the High Court is unsustainable both, on law as well as on facts.

Employees State Insurance Corporation Vs. Mangalam Publications (India) Pvt. Ltd

used in the Employees State Insurance Act.10. The Employees State Insurance Act is a piece of social welfare legislation enacted for the benefit of the employees. The Act has to be necessarily so construed as will serve its purpose and objects.11. I entirely agree with my learned brother that on a proper interpretation of the term `wages the legislative intent is made manifestly clear that the term `wages as used in the Act will include House Rent Allowance, Night Shift Allowance, Heat, Gas and Dust Allowance, Night Shift Allowance, Heat, Gas and Dust Allowance and Incentive Allowance. The definition, to my mind, on its plain reading is clear and unambiguous. Even If any ambiguity could have been suggested, the expression must be given a liberal interpretation beneficial to the interest of the employees for whose benefit the Employees State Insurance Act has been passed." 9. This Court, in the case of Whirlpool of India Ltd. v. Employees State Insurance Corporation, 2000(2) S.C.T. 254 : (2000) 3 SCC 185 , has succinctly described the intention of the legislature in passing the E.S.I. Act, and the same reads as thus, "5. The Act is a social legislation enacted to provide benefits to employees in case of sickness, maternity and employment injury and to make a provision for certain other matters in relation thereto. Broadly this is the purpose for which the Corporation has been established under Section 3 of the Act. The main source of the Employees State Insurance Fund is the contributions paid to the Corporation (Section 26). The benefits to be provided to insured persons and others are as provided in Chapter V, in particular, Section 46 thereof. The words and expressions used but not defined in the Act and defined in the Industrial Disputes Act, 1947, are to have the meanings respectively assigned to them in the Industrial Disputes Act, Undoubtedly, any provision of which two interpretations may be possible would deserve such construction as would be beneficial to the working class but, at the same time, we cannot give a go-by to the plain language of a provision." 10. As mentioned supra, the High Court while allowing the appeal filed by the respondent has mainly relied upon the office memorandum dated 19.08.1998 issued by the Department of Public Enterprises, Ministry of Industry, New Delhi, which is not applicable to the facts of this case. The said notification makes it abundantly clear that the instructions contained in the said office memorandum are applicable to Central Public Sector Enterprises (PSES) only. Admittedly, the respondent is a private limited company and hence the instructions contained in office memorandum dated 19.08.1998 are not applicable to the respondent company. In the matter on hand, the appellant claimed ESI contribution only on the amount paid by the respondent as interim relief to its employees, treating the same as "wages" as per Section 2(22) of the ESI Act. The amount paid as interim relief by the respondent to its employees definitely falls within the definition of "wages" as per Section 2(22) of the ESI Act. On the other hand, the High Court has strangely observed that the interim relief paid for the period from 01.04.1996 to 31.03.2000 can only be treated as "ex-gratia payment" paid by the employer to its employees and cannot be treated as "wages" for the purpose of ESI contribution. In our considered opinion, the High Court has ignored to appreciate that the effect of ESI Act enacted by the Parliament cannot be circumvented by the department office memorandum. The High Court has also failed to appreciate that the payment of interim relief/wages emanates from the provisions contained in terms of the settlement, which forms part of the contract of employment and forms the ingredients of "wages" as defined under Section 2(22) of the ESI Act and that the respondent paid interim relief, as per a scheme voluntarily promulgated by it as per the notification dated 20.04.1996, issued by the Government of India, in view of the recommendations of "Manisana Wage Board, pending revision of rates of wages. It was not an ex-gratia payment. In this context, it is beneficial to note the observations of this Court in the case of Employees State Insurance Corporation v. Gnanambigai Mills Limited, 2005(3) S.C.T. 614 : (2005) 6 SCC 67 , which read thus: "6. In our view the High Court has gone completely wrong in concluding that by virtue of the award it ceases to be wages. As stated above, the Tribunal has not applied its mind as to whether or not the payments were wages. All that the Tribunal did was to give its imprimatur to a compromise between the parties. Merely because the parties in their compromise chose to term the payments as "ex gratia payments" does not mean that those payments cease to be wages if they were otherwise wages. As stated above, they were wages at the time that they were paid. They did not cease to be wages after the award merely because the terms of compromise termed them as "ex gratia payments". We are therefore unable to accept the reasoning of the judgments of the High Court. The judgment of the Division Bench as well as that of the Single Judge accordingly stands set aside. It is held that the amounts paid are wages and contribution will have to be made on those amounts also. We, however, make it clear that payments of the interest will be as per the statutory provisions." 11. The interim relief paid by the respondent to its employees is not a "gift" or "inam", but is a part of wages, as defined under Section 2(22) of the ESI Act. In view of the above, we hold that the payment made by way of interim relief to the employees by the respondent for the period from 1.04.1996 to 31.03.2000 comes within the definition of "wages", as contained in Section 2(22) of the ESI Act, and hence the respondent is liable to pay ESI contribution.

1[ds]6. There cannot be any dispute that if the interim relief paid by the respondent is held by this Court as "wages" as defined under Section 2(22) of the ESI Act, then the respondent is necessarily liable to pay ESI contribution on the amount of interim relief paid to itsplain reading of thedefinition of Section 2(22) of the ESI Act makes it amply clear that "wages" means all remuneration paid or payable in cash to an employee, if the terms of the contract of the employment, expressed or implied, were fulfilled and includes other additional remuneration, if any, paid at intervals not exceeding two months. But payments made on certain contingencies under Clauses (a) to (d) of Section 2(22) of the ESI Act, do not fall within the definition of "wages". The interim relief paid to the employees of the respondent in the matter on hand, as mentioned supra, will definitely not fall within the excluded part of clauses (a) to (d) of Section 2(22) of the ESI Act, inasmuch as such payment is not travelling allowance or the value of any travelling concession, contribution paid by the employer to any pension fund or provident fund; sum paid to an employee to defray special expenses entailed on him by the nature of his employment; or any gratuity payable onthe literal meaning of statutory provisions cannot be ignored. However, in cases where there may be two or more ways to interpret a statutory provision, the spirit of this legislation warrants a construction that benefits the working class. The inclusive part and exclusive portion of the definition of "wages" clearly indicate that the expression "wages" has been given wider meaning. As mentioned supra, under the definition, firstly whatever remuneration is paid or payable to an employee under the terms of the contract of the employment, expressed or implied, is "wages". Secondly, whatever payment is made to an employee in respect of any period of authorized leave,etc. is "wages". Thirdly, other additional remuneration, if any, paid at intervals not exceeding two months is also "wages". Any ambiguous expression, according to us, should be given a beneficent construction in favour of employees by the Court. If the definition of "wages" is read in its entirety including the inclusive part as well as the exclusive portion, it appears that inclusive portion is not intended to be limited only of items mentioned therein, particularly, having regard to the objects and reasons for which the Employees State Insurance Act is enacted. The Act has to be necessarily so construed as to serve its purpose and objects.As mentioned supra, the High Court while allowing the appeal filed by the respondent has mainly relied upon the office memorandum dated 19.08.1998 issued by the Department of Public Enterprises, Ministry of Industry, New Delhi, which is not applicable to the facts of this case. The said notification makes it abundantly clear that the instructions contained in the said office memorandum are applicable to Central Public Sector Enterprises (PSES) only. Admittedly, the respondent is a private limited company and hence the instructions contained in office memorandum dated 19.08.1998 are not applicable to the respondent company. In the matter on hand, the appellant claimed ESI contribution only on the amount paid by the respondent as interim relief to its employees, treating the same as "wages" as per Section 2(22) of the ESI Act. The amount paid as interim relief by the respondent to its employees definitely falls within the definition of "wages" as per Section 2(22) of the ESI Act. On the other hand, the High Court has strangely observed that the interim relief paid for the period from 01.04.1996 to 31.03.2000 can only be treated aspayment" paid by the employer to its employees and cannot be treated as "wages" for the purpose of ESI contribution. In our considered opinion, the High Court has ignored to appreciate that the effect of ESI Act enacted by the Parliament cannot be circumvented by the department office memorandum. The High Court has also failed to appreciate that the payment of interim relief/wages emanates from the provisions contained in terms of the settlement, which forms part of the contract of employment and forms the ingredients of "wages" as defined under Section 2(22) of the ESI Act and that the respondent paid interim relief, as per a scheme voluntarily promulgated by it as per the notification dated 20.04.1996, issued by the Government of India, in view of the recommendations of "Manisana Wage Board, pending revision of rates of wages. It was not an. The interim relief paid by the respondent to its employees is not a "gift" or "inam", but is a part of wages, as defined under Section 2(22) of the ESI Act. In view of the above, we hold that the payment made by way of interim relief to the employees by the respondent for the period from 1.04.1996 to 31.03.2000 comes within the definition of "wages", as contained in Section 2(22) of the ESI Act, and hence the respondent is liable to pay ESI

### 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: used in the Employees State Insurance Act.10. The Employees State Insurance Act is a piece of social welfare legislation enacted for the benefit of the employees. The Act has to be necessarily so construed as will serve its purpose and objects.11. I entirely agree with my learned brother that on a proper interpretation of the term `wages the legislative intent is made manifestly clear that the term `wages as used in the Act will include House Rent Allowance, Night Shift Allowance, Heat, Gas and Dust Allowance, Night Shift Allowance, Heat, Gas and Dust Allowance and Incentive Allowance. The definition, to my mind, on its plain reading is clear and unambiguous. Even If any ambiguity could have been suggested, the expression must be given a liberal interpretation beneficial to the interest of the employees for whose benefit the Employees State Insurance Act has been passed." 9. This Court, in the case of Whirlpool of India Ltd. v. Employees State Insurance Corporation, 2000(2) S.C.T. 254 : (2000) 3 SCC 185 , has succinctly described the intention of the legislature in passing the E.S.I. Act, and the same reads as thus, "5. The Act is a social legislation enacted to provide benefits to employees in case of sickness, maternity and employment injury and to make a provision for certain other matters in relation thereto. Broadly this is the purpose for which the Corporation has been established under Section 3 of the Act. The main source of the Employees State Insurance Fund is the contributions paid to the Corporation (Section 26). The benefits to be provided to insured persons and others are as provided in Chapter V, in particular, Section 46 thereof. The words and expressions used but not defined in the Act and defined in the Industrial Disputes Act, 1947, are to have the meanings respectively assigned to them in the Industrial Disputes Act, Undoubtedly, any provision of which two interpretations may be possible would deserve such construction as would be beneficial to the working class but, at the same time, we cannot give a go-by to the plain language of a provision." 10. As mentioned supra, the High Court while allowing the appeal filed by the respondent has mainly relied upon the office memorandum dated 19.08.1998 issued by the Department of Public Enterprises, Ministry of Industry, New Delhi, which is not applicable to the facts of this case. The said notification makes it abundantly clear that the instructions contained in the said office memorandum are applicable to Central Public Sector Enterprises (PSES) only. Admittedly, the respondent is a private limited company and hence the instructions contained in office memorandum dated 19.08.1998 are not applicable to the respondent company. In the matter on hand, the appellant claimed ESI contribution only on the amount paid by the respondent as interim relief to its employees, treating the same as "wages" as per Section 2(22) of the ESI Act. The amount paid as interim relief by the respondent to its employees definitely falls within the definition of "wages" as per Section 2(22) of the ESI Act. On the other hand, the High Court has strangely observed that the interim relief paid for the period from 01.04.1996 to 31.03.2000 can only be treated as "ex-gratia payment" paid by the employer to its employees and cannot be treated as "wages" for the purpose of ESI contribution. In our considered opinion, the High Court has ignored to appreciate that the effect of ESI Act enacted by the Parliament cannot be circumvented by the department office memorandum. The High Court has also failed to appreciate that the payment of interim relief/wages emanates from the provisions contained in terms of the settlement, which forms part of the contract of employment and forms the ingredients of "wages" as defined under Section 2(22) of the ESI Act and that the respondent paid interim relief, as per a scheme voluntarily promulgated by it as per the notification dated 20.04.1996, issued by the Government of India, in view of the recommendations of "Manisana Wage Board, pending revision of rates of wages. It was not an ex-gratia payment. In this context, it is beneficial to note the observations of this Court in the case of Employees State Insurance Corporation v. Gnanambigai Mills Limited, 2005(3) S.C.T. 614 : (2005) 6 SCC 67 , which read thus: "6. In our view the High Court has gone completely wrong in concluding that by virtue of the award it ceases to be wages. As stated above, the Tribunal has not applied its mind as to whether or not the payments were wages. All that the Tribunal did was to give its imprimatur to a compromise between the parties. Merely because the parties in their compromise chose to term the payments as "ex gratia payments" does not mean that those payments cease to be wages if they were otherwise wages. As stated above, they were wages at the time that they were paid. They did not cease to be wages after the award merely because the terms of compromise termed them as "ex gratia payments". We are therefore unable to accept the reasoning of the judgments of the High Court. The judgment of the Division Bench as well as that of the Single Judge accordingly stands set aside. It is held that the amounts paid are wages and contribution will have to be made on those amounts also. We, however, make it clear that payments of the interest will be as per the statutory provisions." 11. The interim relief paid by the respondent to its employees is not a "gift" or "inam", but is a part of wages, as defined under Section 2(22) of the ESI Act. In view of the above, we hold that the payment made by way of interim relief to the employees by the respondent for the period from 1.04.1996 to 31.03.2000 comes within the definition of "wages", as contained in Section 2(22) of the ESI Act, and hence the respondent is liable to pay ESI contribution. ### Response: 1 ### Explanation: 6. There cannot be any dispute that if the interim relief paid by the respondent is held by this Court as "wages" as defined under Section 2(22) of the ESI Act, then the respondent is necessarily liable to pay ESI contribution on the amount of interim relief paid to itsplain reading of thedefinition of Section 2(22) of the ESI Act makes it amply clear that "wages" means all remuneration paid or payable in cash to an employee, if the terms of the contract of the employment, expressed or implied, were fulfilled and includes other additional remuneration, if any, paid at intervals not exceeding two months. But payments made on certain contingencies under Clauses (a) to (d) of Section 2(22) of the ESI Act, do not fall within the definition of "wages". The interim relief paid to the employees of the respondent in the matter on hand, as mentioned supra, will definitely not fall within the excluded part of clauses (a) to (d) of Section 2(22) of the ESI Act, inasmuch as such payment is not travelling allowance or the value of any travelling concession, contribution paid by the employer to any pension fund or provident fund; sum paid to an employee to defray special expenses entailed on him by the nature of his employment; or any gratuity payable onthe literal meaning of statutory provisions cannot be ignored. However, in cases where there may be two or more ways to interpret a statutory provision, the spirit of this legislation warrants a construction that benefits the working class. The inclusive part and exclusive portion of the definition of "wages" clearly indicate that the expression "wages" has been given wider meaning. As mentioned supra, under the definition, firstly whatever remuneration is paid or payable to an employee under the terms of the contract of the employment, expressed or implied, is "wages". Secondly, whatever payment is made to an employee in respect of any period of authorized leave,etc. is "wages". Thirdly, other additional remuneration, if any, paid at intervals not exceeding two months is also "wages". Any ambiguous expression, according to us, should be given a beneficent construction in favour of employees by the Court. If the definition of "wages" is read in its entirety including the inclusive part as well as the exclusive portion, it appears that inclusive portion is not intended to be limited only of items mentioned therein, particularly, having regard to the objects and reasons for which the Employees State Insurance Act is enacted. The Act has to be necessarily so construed as to serve its purpose and objects.As mentioned supra, the High Court while allowing the appeal filed by the respondent has mainly relied upon the office memorandum dated 19.08.1998 issued by the Department of Public Enterprises, Ministry of Industry, New Delhi, which is not applicable to the facts of this case. The said notification makes it abundantly clear that the instructions contained in the said office memorandum are applicable to Central Public Sector Enterprises (PSES) only. Admittedly, the respondent is a private limited company and hence the instructions contained in office memorandum dated 19.08.1998 are not applicable to the respondent company. In the matter on hand, the appellant claimed ESI contribution only on the amount paid by the respondent as interim relief to its employees, treating the same as "wages" as per Section 2(22) of the ESI Act. The amount paid as interim relief by the respondent to its employees definitely falls within the definition of "wages" as per Section 2(22) of the ESI Act. On the other hand, the High Court has strangely observed that the interim relief paid for the period from 01.04.1996 to 31.03.2000 can only be treated aspayment" paid by the employer to its employees and cannot be treated as "wages" for the purpose of ESI contribution. In our considered opinion, the High Court has ignored to appreciate that the effect of ESI Act enacted by the Parliament cannot be circumvented by the department office memorandum. The High Court has also failed to appreciate that the payment of interim relief/wages emanates from the provisions contained in terms of the settlement, which forms part of the contract of employment and forms the ingredients of "wages" as defined under Section 2(22) of the ESI Act and that the respondent paid interim relief, as per a scheme voluntarily promulgated by it as per the notification dated 20.04.1996, issued by the Government of India, in view of the recommendations of "Manisana Wage Board, pending revision of rates of wages. It was not an. The interim relief paid by the respondent to its employees is not a "gift" or "inam", but is a part of wages, as defined under Section 2(22) of the ESI Act. In view of the above, we hold that the payment made by way of interim relief to the employees by the respondent for the period from 1.04.1996 to 31.03.2000 comes within the definition of "wages", as contained in Section 2(22) of the ESI Act, and hence the respondent is liable to pay ESI

Master Mallikarjun Vs. Divisional Manager, The National Insurance Company Limited and Anr

hand at the basis of index finger. 4. Negligence of the rider was proved. The child was treated as inpatient from 05.06.2006 to 01.08.2006, for 58 days. He was operated on 24.06.2006. Six months after the discharge, he was seen by the doctor on 15.02.2007 for follow up. It is in evidence that the patient had the following discomforts/ disabilities, i.e.: i. Patient walks with limp on to the right side. ii. Puckered scar on and aspect of middle 1/3 of (Right) leg with operated scar on either side. iii. Shortening of right lower limb by 1.5 cms. iv. Limitation of right knee movements by 30 %. v. Muscle power around right knee Gr.IV against Gr.V. vi. Limitation of right ankle movement by 20%. vii. Muscle power around (right) ankle is Gr. IV against Gr.V. viii. CheckX ray No. 3791 dated 15.02.2007 shows disunited fracture of right tibia with plate and screw fixation in situ. Mal union fracture of right tibia. 5. The surgeon had assessed the disability to the extent of 34% of right lower limb and 18% to the whole body. 6. The Motor Accidents Claims Tribunal in a petition filed claiming compensation to the tune of Rs.4,00,000/-, awarded compensation to the tune of Rs.63,500/- under the following heads:- HEADCOMPENSATIONAMOUNT Pain and sufferingRs.25,000/- Inconvenience caused to parents.Rs.10,000/- Medical expenses.Rs.4,500/- Loss of future amenities.Rs.10,000/- Conveyance, food nourishment expenses.Rs.4,000/- Future surgery.Rs.10,000/- TOTAL:-Rs.63,500/- 7. On approaching the High Court, the compensation was enhanced to Rs.1,09,500/-. The enhancement was mainly under the head Loss of future amenities wherein the appellant was awarded Rs.50,000/-. Appellant still not satisfied, filed this Special Leave Petition. 8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and Others [(1995) 1 SCC 551] , while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non- pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. 9. Sapna vs. United Indian Insurance Company Limited and Another [(2008) 7 SCC 613] is the case of a 12 year old girl who suffered 90% disability in her left leg. This Court granted a lump sum amount of Rs.2,00,000/- on these heads. 10. In Iranna vs. Mohammadali Khadarsab Mulla and Another [2004 ACJ 1396 ], a Division Bench of the Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability. 11. In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another [JT 2013 (3) SC 311 ], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts. 12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: - HEADCOMPENSATION AMOUNT Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.Rs.3,00,000/- Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.Rs.25,000/- Medical and incidental expenses during the period of hospitalization for 58 days.Rs.25,000/- Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.Rs.25,000/- TOTAL:-Rs.3,75,000/- 13.

1[ds]Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: -Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.Rs.3,00,000/-Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.Rs.25,000/-Medical and incidental expenses during the period of hospitalization for 58 days.Rs.25,000/-Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.Rs.25,000/-

### 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: hand at the basis of index finger. 4. Negligence of the rider was proved. The child was treated as inpatient from 05.06.2006 to 01.08.2006, for 58 days. He was operated on 24.06.2006. Six months after the discharge, he was seen by the doctor on 15.02.2007 for follow up. It is in evidence that the patient had the following discomforts/ disabilities, i.e.: i. Patient walks with limp on to the right side. ii. Puckered scar on and aspect of middle 1/3 of (Right) leg with operated scar on either side. iii. Shortening of right lower limb by 1.5 cms. iv. Limitation of right knee movements by 30 %. v. Muscle power around right knee Gr.IV against Gr.V. vi. Limitation of right ankle movement by 20%. vii. Muscle power around (right) ankle is Gr. IV against Gr.V. viii. CheckX ray No. 3791 dated 15.02.2007 shows disunited fracture of right tibia with plate and screw fixation in situ. Mal union fracture of right tibia. 5. The surgeon had assessed the disability to the extent of 34% of right lower limb and 18% to the whole body. 6. The Motor Accidents Claims Tribunal in a petition filed claiming compensation to the tune of Rs.4,00,000/-, awarded compensation to the tune of Rs.63,500/- under the following heads:- HEADCOMPENSATIONAMOUNT Pain and sufferingRs.25,000/- Inconvenience caused to parents.Rs.10,000/- Medical expenses.Rs.4,500/- Loss of future amenities.Rs.10,000/- Conveyance, food nourishment expenses.Rs.4,000/- Future surgery.Rs.10,000/- TOTAL:-Rs.63,500/- 7. On approaching the High Court, the compensation was enhanced to Rs.1,09,500/-. The enhancement was mainly under the head Loss of future amenities wherein the appellant was awarded Rs.50,000/-. Appellant still not satisfied, filed this Special Leave Petition. 8. It is unfortunate that both the Tribunal and the High Court have not properly appreciated the medical evidence available in the case. The age of the child and deformities on his body resulting in disability, have not been duly taken note of. As held by this Court in R.D. Hattangadi vs. M/s. Pest Control (India) Pvt. Ltd. and Others [(1995) 1 SCC 551] , while assessing the non-pecuniary damages, the damages for mental and physical shock, pain and suffering already suffered and that are likely to be suffered, any future damages for the loss of amenities in life like difficulty in running, participation in active sports, etc., damages on account of inconvenience, hardship, discomfort, disappointment, frustration, etc., have to be addressed especially in the case of a child victim. For a child, the best part of his life is yet to come. While considering the claim by a victim child, it would be unfair and improper to follow the structured formula as per the Second Schedule to the Motor Vehicles Act for reasons more than one. The main stress in the formula is on pecuniary damages. For children there is no income. The only indication in the Second Schedule for non- earning persons is to take the notional income as Rs.15,000/- per year. A child cannot be equated to such a non-earning person. Therefore, the compensation is to be worked out under the non- pecuniary heads in addition to the actual amounts incurred for treatment done and/or to be done, transportation, assistance of attendant, etc. The main elements of damage in the case of child victims are the pain, shock, frustration, deprivation of ordinary pleasures and enjoyment associated with healthy and mobile limbs. The compensation awarded should enable the child to acquire something or to develop a lifestyle which will offset to some extent the inconvenience or discomfort arising out of the disability. Appropriate compensation for disability should take care of all the non-pecuniary damages. In other words, apart from this head, there shall only be the claim for the actual expenditure for treatment, attendant, transportation, etc. 9. Sapna vs. United Indian Insurance Company Limited and Another [(2008) 7 SCC 613] is the case of a 12 year old girl who suffered 90% disability in her left leg. This Court granted a lump sum amount of Rs.2,00,000/- on these heads. 10. In Iranna vs. Mohammadali Khadarsab Mulla and Another [2004 ACJ 1396 ], a Division Bench of the Karnataka High Court granted an amount of Rs.4,00,000/- on these heads to the child who suffered 80% permanent disability. 11. In Kum. Michael vs. Regional Manager, Oriental Insurance Company Limited and Another [JT 2013 (3) SC 311 ], this Court considered the case of an eight year old child suffering a fracture on both legs with total disability only to the tune of 16%. It was held that the child should be entitled to an amount of Rs.3,80,000/- on these counts. 12. Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: - HEADCOMPENSATION AMOUNT Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.Rs.3,00,000/- Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.Rs.25,000/- Medical and incidental expenses during the period of hospitalization for 58 days.Rs.25,000/- Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.Rs.25,000/- TOTAL:-Rs.3,75,000/- 13. ### Response: 1 ### Explanation: Though it is difficult to have an accurate assessment of the compensation in the case of children suffering disability on account of a motor vehicle accident, having regard to the relevant factors, precedents and the approach of various High Courts, we are of the view that the appropriate compensation on all other heads in addition to the actual expenditure for treatment, attendant, etc., should be, if the disability is above 10% and upto 30% to the whole body, Rs.3 lakhs; upto 60%, Rs.4 lakhs; upto 90%, Rs.5 lakhs and above 90%, it should be Rs.6 lakhs. For permanent disability upto 10%, it should be Re.1 lakh, unless there are exceptional circumstances to take different yardstick. In the instant case, the disability is to the tune of 18%. Appellant had a longer period of hospitalization for about two months causing also inconvenience and loss of earning to the parents. The appellant, hence, would be entitled to get the compensation as follows: -Pain and suffering already undergone and to be suffered in future, mental and physical shock, hardship, inconvenience, and discomforts, etc., and loss of amenities in life on account of permanent disability.Rs.3,00,000/-Discomfort, inconvenience and loss of earnings to the parents during the period of hospitalization.Rs.25,000/-Medical and incidental expenses during the period of hospitalization for 58 days.Rs.25,000/-Future medical expenses for correction of the mal union of fracture and incidental expenses for such treatment.Rs.25,000/-

Municipal Board, Kannauj Vs. State Of Uttar Pradesh, & Ors

dismissal passed by the Executive Officer was prejudicial to the public interest. The question, however, is whether, after the order of dismissal had been passed on the 9th April 1964, the State Government had the power virtually to set aside or cancel the order under the cover of purposing "to prohibit the execution or firther execution of that order."In our opinion, that sub-section does not clothe the State Government with such a power.The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside under this section.All that could be done under it is to prohibit the execution or further, execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.It was contended on behalf of the State that, when the State Government was empowered to order prohibition of the execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support of this view, a reference was made to sub-section (4) of that section which provides that it shall be the duty of the Board, if so required by the authority making the order under sub-section (1-B) to take any action which it would have been entitled to take it the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything in pursuance of the resolution or order. It the object of the provision was to clothe the State Government with the power to cancel or set aside the resolution of the Board or order, it would have simply said so without resorting to the circumlocution "prohibit the execution or further execution of the resolution or order."We do not, therefore, think that cub-section (1-B) read with sub-s. (4) applies to any resolution or order which exhausts itself after it is passed or made.That is the view taken or a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v. State of U. P., 1966 All LJ 499. In that case, a resolution was passed by the Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the Board, from certain charges that had been framed against him. The State Government, thereupon, purporting to act under Section 34 (1-B) of the Act, quashed the Boards resolution on the ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest. This order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of them being that no order under Section 34 (1-B) could be passed, because the resolution of the Board had been fully implemented and nothing remained to be executed in respect thereof. This contention was accepted by the learned Judge who observed as follows:-"It is clear that the only order that can be passed by the State Government under this sub-section is a prohibitory order to prevent something being done in the future. It is not open to the Government; acting under this sub-section, to give any positive direction such as has been given in the present case, where the Government has ordered the Board to reconsider its report and to make a further enquiry and take a fresh decision. The resolution passed by the Board, exonerating the Executive Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges were straightway dropped and the Executive Officer stood exonerated. There remained nothing to be done in the future and there was nothing left for execution or further execution that could be prohibited by the State Government under Section 34 (1-B)."In our opinion that reasoning equally applies to the present case. The order of dismissal was self-operative and nothing remained for execution or further execution which could be prohibited by the State Government under that section.On that ground alone, the order passed by the State Government will have to be set aside.7. It was next contended on behalf of the employee-respondents that there was really no effective order of dismissal because that order had not been communicated to the employee. We asked the learned counsel whether this contention was taken earlier either in the reply filed by them to the petition or in the arguments before the High Court. He was not able to show that this had been done. On the other hand, reference was made by the learned counsel for the petitioner to an order passed by the Executive officer on 9thApril. 1964, for communication of the order of dismissal to the sweepers and also to the letter dated 8th May, 1965 written by the President of the Board to the District Magistrate which is appended to the petition as Annexure C. This letter says that the orders of dismissal had been communicated to the sweepers on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the Secretary, Local Self Government Department, U. P., which clearly goes to show that the sweepers had come to know that they had been dismissed from service. This letter was received in the office of the Secretanat on 21st April 1964 which only shows that the sweepers must have been communicated the order of dismissal much earlier. We also know that many sweepers had filed appeals. In any case, since the contention is put forward for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised.

1[ds]It should be noted that the words underlined above were inserted by an amendment which came into force on 30th November, 1964, that is to say, much after the order of dismissal by the Executive Officer had been passed, though before the order of the State Government dated 12th May, 1965. Before the amendment, the State Government could pass the order of prohibition of execution only when, in its opinion, the resolution or order was prejudicial to the public interest; but after the amendment, such an order could also be made by the State Government if, in its opinion, the resolution or order was made in abuse of powers or in flagrant breach of any provision of any law for the time being in force. It was contended on behalf of the Board that it was not competent for the State Government in this case to make the order on the ground that the order of dismissal was in flagrant breach of a provision of the law for the time being in force. But that point is only of academic interest, because the order itself shows that it had been passed also on the ground that the order of dismissal was prejudicial to the public intereat. We assume, therefore, that the State Government was satisfied that the order of dismissal passed by the Executive Officer was prejudicial to the public interest. The question, however, is whether, after the order of dismissal had been passed on the 9th April 1964, the State Government had the power virtually to set aside or cancel the order under the cover of purposing "to prohibit the execution or firther execution of that order."In our opinion, that sub-section does not clothe the State Government with such a power.The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside under this section.All that could be done under it is to prohibit the execution or further, execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.It was contended on behalf of the State that, when the State Government was empowered to order prohibition of the execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support of this view, a reference was made to sub-section (4) of that section which provides that it shall be the duty of the Board, if so required by the authority making the order under sub-section (1-B) to take any action which it would have been entitled to take it the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything in pursuance of the resolution or order. It the object of the provision was to clothe the State Government with the power to cancel or set aside the resolution of the Board or order, it would have simply said so without resorting to the circumlocution "prohibit the execution or further execution of the resolution or order."We do not, therefore, think that cub-section (1-B) read with sub-s. (4) applies to any resolution or order which exhausts itself after it is passed or made.That is the view taken or a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v. State of U. P., 1966 All LJ 499. In that case, a resolution was passed by the Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the Board, from certain charges that had been framed against him. The State Government, thereupon, purporting to act under Section 34 (1-B) of the Act, quashed the Boards resolution on the ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest. This order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of them being that no order under Section 34 (1-B) could be passed, because the resolution of the Board had been fully implemented and nothing remained to be executed in respect thereof. This contention was accepted by the learned Judge who observed asis clear that the only order that can be passed by the State Government under this sub-section is a prohibitory order to prevent something being done in the future. It is not open to the Government; acting under this sub-section, to give any positive direction such as has been given in the present case, where the Government has ordered the Board to reconsider its report and to make a further enquiry and take a fresh decision. The resolution passed by the Board, exonerating the Executive Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges were straightway dropped and the Executive Officer stood exonerated. There remained nothing to be done in the future and there was nothing left for execution or further execution that could be prohibited by the State Government under Section 34our opinion that reasoning equally applies to the present case. The order of dismissal was self-operative and nothing remained for execution or further execution which could be prohibited by the State Government under that section.On that ground alone, the order passed by the State Government will have to be setletter says that the orders of dismissal had been communicated to the sweepers on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the Secretary, Local Self Government Department, U. P., which clearly goes to show that the sweepers had come to know that they had been dismissed from service. This letter was received in the office of the Secretanat on 21st April 1964 which only shows that the sweepers must have been communicated the order of dismissal much earlier. We also know that many sweepers had filed appeals. In any case, since the contention is put forward for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised.

### 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: dismissal passed by the Executive Officer was prejudicial to the public interest. The question, however, is whether, after the order of dismissal had been passed on the 9th April 1964, the State Government had the power virtually to set aside or cancel the order under the cover of purposing "to prohibit the execution or firther execution of that order."In our opinion, that sub-section does not clothe the State Government with such a power.The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside under this section.All that could be done under it is to prohibit the execution or further, execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.It was contended on behalf of the State that, when the State Government was empowered to order prohibition of the execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support of this view, a reference was made to sub-section (4) of that section which provides that it shall be the duty of the Board, if so required by the authority making the order under sub-section (1-B) to take any action which it would have been entitled to take it the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything in pursuance of the resolution or order. It the object of the provision was to clothe the State Government with the power to cancel or set aside the resolution of the Board or order, it would have simply said so without resorting to the circumlocution "prohibit the execution or further execution of the resolution or order."We do not, therefore, think that cub-section (1-B) read with sub-s. (4) applies to any resolution or order which exhausts itself after it is passed or made.That is the view taken or a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v. State of U. P., 1966 All LJ 499. In that case, a resolution was passed by the Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the Board, from certain charges that had been framed against him. The State Government, thereupon, purporting to act under Section 34 (1-B) of the Act, quashed the Boards resolution on the ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest. This order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of them being that no order under Section 34 (1-B) could be passed, because the resolution of the Board had been fully implemented and nothing remained to be executed in respect thereof. This contention was accepted by the learned Judge who observed as follows:-"It is clear that the only order that can be passed by the State Government under this sub-section is a prohibitory order to prevent something being done in the future. It is not open to the Government; acting under this sub-section, to give any positive direction such as has been given in the present case, where the Government has ordered the Board to reconsider its report and to make a further enquiry and take a fresh decision. The resolution passed by the Board, exonerating the Executive Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges were straightway dropped and the Executive Officer stood exonerated. There remained nothing to be done in the future and there was nothing left for execution or further execution that could be prohibited by the State Government under Section 34 (1-B)."In our opinion that reasoning equally applies to the present case. The order of dismissal was self-operative and nothing remained for execution or further execution which could be prohibited by the State Government under that section.On that ground alone, the order passed by the State Government will have to be set aside.7. It was next contended on behalf of the employee-respondents that there was really no effective order of dismissal because that order had not been communicated to the employee. We asked the learned counsel whether this contention was taken earlier either in the reply filed by them to the petition or in the arguments before the High Court. He was not able to show that this had been done. On the other hand, reference was made by the learned counsel for the petitioner to an order passed by the Executive officer on 9thApril. 1964, for communication of the order of dismissal to the sweepers and also to the letter dated 8th May, 1965 written by the President of the Board to the District Magistrate which is appended to the petition as Annexure C. This letter says that the orders of dismissal had been communicated to the sweepers on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the Secretary, Local Self Government Department, U. P., which clearly goes to show that the sweepers had come to know that they had been dismissed from service. This letter was received in the office of the Secretanat on 21st April 1964 which only shows that the sweepers must have been communicated the order of dismissal much earlier. We also know that many sweepers had filed appeals. In any case, since the contention is put forward for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised. ### Response: 1 ### Explanation: but after the amendment, such an order could also be made by the State Government if, in its opinion, the resolution or order was made in abuse of powers or in flagrant breach of any provision of any law for the time being in force. It was contended on behalf of the Board that it was not competent for the State Government in this case to make the order on the ground that the order of dismissal was in flagrant breach of a provision of the law for the time being in force. But that point is only of academic interest, because the order itself shows that it had been passed also on the ground that the order of dismissal was prejudicial to the public intereat. We assume, therefore, that the State Government was satisfied that the order of dismissal passed by the Executive Officer was prejudicial to the public interest. The question, however, is whether, after the order of dismissal had been passed on the 9th April 1964, the State Government had the power virtually to set aside or cancel the order under the cover of purposing "to prohibit the execution or firther execution of that order."In our opinion, that sub-section does not clothe the State Government with such a power.The resolution of the Board or the order of a duly authorised officer of the Board is not liable to be cancelled or set aside under this section.All that could be done under it is to prohibit the execution or further, execution of the resolution or order, or the doing or continuance by any person of any act in pursuance of or under cover of such resolution or order. Where the resolution or order does not require any acts to be performed or steps to be taken for the execution or further execution of the resolution or order of the Board or of its Officer, as in the present case, there is really nothing to prohibit.It was contended on behalf of the State that, when the State Government was empowered to order prohibition of the execution of the resolution or order, it was virtually empowered to set aside or cancel the order and, in support of this view, a reference was made to sub-section (4) of that section which provides that it shall be the duty of the Board, if so required by the authority making the order under sub-section (1-B) to take any action which it would have been entitled to take it the resolution or order had never been made or passed, and which is necessary for preventing any person from doing or continuing to do anything in pursuance of the resolution or order. It the object of the provision was to clothe the State Government with the power to cancel or set aside the resolution of the Board or order, it would have simply said so without resorting to the circumlocution "prohibit the execution or further execution of the resolution or order."We do not, therefore, think that cub-section (1-B) read with sub-s. (4) applies to any resolution or order which exhausts itself after it is passed or made.That is the view taken or a learned Judge of the Allahabad High Court in Shujaat Ullah Khan v. State of U. P., 1966 All LJ 499. In that case, a resolution was passed by the Board exonerating Shujaat Ullah Khan, who was the Executive Officer of the Board, from certain charges that had been framed against him. The State Government, thereupon, purporting to act under Section 34 (1-B) of the Act, quashed the Boards resolution on the ground that it was illegal, not having been passed by 2/3rds of the members constituting the Board and was otherwise prejudicial to the public interest. This order of the State Government was challenged by Shujaat Ullah Khan on several grounds, one of them being that no order under Section 34 (1-B) could be passed, because the resolution of the Board had been fully implemented and nothing remained to be executed in respect thereof. This contention was accepted by the learned Judge who observed asis clear that the only order that can be passed by the State Government under this sub-section is a prohibitory order to prevent something being done in the future. It is not open to the Government; acting under this sub-section, to give any positive direction such as has been given in the present case, where the Government has ordered the Board to reconsider its report and to make a further enquiry and take a fresh decision. The resolution passed by the Board, exonerating the Executive Officer and dropping the charges against him, exhausted itself as soon as it was passed, for the charges were straightway dropped and the Executive Officer stood exonerated. There remained nothing to be done in the future and there was nothing left for execution or further execution that could be prohibited by the State Government under Section 34our opinion that reasoning equally applies to the present case. The order of dismissal was self-operative and nothing remained for execution or further execution which could be prohibited by the State Government under that section.On that ground alone, the order passed by the State Government will have to be setletter says that the orders of dismissal had been communicated to the sweepers on 10th April, 1964. Moreover, we have on record a letter written by and on behalf of the sweepers to the Secretary, Local Self Government Department, U. P., which clearly goes to show that the sweepers had come to know that they had been dismissed from service. This letter was received in the office of the Secretanat on 21st April 1964 which only shows that the sweepers must have been communicated the order of dismissal much earlier. We also know that many sweepers had filed appeals. In any case, since the contention is put forward for the first time now in this Court and involves consideration of facts, it cannot be permitted to be raised.

Tata Consultancy Services Vs. State Of A P

consequence to comply the same may lead to a penalty. This aspect of the matter has been considered by this Court in Indian Handicrafts Emporium (supra). Proceeding on the basis that there existed a dichotomy, the Court ultimately held that the resolution will have to be reached by reading the entire statute as a whole. [See also Reema Aggarwal vs. Anupam and Others, (2004) 3 SCC 199] 39. In Balram Kumawat vs. Union of India and Others [(2003) 7 SCC 628] this Court held: The Courts will reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used. Reducing the legislation futility shall be avoided and in a case where the intention of the Legislature cannot be given effect to, the Courts would accept the bolder construction for the purpose of bringing about an effective result. The Courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language is used when it is tolerably plain what it seeks to achieve. Referring to its earlier decisions, this Court opined: 36. These decisions are authorities for the proposition that the rule of strict construction of a regulatory/penal statute may not be adhered to, if thereby the plain intention of Parliament to combat crimes of special nature would be defeated. [See also Swedish Match AB & Anr. vs. Securities & Exchange Board India & Anr,, 2004 (7) SCALE 158 ] 40. So long natural meaning for the charging section is adhered to and when the law is certain, then a strange meaning thereto should not be given. [See Indian Banks Association, Bombay, and Ors. vs. M/s. Devkla Consultancy Services and ORs. Jt 2004 (4) SC 587] 41. Although normally a taxing statute is to be strictly constructed but when the statutory provision is reasonable akin to only one meaning the principles of strict construction may not be adhered to. [See Commr. of Central Excise. Pondicherry vs. M/s. ACER India Ltd. 2004 (8) SCALE 169 ] Determination: 42. A software may be intellectual property but such personal intellectual property contained in a medium is bought and sold. It is an article of value. It is sold in various forms like - floppies, disks, CD-ROMs, punch cards, magnetic tapes, etc. Each one of the mediums in which the intellectual property is contained is a marketable commodity. They are visible to senses. They may be a medium through which the intellectual property is transferred but for the purpose of determining the question as regard leviability of the tax under a fiscal statute, it may not make a difference. A progamme containing instructions in computer language is subject matter of a licence. It has its value to the buyer. It is useful to the person who intends to use the hardware, viz., the computer in an effective manner so as to enable him to obtain the desired results. It indisputably becomes an object of trade and commerce. These mediums containing the intellectual property are not only easily available in the market for a price but are circulated as a commodity in the market. Only because an instruction manual designed to instruct use and installation of the supplier programme is supplied with the software, the same would not necessarily mean that it would cease to be a goods. Such instructions contained in the manual are supplied with several other goods including electronic ones. What is essential for an article to become goods is its marketability. 43. At this juncture, we may notice the meaning of canned software as under: (7) `Canned means that is not specifically created for a particular consumer. The sale or lease of or granting a license to use, canned software is not automatic data processing and computer services, but is the sale of tangible personal property. When a vendor, in a single transaction, sells canned software that has been modified or customized for that particular consumer, the transaction will be considered the sale of tangible personal property if the charge fro the modification constitutes no more than half of the price of the sale. [See STATE-CASE APP-CT, OH-TAXRPTR 402-978 Ohio Board of Tax Appeals, Aeroquip Cop. Page 9 of 12] 44. The software marketed by the Appellants herein indisputably is canned software and, thus, as would appear from the discussions made hereinbefore, would be exigible to sales tax. 45. It is not in dispute that when a programme is created it is necessary to encode it uphold the same and thereafter unloaded. Indian law, as noticed by my learned Brother, Variava, J., does not make any distinction between tangible property and intangible property. A goods may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would be goods. Unlike the American Courts, Supreme Court of India have also not gone into the question of severability. 46. Recently, in Commnr. of Central Excise, Pondicherry vs. M/s. ACER India Ltd. (2004 (8) SCALE 169 ) this Court has held that operational software loaded in the hard disk does not lose its character as tangible goods. 47. If a canned software otherwise is goods, the Court cannot say it is not because it is an intellectual property which would tantamount to rewriting the judgment. In Madan Lal Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills Ltd. (1962) Suppl. 3 SCR 973) , this Court held that the Court cannot rewrite the provisions of law which clearly is the function of the Legislature which interprets them. 48. I respectfully agree with the opinion of Variava, J. that the appellant herein is liable to pay sales tax on the softwares marketed by it and the appeals should be dismissed. ------------- ORDER 49.

0[ds]What then, is the software program? If a person goes to a store to purchase an item of software, he will most likely be given a box containing a series of floppy discs or a single CD-ROM and some instructional material. Within the floppy discs or the CD-ROM will be all the components of the program that one requires to copy (for install) onto the hard disc of the computer, in order that the program can, functionSo is the CD-ROM that you have purchased, the software? If the answer to that question is yes, the corollary would be that the CD-ROM containing the software program, becomes the sale and exclusive property of the person who bought it and can be sold or distributed fully. If you purchase a soap, you become the sole owner of that soap and you could re-sell it, cut it into pieces, and distribute it, or unhygienic though it may sound, even hire it out to various people to use - and no one could challenge your actions since you have paid valuable consideration and purchased the product and thereby have accrued the sole right to deal with that item. If that applies to the soap, why could it not apply to the CD-ROM?The answer to that question lies in understanding the basic difference between a software program and other traditional goods. As already discussed, software is a series of instructions. While it may be housed in a floppy disc or a CD-ROM or the hard disc of the computer, the item referred to as software is the series of commands that operates the computer. Though the floppy disc, the CD-ROM and the hard disc are each tangible commodities that could be bought sold and resold, the software embedded in these media are intangible and fall into a very different category. To put it differently, the legislative intent can easily be gathered by reference to the Customs Valuation Rules and the specific entries in the Customs Tariff Act. The value of an encyclopaedia or a dictionary or a magazine is not only the value of the paper. The value of the paper is in fact negligible as compared to the value or price of an encyclopaedia. Therefore, the intellectual input in such items greatly enhances the value of the paper and ink in the aforesaid examples. This means that the charge of a duty is on the final product, whether it be the encyclopaedia or the engineering or architectural drawings or any manual43. Similar would be the position in the case of a programme of any kind loaded on a disc or a floppy. For example in the case of music the value of a popular music cassette is several times more than the value of a blank cassette. However, if a pre-recorded music cassette or a popular film or a musical score is imported into India duty will necessarily have to be charged on the value of the final product. In this behalf we may note that in State Bank of India vs. Collector of Customs ((2000) 1 SCC 727 : (2000) 1 Scale 72) the Bank had, under an agreement with the foreign company, imported a computer software and manuals, the total value of which was US Dollars 4,084,475. The Bank filed an application for refund of customs duty on the ground that the basic cost of software was US Dollars 401.047. While the rest of the amount of US Dollars 3,683,428 was payable only as a licence fee for its right to use the software for the Bank countrywide. The claim for the refund of the customs duty paid on the aforesaid amount of US Dollars 3,683,428 was not accepted by this Court as in its opinion, on a correct interpretation of Section 14 read with the Rules, duty was payable on the transaction value determined therein, and as per Rule 9 in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the licence fee for which the buyer is required to pay, directly or indirectly, as a condition of sale of goods to the extent that such royalties and fees are not included in the price actually paid or payable. This clearly goes to show that when technical material is supplied whether in the form of drawings or manuals the same are goods liable to customs duty on the transaction value in respect thereof44. It is a misconception to contend that what is being taxed is intellectual input. What is being taxed under the Customs Act read with the Customs Tariff Act and the Customs Valuation Rules is not the input alone but goods whose value has been enhanced by the said inputs. The final product at the time of import is either the magazine or the encyclopaedia or the engineering drawings as the case may be. There is no scope for splitting the engineering drawing or the encyclopaedia into intellectual input on the one hand and the paper on which it is scribed on the other. For example, paintings are also to be taxed. Valuable paintings are worth millions. A painting or a portrait may be specially commissioned or an article may be tailor-made. This aspect is irrelevant since what is taxed is the final product as defined and it will be an absurdity to contend that the value for the purposes of duty ought to be the cost of the canvas and the oil paint even though the composite product, i.e., the painting, is worth millions45. It will be appropriate to note that the Customs Valuation Rules, 1988 are framed keeping in view the GATT protocol and the WTO agreement. In fact, our rules appear to be an exact copy of GATT and WTO. For the purpose of valuation under the 1988 Rules the concept of transaction value which was introduced was based on the aforesaid GATT protocol and WTO agreement. The shift from the concept of price of goods, as was classically understood, is clearly discernible in the new principles. Transaction value may be entirely different from the classic concept of price of goods. Full meaning has to be given to the rules and the transaction value may include many items which may not classically have been understood to be part of the sale price46. The concept that it is only chattel sold as chattel, which can be regarded as goods, has no role to play in the present statutory scheme as we have already observed that the word goods as defined under the Customs Act has an inclusive definition taking within its ambit any moveable property. The list of goods as prescribed by the law are different items mentioned in various chapters under the Customs Tariff Act, 1997 or 1999. Some of these items are clearly items containing intellectual property like designs, plans, etc. In our view, the term goods as used in Article 366 (12) of the Constitution of India and as defined under the said Act are very wide and include all types of movable properties, whether those properties be tangible or intangible. We are in complete agreement with the observations made by this Court in Associated Cement Companies Ltd. (supra). A software programme may consist of various commands which enable the computer to perform a designated task. The copyright in that programme may remain with the originator of the programme. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectual property, once it is put on to a media, whether it be in the form of books or canvas (in case of painting) or computer discs or cassettes, and marketed would become goods. We see no difference between a sale of a software programme on a CD/floppy disc from a sale of music on a cassette/CD or a sale of a film on a video cassette/CD. In all such cases, the intellectual property has been incorporated on a media for purposes of transfer. Sale is not just of the media which by itself has very little value. The software and the media cannot be split up. What the buyer purchases and pays for is not the disc or the CD. As in the case of paintings or books or music or films the buyer is purchasing the intellectual property and not the media i.e. the paper or cassette or disc or CD. Thus a transaction sale of computer software is clearly a sale of goods within the meaning of the term as defined in the said Act. The term all materials, articles and commodities includes both tangible and intangible/incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed etc. The software programmes have all these attributes

### 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: consequence to comply the same may lead to a penalty. This aspect of the matter has been considered by this Court in Indian Handicrafts Emporium (supra). Proceeding on the basis that there existed a dichotomy, the Court ultimately held that the resolution will have to be reached by reading the entire statute as a whole. [See also Reema Aggarwal vs. Anupam and Others, (2004) 3 SCC 199] 39. In Balram Kumawat vs. Union of India and Others [(2003) 7 SCC 628] this Court held: The Courts will reject that construction which will defeat the plain intention of the Legislature even though there may be some inexactitude in the language used. Reducing the legislation futility shall be avoided and in a case where the intention of the Legislature cannot be given effect to, the Courts would accept the bolder construction for the purpose of bringing about an effective result. The Courts, when rule of purposive construction is gaining momentum, should be very reluctant to hold that Parliament has achieved nothing by the language is used when it is tolerably plain what it seeks to achieve. Referring to its earlier decisions, this Court opined: 36. These decisions are authorities for the proposition that the rule of strict construction of a regulatory/penal statute may not be adhered to, if thereby the plain intention of Parliament to combat crimes of special nature would be defeated. [See also Swedish Match AB & Anr. vs. Securities & Exchange Board India & Anr,, 2004 (7) SCALE 158 ] 40. So long natural meaning for the charging section is adhered to and when the law is certain, then a strange meaning thereto should not be given. [See Indian Banks Association, Bombay, and Ors. vs. M/s. Devkla Consultancy Services and ORs. Jt 2004 (4) SC 587] 41. Although normally a taxing statute is to be strictly constructed but when the statutory provision is reasonable akin to only one meaning the principles of strict construction may not be adhered to. [See Commr. of Central Excise. Pondicherry vs. M/s. ACER India Ltd. 2004 (8) SCALE 169 ] Determination: 42. A software may be intellectual property but such personal intellectual property contained in a medium is bought and sold. It is an article of value. It is sold in various forms like - floppies, disks, CD-ROMs, punch cards, magnetic tapes, etc. Each one of the mediums in which the intellectual property is contained is a marketable commodity. They are visible to senses. They may be a medium through which the intellectual property is transferred but for the purpose of determining the question as regard leviability of the tax under a fiscal statute, it may not make a difference. A progamme containing instructions in computer language is subject matter of a licence. It has its value to the buyer. It is useful to the person who intends to use the hardware, viz., the computer in an effective manner so as to enable him to obtain the desired results. It indisputably becomes an object of trade and commerce. These mediums containing the intellectual property are not only easily available in the market for a price but are circulated as a commodity in the market. Only because an instruction manual designed to instruct use and installation of the supplier programme is supplied with the software, the same would not necessarily mean that it would cease to be a goods. Such instructions contained in the manual are supplied with several other goods including electronic ones. What is essential for an article to become goods is its marketability. 43. At this juncture, we may notice the meaning of canned software as under: (7) `Canned means that is not specifically created for a particular consumer. The sale or lease of or granting a license to use, canned software is not automatic data processing and computer services, but is the sale of tangible personal property. When a vendor, in a single transaction, sells canned software that has been modified or customized for that particular consumer, the transaction will be considered the sale of tangible personal property if the charge fro the modification constitutes no more than half of the price of the sale. [See STATE-CASE APP-CT, OH-TAXRPTR 402-978 Ohio Board of Tax Appeals, Aeroquip Cop. Page 9 of 12] 44. The software marketed by the Appellants herein indisputably is canned software and, thus, as would appear from the discussions made hereinbefore, would be exigible to sales tax. 45. It is not in dispute that when a programme is created it is necessary to encode it uphold the same and thereafter unloaded. Indian law, as noticed by my learned Brother, Variava, J., does not make any distinction between tangible property and intangible property. A goods may be a tangible property or an intangible one. It would become goods provided it has the attributes thereof having regard to (a) its utility; (b) capable of being bought and sold; and (c) capable of transmitted, transferred, delivered, stored and possessed. If a software whether customized or non-customized satisfies these attributes, the same would be goods. Unlike the American Courts, Supreme Court of India have also not gone into the question of severability. 46. Recently, in Commnr. of Central Excise, Pondicherry vs. M/s. ACER India Ltd. (2004 (8) SCALE 169 ) this Court has held that operational software loaded in the hard disk does not lose its character as tangible goods. 47. If a canned software otherwise is goods, the Court cannot say it is not because it is an intellectual property which would tantamount to rewriting the judgment. In Madan Lal Fakirchand Dudhediya vs. Shree Changdeo Sugar Mills Ltd. (1962) Suppl. 3 SCR 973) , this Court held that the Court cannot rewrite the provisions of law which clearly is the function of the Legislature which interprets them. 48. I respectfully agree with the opinion of Variava, J. that the appellant herein is liable to pay sales tax on the softwares marketed by it and the appeals should be dismissed. ------------- ORDER 49. ### Response: 0 ### Explanation: film or a musical score is imported into India duty will necessarily have to be charged on the value of the final product. In this behalf we may note that in State Bank of India vs. Collector of Customs ((2000) 1 SCC 727 : (2000) 1 Scale 72) the Bank had, under an agreement with the foreign company, imported a computer software and manuals, the total value of which was US Dollars 4,084,475. The Bank filed an application for refund of customs duty on the ground that the basic cost of software was US Dollars 401.047. While the rest of the amount of US Dollars 3,683,428 was payable only as a licence fee for its right to use the software for the Bank countrywide. The claim for the refund of the customs duty paid on the aforesaid amount of US Dollars 3,683,428 was not accepted by this Court as in its opinion, on a correct interpretation of Section 14 read with the Rules, duty was payable on the transaction value determined therein, and as per Rule 9 in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the licence fee for which the buyer is required to pay, directly or indirectly, as a condition of sale of goods to the extent that such royalties and fees are not included in the price actually paid or payable. This clearly goes to show that when technical material is supplied whether in the form of drawings or manuals the same are goods liable to customs duty on the transaction value in respect thereof44. It is a misconception to contend that what is being taxed is intellectual input. What is being taxed under the Customs Act read with the Customs Tariff Act and the Customs Valuation Rules is not the input alone but goods whose value has been enhanced by the said inputs. The final product at the time of import is either the magazine or the encyclopaedia or the engineering drawings as the case may be. There is no scope for splitting the engineering drawing or the encyclopaedia into intellectual input on the one hand and the paper on which it is scribed on the other. For example, paintings are also to be taxed. Valuable paintings are worth millions. A painting or a portrait may be specially commissioned or an article may be tailor-made. This aspect is irrelevant since what is taxed is the final product as defined and it will be an absurdity to contend that the value for the purposes of duty ought to be the cost of the canvas and the oil paint even though the composite product, i.e., the painting, is worth millions45. It will be appropriate to note that the Customs Valuation Rules, 1988 are framed keeping in view the GATT protocol and the WTO agreement. In fact, our rules appear to be an exact copy of GATT and WTO. For the purpose of valuation under the 1988 Rules the concept of transaction value which was introduced was based on the aforesaid GATT protocol and WTO agreement. The shift from the concept of price of goods, as was classically understood, is clearly discernible in the new principles. Transaction value may be entirely different from the classic concept of price of goods. Full meaning has to be given to the rules and the transaction value may include many items which may not classically have been understood to be part of the sale price46. The concept that it is only chattel sold as chattel, which can be regarded as goods, has no role to play in the present statutory scheme as we have already observed that the word goods as defined under the Customs Act has an inclusive definition taking within its ambit any moveable property. The list of goods as prescribed by the law are different items mentioned in various chapters under the Customs Tariff Act, 1997 or 1999. Some of these items are clearly items containing intellectual property like designs, plans, etc. In our view, the term goods as used in Article 366 (12) of the Constitution of India and as defined under the said Act are very wide and include all types of movable properties, whether those properties be tangible or intangible. We are in complete agreement with the observations made by this Court in Associated Cement Companies Ltd. (supra). A software programme may consist of various commands which enable the computer to perform a designated task. The copyright in that programme may remain with the originator of the programme. But the moment copies are made and marketed, it becomes goods, which are susceptible to sales tax. Even intellectual property, once it is put on to a media, whether it be in the form of books or canvas (in case of painting) or computer discs or cassettes, and marketed would become goods. We see no difference between a sale of a software programme on a CD/floppy disc from a sale of music on a cassette/CD or a sale of a film on a video cassette/CD. In all such cases, the intellectual property has been incorporated on a media for purposes of transfer. Sale is not just of the media which by itself has very little value. The software and the media cannot be split up. What the buyer purchases and pays for is not the disc or the CD. As in the case of paintings or books or music or films the buyer is purchasing the intellectual property and not the media i.e. the paper or cassette or disc or CD. Thus a transaction sale of computer software is clearly a sale of goods within the meaning of the term as defined in the said Act. The term all materials, articles and commodities includes both tangible and intangible/incorporeal property which is capable of abstraction, consumption and use and which can be transmitted, transferred, delivered, stored, possessed etc. The software programmes have all these attributes

Nonsuch Estate Ltd Vs. The Commissioner Of Income-Tax, Madras

managing agents. For the assessment year 1959-60 for which the previous year was July 1, 1957 to June 30, 1958, a total sum of Rs. 97,188/- was shown as managing agents remuneration payable during that year. This amount was made up as under:Amount"Proportionate remuneration for 3 months at 5 per cent on the net profits for the period ending on 30-6-1956 paid during the year ending on 30-6-19589,320Remuneration at 5 per cent on the net profit of the year ending on 30th June, 1957 paid during the year ending on 30-6-1958.71,368Managing Agents expenses for the year ending 30th June, 1957 recouped during the year ending on 30th June, 195813,200Proportionate Managing Agents expenses for the year ending on 30th June, l956 recoupedduring the year ending on 30-6-19583,30097,188"4. Though this sum did not pertain to the previous year relevant to the assessment year 1959-60, the Company claimed it as deductible expenditure for that year on the ground that the sum became payable only during that year when the Government accorded its approval to the new agreement. The Income-tax Officer rejected this claim on the view that the approval of the Central Government was necessary only for actual payment and "the assessee should have ascertained the liability for each year and claimed it on the mercantile basis which was the system adopted by the assessee company". The Appellate Assistant Commissioner and the Tribunal also took the same view. The High Court answered the question referred to it against the assessee on the following reasoning:"......... There was undoubtedly an understanding between the managing agency and the assessee as to the new terms of remuneration which actually were given effect to by making debit entries in the remuneration account then and there. It is true that at the time the debit entries were made, approval of the Central Government had not come. But when-it came actually later, it gave legal effect to the debit entries, not from the date of the approval but from April 1, 1956. That being the case, the refusal of the deduction, in our opinion was right"In our judgment the High Court was in error in answering the question referred to it against the assessee. It appears that the Income-tax authorities, the Tribunal and the High Court all laid special emphasis on the fact that the Company followed the mercantile system of accounting. The distinction between the two methods of accounting, one on the cash basis and the other on the mercantile basis is well known. In Commr. of Income-tax, Madras v. A. Gajapathy Naidu, (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Court explained the difference between the two methods quoting with approval an extract from a Judgment of the Allahabad High Court in Commr. of Income-tax U. P. and V. P. v. Kalicharan Jagannath, (1961) 41 ITR 40 (All) . In Ganjapathy Naidus case (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Court said:"It is common place that there are two principal methods of accounting for the income, profits and gains of a business; one is the cash basis and the other, the mercantile basis. The latter system of accountancy "brings into credit what is due immediately it becomes legally due and before it is actually received; and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed"."However, even an assessee following the mercantile system of accounting is not entitled to claim a deduction until liability for the sum for which deduction is claimed has accrued. The reasons given by the High Court overlook the plain terms of Section 326 of the Companies Act, 1956. Section 326 so far it is material for the question involved in this case, is in these terms:"Section 326. (I) In respect of any company........(a) ..............(b) unless the approval of the Central Government has been obtained for such appointment or re-appointment.(2) The Central Government shall not accord its approval under sub-section (1) in any case, unless it is satisfied -(a) that it is not against the public interest to allow the company to have a managing agent;(b) that the managing agent proposed is, in the opinion, a fit and proper person to be appointed or re-appointed as such, and that the conditions of the managing agency agreement proposed are fair and reasonable; and(c) that the managing agent proposed has fulfilled any conditions which the Central Government requires him to fulfil."5. Section 326 prohibits the appointment or reappointment of a managing agent unless the Central Government approved such appointment or re-appointment. The Central Government would not accord its approval unless the requirement specified in clauses (a), {b) and (c) of sub-section (2) of the section have been fulfilled. Therefore, it cannot be assumed that the Central Government will approve every proposed appointment or re-appointment of a managing agent.Thus in the instant ease it is only when the Central Government conveyed its approval to the appointment of M/s. Harrisons and Crosfield Limited as managing agents by its letter dated September 2, 1957 that the appointment became effective and the Companys liability to pay the remuneration of the managing agents accrued. The position here is not that the liability had arisen earlier and its quantification only depended on the approval of the Central Government. It is true that the liability became effective from April 1, 1956, a date anterior to the relevant previous year, but that is because the Central Government chose to give its approval retrospective operation. The liability in these circumstances cannot be said to have arisen from any date prior to September 2, 1957 when the approval was given as Sec. 326 contains an absolute prohibition against the appointment or re-appointment of a managing agent before the approval of the Central Government was obtained. In our opinion, the position is quite clear from the terms of Section 326 and we do not consider it necessary to refer to the authorities cited by the learned counsel for either side.

1[ds]In our judgment the High Court was in error in answering the question referred to it against the assessee. It appears that theauthorities, the Tribunal and the High Court all laid special emphasis on the fact that the Company followed the mercantile system of accounting. The distinction between the two methods of accounting, one on the cash basis and the other on the mercantile basis is well known. In Commr. ofMadras v. A. Gajapathy Naidu, (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Court explained the difference between the two methods quoting with approval an extract from a Judgment of the Allahabad High Court in Commr. ofU. P. and V. P. v. Kalicharan Jagannath, (1961) 41 ITR 40 (All) . In Ganjapathy Naidus case (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Courtis common place that there are two principal methods of accounting for the income, profits and gains of a business; one is the cash basis and the other, the mercantile basis. The latter system of accountancy "brings into credit what is due immediately it becomes legally due and before it is actually received; and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actuallyeven an assessee following the mercantile system of accounting is not entitled to claim a deduction until liability for the sum for which deduction is claimed has accrued. The reasons given by the High Court overlook the plain terms of Section 326 of the Companies Act, 1956.Section 326 prohibits the appointment or reappointment of a managing agent unless the Central Government approved such appointment or

### 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: managing agents. For the assessment year 1959-60 for which the previous year was July 1, 1957 to June 30, 1958, a total sum of Rs. 97,188/- was shown as managing agents remuneration payable during that year. This amount was made up as under:Amount"Proportionate remuneration for 3 months at 5 per cent on the net profits for the period ending on 30-6-1956 paid during the year ending on 30-6-19589,320Remuneration at 5 per cent on the net profit of the year ending on 30th June, 1957 paid during the year ending on 30-6-1958.71,368Managing Agents expenses for the year ending 30th June, 1957 recouped during the year ending on 30th June, 195813,200Proportionate Managing Agents expenses for the year ending on 30th June, l956 recoupedduring the year ending on 30-6-19583,30097,188"4. Though this sum did not pertain to the previous year relevant to the assessment year 1959-60, the Company claimed it as deductible expenditure for that year on the ground that the sum became payable only during that year when the Government accorded its approval to the new agreement. The Income-tax Officer rejected this claim on the view that the approval of the Central Government was necessary only for actual payment and "the assessee should have ascertained the liability for each year and claimed it on the mercantile basis which was the system adopted by the assessee company". The Appellate Assistant Commissioner and the Tribunal also took the same view. The High Court answered the question referred to it against the assessee on the following reasoning:"......... There was undoubtedly an understanding between the managing agency and the assessee as to the new terms of remuneration which actually were given effect to by making debit entries in the remuneration account then and there. It is true that at the time the debit entries were made, approval of the Central Government had not come. But when-it came actually later, it gave legal effect to the debit entries, not from the date of the approval but from April 1, 1956. That being the case, the refusal of the deduction, in our opinion was right"In our judgment the High Court was in error in answering the question referred to it against the assessee. It appears that the Income-tax authorities, the Tribunal and the High Court all laid special emphasis on the fact that the Company followed the mercantile system of accounting. The distinction between the two methods of accounting, one on the cash basis and the other on the mercantile basis is well known. In Commr. of Income-tax, Madras v. A. Gajapathy Naidu, (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Court explained the difference between the two methods quoting with approval an extract from a Judgment of the Allahabad High Court in Commr. of Income-tax U. P. and V. P. v. Kalicharan Jagannath, (1961) 41 ITR 40 (All) . In Ganjapathy Naidus case (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Court said:"It is common place that there are two principal methods of accounting for the income, profits and gains of a business; one is the cash basis and the other, the mercantile basis. The latter system of accountancy "brings into credit what is due immediately it becomes legally due and before it is actually received; and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actually disbursed"."However, even an assessee following the mercantile system of accounting is not entitled to claim a deduction until liability for the sum for which deduction is claimed has accrued. The reasons given by the High Court overlook the plain terms of Section 326 of the Companies Act, 1956. Section 326 so far it is material for the question involved in this case, is in these terms:"Section 326. (I) In respect of any company........(a) ..............(b) unless the approval of the Central Government has been obtained for such appointment or re-appointment.(2) The Central Government shall not accord its approval under sub-section (1) in any case, unless it is satisfied -(a) that it is not against the public interest to allow the company to have a managing agent;(b) that the managing agent proposed is, in the opinion, a fit and proper person to be appointed or re-appointed as such, and that the conditions of the managing agency agreement proposed are fair and reasonable; and(c) that the managing agent proposed has fulfilled any conditions which the Central Government requires him to fulfil."5. Section 326 prohibits the appointment or reappointment of a managing agent unless the Central Government approved such appointment or re-appointment. The Central Government would not accord its approval unless the requirement specified in clauses (a), {b) and (c) of sub-section (2) of the section have been fulfilled. Therefore, it cannot be assumed that the Central Government will approve every proposed appointment or re-appointment of a managing agent.Thus in the instant ease it is only when the Central Government conveyed its approval to the appointment of M/s. Harrisons and Crosfield Limited as managing agents by its letter dated September 2, 1957 that the appointment became effective and the Companys liability to pay the remuneration of the managing agents accrued. The position here is not that the liability had arisen earlier and its quantification only depended on the approval of the Central Government. It is true that the liability became effective from April 1, 1956, a date anterior to the relevant previous year, but that is because the Central Government chose to give its approval retrospective operation. The liability in these circumstances cannot be said to have arisen from any date prior to September 2, 1957 when the approval was given as Sec. 326 contains an absolute prohibition against the appointment or re-appointment of a managing agent before the approval of the Central Government was obtained. In our opinion, the position is quite clear from the terms of Section 326 and we do not consider it necessary to refer to the authorities cited by the learned counsel for either side. ### Response: 1 ### Explanation: In our judgment the High Court was in error in answering the question referred to it against the assessee. It appears that theauthorities, the Tribunal and the High Court all laid special emphasis on the fact that the Company followed the mercantile system of accounting. The distinction between the two methods of accounting, one on the cash basis and the other on the mercantile basis is well known. In Commr. ofMadras v. A. Gajapathy Naidu, (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Court explained the difference between the two methods quoting with approval an extract from a Judgment of the Allahabad High Court in Commr. ofU. P. and V. P. v. Kalicharan Jagannath, (1961) 41 ITR 40 (All) . In Ganjapathy Naidus case (1964) 53 ITR 114 = (AIR 1964 SC 1653 ) this Courtis common place that there are two principal methods of accounting for the income, profits and gains of a business; one is the cash basis and the other, the mercantile basis. The latter system of accountancy "brings into credit what is due immediately it becomes legally due and before it is actually received; and it brings into debit expenditure the amount for which a legal liability has been incurred before it is actuallyeven an assessee following the mercantile system of accounting is not entitled to claim a deduction until liability for the sum for which deduction is claimed has accrued. The reasons given by the High Court overlook the plain terms of Section 326 of the Companies Act, 1956.Section 326 prohibits the appointment or reappointment of a managing agent unless the Central Government approved such appointment or

The Navnirman Development Consultants (I) Pvt. Ltd Vs. The Divisional Commissioner & President District Sports Complex Executive Committee

to the Tribunal for its adjudication. The respondent, despite demand made by the appellant, failed to constitute the Arbitral Tribunal and, therefore, the appellant was constrained to file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") before the High Court praying therein for appointment of Arbitral Tribunal for deciding the disputes which had arisen between the parties.7. By order dated 12.08.2005, the High Court allowed the appellants application and appointed Arbitral Tribunal as per Clause 3.8 of the Agreement for deciding the disputes which had arisen between the parties. The Tribunal then embarked upon the reference and on 03.11.2006 passed an award in favour of the appellant and against the respondent for a total sum of Rs. 25,64,490/- with interest payable at the rate of 18% p.a. This was followed by one corrigendum issued by the Tribunal in relation to the award to correct some arithmetical errors, which had crept in the award.8. Felt aggrieved, the respondent challenged the award before the District Judge, Pune by filing objections under Section 34 of the Act being Civil Misc. Application No 36 of 2007. The District Judge, by order dated 16.11.2007, allowed the respondents application in part and modified the award by reducing the awarded sum from Rs. 25,64,490/- to Rs. 7,15,544/- and in so modifying also gave some directions.9. Felt aggrieved, the appellant filed appeal under Section 37 of the Act before the High Court. By impugned order, the learned single Judge dismissed the appeal giving rise to first filing of the review petition by the appellant and consequent upon the dismissal of review, it gave rise to the filing of these appeals by way of special leave by the appellant(claimant) against the main order and review order.10. Heard learned counsel for the appellant. None appeared for the respondent though served.11. Having heard learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits.12. The impugned order reads as under:"1. The award has been passed on 3rd November, 2006 in favour of the appellant for Rs. 25.64 lacs. The appeal under Section 36 has been partly allowed on 16th November, 2007. Only the award for the amount of Rs. 11.90 lacs under bill No. 1 has been set aside and the respondent herein has been directed to pay the appellant Rs. 7.14 lacs instead constituting 75% of that amount. The amount has to be paid with interest specified in the impugned order along with costs.2. The ambit of this appeal is, therefore, extremely narrow. The award passed in favour of the appellant herein can be executed save and except 1/4th of the amount of bill No.1.3. The appellant has not shown how the order in appeal setting aside the award passed to the above extent calls for interference in a further appeal. Arbitration Appeal is dismissed."13. In our considered opinion, the need to remand the case to the High Court has occasioned due to the reason that the High Court while dismissing the appeal did not set out even the factual controversy properly much less in detail and nor dealt with any of the grounds taken by the parties in their pleadings and in appeal in support of their respective contentions.14. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which was expected of was that the order which decides the lis between the parties should have contained the brief facts of the case so as to know as to how the factual controversy arose and the grounds on which the action is impugned, the stand of the parties impugning and defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.15. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.16. We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.17. In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits.18. In any event, the dismissal of appeal being essentially under Order 41 Rule 17, the appellant herein should have taken recourse to the remedy available under Order 41 Rule 19 by filing application to the High Court praying therein for readmission of their appeal by making out the sufficient cause for their non-appearance on the date when the appeal was listed for hearing instead of filing this appeal against the impugned order before this Court.19. Be that as it may, the High Court erred in not recording any finding much less reasoned finding keeping in view the stand of the parties taken in the pleadings and the grounds of appeal. The High Court also erred in not pointing out as to why the order of the District Judge is legally sustainable calling no interference therein. If the High Court decided to embark upon the merits of the appeal then it should have recorded findings by dealing with all the issues arising in the case. It was, however, not done and hence it calls for interference by this Court.

1[ds]11. Having heard learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits.In our considered opinion, the need to remand the case to the High Court has occasioned due to the reason that the High Court while dismissing the appeal did not set out even the factual controversy properly much less in detail and nor dealt with any of the grounds taken by the parties in their pleadings and in appeal in support of their respective contentions.14. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which was expected of was that the order which decides the lis between the parties should have contained the brief facts of the case so as to know as to how the factual controversy arose and the grounds on which the action is impugned, the stand of the parties impugning and defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.15. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.16. We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.17. In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in thisshall be construed as empowering the Court to dismiss the appeal on merits.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: to the Tribunal for its adjudication. The respondent, despite demand made by the appellant, failed to constitute the Arbitral Tribunal and, therefore, the appellant was constrained to file an application under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as "the Act") before the High Court praying therein for appointment of Arbitral Tribunal for deciding the disputes which had arisen between the parties.7. By order dated 12.08.2005, the High Court allowed the appellants application and appointed Arbitral Tribunal as per Clause 3.8 of the Agreement for deciding the disputes which had arisen between the parties. The Tribunal then embarked upon the reference and on 03.11.2006 passed an award in favour of the appellant and against the respondent for a total sum of Rs. 25,64,490/- with interest payable at the rate of 18% p.a. This was followed by one corrigendum issued by the Tribunal in relation to the award to correct some arithmetical errors, which had crept in the award.8. Felt aggrieved, the respondent challenged the award before the District Judge, Pune by filing objections under Section 34 of the Act being Civil Misc. Application No 36 of 2007. The District Judge, by order dated 16.11.2007, allowed the respondents application in part and modified the award by reducing the awarded sum from Rs. 25,64,490/- to Rs. 7,15,544/- and in so modifying also gave some directions.9. Felt aggrieved, the appellant filed appeal under Section 37 of the Act before the High Court. By impugned order, the learned single Judge dismissed the appeal giving rise to first filing of the review petition by the appellant and consequent upon the dismissal of review, it gave rise to the filing of these appeals by way of special leave by the appellant(claimant) against the main order and review order.10. Heard learned counsel for the appellant. None appeared for the respondent though served.11. Having heard learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits.12. The impugned order reads as under:"1. The award has been passed on 3rd November, 2006 in favour of the appellant for Rs. 25.64 lacs. The appeal under Section 36 has been partly allowed on 16th November, 2007. Only the award for the amount of Rs. 11.90 lacs under bill No. 1 has been set aside and the respondent herein has been directed to pay the appellant Rs. 7.14 lacs instead constituting 75% of that amount. The amount has to be paid with interest specified in the impugned order along with costs.2. The ambit of this appeal is, therefore, extremely narrow. The award passed in favour of the appellant herein can be executed save and except 1/4th of the amount of bill No.1.3. The appellant has not shown how the order in appeal setting aside the award passed to the above extent calls for interference in a further appeal. Arbitration Appeal is dismissed."13. In our considered opinion, the need to remand the case to the High Court has occasioned due to the reason that the High Court while dismissing the appeal did not set out even the factual controversy properly much less in detail and nor dealt with any of the grounds taken by the parties in their pleadings and in appeal in support of their respective contentions.14. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which was expected of was that the order which decides the lis between the parties should have contained the brief facts of the case so as to know as to how the factual controversy arose and the grounds on which the action is impugned, the stand of the parties impugning and defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.15. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.16. We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.17. In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in this sub-rule shall be construed as empowering the Court to dismiss the appeal on merits.18. In any event, the dismissal of appeal being essentially under Order 41 Rule 17, the appellant herein should have taken recourse to the remedy available under Order 41 Rule 19 by filing application to the High Court praying therein for readmission of their appeal by making out the sufficient cause for their non-appearance on the date when the appeal was listed for hearing instead of filing this appeal against the impugned order before this Court.19. Be that as it may, the High Court erred in not recording any finding much less reasoned finding keeping in view the stand of the parties taken in the pleadings and the grounds of appeal. The High Court also erred in not pointing out as to why the order of the District Judge is legally sustainable calling no interference therein. If the High Court decided to embark upon the merits of the appeal then it should have recorded findings by dealing with all the issues arising in the case. It was, however, not done and hence it calls for interference by this Court. ### Response: 1 ### Explanation: 11. Having heard learned counsel for the appellant and on perusal of the record of the case, we are constrained to allow the appeals, set aside the impugned order and remand the case to the High Court for deciding the appeal afresh on merits.In our considered opinion, the need to remand the case to the High Court has occasioned due to the reason that the High Court while dismissing the appeal did not set out even the factual controversy properly much less in detail and nor dealt with any of the grounds taken by the parties in their pleadings and in appeal in support of their respective contentions.14. In our considered view, in order to appreciate the factual and legal controversy involved in the lis, the least which was expected of was that the order which decides the lis between the parties should have contained the brief facts of the case so as to know as to how the factual controversy arose and the grounds on which the action is impugned, the stand of the parties impugning and defending the action, the submissions of the parties in support of their stand, legal provisions, if any, applicable to the controversy involved in the lis, and lastly, the brief reasons as to why the case of one party deserves acceptance or rejection, as the case may be.15. This enables the superior Court to examine the legality of the decision in its proper perspective in its appellate jurisdiction.16. We find from the record that the High Court decided the appeal in the absence of both parties. In other words, when the appeal was called on for hearing, neither the counsel for the appellant nor the counsel for the respondent was present.17. In such situation, provisions of Order 41 Rule 17 of the Civil Procedure Code, 1908 got attracted and, therefore, the High Court should have taken recourse to the powers under Order 41 Rule 17 for passing appropriate orders as contemplated in Rule 17. Indeed the explanation appended to Rule 17 in clear terms provides that nothing in thisshall be construed as empowering the Court to dismiss the appeal on merits.

Davendra Bhaishankar Mehta Vs. Rameshchandra V. Sheth

he should pay the amount in question to Shri Bal ubhai Modi and also to the appellant towards legal expenses and other expenses so that loan for Rs.7 lakhs would be advanced to him without delay. Such case, according to the learned counsel, could not be established by any corroborative evidence but has been accepted by the Disciplinary committee on mere surmise and conjecture. We are, however, unable to accept the said contention of the learned counsel. We have carefully considered the materials on record and the reasoning of the Disciplinary Committee in the impugned judgment and we are unable to hold that the findings of the Disciplinary committee are outcome of any closed mind or bias on the part of the committee and/or findings of the Committee really lay in the realm of surmise and conjecture.We have already indicated the anxiety of the Disciplinary Committee to dispassionately assess the facts of the case without being influenced by any observation of the High Court of Bombay. The Committee was alive to various aspects of the case and has taken care in meticulously scrutinising and analysing the evidence on record and the materials and the Committee has based its finding by giving cogent reasons and the inf erences drawn from the established facts also appear to us quite reasonable. It may be indicated at this stage that Shri Balubhai Modi had died during the pendency of the proceedings before the Disciplinary Committee of the Bar Council of India and there was no occasion to proceed further with the criminal proceeding initiated against him and/or to examine him in the instant case. It is always permissible to draw reasonable inference from the facts established in a proceeding and such reasonable inference cannot be termed as finding based on surmises and conjectures. There is no doubt that in any proceeding, judicial or quasi judicial. there is requirement of proof and such requirement cannot be substituted by surmise and conjecture. 13. But proof may be established directly on the basis of the evidence adduced in the proceeding or the allegation of fact may be established by drawing reasonable inferences from other facts established by evidence. In the instant case, the committee, in our view, has referred to the admitted facts and also the facts established in evidence and on a proper analysis of the facts so established and/or admitted it has drawn reasonable inference . The Disciplinary Committee deserves commendation in disposing of the complainants case fairly and dispassionately. In the matter of imposition of punishment, the Disciplinary Committee has referred to the relevant decisions of this Court imposed the penalty by recording good reasons f or the same.We are not oblivious of the fact that a member of legal profession should not be permitted to be exposed to the hazards of false and malicious allegation against such member and extreme care and caution is required to be taken in dealing with the case of allegation of unfair and improper conduct on the part of a member of legal profession. 14. There is no manner of doubt that the impugned decision of Disciplinary Committee has a very serious implication on the reputation and standing of the appellant in the society and to the members of his family. friends and relatives. The impugned decision has also a serious bearing on the professional career of the appellant and avocation of life in future. But giving out anxious thought and consideration in the matter we have not been able to come to the finding that the impugned order was improper and unjust and the findings are not tenable law and/or the decision has resulted in a failure of justice to the appellant. During the course of arguments before us, we had pointedly asked the learned counsel for the appellant to show us any material on record that in any other case on the advice tendered by the appellant any loan was in fact given by Mr. Balu Bhai Modi in order to dispel the inference that the appellant was not a member of the racket and was only discharging his professional duty. The learned counsel for the appellant was unable to show any evidence worth the name to prove the innocence of the appellant. The evidence of many other applicants seeking loan shows that they were also duped and met the same fate as the complainant speaks volumes against the conduct of the appellant. An advocate indulging in such nefarious activities is not entitled to continue as a member of legal profession which is based on the implicit faith and confidence in the mind of the client. From a perusal of the entire evidence placed on record and read before us, leads us to the irresistible conclusion that the appellant was not only having full knowledge about the racket but was also active member in the complicity of such racket and was getting substantial financial advantage. The appellant was not a silent spectator merely given his legal advice, but was an important link in the modus operandi of running a racket by Balu Bhai Modi. It is really unfortunate that a member of a legal profession has indulged in fraudulent activities in a calculated manner for financial gain at the cost of an innocent person. To say the least, an advocate enrolled under the Advocates Act, 1961, having a licence to represent the case of litigants is expected to maintain a high standard of morality and un-impeachable sense of legal and ethical propriety. It is not the case of a lapse to take appropriate steps by an Advocate and/or a case of negligence in discharging the duties so that any lenient view may be taken against the concerned advocate. The concerned advocate has not only misused the trust reposed in him but has played an active part in defrauding or cheating the complainant who on the basis of the false representation of the concerned advocate had to part with substantial amount to his serious loss and prejudice.

0[ds]We are, however, unable to accept the said contention of the learned counsel. We have carefully considered the materials on record and the reasoning of the Disciplinary Committee in the impugned judgment and we are unable to hold that the findings of the Disciplinary committee are outcome of any closed mind or bias on the part of the committee and/or findings of the Committee really lay in the realm of surmise andIn the instant case, the committee, in our view, has referred to the admitted facts and also the facts established in evidence and on a proper analysis of the facts so established and/or admitted it has drawn reasonable inference . The Disciplinary Committee deserves commendation in disposing of the complainants case fairly and dispassionately. In the matter of imposition of punishment, the Disciplinary Committee has referred to the relevant decisions of this Court imposed the penalty by recording good reasons f or the same.We are not oblivious of the fact that a member of legal profession should not be permitted to be exposed to the hazards of false and malicious allegation against such member and extreme care and caution is required to be taken in dealing with the case of allegation of unfair and improper conduct on the part of a member of legalis no manner of doubt that the impugned decision of Disciplinary Committee has a very serious implication on the reputation and standing of the appellant in the society and to the members of his family. friends and relatives. The impugned decision has also a serious bearing on the professional career of the appellant and avocation of life in future. But giving out anxious thought and consideration in the matter we have not been able to come to the finding that the impugned order was improper and unjust and the findings are not tenable law and/or the decision has resulted in a failure of justice to the appellant. During the course of arguments before us, we had pointedly asked the learned counsel for the appellant to show us any material on record that in any other case on the advice tendered by the appellant any loan was in fact given by Mr. Balu Bhai Modi in order to dispel the inference that the appellant was not a member of the racket and was only discharging his professional duty. The learned counsel for the appellant was unable to show any evidence worth the name to prove the innocence of the appellant. The evidence of many other applicants seeking loan shows that they were also duped and met the same fate as the complainant speaks volumes against the conduct of the appellant. An advocate indulging in such nefarious activities is not entitled to continue as a member of legal profession which is based on the implicit faith and confidence in the mind of the client. From a perusal of the entire evidence placed on record and read before us, leads us to the irresistible conclusion that the appellant was not only having full knowledge about the racket but was also active member in the complicity of such racket and was getting substantial financial advantage. The appellant was not a silent spectator merely given his legal advice, but was an important link in the modus operandi of running a racket by Balu Bhai Modi. It is really unfortunate that a member of a legal profession has indulged in fraudulent activities in a calculated manner for financial gain at the cost of an innocent person. To say the least, an advocate enrolled under the Advocates Act, 1961, having a licence to represent the case of litigants is expected to maintain a high standard of morality and un-impeachable sense of legal and ethical propriety. It is not the case of a lapse to take appropriate steps by an Advocate and/or a case of negligence in discharging the duties so that any lenient view may be taken against the concerned advocate. The concerned advocate has not only misused the trust reposed in him but has played an active part in defrauding or cheating the complainant who on the basis of the false representation of the concerned advocate had to part with substantial amount to his serious loss andhave carefully considered the materials on record and the reasoning of the Disciplinary Committee in the impugned judgment and we are unable to hold that the findings of the Disciplinary committee are outcome of any closed mind or bias on the part of the committee and/or findings of the Committee really lay in the realm of surmise andconjecture.We have already indicated the anxiety of the Disciplinary Committee to dispassionately assess the facts of the case without being influenced by any observation of the High Court of Bombay. The Committee was alive to various aspects of the case and has taken care in meticulously scrutinising and analysing the evidence on record and the materials and the Committee has based its finding by giving cogent reasons and the inf erences drawn from the established facts also appear to us quite reasonable. It may be indicated at this stage that Shri Balubhai Modi had died during the pendency of the proceedings before the Disciplinary Committee of the Bar Council of India and there was no occasion to proceed further with the criminal proceeding initiated against him and/or to examine him in the instant case. It is always permissible to draw reasonable inference from the facts established in a proceeding and such reasonable inference cannot be termed as finding based on surmises and conjectures.

### 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: he should pay the amount in question to Shri Bal ubhai Modi and also to the appellant towards legal expenses and other expenses so that loan for Rs.7 lakhs would be advanced to him without delay. Such case, according to the learned counsel, could not be established by any corroborative evidence but has been accepted by the Disciplinary committee on mere surmise and conjecture. We are, however, unable to accept the said contention of the learned counsel. We have carefully considered the materials on record and the reasoning of the Disciplinary Committee in the impugned judgment and we are unable to hold that the findings of the Disciplinary committee are outcome of any closed mind or bias on the part of the committee and/or findings of the Committee really lay in the realm of surmise and conjecture.We have already indicated the anxiety of the Disciplinary Committee to dispassionately assess the facts of the case without being influenced by any observation of the High Court of Bombay. The Committee was alive to various aspects of the case and has taken care in meticulously scrutinising and analysing the evidence on record and the materials and the Committee has based its finding by giving cogent reasons and the inf erences drawn from the established facts also appear to us quite reasonable. It may be indicated at this stage that Shri Balubhai Modi had died during the pendency of the proceedings before the Disciplinary Committee of the Bar Council of India and there was no occasion to proceed further with the criminal proceeding initiated against him and/or to examine him in the instant case. It is always permissible to draw reasonable inference from the facts established in a proceeding and such reasonable inference cannot be termed as finding based on surmises and conjectures. There is no doubt that in any proceeding, judicial or quasi judicial. there is requirement of proof and such requirement cannot be substituted by surmise and conjecture. 13. But proof may be established directly on the basis of the evidence adduced in the proceeding or the allegation of fact may be established by drawing reasonable inferences from other facts established by evidence. In the instant case, the committee, in our view, has referred to the admitted facts and also the facts established in evidence and on a proper analysis of the facts so established and/or admitted it has drawn reasonable inference . The Disciplinary Committee deserves commendation in disposing of the complainants case fairly and dispassionately. In the matter of imposition of punishment, the Disciplinary Committee has referred to the relevant decisions of this Court imposed the penalty by recording good reasons f or the same.We are not oblivious of the fact that a member of legal profession should not be permitted to be exposed to the hazards of false and malicious allegation against such member and extreme care and caution is required to be taken in dealing with the case of allegation of unfair and improper conduct on the part of a member of legal profession. 14. There is no manner of doubt that the impugned decision of Disciplinary Committee has a very serious implication on the reputation and standing of the appellant in the society and to the members of his family. friends and relatives. The impugned decision has also a serious bearing on the professional career of the appellant and avocation of life in future. But giving out anxious thought and consideration in the matter we have not been able to come to the finding that the impugned order was improper and unjust and the findings are not tenable law and/or the decision has resulted in a failure of justice to the appellant. During the course of arguments before us, we had pointedly asked the learned counsel for the appellant to show us any material on record that in any other case on the advice tendered by the appellant any loan was in fact given by Mr. Balu Bhai Modi in order to dispel the inference that the appellant was not a member of the racket and was only discharging his professional duty. The learned counsel for the appellant was unable to show any evidence worth the name to prove the innocence of the appellant. The evidence of many other applicants seeking loan shows that they were also duped and met the same fate as the complainant speaks volumes against the conduct of the appellant. An advocate indulging in such nefarious activities is not entitled to continue as a member of legal profession which is based on the implicit faith and confidence in the mind of the client. From a perusal of the entire evidence placed on record and read before us, leads us to the irresistible conclusion that the appellant was not only having full knowledge about the racket but was also active member in the complicity of such racket and was getting substantial financial advantage. The appellant was not a silent spectator merely given his legal advice, but was an important link in the modus operandi of running a racket by Balu Bhai Modi. It is really unfortunate that a member of a legal profession has indulged in fraudulent activities in a calculated manner for financial gain at the cost of an innocent person. To say the least, an advocate enrolled under the Advocates Act, 1961, having a licence to represent the case of litigants is expected to maintain a high standard of morality and un-impeachable sense of legal and ethical propriety. It is not the case of a lapse to take appropriate steps by an Advocate and/or a case of negligence in discharging the duties so that any lenient view may be taken against the concerned advocate. The concerned advocate has not only misused the trust reposed in him but has played an active part in defrauding or cheating the complainant who on the basis of the false representation of the concerned advocate had to part with substantial amount to his serious loss and prejudice. ### Response: 0 ### Explanation: We are, however, unable to accept the said contention of the learned counsel. We have carefully considered the materials on record and the reasoning of the Disciplinary Committee in the impugned judgment and we are unable to hold that the findings of the Disciplinary committee are outcome of any closed mind or bias on the part of the committee and/or findings of the Committee really lay in the realm of surmise andIn the instant case, the committee, in our view, has referred to the admitted facts and also the facts established in evidence and on a proper analysis of the facts so established and/or admitted it has drawn reasonable inference . The Disciplinary Committee deserves commendation in disposing of the complainants case fairly and dispassionately. In the matter of imposition of punishment, the Disciplinary Committee has referred to the relevant decisions of this Court imposed the penalty by recording good reasons f or the same.We are not oblivious of the fact that a member of legal profession should not be permitted to be exposed to the hazards of false and malicious allegation against such member and extreme care and caution is required to be taken in dealing with the case of allegation of unfair and improper conduct on the part of a member of legalis no manner of doubt that the impugned decision of Disciplinary Committee has a very serious implication on the reputation and standing of the appellant in the society and to the members of his family. friends and relatives. The impugned decision has also a serious bearing on the professional career of the appellant and avocation of life in future. But giving out anxious thought and consideration in the matter we have not been able to come to the finding that the impugned order was improper and unjust and the findings are not tenable law and/or the decision has resulted in a failure of justice to the appellant. During the course of arguments before us, we had pointedly asked the learned counsel for the appellant to show us any material on record that in any other case on the advice tendered by the appellant any loan was in fact given by Mr. Balu Bhai Modi in order to dispel the inference that the appellant was not a member of the racket and was only discharging his professional duty. The learned counsel for the appellant was unable to show any evidence worth the name to prove the innocence of the appellant. The evidence of many other applicants seeking loan shows that they were also duped and met the same fate as the complainant speaks volumes against the conduct of the appellant. An advocate indulging in such nefarious activities is not entitled to continue as a member of legal profession which is based on the implicit faith and confidence in the mind of the client. From a perusal of the entire evidence placed on record and read before us, leads us to the irresistible conclusion that the appellant was not only having full knowledge about the racket but was also active member in the complicity of such racket and was getting substantial financial advantage. The appellant was not a silent spectator merely given his legal advice, but was an important link in the modus operandi of running a racket by Balu Bhai Modi. It is really unfortunate that a member of a legal profession has indulged in fraudulent activities in a calculated manner for financial gain at the cost of an innocent person. To say the least, an advocate enrolled under the Advocates Act, 1961, having a licence to represent the case of litigants is expected to maintain a high standard of morality and un-impeachable sense of legal and ethical propriety. It is not the case of a lapse to take appropriate steps by an Advocate and/or a case of negligence in discharging the duties so that any lenient view may be taken against the concerned advocate. The concerned advocate has not only misused the trust reposed in him but has played an active part in defrauding or cheating the complainant who on the basis of the false representation of the concerned advocate had to part with substantial amount to his serious loss andhave carefully considered the materials on record and the reasoning of the Disciplinary Committee in the impugned judgment and we are unable to hold that the findings of the Disciplinary committee are outcome of any closed mind or bias on the part of the committee and/or findings of the Committee really lay in the realm of surmise andconjecture.We have already indicated the anxiety of the Disciplinary Committee to dispassionately assess the facts of the case without being influenced by any observation of the High Court of Bombay. The Committee was alive to various aspects of the case and has taken care in meticulously scrutinising and analysing the evidence on record and the materials and the Committee has based its finding by giving cogent reasons and the inf erences drawn from the established facts also appear to us quite reasonable. It may be indicated at this stage that Shri Balubhai Modi had died during the pendency of the proceedings before the Disciplinary Committee of the Bar Council of India and there was no occasion to proceed further with the criminal proceeding initiated against him and/or to examine him in the instant case. It is always permissible to draw reasonable inference from the facts established in a proceeding and such reasonable inference cannot be termed as finding based on surmises and conjectures.

Surinder Kumar and Ors Vs. Gian Chand and Ors

the mortgage. They alleged that they were the "representatives and heirs" of Lala Guranditia Mal under the will and in their replication they just stated: "We are heirs and representatives of Lala Guranditta Mal mortgagee deceased" Inter alia the defendants pleaded that they had no knowledge of the will alleged to have been made by Guruanditta Mal and they denied that the plaintiffs were heirs and representatives of the mortgagee and therefore had no locus standi to sue. Five issues were stated by the learned trial Judge out of which the issue now relevant for the purpose of this appeal is the first one: (1) Have the plaintiffs a locus standi to maintain the present suit as successors-in-interest of Guranditta deceased?3. The learned Subordinate Judge held that the will "had the presumption of its correct execution" because it was registered and also that not obtaining the probate of the will was no bar to the plaintiffs obtaining a decree and passed a preliminary mortgage decree. On the matter being taken in appeal to the High Court the decree of the trial Court was reversed and the suit of plaintiffs dismissed but the parties were left to bear their own costs. The High Court held:"It is thus clear that attestation by two witnesses was necessary in order to validate the will now before us. As this requirement of law has not been satisfied the plaintiffs had no locus standi to maintain the suit."4. A prayer made for the admission of addition of evidence under O. 41, R. 27 of the Civil Procedure Code was rejected. The High Court refused leave to appeal under Art. 133 but Special Leave was granted on 21st October 1952. In the meanwhile the probate of the will of Lala Guranditta Mal was granted by the District Judge of Gurdaspur on 11th July 1951, in favour of the present appellants and their mother Mt. Har Devi. The appellants made an application in this Court for the admission of additional evidence and prayed that the "probate be placed on the record": as the probate of the will operated as a judgment in rem". They also applied to add Mt. Har Devi as a respondent in the appeal.5. An objection to the admission of additional evidence at this stage is taken by the respondents, on the ground that the probate was obtained without their knowledge and that the application was made at a late stage, it deprived the respondents of the valuable right which vests in them because the claim has become statute barred and that there is no provision in the Rules of this Court for the admission of additional evidence. It is clear that the probate was applied for and obtained after the Judgment of the High Court and therefore could not have been produced in that Court. The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself.6. As to the power of this Court, there is no specific provision for the admission of additional evidence but R. 5 of O. 45 of the Supreme Court Rules recognises the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of process of the Court. The Privy Council in Indrajit Pratap Singh v. Amar Singh, 50 Ind App 183 at p. 191 (AIR 1923 PC 128 at p.136) (A) said:"that there is no restriction on the powers of the Board to admit such evidence for the non-production of which at the initial stage sufficient ground has been made out."The powers of this Court in regard to the admission of additional evidence are in no way less than that of the Privy Council. Moreover in deciding the appeal we have to take the circumstances as they are at the time when the appellant is being decided and a judgment in rem having been passed in favour of the appellants it is necessary to take that additional fact into consideration.It was so held by the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lail Chaudhari, 1940 F C R 84: (AIR 1941 F C 5) (B), where Gayer C. J., quoted with approval the following observation of Chief Justice Hughes in Patterson v. State of Alabama, (1934) 294 U S 600 at p. 607 (C)."We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervend since the judgment was entered."Varadachariar J., was of opinion that the hearing of an appeal is under the processual law of this country in the nature of a rehearing and therefore in moulding the relief to be granted in appeal an appellate Court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed. He referred to many Indian cases and to the practice of the Judicial Committee of the Privy Council and to some English cases.7. In our opinion the fact of the grant of the probate which has supervened since the decision under appeal was given and which has been placed before this Court must be taken into consideration in deciding the appeal. In that event the infirmity in the appellants case due to the want of proper attestation of the will under S. 63(c) of the Indian Succession Act would be removed.Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Court on this point is therefore reversed.

1[ds]7. In our opinion the fact of the grant of the probate which has supervened since the decision under appeal was given and which has been placed before this Court must be taken into consideration in deciding the appeal. In that event the infirmity in the appellants case due to the want of proper attestation of the will under S. 63(c) of the Indian Succession Act would be removed.Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Court on this point is therefore reversed.

### 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 mortgage. They alleged that they were the "representatives and heirs" of Lala Guranditia Mal under the will and in their replication they just stated: "We are heirs and representatives of Lala Guranditta Mal mortgagee deceased" Inter alia the defendants pleaded that they had no knowledge of the will alleged to have been made by Guruanditta Mal and they denied that the plaintiffs were heirs and representatives of the mortgagee and therefore had no locus standi to sue. Five issues were stated by the learned trial Judge out of which the issue now relevant for the purpose of this appeal is the first one: (1) Have the plaintiffs a locus standi to maintain the present suit as successors-in-interest of Guranditta deceased?3. The learned Subordinate Judge held that the will "had the presumption of its correct execution" because it was registered and also that not obtaining the probate of the will was no bar to the plaintiffs obtaining a decree and passed a preliminary mortgage decree. On the matter being taken in appeal to the High Court the decree of the trial Court was reversed and the suit of plaintiffs dismissed but the parties were left to bear their own costs. The High Court held:"It is thus clear that attestation by two witnesses was necessary in order to validate the will now before us. As this requirement of law has not been satisfied the plaintiffs had no locus standi to maintain the suit."4. A prayer made for the admission of addition of evidence under O. 41, R. 27 of the Civil Procedure Code was rejected. The High Court refused leave to appeal under Art. 133 but Special Leave was granted on 21st October 1952. In the meanwhile the probate of the will of Lala Guranditta Mal was granted by the District Judge of Gurdaspur on 11th July 1951, in favour of the present appellants and their mother Mt. Har Devi. The appellants made an application in this Court for the admission of additional evidence and prayed that the "probate be placed on the record": as the probate of the will operated as a judgment in rem". They also applied to add Mt. Har Devi as a respondent in the appeal.5. An objection to the admission of additional evidence at this stage is taken by the respondents, on the ground that the probate was obtained without their knowledge and that the application was made at a late stage, it deprived the respondents of the valuable right which vests in them because the claim has become statute barred and that there is no provision in the Rules of this Court for the admission of additional evidence. It is clear that the probate was applied for and obtained after the Judgment of the High Court and therefore could not have been produced in that Court. The judgment of the Probate Court must be presumed to have been obtained in accordance with the procedure prescribed by law and it is a judgment in rem. The objection that the respondents were not parties to it is thus unsustainable because of the nature of the judgment itself.6. As to the power of this Court, there is no specific provision for the admission of additional evidence but R. 5 of O. 45 of the Supreme Court Rules recognises the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent an abuse of process of the Court. The Privy Council in Indrajit Pratap Singh v. Amar Singh, 50 Ind App 183 at p. 191 (AIR 1923 PC 128 at p.136) (A) said:"that there is no restriction on the powers of the Board to admit such evidence for the non-production of which at the initial stage sufficient ground has been made out."The powers of this Court in regard to the admission of additional evidence are in no way less than that of the Privy Council. Moreover in deciding the appeal we have to take the circumstances as they are at the time when the appellant is being decided and a judgment in rem having been passed in favour of the appellants it is necessary to take that additional fact into consideration.It was so held by the Federal Court in Lachmeshwar Prasad Shukul v. Keshwar Lail Chaudhari, 1940 F C R 84: (AIR 1941 F C 5) (B), where Gayer C. J., quoted with approval the following observation of Chief Justice Hughes in Patterson v. State of Alabama, (1934) 294 U S 600 at p. 607 (C)."We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in the judgment under review but to make such disposition of the case as justice requires. And in determining what justice does require, the Court is bound to consider any change, either in fact or in law, which has supervend since the judgment was entered."Varadachariar J., was of opinion that the hearing of an appeal is under the processual law of this country in the nature of a rehearing and therefore in moulding the relief to be granted in appeal an appellate Court is entitled to take into account even facts and events which have come into existence since the decree appealed from was passed. He referred to many Indian cases and to the practice of the Judicial Committee of the Privy Council and to some English cases.7. In our opinion the fact of the grant of the probate which has supervened since the decision under appeal was given and which has been placed before this Court must be taken into consideration in deciding the appeal. In that event the infirmity in the appellants case due to the want of proper attestation of the will under S. 63(c) of the Indian Succession Act would be removed.Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Court on this point is therefore reversed. ### Response: 1 ### Explanation: 7. In our opinion the fact of the grant of the probate which has supervened since the decision under appeal was given and which has been placed before this Court must be taken into consideration in deciding the appeal. In that event the infirmity in the appellants case due to the want of proper attestation of the will under S. 63(c) of the Indian Succession Act would be removed.Because of the view we have taken the other objection raised by the respondents becomes wholly inefficacious. The finding of the High Court on this point is therefore reversed.

W.S.G. Cricket Private Limited Vs. Modi Entertainment Network & Another

the reference. The award rendered by the Umpire was lodged in the Bombay High Court. Subsequently the Umpire rendered a supplementary award relating to costs which has been termed as "final award". About a month after the lodging of the award in the High Court of Bombay by the Umpire at the instance of the respondent, Western Company, the latter lodged a plaint in the U.S. District Court, inter alia, seeking confirming the two awards rendered by the Umpire and a Judgment against the ONGC. Appellant ONGC on its part instituted an Arbitration petition under Ss.30 and 33 of the Arbitration Act, 1940 for setting aside the awards rendered by the Umpire. It was noticed by the Supreme Court that there is a possibility of the award rendered by the Umpire being set aside by the Indian Court. In that event, an extremely anomalous situation would arise in as much as successful party (Western Company) may well have recovered the amount awarded as per the Award from the assets of the losing party in the USA after procuring a judgment in terms of the award from the USA Court. It would result in an irreversible damage being done to the losing party (ONGC) for the Court in USA would have enforced a non-existent award under which nothing could have been recovered. Secondly, while as per the contract, parties were governed by the Indian Arbitration Act and the Indian Courts had the exclusive jurisdiction to affirm or set aside the award under the said Act, the Western Company was seeking to violate the very arbitration clause on the basis of which the award has been obtained by seeking confirmation of the award in the New York Court under the American Law. In these circumstances, it was held that it was one of those rare cases where the court would be failing in its duty if it hesitates in granting the restraint order, for, to oblige the ONGC to face the aforesaid proceedings in the American Court would be oppressive in the facts and circumstances of the case. 17.The next Judgment relied upon by Mr.Chinoy is in the case of Ramji Dayawala & Sons Ltd. Vs. Invest Import AIR 1981, Supreme Court 2085. In that case, the dispute was between a petty labour contractor and a foreign engineering construction company which had undertaken to erect the Thermal Power Station in Barauni in Bihar State. The contractor filed a suit for recovery of his dues. The defence was that there was an arbitration agreement between the parties to refer the disputes arising out of the same contract to arbitration and therefore, suit has to be stayed. The court found that there was no concluded arbitration agreement between the parties. It was held that in any event in the facts and circumstances of the case the High Court was not right in exercising its discretion in favour of the respondents by granting stay of the suit filed by the appellant. The court observed that the entire evidence both of the appellant and the respondent is in this country, the contract as a whole was executed and carried out in this country, the claim as a whole arose in this country, the appellant is a company incorporated in this country and the respondent is having its office in this country and that the respondent is not motivated by any principle to have the decision of the foreign arbitral tribunal at Paris but the principle object of the respondent is merely to make it more difficult, if not impossible, for the appellant, to assert the claim. It was held that in such a suit when discretion is exercised on well settled judicial consideration no court would grant stay and the stay has to be refused. The decision lays down principles for grant of stay under section 34 of the Arbitration Act, 1940 and has no bearing on the facts of the present case. 18.Mr. Chinoy also referred to the decision of the Privy Council in SNI Aerospatiale Vs. Lee Kui Jak and another (1987) 3 All ER 510 and the decision of the House of Lords in Airbus Industrie GEI Vs. Patel and others (1998) 2 All ER 257. These judgments basically deal with anti suit injunction and are not relevant to the issue raised in the instant case. 19.We may also mention that we find considerable substance in the submission of Mr. Chagla that the plaintiffs have deliberately suppressed letters dated 18th December 2000 and 5th January 2001. The Court of law exercising discretionary powers in such matters, rightly insists on a party approaching the court with clean hands. In S.P. Chengalvarya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and others 1994 (1) SCC 1 , the Supreme Court declared in unmistakable terms that:"a litigant who approaches the Court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party". Mr. Chinoy strenuously contended that documents were not intentionally suppressed. He submitted that no such objection was raised in the affidavit in reply filed on behalf of the defendants and this submission was made for the first time only during the course of arguments. Mr. Chinoy contended that court should not deny reliefs without fair consideration of merits of the application. It is not necessary to dilate on this aspect, suffice it to say that the Plaintiffs conduct is not above board. We are not satisfied that non-production of the letters dated 18th December 2000 and 5th January 2001, is a bonafide mistake and indeed this court would have been justified in vacating ad-interim injunction on this count. However, since we are of the opinion that plaintiffs are not entitled to any interlocutory injunction, we do not wish to express any final opinion on this aspect.

1[ds]In the circumstances, we have no hesitation to hold that the present application for injunction is completely misconceived. The remedy of the plaintiffs is to raise objection before the court in England where the defendant has instituted its claim.Chinoy strenuously contended that documents were not intentionally suppressed. He submitted that no such objection was raised in the affidavit in reply filed on behalf of the defendants and this submission was made for the first time only during the course of arguments. Mr. Chinoy contended that court should not deny reliefs without fair consideration of merits of the application. It is not necessary to dilate on this aspect, suffice it to say that the Plaintiffs conduct is not above board. We are not satisfied thatof the letters dated 18th December 2000 and 5th January 2001, is a bonafide mistake and indeed this court would have been justified in vacatinginjunction on this count. However, since we are of the opinion that plaintiffs are not entitled to any interlocutory injunction, we do not wish to express any final opinion on thismay also mention that we find considerable substance in the submission of Mr. Chagla that the plaintiffs have deliberately suppressed letters dated 18th December 2000 and 5th January 2001.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: the reference. The award rendered by the Umpire was lodged in the Bombay High Court. Subsequently the Umpire rendered a supplementary award relating to costs which has been termed as "final award". About a month after the lodging of the award in the High Court of Bombay by the Umpire at the instance of the respondent, Western Company, the latter lodged a plaint in the U.S. District Court, inter alia, seeking confirming the two awards rendered by the Umpire and a Judgment against the ONGC. Appellant ONGC on its part instituted an Arbitration petition under Ss.30 and 33 of the Arbitration Act, 1940 for setting aside the awards rendered by the Umpire. It was noticed by the Supreme Court that there is a possibility of the award rendered by the Umpire being set aside by the Indian Court. In that event, an extremely anomalous situation would arise in as much as successful party (Western Company) may well have recovered the amount awarded as per the Award from the assets of the losing party in the USA after procuring a judgment in terms of the award from the USA Court. It would result in an irreversible damage being done to the losing party (ONGC) for the Court in USA would have enforced a non-existent award under which nothing could have been recovered. Secondly, while as per the contract, parties were governed by the Indian Arbitration Act and the Indian Courts had the exclusive jurisdiction to affirm or set aside the award under the said Act, the Western Company was seeking to violate the very arbitration clause on the basis of which the award has been obtained by seeking confirmation of the award in the New York Court under the American Law. In these circumstances, it was held that it was one of those rare cases where the court would be failing in its duty if it hesitates in granting the restraint order, for, to oblige the ONGC to face the aforesaid proceedings in the American Court would be oppressive in the facts and circumstances of the case. 17.The next Judgment relied upon by Mr.Chinoy is in the case of Ramji Dayawala & Sons Ltd. Vs. Invest Import AIR 1981, Supreme Court 2085. In that case, the dispute was between a petty labour contractor and a foreign engineering construction company which had undertaken to erect the Thermal Power Station in Barauni in Bihar State. The contractor filed a suit for recovery of his dues. The defence was that there was an arbitration agreement between the parties to refer the disputes arising out of the same contract to arbitration and therefore, suit has to be stayed. The court found that there was no concluded arbitration agreement between the parties. It was held that in any event in the facts and circumstances of the case the High Court was not right in exercising its discretion in favour of the respondents by granting stay of the suit filed by the appellant. The court observed that the entire evidence both of the appellant and the respondent is in this country, the contract as a whole was executed and carried out in this country, the claim as a whole arose in this country, the appellant is a company incorporated in this country and the respondent is having its office in this country and that the respondent is not motivated by any principle to have the decision of the foreign arbitral tribunal at Paris but the principle object of the respondent is merely to make it more difficult, if not impossible, for the appellant, to assert the claim. It was held that in such a suit when discretion is exercised on well settled judicial consideration no court would grant stay and the stay has to be refused. The decision lays down principles for grant of stay under section 34 of the Arbitration Act, 1940 and has no bearing on the facts of the present case. 18.Mr. Chinoy also referred to the decision of the Privy Council in SNI Aerospatiale Vs. Lee Kui Jak and another (1987) 3 All ER 510 and the decision of the House of Lords in Airbus Industrie GEI Vs. Patel and others (1998) 2 All ER 257. These judgments basically deal with anti suit injunction and are not relevant to the issue raised in the instant case. 19.We may also mention that we find considerable substance in the submission of Mr. Chagla that the plaintiffs have deliberately suppressed letters dated 18th December 2000 and 5th January 2001. The Court of law exercising discretionary powers in such matters, rightly insists on a party approaching the court with clean hands. In S.P. Chengalvarya Naidu (dead) by LRs. Vs. Jagannath (dead) by LRs. and others 1994 (1) SCC 1 , the Supreme Court declared in unmistakable terms that:"a litigant who approaches the Court is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party". Mr. Chinoy strenuously contended that documents were not intentionally suppressed. He submitted that no such objection was raised in the affidavit in reply filed on behalf of the defendants and this submission was made for the first time only during the course of arguments. Mr. Chinoy contended that court should not deny reliefs without fair consideration of merits of the application. It is not necessary to dilate on this aspect, suffice it to say that the Plaintiffs conduct is not above board. We are not satisfied that non-production of the letters dated 18th December 2000 and 5th January 2001, is a bonafide mistake and indeed this court would have been justified in vacating ad-interim injunction on this count. However, since we are of the opinion that plaintiffs are not entitled to any interlocutory injunction, we do not wish to express any final opinion on this aspect. ### Response: 1 ### Explanation: In the circumstances, we have no hesitation to hold that the present application for injunction is completely misconceived. The remedy of the plaintiffs is to raise objection before the court in England where the defendant has instituted its claim.Chinoy strenuously contended that documents were not intentionally suppressed. He submitted that no such objection was raised in the affidavit in reply filed on behalf of the defendants and this submission was made for the first time only during the course of arguments. Mr. Chinoy contended that court should not deny reliefs without fair consideration of merits of the application. It is not necessary to dilate on this aspect, suffice it to say that the Plaintiffs conduct is not above board. We are not satisfied thatof the letters dated 18th December 2000 and 5th January 2001, is a bonafide mistake and indeed this court would have been justified in vacatinginjunction on this count. However, since we are of the opinion that plaintiffs are not entitled to any interlocutory injunction, we do not wish to express any final opinion on thismay also mention that we find considerable substance in the submission of Mr. Chagla that the plaintiffs have deliberately suppressed letters dated 18th December 2000 and 5th January 2001.

State Of Karnataka Vs. M.V. Mahesh

Rajendra Babu, J. 1. This case bristles with mystery over mystery as to the disappearance of Beena, wife of the respondent. On a complaint lodged about the missing of the said Beena, investigation was taken up by the police and on recovery of human bones M.O. 13 to M.O. 20 which were subjected to DNA examination, in order to establish the identity of the said bones as that of Beena, laid a charge sheet against the respondent and his father in the Court of Sessions at Bangalore which Court, after an elaborate trial, found that there are incriminating circumstances involving the respondent and his father in the offence alleged against them, namely, murder of Beena and convicted both of them who successfully appealed against the same. Hence this appeal. During pendency of this appeal father of the respondent died.2. The first circumstance relied upon by the Trial Court is that the said Beena was last seen in the company of the respondent. The second circumstance relied upon by the Trial Court is that the respondent gave false explanation as to her disappearance stating that she was in the family way and she insisted upon visiting her parents on 28.11.1988 and at 5.45 A.M. he took her on his two-wheeler and dropped her at the residence of her relatives and thereafter he did not hear anything about her. The DNA examination resulted in matching of the bones with that of the grouping of her close relatives. 3. Even if we proceed on the basis that the DNA examination resulted in identifying the bones found by the police as that of Beena, still what has to be established is involvement of the respondent in the commission of her murder. For that purpose reliance is placed upon the evidence of PWs 2, 6, 17, 28 and 29 who claim to have seen Beena in the company of the respondent. The explanation sought to be offered by the respondent is that he took her to the place of her relatives next morning at about 5.45 A.M. while the evidence of the witnesses referred to just now is that they saw her last on 28.11.1985. The statement made by the respondent was false is not established. Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court. 4. Further the so-called statement given by the respondent leading to discovery of the bones of Beena does not seem to have been appropriately put forth before the court. The statement given by the respondent is a very lengthy one narrating various circumstances as to how he fell in love with the said Beena, thereafter got married much against the wishes of his parents and she was in the family way at the relevant time and so on. So far as the respondent is concerned, no motive appears to have been established. Further the statement of the respondent as such leading to the discovery is neither marked nor put to the witnesses for prosecution. Indeed, whether the statement made by him really led to the discovery itself is in doubt inasmuch as the police had already information through another witness and that circumstance was strongly relied upon by the High Court. The High Court held that the statement made by the respondent, if at all, will not lead to any discovery inasmuch as the information was already in possession of the police and that reasoning cannot be faulted with. The whole prosecution case is a chain of circumstances connecting one with another with many missing looks in between. These aspects were noticed by the High Court and, therefore did not accept the case put forth by the prosecution.5. In this view of the matter, we do not think any case is made out by the appellant to interfere with the order made by the High Court. 6.

0[ds]So far as the respondent is concerned, no motive appears to have been established. Further the statement of the respondent as such leading to the discovery is neither marked nor put to the witnesses for prosecution. Indeed, whether the statement made by him really led to the discovery itself is in doubt inasmuch as the police had already information through another witness and that circumstance was strongly relied upon by the High Court. The High Court held that the statement made by the respondent, if at all, will not lead to any discovery inasmuch as the information was already in possession of the police and that reasoning cannot be faulted with. The whole prosecution case is a chain of circumstances connecting one with another with many missing looks in between. These aspects were noticed by the High Court and, therefore did not accept the case put forth by the prosecution.5. In this view of the matter, we do not think any case is made out by the appellant to interfere with the order made by the High Court.

### Instruction: Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding. ### Input: Rajendra Babu, J. 1. This case bristles with mystery over mystery as to the disappearance of Beena, wife of the respondent. On a complaint lodged about the missing of the said Beena, investigation was taken up by the police and on recovery of human bones M.O. 13 to M.O. 20 which were subjected to DNA examination, in order to establish the identity of the said bones as that of Beena, laid a charge sheet against the respondent and his father in the Court of Sessions at Bangalore which Court, after an elaborate trial, found that there are incriminating circumstances involving the respondent and his father in the offence alleged against them, namely, murder of Beena and convicted both of them who successfully appealed against the same. Hence this appeal. During pendency of this appeal father of the respondent died.2. The first circumstance relied upon by the Trial Court is that the said Beena was last seen in the company of the respondent. The second circumstance relied upon by the Trial Court is that the respondent gave false explanation as to her disappearance stating that she was in the family way and she insisted upon visiting her parents on 28.11.1988 and at 5.45 A.M. he took her on his two-wheeler and dropped her at the residence of her relatives and thereafter he did not hear anything about her. The DNA examination resulted in matching of the bones with that of the grouping of her close relatives. 3. Even if we proceed on the basis that the DNA examination resulted in identifying the bones found by the police as that of Beena, still what has to be established is involvement of the respondent in the commission of her murder. For that purpose reliance is placed upon the evidence of PWs 2, 6, 17, 28 and 29 who claim to have seen Beena in the company of the respondent. The explanation sought to be offered by the respondent is that he took her to the place of her relatives next morning at about 5.45 A.M. while the evidence of the witnesses referred to just now is that they saw her last on 28.11.1985. The statement made by the respondent was false is not established. Merely being seen last together is not enough. What has to be established in a case of this nature is definite evidence to indicate that Beena had been done to death of which the respondent is or must be aware as also proximate to the time of being last seen together. No such clinching evidence is put forth. It is no doubt true that even in the absence of the corpus delicti it is possible to establish in an appropriate case commission of murder on appropriate material being made available to the court. In this case no such material is made available to the court. 4. Further the so-called statement given by the respondent leading to discovery of the bones of Beena does not seem to have been appropriately put forth before the court. The statement given by the respondent is a very lengthy one narrating various circumstances as to how he fell in love with the said Beena, thereafter got married much against the wishes of his parents and she was in the family way at the relevant time and so on. So far as the respondent is concerned, no motive appears to have been established. Further the statement of the respondent as such leading to the discovery is neither marked nor put to the witnesses for prosecution. Indeed, whether the statement made by him really led to the discovery itself is in doubt inasmuch as the police had already information through another witness and that circumstance was strongly relied upon by the High Court. The High Court held that the statement made by the respondent, if at all, will not lead to any discovery inasmuch as the information was already in possession of the police and that reasoning cannot be faulted with. The whole prosecution case is a chain of circumstances connecting one with another with many missing looks in between. These aspects were noticed by the High Court and, therefore did not accept the case put forth by the prosecution.5. In this view of the matter, we do not think any case is made out by the appellant to interfere with the order made by the High Court. 6. ### Response: 0 ### Explanation: So far as the respondent is concerned, no motive appears to have been established. Further the statement of the respondent as such leading to the discovery is neither marked nor put to the witnesses for prosecution. Indeed, whether the statement made by him really led to the discovery itself is in doubt inasmuch as the police had already information through another witness and that circumstance was strongly relied upon by the High Court. The High Court held that the statement made by the respondent, if at all, will not lead to any discovery inasmuch as the information was already in possession of the police and that reasoning cannot be faulted with. The whole prosecution case is a chain of circumstances connecting one with another with many missing looks in between. These aspects were noticed by the High Court and, therefore did not accept the case put forth by the prosecution.5. In this view of the matter, we do not think any case is made out by the appellant to interfere with the order made by the High Court.

Charge Substation Vs. Workmen Shift In-Addl. Industrial Tribunal, Delhi and Others

Krishna Iyer, J.This civil appeal springs from an award by the Delhi Industrial Tribunal which is challenged by a small category of workmen who are 200 in number, the only financial impact where of would be around Rs. 6000. The industrial dispute which led to the award relates to the year 1967 and it is unfortunate that the final adjudication of this dispute is being rendered as late as 1979. This provides the comment that litigation is far too long-lived to hold any realistic promise of fruits to the parties to the dispute.2. The facts necessary to understand the scope of dispute may be stated shortly. The Delhi Electricity Supply Undertaking employs various workmen under different categories. One of these categories, working in the distribution centres, is known as shift incharge. These workmen by qualification are matriculates with ITI certificates. There are three categories which are more or less similar but graded one above the other, in this Department. The lowest is known as attendants who are incharge of minor distribution centres. The highest are known as sub-stations chargemen who are incharge of very important sub-stations. In between, we have sub-station shift incharge species with whom we are concerned.3. Since the subject-matter, financial impact and the number involved are comparatively inconsiderable, no detailed discussion is necessary for a decision. Broad considerations of equity and industrial justice may guide us in reaching a conclusion. This workmen involved, namely shift incharge employees, have substantially the same qualifications as those who are paid higher. What is more, their salaries are relatively poor. It is significant that a committee had been appointed by the Undertaking where both sides were represented and the recommendations unanimously made by that Committee have been accepted in all cases except in the case of the shift incharge category. We are far from satisfied that any, reasonable justification or understandable classification will validate a differentiation in regard to these employees. Indeed, in the course of the arguments, these striking inequities emerged and we did suggest to counsel on both sides that while we are keen on avoiding any consequential upsets in other categories, we regard the implementation of the Sub-Committees recommendations eminently fair. Counsel on both sides apparently felt the force of our suggestion and took time for consultation with their respective clients. Nothing has emerged out of such confabulations and so we proceed to decide the case on merits.4. Industrial justice is not an application of rigid formulae but, in consonance with Part IV of the Constitution, award of wages which are substantially just, subject, of course, to well recognised principles evolved by this Court. Bearing in mind all these factors, we direct that the award of the Tribunal be modified and the recommendations of the Sub-Committee where both sides were represented be substituted. Since the period to which the dispute relates is quite long and many other wage increases have taken place, we do not thin any possible repercussions will ensue from such acceptance. We must make it perfectly plain that we treat this dispute as a special case and adopt the course we have done largely influenced by the factor that there are only a few involved and the financial impact is minimal. That is who we wish to emphasise that this decision of ours cannot be the basis for any further claims by the same set of workmen to others in the establishment. Counsel for the appellants assure us on behalf of the Union that no such claim would be made or at all was likely.

1[ds]4. Industrial justice is not an application of rigid formulae but, in consonance with Part IV of the Constitution, award of wages which are substantially just, subject, of course, to well recognised principles evolved by this Court. Bearing in mind all these factors, we direct that the award of the Tribunal be modified and the recommendations of thewhere both sides were represented be substituted. Since the period to which the dispute relates is quite long and many other wage increases have taken place, we do not thin any possible repercussions will ensue from such acceptance. We must make it perfectly plain that we treat this dispute as a special case and adopt the course we have done largely influenced by the factor that there are only a few involved and the financial impact is minimal. That is who we wish to emphasise that this decision of ours cannot be the basis for any further claims by the same set of workmen to others in the establishment. Counsel for the appellants assure us on behalf of the Union that no such claim would be made or at all was likely.

### 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: Krishna Iyer, J.This civil appeal springs from an award by the Delhi Industrial Tribunal which is challenged by a small category of workmen who are 200 in number, the only financial impact where of would be around Rs. 6000. The industrial dispute which led to the award relates to the year 1967 and it is unfortunate that the final adjudication of this dispute is being rendered as late as 1979. This provides the comment that litigation is far too long-lived to hold any realistic promise of fruits to the parties to the dispute.2. The facts necessary to understand the scope of dispute may be stated shortly. The Delhi Electricity Supply Undertaking employs various workmen under different categories. One of these categories, working in the distribution centres, is known as shift incharge. These workmen by qualification are matriculates with ITI certificates. There are three categories which are more or less similar but graded one above the other, in this Department. The lowest is known as attendants who are incharge of minor distribution centres. The highest are known as sub-stations chargemen who are incharge of very important sub-stations. In between, we have sub-station shift incharge species with whom we are concerned.3. Since the subject-matter, financial impact and the number involved are comparatively inconsiderable, no detailed discussion is necessary for a decision. Broad considerations of equity and industrial justice may guide us in reaching a conclusion. This workmen involved, namely shift incharge employees, have substantially the same qualifications as those who are paid higher. What is more, their salaries are relatively poor. It is significant that a committee had been appointed by the Undertaking where both sides were represented and the recommendations unanimously made by that Committee have been accepted in all cases except in the case of the shift incharge category. We are far from satisfied that any, reasonable justification or understandable classification will validate a differentiation in regard to these employees. Indeed, in the course of the arguments, these striking inequities emerged and we did suggest to counsel on both sides that while we are keen on avoiding any consequential upsets in other categories, we regard the implementation of the Sub-Committees recommendations eminently fair. Counsel on both sides apparently felt the force of our suggestion and took time for consultation with their respective clients. Nothing has emerged out of such confabulations and so we proceed to decide the case on merits.4. Industrial justice is not an application of rigid formulae but, in consonance with Part IV of the Constitution, award of wages which are substantially just, subject, of course, to well recognised principles evolved by this Court. Bearing in mind all these factors, we direct that the award of the Tribunal be modified and the recommendations of the Sub-Committee where both sides were represented be substituted. Since the period to which the dispute relates is quite long and many other wage increases have taken place, we do not thin any possible repercussions will ensue from such acceptance. We must make it perfectly plain that we treat this dispute as a special case and adopt the course we have done largely influenced by the factor that there are only a few involved and the financial impact is minimal. That is who we wish to emphasise that this decision of ours cannot be the basis for any further claims by the same set of workmen to others in the establishment. Counsel for the appellants assure us on behalf of the Union that no such claim would be made or at all was likely. ### Response: 1 ### Explanation: 4. Industrial justice is not an application of rigid formulae but, in consonance with Part IV of the Constitution, award of wages which are substantially just, subject, of course, to well recognised principles evolved by this Court. Bearing in mind all these factors, we direct that the award of the Tribunal be modified and the recommendations of thewhere both sides were represented be substituted. Since the period to which the dispute relates is quite long and many other wage increases have taken place, we do not thin any possible repercussions will ensue from such acceptance. We must make it perfectly plain that we treat this dispute as a special case and adopt the course we have done largely influenced by the factor that there are only a few involved and the financial impact is minimal. That is who we wish to emphasise that this decision of ours cannot be the basis for any further claims by the same set of workmen to others in the establishment. Counsel for the appellants assure us on behalf of the Union that no such claim would be made or at all was likely.

Kerala State Fin. Entps Vs. Jacob Alexander

sufficient if they pay only the balance amount after such deduction (dividend). (c) Auction discount will be distributed to all subscribers in pro portion to their ticket share, irrespective of whether prized, non prized, auctioned or non auctioned. But prized and auctioned subscribers will not be eligible for the auction discount if they do not pay the instalments within the due date. The auction discount, so forfeited by the prized and auctioned subscribers will be distributed after the termination of the Kuri, in proportion to the share of the ticket . To the subscribers who have remitted regularly the instalment amount till that date. (d) Those subscribers who are eligible for the dividend as above stated, need remit at each instalment only the amount after deduction of dividend, as their share. But if the dividend amount exceeds the instalment amount, such exceeds the instalment amount, such excess will be paid in cash to the subscribers. 11(b ) If the non prized and non auctioned subscribers do not remit the instalment amount within ten days of the due date, they can pay the said amount together with 12% interest on or before the next due date. If it i s not so done, grace period (10 days) will not be allowed for the next and succeeding instalments and such subscribers will forfeit the discounts (dividend, auction discount)of the three defaulted instalments if they default continuously two instalments along with the interest and fail to remit the third instalment, unless otherwise permitted by the company, the tickets of subscribers, who have defaulted continuously three instalments, will be scratched and they will automatically lose their right to be subscribers. The company will have the right to remove their names from the kuri list and will have the power to transfer to itself or enroll fresh subscribers instead. But non- removal from the list of subscribers or non-substitution of another in such cases shall not be construed as having allowed the continuous defaulter to continue as a subscriber."The provisions of chit Funds Act. 1961 and its constitutional validity came up for consideration before this court in the case of Shriram Chits and Investment (P) Ltd. v. Union of India and others. S.C.C. 1993(4) Suppl. 226. The said Act is pari materia with the Act now under consideration. This court considered the role of foreman in the chit transactions and came to hold and indicated the manner in which unscrupulous foreman resorted to unfair methods to secure illegal gains, thus: "The foreman derives his income in different ways, both legal and illegal. In the former category can be included items such as admission fee from members, penal interest or penalty fee from defaulting members and forfeiture of their dividend, interest on loans to non-prized chit holders. fees for transfer of shares in the chit, deduction from the subscription paid by a member who wants to resign, dividends on the chit reserved for himself interest on the chit prize taken without deduction, interest on the chit prize which the prized member may not be in a position to collect immediately, and subscriptions paid by members who discontinue in the middle of the scheme but do not care to claim refund. The unscrupulous among the foremen resort to so many unfair methods to secure illegal gains. A few of these methods are briefly mentioned below: (i) Enrollment of fictitious members to completes the required number of members in a chit series. If a real and needy non-prized member is not able to come forward to offer a high discount at the auction. One of these benami members is Shown to get the prize thereby depriving the real members of the opportunity, (ii) Similarly, it is possible to exploit needy non-prized member or a new member so that he gets the prize only at the maximum discount. (iii) The prized member is supposed to get the amount soon after the draw or auction is over of course on furnishing the security. But the foreman adopts tactics which delay the actual payment for a considerable time, meanwhile he uses the money interest-free. If he succeeds in delaying the payment till the succeeding draw, the earlier prize winner is given the prize out of the collections of the succeeding draw. Thus, one instalment is perpetually in the hands of the foreman to be utilized in any way he likes.The above are only examples to illustrate the way in which some foremen minimize their profits. They do not take into account the cases where the foreman and his associates disappear from the scene and are untraceable. The police have many such cases on their record. During 1962-66, as many as 255 chitties collapsed in several districts of Kerala on account of such malpractices." Bearing in mind what has been stated by this court in the aforesaid case with regard to the manner in which the foreman exploits the subscribers and on examining the provisions of the Act and the Vaimpu referred to earlier, we have no hesitation to come to the conclusion that a foreman is only entitled to the commission as is provided in the vaimpu and is not entitled to anything more. In view of the specific language used in clause 8(c) of the vaimpu, the amount of auction discount has to be distributed among all the subscribers in proportion to their ticket share. We are further of the view that the forfeited discount of non-prized subscribers will have to be distributed among the subscribers who have remitted their subscriptions regularly.It is true that there is no specific provision in the vaimpu but since under the Act and the vaimpu the entitlement of the foreman has been indicated and the foreman cannot take anything more than what is provided for and therefore the amount has to be distributed among the regular subscribers. In our considered opinion, the Full Bench of the Kerala High Court rightly answered the question and we do not find any legal infirmity in the same.

0[ds]Even though notice had been duly served on the plaintiff respondent but since the plaintiff did not appear either in person or through counsel and in view of the importance of th e matter we thought it appropriate to take the assistance of a counsel and Mr. Sitaramiah, learned senior counsel agreed to render assistance to thein mind what has been stated by this court in the aforesaid case with regard to the manner in which the foreman exploits the subscribers and on examining the provisions of the Act and the Vaimpu referred to earlier, we have no hesitation to come to the conclusion that a foreman is only entitled to the commission as is provided in the vaimpu and is not entitled to anything more. In view of the specific language used in clause 8(c) of the vaimpu, the amount of auction discount has to be distributed among all the subscribers in proportion to their ticket share. We are further of the view that the forfeited discount ofsubscribers will have to be distributed among the subscribers who have remitted their subscriptions regularly.It is true that there is no specific provision in the vaimpu but since under the Act and the vaimpu the entitlement of the foreman has been indicated and the foreman cannot take anything more than what is provided for and therefore the amount has to be distributed among the regular subscribers. In our considered opinion, the Full Bench of the Kerala High Court rightly answered the question and we do not find any legal infirmity in the same.

### 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: sufficient if they pay only the balance amount after such deduction (dividend). (c) Auction discount will be distributed to all subscribers in pro portion to their ticket share, irrespective of whether prized, non prized, auctioned or non auctioned. But prized and auctioned subscribers will not be eligible for the auction discount if they do not pay the instalments within the due date. The auction discount, so forfeited by the prized and auctioned subscribers will be distributed after the termination of the Kuri, in proportion to the share of the ticket . To the subscribers who have remitted regularly the instalment amount till that date. (d) Those subscribers who are eligible for the dividend as above stated, need remit at each instalment only the amount after deduction of dividend, as their share. But if the dividend amount exceeds the instalment amount, such exceeds the instalment amount, such excess will be paid in cash to the subscribers. 11(b ) If the non prized and non auctioned subscribers do not remit the instalment amount within ten days of the due date, they can pay the said amount together with 12% interest on or before the next due date. If it i s not so done, grace period (10 days) will not be allowed for the next and succeeding instalments and such subscribers will forfeit the discounts (dividend, auction discount)of the three defaulted instalments if they default continuously two instalments along with the interest and fail to remit the third instalment, unless otherwise permitted by the company, the tickets of subscribers, who have defaulted continuously three instalments, will be scratched and they will automatically lose their right to be subscribers. The company will have the right to remove their names from the kuri list and will have the power to transfer to itself or enroll fresh subscribers instead. But non- removal from the list of subscribers or non-substitution of another in such cases shall not be construed as having allowed the continuous defaulter to continue as a subscriber."The provisions of chit Funds Act. 1961 and its constitutional validity came up for consideration before this court in the case of Shriram Chits and Investment (P) Ltd. v. Union of India and others. S.C.C. 1993(4) Suppl. 226. The said Act is pari materia with the Act now under consideration. This court considered the role of foreman in the chit transactions and came to hold and indicated the manner in which unscrupulous foreman resorted to unfair methods to secure illegal gains, thus: "The foreman derives his income in different ways, both legal and illegal. In the former category can be included items such as admission fee from members, penal interest or penalty fee from defaulting members and forfeiture of their dividend, interest on loans to non-prized chit holders. fees for transfer of shares in the chit, deduction from the subscription paid by a member who wants to resign, dividends on the chit reserved for himself interest on the chit prize taken without deduction, interest on the chit prize which the prized member may not be in a position to collect immediately, and subscriptions paid by members who discontinue in the middle of the scheme but do not care to claim refund. The unscrupulous among the foremen resort to so many unfair methods to secure illegal gains. A few of these methods are briefly mentioned below: (i) Enrollment of fictitious members to completes the required number of members in a chit series. If a real and needy non-prized member is not able to come forward to offer a high discount at the auction. One of these benami members is Shown to get the prize thereby depriving the real members of the opportunity, (ii) Similarly, it is possible to exploit needy non-prized member or a new member so that he gets the prize only at the maximum discount. (iii) The prized member is supposed to get the amount soon after the draw or auction is over of course on furnishing the security. But the foreman adopts tactics which delay the actual payment for a considerable time, meanwhile he uses the money interest-free. If he succeeds in delaying the payment till the succeeding draw, the earlier prize winner is given the prize out of the collections of the succeeding draw. Thus, one instalment is perpetually in the hands of the foreman to be utilized in any way he likes.The above are only examples to illustrate the way in which some foremen minimize their profits. They do not take into account the cases where the foreman and his associates disappear from the scene and are untraceable. The police have many such cases on their record. During 1962-66, as many as 255 chitties collapsed in several districts of Kerala on account of such malpractices." Bearing in mind what has been stated by this court in the aforesaid case with regard to the manner in which the foreman exploits the subscribers and on examining the provisions of the Act and the Vaimpu referred to earlier, we have no hesitation to come to the conclusion that a foreman is only entitled to the commission as is provided in the vaimpu and is not entitled to anything more. In view of the specific language used in clause 8(c) of the vaimpu, the amount of auction discount has to be distributed among all the subscribers in proportion to their ticket share. We are further of the view that the forfeited discount of non-prized subscribers will have to be distributed among the subscribers who have remitted their subscriptions regularly.It is true that there is no specific provision in the vaimpu but since under the Act and the vaimpu the entitlement of the foreman has been indicated and the foreman cannot take anything more than what is provided for and therefore the amount has to be distributed among the regular subscribers. In our considered opinion, the Full Bench of the Kerala High Court rightly answered the question and we do not find any legal infirmity in the same. ### Response: 0 ### Explanation: Even though notice had been duly served on the plaintiff respondent but since the plaintiff did not appear either in person or through counsel and in view of the importance of th e matter we thought it appropriate to take the assistance of a counsel and Mr. Sitaramiah, learned senior counsel agreed to render assistance to thein mind what has been stated by this court in the aforesaid case with regard to the manner in which the foreman exploits the subscribers and on examining the provisions of the Act and the Vaimpu referred to earlier, we have no hesitation to come to the conclusion that a foreman is only entitled to the commission as is provided in the vaimpu and is not entitled to anything more. In view of the specific language used in clause 8(c) of the vaimpu, the amount of auction discount has to be distributed among all the subscribers in proportion to their ticket share. We are further of the view that the forfeited discount ofsubscribers will have to be distributed among the subscribers who have remitted their subscriptions regularly.It is true that there is no specific provision in the vaimpu but since under the Act and the vaimpu the entitlement of the foreman has been indicated and the foreman cannot take anything more than what is provided for and therefore the amount has to be distributed among the regular subscribers. In our considered opinion, the Full Bench of the Kerala High Court rightly answered the question and we do not find any legal infirmity in the same.

P. Parthasarathy Vs. State Of Karnataka

acquired is proposed to be a part of the peripheral road being a part of the aforesaid developmental infrastructure. 14. The issue that arises for our consideration is whether there was any inaccuracy with regard to the description of the boundaries of the land which is sought to be acquired by the respondents. In fact, in the earlier round of litigation wherein validity of sub- section (1) of Section 28 was not challenged, what was done was to quash the notification issued under sub-section (4) of Section 28, which was in fact under challenge. Even thereafter and pursuant to the orders of the High Court which had become final and binding, a re-survey was done after going through the objection filed by the petitioner. In the said re-survey where the petitioner was also personally present, the land proposed to be taken and acquired was identified, sketch map was prepared and thereafter only the final notification under sub-section (4) of Section 28 was issued. 15. That the petitioner could file his objection and he was fully heard and was also given an opportunity regarding identification of the land indicates that the petitioner had ample opportunity to place his case, which was considered but decided against him. In our considered opinion full opportunity having been given to the petitioner to place his case and to oppose the acquisition process, there could be no further grievance of the petitioner in that regard.16. We are also of the opinion that no prejudice is caused to the petitioner in any manner for the land was re-surveyed and thereafter the land sought to be acquired was identified, which included the land of the petitioner and, therefore, the entire pre- conditions and formalities as laid down under Section 28 of the Act were duly complied with and were adhered to and followed and, therefore, there cannot be any further cause of grievance for the petitioner. 17. In this connection, we may appropriately refer to a decision of the Constitution Bench of this Court in Babu Barkya Thakur Vs. State of Bombay and Others, reported in AIR 1960 SC 1203 . In paragraph 12 of the said judgment, the Supreme Court has held that the purpose of the notification under Section 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels and if necessary digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired. It was further held in that decision that it is only under Section 6 that a firm declaration has to be made by the Government that the land with proper description and area so as to identifiable is needed for a public purpose or for a company. The aforesaid observation was made after holding that what was a mere proposal under Section 4 becomes a subject matter of a definite proceeding for acquisition on issuance of notification under Section 6 of the Act. 18. We feel that the law laid down in the said decision applies in full force to this case also. In the present case also there were some errors and mistakes in the notification issued under sub- section (1) of Section 28 of the Act but the same did not, in any manner, prevent the petitioner from submitting an effective objection and also from getting an opportunity of effective hearing for him. A re-survey was done in his presence and, therefore, the purpose for which the provision of sub-section (1), (2) and (3) have been enacted, have been fully carried out in the present case.19. We are, therefore, of the considered opinion that although there was some discrepancy in the description of the property proposed to be acquired and the description given although might not have been exactly accurate, but the same did not in any manner misled the petitioner regarding the identity of the land which is corroborated by the fact of the detailed enquiry which was conducted in his presence. The petitioner was also able to file a detailed and effective reply to the show cause notice issued to him. 20. The decisions which are relied upon by the learned counsel appearing for the petitioner are clearly distinguishable on facts. So far the decision in case of Narendrajit Singh & Anr. Vs. The State of U.P. and Anr. reported in (1970) 1 SCC 125 (supra) is concerned, in the said case we find that this Court interfered with the declaration because there was no particulars given in the notification. In the said case, there was no mention of any locality at all and in that context, this Court interfered with the proposed acquisition. 21. So far the next case, namely, Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others reported in (1992) 2 SCC 168 (supra) is concerned, in that case also details and particulars of the land were not given and a wrong public purpose was mentioned and in that view of the matter, this Court interfered with the acquisition proceeding. 22. As regards the case of Om Prakash Sharma and Others Vs. M.P. Audyogik Kendra Vikas Nigam and Others reported in (2005) 10 SCC 306 (supra) which was relied upon by the counsel for the petitioner is concerned, in that case neither any survey number was given nor any khasra number was given. Even the name of the persons were not mentioned and in that context the declaration was quashed with a liberty by way of giving a fresh opportunity for initiation of a fresh acquisition proceeding. 23. The aforesaid cases are clearly distinguishable on facts and, therefore, they have no application in the facts and circumstances of the present case.24. Considering the entire facts and circumstances of the case, we are of the considered opinion that the learned Single Judge as also the learned Division Bench of the Karnataka High Court did not commit any mistake or error in dismissing the writ petition.

0[ds]In our considered opinion full opportunity having been given to the petitioner to place his case and to oppose the acquisition process, there could be no further grievance of the petitioner in that regard.16. We are also of the opinion that no prejudice is caused to the petitioner in any manner for the land was re-surveyed and thereafter the land sought to be acquired was identified, which included the land of the petitioner and, therefore, the entire pre- conditions and formalities as laid down under Section 28 of the Act were duly complied with and were adhered to and followed and, therefore, there cannot be any further cause of grievance for the petitioner.We feel that the law laid down in the said decision applies in full force to this case also. In the present case also there were some errors and mistakes in the notification issued under sub- section (1) of Section 28 of the Act but the same did not, in any manner, prevent the petitioner from submitting an effective objection and also from getting an opportunity of effective hearing for him. A re-survey was done in his presence and, therefore, the purpose for which the provision of sub-section (1), (2) and (3) have been enacted, have been fully carried out in the present case.19. We are, therefore, of the considered opinion that although there was some discrepancy in the description of the property proposed to be acquired and the description given although might not have been exactly accurate, but the same did not in any manner misled the petitioner regarding the identity of the land which is corroborated by the fact of the detailed enquiry which was conducted in his presence. The petitioner was also able to file a detailed and effective reply to the show cause notice issued to him.The aforesaid cases are clearly distinguishable on facts and, therefore, they have no application in the facts and circumstances of the present case.24. Considering the entire facts and circumstances of the case, we are of the considered opinion that the learned Single Judge as also the learned Division Bench of the Karnataka High Court did not commit any mistake or error in dismissing the writ petition.

### 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: acquired is proposed to be a part of the peripheral road being a part of the aforesaid developmental infrastructure. 14. The issue that arises for our consideration is whether there was any inaccuracy with regard to the description of the boundaries of the land which is sought to be acquired by the respondents. In fact, in the earlier round of litigation wherein validity of sub- section (1) of Section 28 was not challenged, what was done was to quash the notification issued under sub-section (4) of Section 28, which was in fact under challenge. Even thereafter and pursuant to the orders of the High Court which had become final and binding, a re-survey was done after going through the objection filed by the petitioner. In the said re-survey where the petitioner was also personally present, the land proposed to be taken and acquired was identified, sketch map was prepared and thereafter only the final notification under sub-section (4) of Section 28 was issued. 15. That the petitioner could file his objection and he was fully heard and was also given an opportunity regarding identification of the land indicates that the petitioner had ample opportunity to place his case, which was considered but decided against him. In our considered opinion full opportunity having been given to the petitioner to place his case and to oppose the acquisition process, there could be no further grievance of the petitioner in that regard.16. We are also of the opinion that no prejudice is caused to the petitioner in any manner for the land was re-surveyed and thereafter the land sought to be acquired was identified, which included the land of the petitioner and, therefore, the entire pre- conditions and formalities as laid down under Section 28 of the Act were duly complied with and were adhered to and followed and, therefore, there cannot be any further cause of grievance for the petitioner. 17. In this connection, we may appropriately refer to a decision of the Constitution Bench of this Court in Babu Barkya Thakur Vs. State of Bombay and Others, reported in AIR 1960 SC 1203 . In paragraph 12 of the said judgment, the Supreme Court has held that the purpose of the notification under Section 4 is to carry on a preliminary investigation with a view to finding out after necessary survey and taking of levels and if necessary digging or boring into the sub-soil whether the land was adapted for the purpose for which it was sought to be acquired. It was further held in that decision that it is only under Section 6 that a firm declaration has to be made by the Government that the land with proper description and area so as to identifiable is needed for a public purpose or for a company. The aforesaid observation was made after holding that what was a mere proposal under Section 4 becomes a subject matter of a definite proceeding for acquisition on issuance of notification under Section 6 of the Act. 18. We feel that the law laid down in the said decision applies in full force to this case also. In the present case also there were some errors and mistakes in the notification issued under sub- section (1) of Section 28 of the Act but the same did not, in any manner, prevent the petitioner from submitting an effective objection and also from getting an opportunity of effective hearing for him. A re-survey was done in his presence and, therefore, the purpose for which the provision of sub-section (1), (2) and (3) have been enacted, have been fully carried out in the present case.19. We are, therefore, of the considered opinion that although there was some discrepancy in the description of the property proposed to be acquired and the description given although might not have been exactly accurate, but the same did not in any manner misled the petitioner regarding the identity of the land which is corroborated by the fact of the detailed enquiry which was conducted in his presence. The petitioner was also able to file a detailed and effective reply to the show cause notice issued to him. 20. The decisions which are relied upon by the learned counsel appearing for the petitioner are clearly distinguishable on facts. So far the decision in case of Narendrajit Singh & Anr. Vs. The State of U.P. and Anr. reported in (1970) 1 SCC 125 (supra) is concerned, in the said case we find that this Court interfered with the declaration because there was no particulars given in the notification. In the said case, there was no mention of any locality at all and in that context, this Court interfered with the proposed acquisition. 21. So far the next case, namely, Madhya Pradesh Housing Board Vs. Mohd. Shafi and Others reported in (1992) 2 SCC 168 (supra) is concerned, in that case also details and particulars of the land were not given and a wrong public purpose was mentioned and in that view of the matter, this Court interfered with the acquisition proceeding. 22. As regards the case of Om Prakash Sharma and Others Vs. M.P. Audyogik Kendra Vikas Nigam and Others reported in (2005) 10 SCC 306 (supra) which was relied upon by the counsel for the petitioner is concerned, in that case neither any survey number was given nor any khasra number was given. Even the name of the persons were not mentioned and in that context the declaration was quashed with a liberty by way of giving a fresh opportunity for initiation of a fresh acquisition proceeding. 23. The aforesaid cases are clearly distinguishable on facts and, therefore, they have no application in the facts and circumstances of the present case.24. Considering the entire facts and circumstances of the case, we are of the considered opinion that the learned Single Judge as also the learned Division Bench of the Karnataka High Court did not commit any mistake or error in dismissing the writ petition. ### Response: 0 ### Explanation: In our considered opinion full opportunity having been given to the petitioner to place his case and to oppose the acquisition process, there could be no further grievance of the petitioner in that regard.16. We are also of the opinion that no prejudice is caused to the petitioner in any manner for the land was re-surveyed and thereafter the land sought to be acquired was identified, which included the land of the petitioner and, therefore, the entire pre- conditions and formalities as laid down under Section 28 of the Act were duly complied with and were adhered to and followed and, therefore, there cannot be any further cause of grievance for the petitioner.We feel that the law laid down in the said decision applies in full force to this case also. In the present case also there were some errors and mistakes in the notification issued under sub- section (1) of Section 28 of the Act but the same did not, in any manner, prevent the petitioner from submitting an effective objection and also from getting an opportunity of effective hearing for him. A re-survey was done in his presence and, therefore, the purpose for which the provision of sub-section (1), (2) and (3) have been enacted, have been fully carried out in the present case.19. We are, therefore, of the considered opinion that although there was some discrepancy in the description of the property proposed to be acquired and the description given although might not have been exactly accurate, but the same did not in any manner misled the petitioner regarding the identity of the land which is corroborated by the fact of the detailed enquiry which was conducted in his presence. The petitioner was also able to file a detailed and effective reply to the show cause notice issued to him.The aforesaid cases are clearly distinguishable on facts and, therefore, they have no application in the facts and circumstances of the present case.24. Considering the entire facts and circumstances of the case, we are of the considered opinion that the learned Single Judge as also the learned Division Bench of the Karnataka High Court did not commit any mistake or error in dismissing the writ petition.

Rai Sahib Ramdayal Ghasiramoil Mills Vs. The Labour Appellate Tribunaland Another

within one year from the date the award becomes enforceable, the employers will give first preference to those workmen in annexures A, B and C, that is, no workmen will be employed in the factory other than those employed at present without giving them first opportunity for employment and that on terms as to basic wages and allowances that were in force on 29 July 1952. 4. The grievance of the respondents was that only a few of the former workers were re-employed and that too at lower wages and some new hands had been recruited disregarding the claim of some former employees. They also claimed the benefit of the provisions of S.25H of the Industrial Disputes Act which were added to the Act by the Industrial Disputes (Amendment) Act, 1953. 5. Several contentions were raised by the appellant before the tribunal but we need only refer to those which are now urged before us. One contention was that the tribunal as it stood constituted on 2 June, 1955 had no jurisdiction to adjudicate upon the dispute and the other was that the provisions of S.25H of the Industrial Disputes Act as amended by Act 43 of 1953 were not available to the former workmen who had been retrenched. The first contention and other contentions to which we have not made any mention were rejected by the tribunal but the contention that the provisions of S. 25H were not available to the retrenched workmen was upheld by it. The tribunal, however, made an order in favour of those workmen in the following terms :Though the workers cannot claim statutory benefits, they cannot be denied social justice which is the underlying principle of S. 25H and the rights that they had obtained under the previous award of 1952. I, therefore, order that the workers from annexures A, B and C who are not taken back in service by the employers be re-employed and they should be paid their salaries and allowances from the date of the reopening of the mills, i.e., 14 November, 1954. Their salaries would be the same as they were in force at the time of the closure of the mills. 6. An appeal was preferred by the appellants from the decision of the tribunal before the Labour Appellant Tribunal, Bombay. That appeal having been dismissed, the appellants preferred a writ petition before the High Court of Bombay which, as already stated, rejected it in limine. 7. It seems to us that the contention of the appellant that the industrial tribunal consisting of Mr. Patil had no jurisdiction to adjudicate upon the dispute is correct and must be upheld. Sub-section (1) of S. 7 as it then stood empowered the appropriate Government to constitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Such a tribunal was to consist of such numbers of members as the appropriate Government thought fit. Sub-section(2) of S.8 of the Act, as it then stood, provided that where a tribunal consists of one person only and his services ceased to be available, the appropriate Government may appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. That being the legal position, the appropriate thing for the Government to do was to take action under Sub-sec. (2) of S. 8 after Mr. Kurians services ceased to be available. Instead of doing that, the Government took action under S. 7, Sub-sec. (1) of the Act in supersession of its previous notification and constituted a fresh industrial tribunal consisting of Mr. Patil as its sole member. We need not consider here whether the old tribunal still continued to exist and there was merely a vacancy therein and therefore there was no occasion to constitute a fresh tribunal under Sub-sec. (1) of S. 7 because, having constituted a fresh tribunal, the Government failed to refer the dispute in question to it under Sub-sec. (1)(c) of S.10 of the Act. Apparently, the law advisers and the Government thought that a mere notification under Sub-sec. (1) of S. 7 would meet the requirements of law and there was no necessity to make a fresh notification under S. 10(1)(c) referring the particular dispute for adjudication to the tribunal. No doubt, Sub-sec. (1) and S. 7 empowers the Government to constitute a tribunal for adjudicating upon industrial disputes in accordance with the provisions of the Act. But merely constituting a tribunal for such a purpose is not enough. It has also to act under S. 10 and make a specific reference to it of each dispute for adjudication. Without such a reference the tribunal does not get any jurisdiction to adjudicate upon any dispute. On this short ground, the appeal must be allowed.We will, however, say a word about the ground upon which the tribunal thought it fit to give the retrenched workers the benefit of the provisions of S. 25H on the ground of social justice. Wide though the powers of an industrial tribunal are while adjudicating upon industrial disputes, it cannot arrogate to itself powers which the legislature alone can confer or do something which the legislature has not permitted to be done. Section 25H provided for re-employment of retrenched workmen in certain circumstances in preference to new-comers. But Act 43 of 1953 which enacted this provision clearly provides in Sub-sec. (2) of S. 1 thereof that it shall be deemed to have come into force on 24 October, 1953. Clearly, therefore, the provisions of this section cannot apply to workmen who had been retrenched before this provision came into force. The legislature did not intend the provisions to come into force before 24 October, 1953. When that is the mandate of the legislature, no tribunal has jurisdiction on the basis of its own conception of social justice to ignore it and apply the provisions or its underlying principle to a dispute which arose before the provisions came into force. 8.

1[ds]It seems to us that the contention of the appellant that the industrial tribunal consisting of Mr. Patil had no jurisdiction to adjudicate upon the dispute is correct and must be upheld. Sub-section (1) of S. 7 as it then stood empowered the appropriate Government to constitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Such a tribunal was to consist of such numbers of members as the appropriate Government thought fit. Sub-section(2) of S.8 of the Act, as it then stood, provided that where a tribunal consists of one person only and his services ceased to be available, the appropriate Government may appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. That being the legal position, the appropriate thing for the Government to do was to take action under Sub-sec. (2) of S. 8 after Mr. Kurians services ceased to be available. Instead of doing that, the Government took action under S. 7, Sub-sec. (1) of the Act in supersession of its previous notification and constituted a fresh industrial tribunal consisting of Mr. Patil as its sole member. We need not consider here whether the old tribunal still continued to exist and there was merely a vacancy therein and therefore there was no occasion to constitute a fresh tribunal under Sub-sec. (1) of S. 7 because, having constituted a fresh tribunal, the Government failed to refer the dispute in question to it under Sub-sec. (1)(c) of S.10 of the Act. Apparently, the law advisers and the Government thought that a mere notification under Sub-sec. (1) of S. 7 would meet the requirements of law and there was no necessity to make a fresh notification under S. 10(1)(c) referring the particular dispute for adjudication to the tribunal. No doubt, Sub-sec. (1) and S. 7 empowers the Government to constitute a tribunal for adjudicating upon industrial disputes in accordance with the provisions of the Act. But merely constituting a tribunal for such a purpose is not enough. It has also to act under S. 10 and make a specific reference to it of each dispute for adjudication. Without such a reference the tribunal does not get any jurisdiction to adjudicate upon any dispute. On this short ground, the appeal must be allowed.We will, however, say a word about the ground upon which the tribunal thought it fit to give the retrenched workers the benefit of the provisions of S. 25H on the ground of social justice. Wide though the powers of an industrial tribunal are while adjudicating upon industrial disputes, it cannot arrogate to itself powers which the legislature alone can confer or do something which the legislature has not permitted to be done. Section 25H provided for re-employment of retrenched workmen in certain circumstances in preference to new-comers. But Act 43 of 1953 which enacted this provision clearly provides in Sub-sec. (2) of S. 1 thereof that it shall be deemed to have come into force on 24 October, 1953. Clearly, therefore, the provisions of this section cannot apply to workmen who had been retrenched before this provision came into force. The legislature did not intend the provisions to come into force before 24 October, 1953. When that is the mandate of the legislature, no tribunal has jurisdiction on the basis of its own conception of social justice to ignore it and apply the provisions or its underlying principle to a dispute which arose before the provisions came into force.

### 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: within one year from the date the award becomes enforceable, the employers will give first preference to those workmen in annexures A, B and C, that is, no workmen will be employed in the factory other than those employed at present without giving them first opportunity for employment and that on terms as to basic wages and allowances that were in force on 29 July 1952. 4. The grievance of the respondents was that only a few of the former workers were re-employed and that too at lower wages and some new hands had been recruited disregarding the claim of some former employees. They also claimed the benefit of the provisions of S.25H of the Industrial Disputes Act which were added to the Act by the Industrial Disputes (Amendment) Act, 1953. 5. Several contentions were raised by the appellant before the tribunal but we need only refer to those which are now urged before us. One contention was that the tribunal as it stood constituted on 2 June, 1955 had no jurisdiction to adjudicate upon the dispute and the other was that the provisions of S.25H of the Industrial Disputes Act as amended by Act 43 of 1953 were not available to the former workmen who had been retrenched. The first contention and other contentions to which we have not made any mention were rejected by the tribunal but the contention that the provisions of S. 25H were not available to the retrenched workmen was upheld by it. The tribunal, however, made an order in favour of those workmen in the following terms :Though the workers cannot claim statutory benefits, they cannot be denied social justice which is the underlying principle of S. 25H and the rights that they had obtained under the previous award of 1952. I, therefore, order that the workers from annexures A, B and C who are not taken back in service by the employers be re-employed and they should be paid their salaries and allowances from the date of the reopening of the mills, i.e., 14 November, 1954. Their salaries would be the same as they were in force at the time of the closure of the mills. 6. An appeal was preferred by the appellants from the decision of the tribunal before the Labour Appellant Tribunal, Bombay. That appeal having been dismissed, the appellants preferred a writ petition before the High Court of Bombay which, as already stated, rejected it in limine. 7. It seems to us that the contention of the appellant that the industrial tribunal consisting of Mr. Patil had no jurisdiction to adjudicate upon the dispute is correct and must be upheld. Sub-section (1) of S. 7 as it then stood empowered the appropriate Government to constitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Such a tribunal was to consist of such numbers of members as the appropriate Government thought fit. Sub-section(2) of S.8 of the Act, as it then stood, provided that where a tribunal consists of one person only and his services ceased to be available, the appropriate Government may appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. That being the legal position, the appropriate thing for the Government to do was to take action under Sub-sec. (2) of S. 8 after Mr. Kurians services ceased to be available. Instead of doing that, the Government took action under S. 7, Sub-sec. (1) of the Act in supersession of its previous notification and constituted a fresh industrial tribunal consisting of Mr. Patil as its sole member. We need not consider here whether the old tribunal still continued to exist and there was merely a vacancy therein and therefore there was no occasion to constitute a fresh tribunal under Sub-sec. (1) of S. 7 because, having constituted a fresh tribunal, the Government failed to refer the dispute in question to it under Sub-sec. (1)(c) of S.10 of the Act. Apparently, the law advisers and the Government thought that a mere notification under Sub-sec. (1) of S. 7 would meet the requirements of law and there was no necessity to make a fresh notification under S. 10(1)(c) referring the particular dispute for adjudication to the tribunal. No doubt, Sub-sec. (1) and S. 7 empowers the Government to constitute a tribunal for adjudicating upon industrial disputes in accordance with the provisions of the Act. But merely constituting a tribunal for such a purpose is not enough. It has also to act under S. 10 and make a specific reference to it of each dispute for adjudication. Without such a reference the tribunal does not get any jurisdiction to adjudicate upon any dispute. On this short ground, the appeal must be allowed.We will, however, say a word about the ground upon which the tribunal thought it fit to give the retrenched workers the benefit of the provisions of S. 25H on the ground of social justice. Wide though the powers of an industrial tribunal are while adjudicating upon industrial disputes, it cannot arrogate to itself powers which the legislature alone can confer or do something which the legislature has not permitted to be done. Section 25H provided for re-employment of retrenched workmen in certain circumstances in preference to new-comers. But Act 43 of 1953 which enacted this provision clearly provides in Sub-sec. (2) of S. 1 thereof that it shall be deemed to have come into force on 24 October, 1953. Clearly, therefore, the provisions of this section cannot apply to workmen who had been retrenched before this provision came into force. The legislature did not intend the provisions to come into force before 24 October, 1953. When that is the mandate of the legislature, no tribunal has jurisdiction on the basis of its own conception of social justice to ignore it and apply the provisions or its underlying principle to a dispute which arose before the provisions came into force. 8. ### Response: 1 ### Explanation: It seems to us that the contention of the appellant that the industrial tribunal consisting of Mr. Patil had no jurisdiction to adjudicate upon the dispute is correct and must be upheld. Sub-section (1) of S. 7 as it then stood empowered the appropriate Government to constitute one or more industrial tribunals for the adjudication of industrial disputes in accordance with the provisions of the Act. Such a tribunal was to consist of such numbers of members as the appropriate Government thought fit. Sub-section(2) of S.8 of the Act, as it then stood, provided that where a tribunal consists of one person only and his services ceased to be available, the appropriate Government may appoint another independent person in his place, and the proceedings shall be continued before the person so appointed. That being the legal position, the appropriate thing for the Government to do was to take action under Sub-sec. (2) of S. 8 after Mr. Kurians services ceased to be available. Instead of doing that, the Government took action under S. 7, Sub-sec. (1) of the Act in supersession of its previous notification and constituted a fresh industrial tribunal consisting of Mr. Patil as its sole member. We need not consider here whether the old tribunal still continued to exist and there was merely a vacancy therein and therefore there was no occasion to constitute a fresh tribunal under Sub-sec. (1) of S. 7 because, having constituted a fresh tribunal, the Government failed to refer the dispute in question to it under Sub-sec. (1)(c) of S.10 of the Act. Apparently, the law advisers and the Government thought that a mere notification under Sub-sec. (1) of S. 7 would meet the requirements of law and there was no necessity to make a fresh notification under S. 10(1)(c) referring the particular dispute for adjudication to the tribunal. No doubt, Sub-sec. (1) and S. 7 empowers the Government to constitute a tribunal for adjudicating upon industrial disputes in accordance with the provisions of the Act. But merely constituting a tribunal for such a purpose is not enough. It has also to act under S. 10 and make a specific reference to it of each dispute for adjudication. Without such a reference the tribunal does not get any jurisdiction to adjudicate upon any dispute. On this short ground, the appeal must be allowed.We will, however, say a word about the ground upon which the tribunal thought it fit to give the retrenched workers the benefit of the provisions of S. 25H on the ground of social justice. Wide though the powers of an industrial tribunal are while adjudicating upon industrial disputes, it cannot arrogate to itself powers which the legislature alone can confer or do something which the legislature has not permitted to be done. Section 25H provided for re-employment of retrenched workmen in certain circumstances in preference to new-comers. But Act 43 of 1953 which enacted this provision clearly provides in Sub-sec. (2) of S. 1 thereof that it shall be deemed to have come into force on 24 October, 1953. Clearly, therefore, the provisions of this section cannot apply to workmen who had been retrenched before this provision came into force. The legislature did not intend the provisions to come into force before 24 October, 1953. When that is the mandate of the legislature, no tribunal has jurisdiction on the basis of its own conception of social justice to ignore it and apply the provisions or its underlying principle to a dispute which arose before the provisions came into force.

M/S CONNECTWELL INDUSTRIES PVT.LTD Vs. UNION OF INDIA THROUGH THE MINISTRY OF FINANCE & ORS

the High Court. In view of the above findings, the High Court dismissed the Writ Petition. 5. It was submitted by Mr. Basava Prabhu Patil, learned Senior Counsel and Mr. Amar Dave, learned counsel appearing on behalf of the Appellant that the property in dispute was mortgaged by the BPIL in 2000 and the recovery certificate was issued pursuant to the order passed by the DRT in 2002. They submitted that the property was attached by Respondent No.2 on 29.11.2002, prior to the issuance of the notice by the Income Tax Officer under Rule 2 of Schedule II to the Act on 11.02.2003. According to them, the rigours of Rule 2 and Rule 16 of Schedule II are not applicable to the instant case as a charge over the property was created prior to the issuance of the notice under Rule 2 of Schedule II to the Act. It was argued that a government debt in India is not entitled to have precedence over a prior secured debt. 6. Mr. Arijit Prasad, learned Senior Counsel appearing for the Union of India submitted that BPIL was in default of a payment of income tax and a penalty arose therefrom, due to which a notice under Rule 2 of Schedule II to the Act was issued on 11.02.2003 by following the prescribed procedure. He submitted that no property which is the subject matter of a notice can be transferred after the issuance of a notice under Rule 2. Mr. Prasad also submitted that the immovable property was attached in accordance with Rule 48 of Schedule II on 17.06.2003. Undisputedly, the sale in favour of the Appellant took place subsequent to the order of attachment dated 17.06.2003. He urged that the Appellants are not entitled to any relief and the High Court was right in dismissing the Writ Petition as the Crown debt is entitled to priority in view of the provisions of Schedule II to the Act and thus any transfer of the property, which is subject matter of attachment under Rule 16(2) is void. 7. As Rules 2 and 16 of Schedule II to the Act would fall for interpretation in this case, the same read as under : Issue of Notice 2. When a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under this Schedule, the Tax Recover Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realize the amount under this Schedule. 16.1 Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money. 8. It is trite law that, unless there is preference given to the Crown debt by a statute, the dues of a secured creditor have preference over Crown debts. [See:- Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and Others (2000) 5 SCC 694 , Union of India & Ors. v. Sicom Ltd. & Anr. (2009) 2 SCC 121 , Bombay Stock Exchange v. V.S. Kandalgaonkar & Ors. (2015) 2 SCC 1 , Principal Commission of Income Tax v. Monnet Ispat and Energy Ltd. (2018) 18 SCC 786 ] 9. Rule 2 of Schedule II to the Act provides for a notice to be issued to the defaulter requiring him to pay the amount specified in the certificate, in default of which steps would be taken to realise them. The crucial provision for adjudication of the dispute in this case is Rule 16. According to Rule 16(1), a defaulter or his representative cannot mortgage, charge, lease or otherwise deal with any property which is subject matter of a notice under Rule 2. Rule 16(1) also stipulates that no civil court can issue any process against such property in execution of a decree for the payment of money. However, the property can be transferred with the permission of the Tax Recovery Officer. According to Rule 16(2), if an attachment has been made under Schedule II to the Act, any private transfer or delivery of the property shall be void as against all claims enforceable under the attachment. 10. There is no dispute regarding the facts of this case. The property in dispute was mortgaged by BPIL to the Union Bank of India in 2000 and the DRT passed an order of recovery against the BPIL in 2002. The recovery certificate was issued immediately, pursuant to which an attachment order was passed prior to the date on which notice was issued by the Tax Recovery Officer- Respondent No.4 under Rule 2 of Schedule II to the Act. It is true that the sale was conducted after the issuance of the notice as well as the attachment order passed by Respondent No.4 in 2003, but the fact remains that a charge over the property was created much prior to the notice issued by Respondent No.4 on 16.11.2003. The High Court held that Rule 16(2) is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent No.4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by the DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11.02.2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent No.4, we find force in the submissions made on behalf of the Appellant.

1[ds]8. It is trite law that, unless there is preference given to the Crown debt by a statute, the dues of a secured creditor have preference over Crown debts10. There is no dispute regarding the facts of this case. The property in dispute was mortgaged by BPIL to the Union Bank of India in 2000 and the DRT passed an order of recovery against the BPIL in 2002. The recovery certificate was issued immediately, pursuant to which an attachment order was passed prior to the date on which notice was issued by the Tax Recovery Officer- Respondent No.4 under Rule 2 of Schedule II to the Act. It is true that the sale was conducted after the issuance of the notice as well as the attachment order passed by Respondent No.4 in 2003, but the fact remains that a charge over the property was created much prior to the notice issued by Respondent No.4 on 16.11.2003. The High Court held that Rule 16(2) is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent No.4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by the DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11.02.2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent No.4, we find force in the submissions made on behalf of the Appellant.

### 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 High Court. In view of the above findings, the High Court dismissed the Writ Petition. 5. It was submitted by Mr. Basava Prabhu Patil, learned Senior Counsel and Mr. Amar Dave, learned counsel appearing on behalf of the Appellant that the property in dispute was mortgaged by the BPIL in 2000 and the recovery certificate was issued pursuant to the order passed by the DRT in 2002. They submitted that the property was attached by Respondent No.2 on 29.11.2002, prior to the issuance of the notice by the Income Tax Officer under Rule 2 of Schedule II to the Act on 11.02.2003. According to them, the rigours of Rule 2 and Rule 16 of Schedule II are not applicable to the instant case as a charge over the property was created prior to the issuance of the notice under Rule 2 of Schedule II to the Act. It was argued that a government debt in India is not entitled to have precedence over a prior secured debt. 6. Mr. Arijit Prasad, learned Senior Counsel appearing for the Union of India submitted that BPIL was in default of a payment of income tax and a penalty arose therefrom, due to which a notice under Rule 2 of Schedule II to the Act was issued on 11.02.2003 by following the prescribed procedure. He submitted that no property which is the subject matter of a notice can be transferred after the issuance of a notice under Rule 2. Mr. Prasad also submitted that the immovable property was attached in accordance with Rule 48 of Schedule II on 17.06.2003. Undisputedly, the sale in favour of the Appellant took place subsequent to the order of attachment dated 17.06.2003. He urged that the Appellants are not entitled to any relief and the High Court was right in dismissing the Writ Petition as the Crown debt is entitled to priority in view of the provisions of Schedule II to the Act and thus any transfer of the property, which is subject matter of attachment under Rule 16(2) is void. 7. As Rules 2 and 16 of Schedule II to the Act would fall for interpretation in this case, the same read as under : Issue of Notice 2. When a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under this Schedule, the Tax Recover Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realize the amount under this Schedule. 16.1 Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money. 8. It is trite law that, unless there is preference given to the Crown debt by a statute, the dues of a secured creditor have preference over Crown debts. [See:- Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and Others (2000) 5 SCC 694 , Union of India & Ors. v. Sicom Ltd. & Anr. (2009) 2 SCC 121 , Bombay Stock Exchange v. V.S. Kandalgaonkar & Ors. (2015) 2 SCC 1 , Principal Commission of Income Tax v. Monnet Ispat and Energy Ltd. (2018) 18 SCC 786 ] 9. Rule 2 of Schedule II to the Act provides for a notice to be issued to the defaulter requiring him to pay the amount specified in the certificate, in default of which steps would be taken to realise them. The crucial provision for adjudication of the dispute in this case is Rule 16. According to Rule 16(1), a defaulter or his representative cannot mortgage, charge, lease or otherwise deal with any property which is subject matter of a notice under Rule 2. Rule 16(1) also stipulates that no civil court can issue any process against such property in execution of a decree for the payment of money. However, the property can be transferred with the permission of the Tax Recovery Officer. According to Rule 16(2), if an attachment has been made under Schedule II to the Act, any private transfer or delivery of the property shall be void as against all claims enforceable under the attachment. 10. There is no dispute regarding the facts of this case. The property in dispute was mortgaged by BPIL to the Union Bank of India in 2000 and the DRT passed an order of recovery against the BPIL in 2002. The recovery certificate was issued immediately, pursuant to which an attachment order was passed prior to the date on which notice was issued by the Tax Recovery Officer- Respondent No.4 under Rule 2 of Schedule II to the Act. It is true that the sale was conducted after the issuance of the notice as well as the attachment order passed by Respondent No.4 in 2003, but the fact remains that a charge over the property was created much prior to the notice issued by Respondent No.4 on 16.11.2003. The High Court held that Rule 16(2) is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent No.4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by the DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11.02.2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent No.4, we find force in the submissions made on behalf of the Appellant. ### Response: 1 ### Explanation: 8. It is trite law that, unless there is preference given to the Crown debt by a statute, the dues of a secured creditor have preference over Crown debts10. There is no dispute regarding the facts of this case. The property in dispute was mortgaged by BPIL to the Union Bank of India in 2000 and the DRT passed an order of recovery against the BPIL in 2002. The recovery certificate was issued immediately, pursuant to which an attachment order was passed prior to the date on which notice was issued by the Tax Recovery Officer- Respondent No.4 under Rule 2 of Schedule II to the Act. It is true that the sale was conducted after the issuance of the notice as well as the attachment order passed by Respondent No.4 in 2003, but the fact remains that a charge over the property was created much prior to the notice issued by Respondent No.4 on 16.11.2003. The High Court held that Rule 16(2) is applicable to this case on the ground that the actual sale took place after the order of attachment was passed by Respondent No.4. The High Court failed to take into account the fact that the sale of the property was pursuant to the order passed by the DRT with regard to the property over which a charge was already created prior to the issuance of notice on 11.02.2003. As the charge over the property was created much prior to the issuance of notice under Rule 2 of Schedule II to the Act by Respondent No.4, we find force in the submissions made on behalf of the Appellant.

Special Deputy Collector Vs. J. Sivaprakasam

served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.21.3 Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfilment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.Re : Question (ii) : Validity of the acquisition22. The copy of the communication dated 31.3.2004 sent by the Director of Information and Tourism (Advertisement) Department in Tamil Nadu shows that between 1998 to 2000 “Madurai Mani” had a circulation of 6200, 4675, 5200 and 3100 in Central Madras, South Madras, North Madras and Tambaram areas and “Kadiravan” had a circulation of 42,000 to 48,000 in Chennai area. On the other hand the material produced by the respondents show that the total circulation of regional newspapers in Chennai was around a million, that several regional newspapers had circulations varying between 80,000 to 2,00,000 in Chennai, and the Madurai Mani with a Chennai circulation of 28465, had a market share of 3% out of the total circulation of regional newspapers. ‘Kadiravan’ also apparently had a market share of 4% before its closure. The two newspapers were not therefore newspapers having no circulation in the locality. We however agree, having regard to the circulation figures, with the finding of the High Court that the newspapers did not have a reasonably wide circulation in the locality.23. As both Madurai Mani and Kadiravan were sold and circulated in Chennai and as a good chunk of their total circulations was in Chennai, it may not be possible to hold that the said newspapers were not ‘regional daily newspapers circulating in the locality’. Nor will it be possible to invalidate the entire acquisition on the ground that the publication in the said two newspapers did not fulfil requirement of publication in ‘newspapers circulating in that locality’. But if the respondents are able to assert and demonstrate that as a consequence, they were denied the opportunity of participating in the inquiry under Section 5A, or show any other disadvantage, they may be able to achieve the object of showing that the acquisition proceedings were vitiated in so far as their lands were concerned.24. In this case respondents 1 to 11 have challenged the acquisition. Respondents 5 to 11 specifically admitted that they received a notice dated 9.6.1999 from the appellant herein calling upon them to appear before him in the Section 5A inquiry under the Land Acquisition Act. Respondents 5 to 11 further admitted that they enquired and found that the lands were notified and immediately thereafter filed their objections to the acquisition proposals. Therefore, the publication of the notification under Section 4(1) of the Act, in two newspapers which did not have wide circulation in the locality, did not affect respondents 5 to 11 in any manner as they had notice of the proposals for acquisition and participated in the inquiry under Section 5A of the Act.25. We may now deal with the grievance of respondents 1 to 4. There is nothing to show that they had any subsisting interest in the two lands, when the preliminary notification was issued. When their father died they did not choose to get their names entered in the revenue records. The death of their father was in 1978 and the preliminary notification was issued in the year 1998 and for two decades they took no steps to get the lands mutated in their names. It is Stated in the writ petition that they had let out the entire property to eleventh respondent and had sold portions of the property to respondents 5 to 10. But they have not disclosed the extents of the portions that were sold and which portions, if at all any, were retained by them. They admit that the purchasers from them (respondents 5 to 10) and their tenant (respondent No. 11) had notice. Therefore, in so far as respondents 1 to 4 are concerned, whether the notification was published in newspapers having wide circulation or not would make no difference and they cannot complain about the absence of publication or about defective publication of notification under Section 4(1) in the newspapers. Even if the publication had been in two newspapers having wider circulation, their names would not have figured therein.26. It is significant to note that there is no averment in the writ petition that respondents were not aware of the proposed acquisition. It is evident that they were aware of the notification. It is also inconceivable that respondents 5 to 11 who knew about the proposed acquisition would not have informed respondents 1 to 4 about the proposed acquisition. Be that as it may. Therefore even if the publication in two regional language newspapers is considered to be not in compliance with the requirements of Section 4(1), it cannot affect the validity of the preliminary notification or the consequential proceedings in regard to Sy. Nos.186/1 and 186/2.27. No other ground is urged to interfere with the acquisition. The acquisition was for an urgent public purpose that is for implementation of further stages of Koyambedu Wholesale Market Complex. The objections on behalf of the holders of the land had been considered. No prejudice has been caused on account of the publication of the notification in two newspapers having limited circulation in the locality.

1[ds]19. We have held that the object and purpose of the amended Section 4(1) of the Act is to provide for publication of the preliminary notification in two daily newspapers having reasonably wide circulation in the locality so that people (persons interested) in that locality may become aware of the proposals for acquisition. We have also held that publications in two newspapers having regular and steady circulation, but having a market share of only 2% to 3% of the total newspapers can not invalidate the acquisition proceedings automatically, on the ground that such publication violates the requirement of Section 4(1) relating to newspaper publication. As the said two findings are slightly contradictory, it is necessary to harmonize the consequences.20. This leads us next to the consequences of publication of the notification in two newspapers having reasonably wide circulation and consequences of bona fide publication of the notification in two newspapers which do not have a wide circulation in the locality.20.1 If there is failure to publish in two daily newspapers or if the publication is in two newspapers that have no circulation at all in the locality, without anything more, the notification under Section 4(1) of the Act and the consequential acquisition proceedings will be vitiated, on the ground ofwith an essential condition of Section 4(1) of the Act.20.2 If the two newspapers carrying the publication of the notification have reasonably wide circulation in the locality, (apart from the publication of the notification in the Gazette and causing public notice of the substance of the notification to be given at convenient places in the locality), then the requirements of Section 4(1) are complied with and all persons concerned in the locality shall be deemed to have notice of the notification. (For this purpose, the publication need not be in newspapers having the widest or largest circulation, but it is sufficient if the publication is in newspapers having reasonably wide circulation). In that event, neither the notification under Section 4(1), nor the consequential acquisition proceedings would be open to challenge, on the ground of violation of Section 4 of the Act.20.3 If the newspapers in which the notification is published were circulating in the locality, but did not have a reasonably wide circulation in the locality, then neither the notification under Section 4(1) nor the consequential acquisition proceedings, will become vitiated automatically. If the person aggrieved, apart from demonstrating that the two newspapers did not have reasonably wide circulation in the locality, also asserts that as a consequence, he did not have notice of the proposed acquisition that was provided for in Section 4(1) of the Act, in the absence of evidence to the contrary, the acquisition to the extent of the land of such person will be vitiated. But if such assertion is rebutted by the acquiring authority by placing evidence to show that the person concerned had in fact notice (as for example where he participated in the inquiry under Section 5A of the Act), the acquisition will not be vitiated on the ground of violation of Section 4A of the Act.20.4 If the person challenging the acquisition is able to establish that the notifications were deliberately and with mala fides, published in newspapers having negligible circulation, to avoid notice to the persons concerned, then Section 4(1) will be violated.21. The acquiring authority need not prove actual notice of the proposal to acquire under Section 4(1) of the Act, to the person challenging the acquisition. As the purpose of publication of public notice provided in Section 4(1) of the Act is to give notice of the proposal of acquisition to the persons concerned, such notice can also be by way of implied notice or constructive notice. For this purpose, we may refer to the difference between actual, implied and constructive notices.21.1 When notice is directly served upon a party in a formal manner or when it is received personally by him, there is actual notice.21.2 If from the facts it can be inferred that a party knew about the subject matter of the notice, knowledge is imputed by implied notice. For example, if the purpose of the notice is to require a party to appear before an authority on a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.21.3 Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfilment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.Re : Question (ii) : Validity of the acquisition22. The copy of the communication dated 31.3.2004 sent by the Director of Information and Tourism (Advertisement) Department in Tamil Nadu shows that between 1998 to 2000ad a circulation of 6200, 4675, 5200 and 3100 in Central Madras, South Madras, North Madras and Tambaram areas andhad a circulation of 42,000 to 48,000 in Chennai area. On the other hand the material produced by the respondents show that the total circulation of regional newspapers in Chennai was around a million, that several regional newspapers had circulations varying between 80,000 to 2,00,000 in Chennai, and the Madurai Mani with a Chennai circulation of 28465, had a market share of 3% out of the total circulation of regional newspapers.also apparently had a market share of 4% before its closure. The two newspapers were not therefore newspapers having no circulation in the locality. We however agree, having regard to the circulation figures, with the finding of the High Court that the newspapers did not have a reasonably wide circulation in the locality.23. As both Madurai Mani and Kadiravan were sold and circulated in Chennai and as a good chunk of their total circulations was in Chennai, it may not be possible to hold that the said newspapers were not ‘regional daily newspapers circulating in theNor will it be possible to invalidate the entire acquisition on the ground that the publication in the said two newspapers did not fulfil requirement of publication in ‘newspapers circulating in thatBut if the respondents are able to assert and demonstrate that as a consequence, they were denied the opportunity of participating in the inquiry under Section 5A, or show any other disadvantage, they may be able to achieve the object of showing that the acquisition proceedings were vitiated in so far as their lands were concerned.24. In this case respondents 1 to 11 have challenged the acquisition. Respondents 5 to 11 specifically admitted that they received a notice dated 9.6.1999 from the appellant herein calling upon them to appear before him in the Section 5A inquiry under the Land Acquisition Act. Respondents 5 to 11 further admitted that they enquired and found that the lands were notified and immediately thereafter filed their objections to the acquisition proposals. Therefore, the publication of the notification under Section 4(1) of the Act, in two newspapers which did not have wide circulation in the locality, did not affect respondents 5 to 11 in any manner as they had notice of the proposals for acquisition and participated in the inquiry under Section 5A of the Act.25. We may now deal with the grievance of respondents 1 to 4. There is nothing to show that they had any subsisting interest in the two lands, when the preliminary notification was issued. When their father died they did not choose to get their names entered in the revenue records. The death of their father was in 1978 and the preliminary notification was issued in the year 1998 and for two decades they took no steps to get the lands mutated in their names. It is Stated in the writ petition that they had let out the entire property to eleventh respondent and had sold portions of the property to respondents 5 to 10. But they have not disclosed the extents of the portions that were sold and which portions, if at all any, were retained by them. They admit that the purchasers from them (respondents 5 to 10) and their tenant (respondent No. 11) had notice. Therefore, in so far as respondents 1 to 4 are concerned, whether the notification was published in newspapers having wide circulation or not would make no difference and they cannot complain about the absence of publication or about defective publication of notification under Section 4(1) in the newspapers. Even if the publication had been in two newspapers having wider circulation, their names would not have figured therein.26. It is significant to note that there is no averment in the writ petition that respondents were not aware of the proposed acquisition. It is evident that they were aware of the notification. It is also inconceivable that respondents 5 to 11 who knew about the proposed acquisition would not have informed respondents 1 to 4 about the proposed acquisition. Be that as it may. Therefore even if the publication in two regional language newspapers is considered to be not in compliance with the requirements of Section 4(1), it cannot affect the validity of the preliminary notification or the consequential proceedings in regard to Sy. Nos.186/1 and 186/2.27. No other ground is urged to interfere with the acquisition. The acquisition was for an urgent public purpose that is for implementation of further stages of Koyambedu Wholesale Market Complex. The objections on behalf of the holders of the land had been considered. No prejudice has been caused on account of the publication of the notification in two newspapers having limited circulation in the locality.

### 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: served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.21.3 Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfilment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.Re : Question (ii) : Validity of the acquisition22. The copy of the communication dated 31.3.2004 sent by the Director of Information and Tourism (Advertisement) Department in Tamil Nadu shows that between 1998 to 2000 “Madurai Mani” had a circulation of 6200, 4675, 5200 and 3100 in Central Madras, South Madras, North Madras and Tambaram areas and “Kadiravan” had a circulation of 42,000 to 48,000 in Chennai area. On the other hand the material produced by the respondents show that the total circulation of regional newspapers in Chennai was around a million, that several regional newspapers had circulations varying between 80,000 to 2,00,000 in Chennai, and the Madurai Mani with a Chennai circulation of 28465, had a market share of 3% out of the total circulation of regional newspapers. ‘Kadiravan’ also apparently had a market share of 4% before its closure. The two newspapers were not therefore newspapers having no circulation in the locality. We however agree, having regard to the circulation figures, with the finding of the High Court that the newspapers did not have a reasonably wide circulation in the locality.23. As both Madurai Mani and Kadiravan were sold and circulated in Chennai and as a good chunk of their total circulations was in Chennai, it may not be possible to hold that the said newspapers were not ‘regional daily newspapers circulating in the locality’. Nor will it be possible to invalidate the entire acquisition on the ground that the publication in the said two newspapers did not fulfil requirement of publication in ‘newspapers circulating in that locality’. But if the respondents are able to assert and demonstrate that as a consequence, they were denied the opportunity of participating in the inquiry under Section 5A, or show any other disadvantage, they may be able to achieve the object of showing that the acquisition proceedings were vitiated in so far as their lands were concerned.24. In this case respondents 1 to 11 have challenged the acquisition. Respondents 5 to 11 specifically admitted that they received a notice dated 9.6.1999 from the appellant herein calling upon them to appear before him in the Section 5A inquiry under the Land Acquisition Act. Respondents 5 to 11 further admitted that they enquired and found that the lands were notified and immediately thereafter filed their objections to the acquisition proposals. Therefore, the publication of the notification under Section 4(1) of the Act, in two newspapers which did not have wide circulation in the locality, did not affect respondents 5 to 11 in any manner as they had notice of the proposals for acquisition and participated in the inquiry under Section 5A of the Act.25. We may now deal with the grievance of respondents 1 to 4. There is nothing to show that they had any subsisting interest in the two lands, when the preliminary notification was issued. When their father died they did not choose to get their names entered in the revenue records. The death of their father was in 1978 and the preliminary notification was issued in the year 1998 and for two decades they took no steps to get the lands mutated in their names. It is Stated in the writ petition that they had let out the entire property to eleventh respondent and had sold portions of the property to respondents 5 to 10. But they have not disclosed the extents of the portions that were sold and which portions, if at all any, were retained by them. They admit that the purchasers from them (respondents 5 to 10) and their tenant (respondent No. 11) had notice. Therefore, in so far as respondents 1 to 4 are concerned, whether the notification was published in newspapers having wide circulation or not would make no difference and they cannot complain about the absence of publication or about defective publication of notification under Section 4(1) in the newspapers. Even if the publication had been in two newspapers having wider circulation, their names would not have figured therein.26. It is significant to note that there is no averment in the writ petition that respondents were not aware of the proposed acquisition. It is evident that they were aware of the notification. It is also inconceivable that respondents 5 to 11 who knew about the proposed acquisition would not have informed respondents 1 to 4 about the proposed acquisition. Be that as it may. Therefore even if the publication in two regional language newspapers is considered to be not in compliance with the requirements of Section 4(1), it cannot affect the validity of the preliminary notification or the consequential proceedings in regard to Sy. Nos.186/1 and 186/2.27. No other ground is urged to interfere with the acquisition. The acquisition was for an urgent public purpose that is for implementation of further stages of Koyambedu Wholesale Market Complex. The objections on behalf of the holders of the land had been considered. No prejudice has been caused on account of the publication of the notification in two newspapers having limited circulation in the locality. ### Response: 1 ### Explanation: a particular date, even though such a notice is not personally served on him, if the person appears before the authority on that date or participates in the subsequent proceedings, then the person can be said to have implied notice.21.3 Notice arising by presumption of law from the existence of certain specified facts and circumstances is constructive or deemed notice. For example, any person purchasing or obtaining a transfer of an immovable property is deemed to have notice of all transactions relating to such property effected by registered instruments till the date of his acquisition. Or, where the statute provides for publication of the notification relating to a proposed acquisition of lands in the Gazette and newspapers and by causing public notice of the substance of the notification at convenient places in the locality, but does not provide for actual direct notice, then such provision provides for constructive notice; and on fulfilment of those requirements, all persons interested in the lands proposed for acquisition are deemed to have notice of the proposal regarding acquisition.Re : Question (ii) : Validity of the acquisition22. The copy of the communication dated 31.3.2004 sent by the Director of Information and Tourism (Advertisement) Department in Tamil Nadu shows that between 1998 to 2000ad a circulation of 6200, 4675, 5200 and 3100 in Central Madras, South Madras, North Madras and Tambaram areas andhad a circulation of 42,000 to 48,000 in Chennai area. On the other hand the material produced by the respondents show that the total circulation of regional newspapers in Chennai was around a million, that several regional newspapers had circulations varying between 80,000 to 2,00,000 in Chennai, and the Madurai Mani with a Chennai circulation of 28465, had a market share of 3% out of the total circulation of regional newspapers.also apparently had a market share of 4% before its closure. The two newspapers were not therefore newspapers having no circulation in the locality. We however agree, having regard to the circulation figures, with the finding of the High Court that the newspapers did not have a reasonably wide circulation in the locality.23. As both Madurai Mani and Kadiravan were sold and circulated in Chennai and as a good chunk of their total circulations was in Chennai, it may not be possible to hold that the said newspapers were not ‘regional daily newspapers circulating in theNor will it be possible to invalidate the entire acquisition on the ground that the publication in the said two newspapers did not fulfil requirement of publication in ‘newspapers circulating in thatBut if the respondents are able to assert and demonstrate that as a consequence, they were denied the opportunity of participating in the inquiry under Section 5A, or show any other disadvantage, they may be able to achieve the object of showing that the acquisition proceedings were vitiated in so far as their lands were concerned.24. In this case respondents 1 to 11 have challenged the acquisition. Respondents 5 to 11 specifically admitted that they received a notice dated 9.6.1999 from the appellant herein calling upon them to appear before him in the Section 5A inquiry under the Land Acquisition Act. Respondents 5 to 11 further admitted that they enquired and found that the lands were notified and immediately thereafter filed their objections to the acquisition proposals. Therefore, the publication of the notification under Section 4(1) of the Act, in two newspapers which did not have wide circulation in the locality, did not affect respondents 5 to 11 in any manner as they had notice of the proposals for acquisition and participated in the inquiry under Section 5A of the Act.25. We may now deal with the grievance of respondents 1 to 4. There is nothing to show that they had any subsisting interest in the two lands, when the preliminary notification was issued. When their father died they did not choose to get their names entered in the revenue records. The death of their father was in 1978 and the preliminary notification was issued in the year 1998 and for two decades they took no steps to get the lands mutated in their names. It is Stated in the writ petition that they had let out the entire property to eleventh respondent and had sold portions of the property to respondents 5 to 10. But they have not disclosed the extents of the portions that were sold and which portions, if at all any, were retained by them. They admit that the purchasers from them (respondents 5 to 10) and their tenant (respondent No. 11) had notice. Therefore, in so far as respondents 1 to 4 are concerned, whether the notification was published in newspapers having wide circulation or not would make no difference and they cannot complain about the absence of publication or about defective publication of notification under Section 4(1) in the newspapers. Even if the publication had been in two newspapers having wider circulation, their names would not have figured therein.26. It is significant to note that there is no averment in the writ petition that respondents were not aware of the proposed acquisition. It is evident that they were aware of the notification. It is also inconceivable that respondents 5 to 11 who knew about the proposed acquisition would not have informed respondents 1 to 4 about the proposed acquisition. Be that as it may. Therefore even if the publication in two regional language newspapers is considered to be not in compliance with the requirements of Section 4(1), it cannot affect the validity of the preliminary notification or the consequential proceedings in regard to Sy. Nos.186/1 and 186/2.27. No other ground is urged to interfere with the acquisition. The acquisition was for an urgent public purpose that is for implementation of further stages of Koyambedu Wholesale Market Complex. The objections on behalf of the holders of the land had been considered. No prejudice has been caused on account of the publication of the notification in two newspapers having limited circulation in the locality.

H.S. Ahammed Hussain Vs. Irfan Ahammed

the cases of Narendra Kumar (supra) and Chinnama George (supra) were distinguished on facts. That apart the case of Chinnama George (supra) is otherwise also distinguishable as in that case, on behalf of the insured, no argument was addressed whereas the appeal was argued only on behalf of the insurer. That apart the provisions of Section 170 of the Act which have been taken notice of in the case of United India Insurance Co. Ltd. (supra) were not considered therein. In the present case, appeal was whole hog pressed on behalf of the insured challenging the quantum of compensation awarded by the Tribunal. Thus, the decision of this Court in the case of Chinnama George and others (supra) 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 eventually, the course which a Court should adopt is as noticed in the case of Narendra Kumar (supra) to delete name of the insurer from the cause title and proceed with appeal of the insured and decide the same on merit. 5. Learned counsel next submitted that the High Court was not justified in interfering with finding recorded by the Tribunal to the effect that income of the two victims was Rs. 3,000/- per month and holding that their income was Rs. 1500/- per month. It appears that after taking into consideration the evidence adduced by the parties, as the High Court did not find evidence adduced on behalf of the claimants reliable and satisfactory, it fixed their income at Rs. 1500/- per month and this being a question of fact, it is not possible to interfere with the same especially when it could not be pointed out that there was any error therein.6. Learned counsel then submitted that under Second Schedule to the Act providing compensation based on a formula, the multiplier which was applicable was 15 and not 13 as age of mother of victim Vazeer was 45 years in which case the correct multiplier should have been 15 and not 13 whereas in the case of victim Rafeeq, as age of his mother being 40 years, the correct multiplier should have been 16 and not 14. On the other hand, learned counsel appearing on behalf of the respondents submitted that compensation has been awarded in accordance with the Second Schedule. It is well settled that life expectancy of the deceased or the beneficiaries whichever is shorter is an important factor. Reference in this connection may be made to the decision of this Court in the case of C.K. Subramonia Iyer and others vs. T. Kunhikuttan Nair and others AIR 1970 SC 376 . In the case of National Insurance Co. Ltd. vs. M/s. Swaranlata Das and others 1993 Suppl. (2) SCC 743, it was observed that "the appropriate method of assessment of compensation is the method of capitalisation of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependants whichever multiplier is lower. " According to the Second Schedule, if the age is above 40 years but not exceeding 45 years, the multiplier applicable is 15 and if the age is above 35 years but not exceeding 40 years, the multiplier would be 16 but the High Court has taken the multiplier as 13 and 14 instead of 15 and 16 respectively. In the case of compensation to the parents of Vazeer, the multiplier 15 should have been adopted instead of 13 and the compensation should not have been reduced from Rs. 3,13,000/- to Rs. 1,71,000/- but the same should have been reduced to Rs. 1,95,000/-. In the case of compensation to the parents of Rafeeq, the correct multiplier should have been 16 and not 14 and the High Court was not justified in reducing the compensation from Rs. 3,49,000/- to Rs. 1,83,000/- which should have been reduced to Rs. 2,07,000/-. Thus, we hold that the parents of Vazeer are entitled to total compensation to the tune of Rs. 1,95,000/- and that of Rafeeq to the tune of Rs. 2,07,000/-.7. Learned counsel thereafter submitted that the High Court was not justified in upholding award of interest at the rate of 6% per annum and the same should have been awarded at the rate of 9% per annum. Reliance in this connection was placed upon a decision of this Court in the case of Kaushnuma Begum (Smt.) and others vs. New India Assurance Co. Ltd. and others (2001) 2 SCC 9 wherein this Court noticed that "earlier, 12% was found to be the reasonable rate of simple interest. With a change in the economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% per annum from the date of the claim." Therefore, it was directed in that case that the claimant was entitled to interest at the rate of 9% per annum. In our view, the submission is well founded and must be accepted. Accordingly, we hold that the claimants shall be entitled to interest on the aforesaid amount at the rate of 9% per annum from the date of filing of the petitions till realisation. 8. Learned counsel for the appellant lastly submitted that the amount of compensation payable to mothers of the victims should not have been directed to be kept in fixed deposit in a nationalised bank. In the facts and circumstances of the present case, we are of the view that the amount of compensation awarded in favour of the mothers should not be kept in fixed deposit in a nationalised bank. In case the amounts have not been already invested, the same shall be paid to the mothers, but if, however, invested by depositing the same in fixed deposit in a nationalised bank, there may be its premature withdrawal in case the parties so intend.

1[ds]Even though, this Court held that the appeal of the insured could proceed on merit and could not have been dismissed merely because the insurer joined therein, as it did not find any ground to interfere with the quantum of compensation on merit, order of the High Court was not upset. In United India Insurance Co. Ltd. (supra), which was a case under the Act against the order awarding compensation, no appeal was preferred by the insured but only the insurer filed petition under Article 227 of the Constitution of India before the High Court. During the pendency of the said petition, a motion was made for the stay of execution of the award but the High Court had only chosen to issue notice to show cause why the revision petition be not entertained. Against the said order, when the matter was brought to this Court, it was directed that the petition under Article 227 of the Constitution filed by the insurer should be treated to be an appeal under Section 173 of the Act. The Court relied upon the provisions of Section 170 of the Act which lays down that where in the course of inquiry, the Claims Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. This Court laid down that if the insured failed to prefer any appeal against the award of the Tribunal, that would also amount to failure to contest the claim within the meaning of Section 170 of the Act. Therefore, the decisions of this Court in the cases of Narendra Kumar (supra) and Chinnama George (supra) were distinguished on facts. That apart the case of Chinnama George (supra) is otherwise also distinguishable as in that case, on behalf of the insured, no argument was addressed whereas the appeal was argued only on behalf of the insurer. That apart the provisions of Section 170 of the Act which have been taken notice of in the case of United India Insurance Co. Ltd. (supra) were not considered therein. In the present case, appeal was whole hog pressed on behalf of the insured challenging the quantum of compensation awarded by the Tribunal. Thus, the decision of this Court in the case of Chinnama George and others (supra) 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 eventually, the course which a Court should adopt is as noticed in the case of Narendra Kumar (supra) to delete name of the insurer from the cause title and proceed with appeal of the insured and decide the same onour view, the submission is well founded and must be accepted. Accordingly, we hold that the claimants shall be entitled to interest on the aforesaid amount at the rate of 9% per annum from the date of filing of the petitions tillare of the view that the amount of compensation awarded in favour of the mothers should not be kept in fixed deposit in a nationalised bank. In case the amounts have not been already invested, the same shall be paid to the mothers, but if, however, invested by depositing the same in fixed deposit in a nationalised bank, there may be its premature withdrawal in case the parties so intend.

### Instruction: Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case. ### Input: the cases of Narendra Kumar (supra) and Chinnama George (supra) were distinguished on facts. That apart the case of Chinnama George (supra) is otherwise also distinguishable as in that case, on behalf of the insured, no argument was addressed whereas the appeal was argued only on behalf of the insurer. That apart the provisions of Section 170 of the Act which have been taken notice of in the case of United India Insurance Co. Ltd. (supra) were not considered therein. In the present case, appeal was whole hog pressed on behalf of the insured challenging the quantum of compensation awarded by the Tribunal. Thus, the decision of this Court in the case of Chinnama George and others (supra) 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 eventually, the course which a Court should adopt is as noticed in the case of Narendra Kumar (supra) to delete name of the insurer from the cause title and proceed with appeal of the insured and decide the same on merit. 5. Learned counsel next submitted that the High Court was not justified in interfering with finding recorded by the Tribunal to the effect that income of the two victims was Rs. 3,000/- per month and holding that their income was Rs. 1500/- per month. It appears that after taking into consideration the evidence adduced by the parties, as the High Court did not find evidence adduced on behalf of the claimants reliable and satisfactory, it fixed their income at Rs. 1500/- per month and this being a question of fact, it is not possible to interfere with the same especially when it could not be pointed out that there was any error therein.6. Learned counsel then submitted that under Second Schedule to the Act providing compensation based on a formula, the multiplier which was applicable was 15 and not 13 as age of mother of victim Vazeer was 45 years in which case the correct multiplier should have been 15 and not 13 whereas in the case of victim Rafeeq, as age of his mother being 40 years, the correct multiplier should have been 16 and not 14. On the other hand, learned counsel appearing on behalf of the respondents submitted that compensation has been awarded in accordance with the Second Schedule. It is well settled that life expectancy of the deceased or the beneficiaries whichever is shorter is an important factor. Reference in this connection may be made to the decision of this Court in the case of C.K. Subramonia Iyer and others vs. T. Kunhikuttan Nair and others AIR 1970 SC 376 . In the case of National Insurance Co. Ltd. vs. M/s. Swaranlata Das and others 1993 Suppl. (2) SCC 743, it was observed that "the appropriate method of assessment of compensation is the method of capitalisation of net income choosing a multiplier appropriate to the age of the deceased or the age of the dependants whichever multiplier is lower. " According to the Second Schedule, if the age is above 40 years but not exceeding 45 years, the multiplier applicable is 15 and if the age is above 35 years but not exceeding 40 years, the multiplier would be 16 but the High Court has taken the multiplier as 13 and 14 instead of 15 and 16 respectively. In the case of compensation to the parents of Vazeer, the multiplier 15 should have been adopted instead of 13 and the compensation should not have been reduced from Rs. 3,13,000/- to Rs. 1,71,000/- but the same should have been reduced to Rs. 1,95,000/-. In the case of compensation to the parents of Rafeeq, the correct multiplier should have been 16 and not 14 and the High Court was not justified in reducing the compensation from Rs. 3,49,000/- to Rs. 1,83,000/- which should have been reduced to Rs. 2,07,000/-. Thus, we hold that the parents of Vazeer are entitled to total compensation to the tune of Rs. 1,95,000/- and that of Rafeeq to the tune of Rs. 2,07,000/-.7. Learned counsel thereafter submitted that the High Court was not justified in upholding award of interest at the rate of 6% per annum and the same should have been awarded at the rate of 9% per annum. Reliance in this connection was placed upon a decision of this Court in the case of Kaushnuma Begum (Smt.) and others vs. New India Assurance Co. Ltd. and others (2001) 2 SCC 9 wherein this Court noticed that "earlier, 12% was found to be the reasonable rate of simple interest. With a change in the economy and the policy of Reserve Bank of India the interest rate has been lowered. The nationalised banks are now granting interest at the rate of 9% per annum from the date of the claim." Therefore, it was directed in that case that the claimant was entitled to interest at the rate of 9% per annum. In our view, the submission is well founded and must be accepted. Accordingly, we hold that the claimants shall be entitled to interest on the aforesaid amount at the rate of 9% per annum from the date of filing of the petitions till realisation. 8. Learned counsel for the appellant lastly submitted that the amount of compensation payable to mothers of the victims should not have been directed to be kept in fixed deposit in a nationalised bank. In the facts and circumstances of the present case, we are of the view that the amount of compensation awarded in favour of the mothers should not be kept in fixed deposit in a nationalised bank. In case the amounts have not been already invested, the same shall be paid to the mothers, but if, however, invested by depositing the same in fixed deposit in a nationalised bank, there may be its premature withdrawal in case the parties so intend. ### Response: 1 ### Explanation: Even though, this Court held that the appeal of the insured could proceed on merit and could not have been dismissed merely because the insurer joined therein, as it did not find any ground to interfere with the quantum of compensation on merit, order of the High Court was not upset. In United India Insurance Co. Ltd. (supra), which was a case under the Act against the order awarding compensation, no appeal was preferred by the insured but only the insurer filed petition under Article 227 of the Constitution of India before the High Court. During the pendency of the said petition, a motion was made for the stay of execution of the award but the High Court had only chosen to issue notice to show cause why the revision petition be not entertained. Against the said order, when the matter was brought to this Court, it was directed that the petition under Article 227 of the Constitution filed by the insurer should be treated to be an appeal under Section 173 of the Act. The Court relied upon the provisions of Section 170 of the Act which lays down that where in the course of inquiry, the Claims Tribunal is satisfied that there is collusion between the person making the claim and the person against whom the claim is made, or the person against whom the claim is made has failed to contest the claim, it may, for reasons to be recorded in writing, direct that the insurer who may be liable in respect of such claim, shall be impleaded as a party to the proceeding and the insurer so impleaded shall thereupon have, without prejudice to the provisions contained in sub-section (2) of Section 149, the right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. This Court laid down that if the insured failed to prefer any appeal against the award of the Tribunal, that would also amount to failure to contest the claim within the meaning of Section 170 of the Act. Therefore, the decisions of this Court in the cases of Narendra Kumar (supra) and Chinnama George (supra) were distinguished on facts. That apart the case of Chinnama George (supra) is otherwise also distinguishable as in that case, on behalf of the insured, no argument was addressed whereas the appeal was argued only on behalf of the insurer. That apart the provisions of Section 170 of the Act which have been taken notice of in the case of United India Insurance Co. Ltd. (supra) were not considered therein. In the present case, appeal was whole hog pressed on behalf of the insured challenging the quantum of compensation awarded by the Tribunal. Thus, the decision of this Court in the case of Chinnama George and others (supra) 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 eventually, the course which a Court should adopt is as noticed in the case of Narendra Kumar (supra) to delete name of the insurer from the cause title and proceed with appeal of the insured and decide the same onour view, the submission is well founded and must be accepted. Accordingly, we hold that the claimants shall be entitled to interest on the aforesaid amount at the rate of 9% per annum from the date of filing of the petitions tillare of the view that the amount of compensation awarded in favour of the mothers should not be kept in fixed deposit in a nationalised bank. In case the amounts have not been already invested, the same shall be paid to the mothers, but if, however, invested by depositing the same in fixed deposit in a nationalised bank, there may be its premature withdrawal in case the parties so intend.

Khursida Begum (D) By Lrs Vs. Mohammad Farooq (D) By Lrs

has also not been pleaded or proved in any manner that the property in question is freehold property in a large commercial town, so as to attract clause (d) of the exception as referred to above.After having considered the entire facts and circumstances of the present case, in view of the clear provisions of law, as referred to above, I find no error or illegality in the judgment and decree passed by the trial court so as to call for any further interference of this court.” 10. Learned counsel for the parties have referred to the principles of Mohammedan Law as compiled in “Mulla Principles of Mohammedan Law, 20th Edition by Lexis Nexis, paras 152 and 160 which are : “152. Delivery of possession of immovable property (1) Where donor is in possession – A gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.(2) Where property is in the occupation of tenants – A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of the title deed or by mutation in the Revenue Register or the landlord’s sherista. But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete.(3) Where donor and donee both reside in the property – No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. The principle for the determination of questions of this nature was thus stated by West, J. in a Bombay case. “When a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession without any physical departure or formal entry.160. Gift of mushaa where property divisible. A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated.Exceptions – A gift of an undivided share (mushaa), though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases –(1) where the gift is made by one co-heir to another.(2) where the gift is of a share in a zemindari or taluka(3) where the gift is of a share in freehold property in a large commercial town.(4) where the gift is of shares in a land company.” 11. A perusal of the above shows that while gift of immovable property is not complete unless the donor parts with the possession and donee enters into possession but if the property is in occupation of tenants, gift can be completed by delivery of title deed or by request to tenants to attorn to the donee or by mutation. It is further clear that gift of property which is capable of division is irregular but can be perfected and rendered valid by subsequent partition or delivery. Exceptions to the rule are : where the gift is made by one co-heir to the other; where the gift is of share in a zemindari or taluka; where gift is of a share in freehold property in a large commercial town, and where gift is of share in a land company. 12. The courts below appear to have quoted “Mohammedan Law” by B.R. Verma, Law Publishers (India) Pvt. Ltd, 13th Edition which is by and large to same effect as Mulla’s book on the subject. 13. The courts below have held the gift to be invalid on the ground that it was gift of undivided property which is capable of division and was not covered by any of the exceptions to the rule that gift of such property is irregular. It is submitted by learned counsel for the appellant that the property is freehold property in the city of Jaipur, which is a large commercial town. This has been wrongly ignored by the courts below on the ground that there was no pleading or proof to that effect. Description of property mentioned in plaint and in the gift deed itself shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town. Requirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift deed itself, genuineness of which stands proved.14. We find force in the submission. The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. The gift was by father to his minor son. Property is under tenancy. The gift is by a registered deed. Right to collect rent stands transferred to donee. The property is located in the city of Jaipur which is mentioned in Para 2 of the plaint as well as in the gift deed. The courts below are not justified in not giving effect to the gift which has been held to be genuine.

1[ds]13. The courts below have held the gift to be invalid on the ground that it was gift of undivided property which is capable of division and was not covered by any of the exceptions to the rule that gift of such property is irregular. It is submitted by learned counsel for the appellant that the property is freehold property in the city of Jaipur, which is a large commercial town. This has been wrongly ignored by the courts below on the ground that there was no pleading or proof to that effect. Description of property mentioned in plaint and in the gift deed itself shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town. Requirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift deed itself, genuineness of which stands proved.14. We find force in the submission. The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. The gift was by father to his minor son. Property is under tenancy. The gift is by a registered deed. Right to collect rent stands transferred to donee. The property is located in the city of Jaipur which is mentioned in Para 2 of the plaint as well as in the gift deed. The courts below are not justified in not giving effect to the gift which has been held to be genuine.The courts below have held the gift to be invalid on the ground that it was gift of undivided property which is capable of division and was not covered by any of the exceptions to the rule that gift of such property is irregular. It is submitted by learned counsel for the appellant that the property is freehold property in the city of Jaipur, which is a large commercial town. This has been wrongly ignored by the courts below on the ground that there was no pleading or proof to that effect. Description of property mentioned in plaint and in the gift deed itself shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town. Requirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift deed itself, genuineness of which stands proved.14. We find force in the submission. The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. The gift was by father to his minor son. Property is under tenancy. The gift is by a registered deed. Right to collect rent stands transferred to donee. The property is located in the city of Jaipur which is mentioned in Para 2 of the plaint as well as in the gift deed. The courts below are not justified in not giving effect to the gift which has been held to be

### 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: has also not been pleaded or proved in any manner that the property in question is freehold property in a large commercial town, so as to attract clause (d) of the exception as referred to above.After having considered the entire facts and circumstances of the present case, in view of the clear provisions of law, as referred to above, I find no error or illegality in the judgment and decree passed by the trial court so as to call for any further interference of this court.” 10. Learned counsel for the parties have referred to the principles of Mohammedan Law as compiled in “Mulla Principles of Mohammedan Law, 20th Edition by Lexis Nexis, paras 152 and 160 which are : “152. Delivery of possession of immovable property (1) Where donor is in possession – A gift of immovable property of which the donor is in actual possession is not complete, unless the donor physically departs from the premises with all his goods and chattels, and the donee formally enters into possession.(2) Where property is in the occupation of tenants – A gift of immovable property which is in the occupation of tenants may be completed by a request by the donor to the tenants to attorn to the donee, or by delivery of the title deed or by mutation in the Revenue Register or the landlord’s sherista. But if the husband reserves to himself the right to receive rents during his lifetime and also undertakes to pay Municipal dues, a mere recital in the deed that delivery of possession has been given to the donee will not make the gift complete.(3) Where donor and donee both reside in the property – No physical departure or formal entry is necessary in the case of a gift of immovable property in which the donor and the donee are both residing at the time of the gift. In such a case the gift may be completed by some overt act by the donor indicating a clear intention on his part to transfer possession and to divest himself of all control over the subject of the gift. The principle for the determination of questions of this nature was thus stated by West, J. in a Bombay case. “When a person is present on the premises proposed to be delivered to him, a declaration of the person previously possessed puts him into possession without any physical departure or formal entry.160. Gift of mushaa where property divisible. A gift of an undivided share (mushaa) in property which is capable of division is irregular (fasid), but not void (batil). The gift being irregular, and not void, it may be perfected and rendered valid by subsequent partition and delivery to the donee of the share given to him. If possession is once taken the gift is validated.Exceptions – A gift of an undivided share (mushaa), though it be a share in property capable of division, is valid from the moment of the gift, even if the share is not divided off and delivered to the donee, in the following cases –(1) where the gift is made by one co-heir to another.(2) where the gift is of a share in a zemindari or taluka(3) where the gift is of a share in freehold property in a large commercial town.(4) where the gift is of shares in a land company.” 11. A perusal of the above shows that while gift of immovable property is not complete unless the donor parts with the possession and donee enters into possession but if the property is in occupation of tenants, gift can be completed by delivery of title deed or by request to tenants to attorn to the donee or by mutation. It is further clear that gift of property which is capable of division is irregular but can be perfected and rendered valid by subsequent partition or delivery. Exceptions to the rule are : where the gift is made by one co-heir to the other; where the gift is of share in a zemindari or taluka; where gift is of a share in freehold property in a large commercial town, and where gift is of share in a land company. 12. The courts below appear to have quoted “Mohammedan Law” by B.R. Verma, Law Publishers (India) Pvt. Ltd, 13th Edition which is by and large to same effect as Mulla’s book on the subject. 13. The courts below have held the gift to be invalid on the ground that it was gift of undivided property which is capable of division and was not covered by any of the exceptions to the rule that gift of such property is irregular. It is submitted by learned counsel for the appellant that the property is freehold property in the city of Jaipur, which is a large commercial town. This has been wrongly ignored by the courts below on the ground that there was no pleading or proof to that effect. Description of property mentioned in plaint and in the gift deed itself shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town. Requirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift deed itself, genuineness of which stands proved.14. We find force in the submission. The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. The gift was by father to his minor son. Property is under tenancy. The gift is by a registered deed. Right to collect rent stands transferred to donee. The property is located in the city of Jaipur which is mentioned in Para 2 of the plaint as well as in the gift deed. The courts below are not justified in not giving effect to the gift which has been held to be genuine. ### Response: 1 ### Explanation: 13. The courts below have held the gift to be invalid on the ground that it was gift of undivided property which is capable of division and was not covered by any of the exceptions to the rule that gift of such property is irregular. It is submitted by learned counsel for the appellant that the property is freehold property in the city of Jaipur, which is a large commercial town. This has been wrongly ignored by the courts below on the ground that there was no pleading or proof to that effect. Description of property mentioned in plaint and in the gift deed itself shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town. Requirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift deed itself, genuineness of which stands proved.14. We find force in the submission. The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. The gift was by father to his minor son. Property is under tenancy. The gift is by a registered deed. Right to collect rent stands transferred to donee. The property is located in the city of Jaipur which is mentioned in Para 2 of the plaint as well as in the gift deed. The courts below are not justified in not giving effect to the gift which has been held to be genuine.The courts below have held the gift to be invalid on the ground that it was gift of undivided property which is capable of division and was not covered by any of the exceptions to the rule that gift of such property is irregular. It is submitted by learned counsel for the appellant that the property is freehold property in the city of Jaipur, which is a large commercial town. This has been wrongly ignored by the courts below on the ground that there was no pleading or proof to that effect. Description of property mentioned in plaint and in the gift deed itself shows that it is commercial property in the city of Jaipur which is the capital of the State of Rajasthan and is, thus, a large commercial town. Requirement of possession is also met when right to collect rent has been assigned to the plaintiff under the gift deed itself, genuineness of which stands proved.14. We find force in the submission. The gift had no infirmity under the Muslim Law either on the ground that the possession was not delivered or on the ground that the gift was hit by Hiba-bil-Musha. The gift was by father to his minor son. Property is under tenancy. The gift is by a registered deed. Right to collect rent stands transferred to donee. The property is located in the city of Jaipur which is mentioned in Para 2 of the plaint as well as in the gift deed. The courts below are not justified in not giving effect to the gift which has been held to be

Razakali Khureshi Sandhi Vs. State of Gujarat

In addition to this, the appellant was convicted under Sections 307, 225, 332 and 333 of the Indian Penal Code and was sentenced to suffer RI for various terms in addition to the payment of fine. Harun Jasub Bhaya, original accused No. 8, however, was convicted under Section 224 of the Indian Penal Code and was sentenced to suffer RI for two years and to pay a fine of Rs. 5, 000/-; in default of payment of fine to suffer further RI for a period of six months. In this appeal, we are however not concerned with the conviction and sentence of A-8. Rest of the accused persons were, however, acquitted of all the charges. The appellant aggrieved by this order of conviction and sentence has filed this appeal to this Court under Section 19 of the TADA. 7. At the outset, it may be stated that it is not and cannot be disputed that two sepoys of Customs Department, namely, Mahindersinh and Somaji Thakor died in the incident in question. Both of them were crushed to death because of the dash given by the truck bearing registration No. GTE-7461. It is, therefore, needless to refer to the medical evidence on record. In addition to these two unnatural deaths, P. N. Desai (PW 1) and Jacob (PW 2) were also injured in the same incident. No sustainable arguments were advanced before us to the contrary and we, therefore, see no reason to confirm the finding of the learned trial court that Mahindersinh Rayjada and Somaji Thakor met with unnatural deaths and P. N. Desai (PW 1) and Jocob (PW 2) sustained injuries in the same incident. 8. The main contention raised on behalf of the appellant is that there is no satisfactory material on record to establish the identity of the appellant being the driver of the truck bearing registration No. GET-7461. In order to establish the identity, the prosecution relied upon the evidence of four witnesses, namely, P. N. Desai (PW 1), Jacob (PW 2), Bharat Trivedi (PW 3) and Chuni Lal Barad (PW 46). The learned trial judge, however did not accept the evidence of Jacob (PW 2) and Chuni Lal (PW 46) as dependable to prove the identity of the appellant being the driver of the said truck. However, in our considered view, the evidence of P. N. Desai (PW 1) and Bharat Trivedi (PW 3) is totally unblemish and credible one to establish the identity of the appellant being the driver of the said truck. P. N. Desai (PW 1) in his evidence had stated that he had seen the appellant 4 to 5 times before the incident in the B & B Transport Company. He came to know the name of the appellant six months before this incident. He was introduced by senior Custom Officers for preventive purposes. When the jeep was standing near Shrijee Parotha House, they were not aware that any truck was coming from behind. When the truck came and dashed against them, they all fell down and the head of Mahindersinh was crushed. The truck thereafter went ahead and dashed against the electric pole and thereafter it came in reverse. Seeing this incident, Somaji who was sitting in the jeep, got down and ran towards the road side. At that time, the truck took a turn and came in speed and dashed against Somaji. On both these occasions, he saw the appellant being the driver of the truck from a distance of 80-100 feet. The defence although cross-examined the witness at great length but there is hardly any material brought out during cross-examination which could discredit his testimony. We have carefully gone through the evidence of this witness and we see no hesitation to accept his evidence being credible one. The identity of the appellant being the driver of the truck is fully established. The material on record also proves that the appellant was the associate of Harun Jusab Bhaya (A-8). The manner in which the incident took place leaves no manner of doubt that the appellant purposely and intentionally dashed against these Custom Officers wherein Mahindersinh was crushed to death. The appellant on the second time also brought the truck in speed after taking a turn and dashed against Somaji who sustained injuries and later on died on the hospital. In view of these circumstances, we have no manner of doubt that the appellant had intentionally caused the deaths of Mahindersinh Rayjada and Somaji Thakor. 9. The FIR was lodged by P. N. Desai (PW 1) within a few hours wherein the name of the appellant being the driver of the truck No. GTE-7461 was mentioned. The FIR also made a mention of all details about the incident and it fully corroborates the evidence of P. N. Desai (PW 1). The evidence of P. N. Desai (PW 1) finds corroboration from that of Bharat Trivedi (PW 3) who had also sustained minor injuries during the incident in question. He asserted that he was standing at a distance of 60 to 70 feet when the truck dashed against Mahindersinh Rayjada. He had seen the appellant driving the truck in a great speed. We have gone through his evidence carefully and we find that his evidence suffers from no infirmity as regards the identity of the appellant. The learned Advocate for the appellant despite his efforts could not persuade us to disbelieve the evidence of these two witnesses. The trial court, in our opinion, has rightly believed the evidence of these two witnesses. The evidence of both these witnesses has clearly established that the appellant has intentionally caused the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant passed under Section 302 of the Indian Penal Code, therefore, does not suffer from any infirmity. The learned Advocate for the appellant was unable to point out any error in the impugned judgment as regards the convictions of the appellant passed on other counts. Thus, this appeal is devoid of any merit.

0[ds]We have gone through his evidence carefully and we find that his evidence suffers from no infirmity as regards the identity of the appellant. The learned Advocate for the appellant despite his efforts could not persuade us to disbelieve the evidence of these two witnesses. The trial court, in our opinion, has rightly believed the evidence of these two witnesses. The evidence of both these witnesses has clearly established that the appellant has intentionally caused the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant passed under Section 302 of the Indian Penal Code, therefore, does not suffer from any infirmity. The learned Advocate for the appellant was unable to point out any error in the impugned judgment as regards the convictions of the appellant passed on other counts. Thus, this appeal is devoid of any meritWe have carefully gone through the evidence of this witness and we see no hesitation to accept his evidence being credible one. The identity of the appellant being the driver of the truck is fully established. The material on record also proves that the appellant was the associate of Harun Jusab Bhaya. The manner in which the incident took place leaves no manner of doubt that the appellant purposely and intentionally dashed against these Custom Officers wherein Mahindersinh was crushed to death. The appellant on the second time also brought the truck in speed after taking a turn and dashed against Somaji who sustained injuries and later on died on the hospital. In view of these circumstances, we have no manner of doubt that the appellant had intentionally caused the deaths of Mahindersinh Rayjada and Somaji ThakorWe have gone through his evidence carefully and we find that his evidence suffers from no infirmity as regards the identity of the appellant. The learned Advocate for the appellant despite his efforts could not persuade us to disbelieve the evidence of these two witnesses. The trial court, in our opinion, has rightly believed the evidence of these two witnesses. The evidence of both these witnesses has clearly established that the appellant has intentionally caused the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant passed under Section 302 of the Indian Penal Code, therefore, does not suffer from any infirmity. The learned Advocate for the appellant was unable to point out any error in the impugned judgment as regards the convictions of the appellant passed on other counts. Thus, this appeal is devoid of any

### 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 addition to this, the appellant was convicted under Sections 307, 225, 332 and 333 of the Indian Penal Code and was sentenced to suffer RI for various terms in addition to the payment of fine. Harun Jasub Bhaya, original accused No. 8, however, was convicted under Section 224 of the Indian Penal Code and was sentenced to suffer RI for two years and to pay a fine of Rs. 5, 000/-; in default of payment of fine to suffer further RI for a period of six months. In this appeal, we are however not concerned with the conviction and sentence of A-8. Rest of the accused persons were, however, acquitted of all the charges. The appellant aggrieved by this order of conviction and sentence has filed this appeal to this Court under Section 19 of the TADA. 7. At the outset, it may be stated that it is not and cannot be disputed that two sepoys of Customs Department, namely, Mahindersinh and Somaji Thakor died in the incident in question. Both of them were crushed to death because of the dash given by the truck bearing registration No. GTE-7461. It is, therefore, needless to refer to the medical evidence on record. In addition to these two unnatural deaths, P. N. Desai (PW 1) and Jacob (PW 2) were also injured in the same incident. No sustainable arguments were advanced before us to the contrary and we, therefore, see no reason to confirm the finding of the learned trial court that Mahindersinh Rayjada and Somaji Thakor met with unnatural deaths and P. N. Desai (PW 1) and Jocob (PW 2) sustained injuries in the same incident. 8. The main contention raised on behalf of the appellant is that there is no satisfactory material on record to establish the identity of the appellant being the driver of the truck bearing registration No. GET-7461. In order to establish the identity, the prosecution relied upon the evidence of four witnesses, namely, P. N. Desai (PW 1), Jacob (PW 2), Bharat Trivedi (PW 3) and Chuni Lal Barad (PW 46). The learned trial judge, however did not accept the evidence of Jacob (PW 2) and Chuni Lal (PW 46) as dependable to prove the identity of the appellant being the driver of the said truck. However, in our considered view, the evidence of P. N. Desai (PW 1) and Bharat Trivedi (PW 3) is totally unblemish and credible one to establish the identity of the appellant being the driver of the said truck. P. N. Desai (PW 1) in his evidence had stated that he had seen the appellant 4 to 5 times before the incident in the B & B Transport Company. He came to know the name of the appellant six months before this incident. He was introduced by senior Custom Officers for preventive purposes. When the jeep was standing near Shrijee Parotha House, they were not aware that any truck was coming from behind. When the truck came and dashed against them, they all fell down and the head of Mahindersinh was crushed. The truck thereafter went ahead and dashed against the electric pole and thereafter it came in reverse. Seeing this incident, Somaji who was sitting in the jeep, got down and ran towards the road side. At that time, the truck took a turn and came in speed and dashed against Somaji. On both these occasions, he saw the appellant being the driver of the truck from a distance of 80-100 feet. The defence although cross-examined the witness at great length but there is hardly any material brought out during cross-examination which could discredit his testimony. We have carefully gone through the evidence of this witness and we see no hesitation to accept his evidence being credible one. The identity of the appellant being the driver of the truck is fully established. The material on record also proves that the appellant was the associate of Harun Jusab Bhaya (A-8). The manner in which the incident took place leaves no manner of doubt that the appellant purposely and intentionally dashed against these Custom Officers wherein Mahindersinh was crushed to death. The appellant on the second time also brought the truck in speed after taking a turn and dashed against Somaji who sustained injuries and later on died on the hospital. In view of these circumstances, we have no manner of doubt that the appellant had intentionally caused the deaths of Mahindersinh Rayjada and Somaji Thakor. 9. The FIR was lodged by P. N. Desai (PW 1) within a few hours wherein the name of the appellant being the driver of the truck No. GTE-7461 was mentioned. The FIR also made a mention of all details about the incident and it fully corroborates the evidence of P. N. Desai (PW 1). The evidence of P. N. Desai (PW 1) finds corroboration from that of Bharat Trivedi (PW 3) who had also sustained minor injuries during the incident in question. He asserted that he was standing at a distance of 60 to 70 feet when the truck dashed against Mahindersinh Rayjada. He had seen the appellant driving the truck in a great speed. We have gone through his evidence carefully and we find that his evidence suffers from no infirmity as regards the identity of the appellant. The learned Advocate for the appellant despite his efforts could not persuade us to disbelieve the evidence of these two witnesses. The trial court, in our opinion, has rightly believed the evidence of these two witnesses. The evidence of both these witnesses has clearly established that the appellant has intentionally caused the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant passed under Section 302 of the Indian Penal Code, therefore, does not suffer from any infirmity. The learned Advocate for the appellant was unable to point out any error in the impugned judgment as regards the convictions of the appellant passed on other counts. Thus, this appeal is devoid of any merit. ### Response: 0 ### Explanation: We have gone through his evidence carefully and we find that his evidence suffers from no infirmity as regards the identity of the appellant. The learned Advocate for the appellant despite his efforts could not persuade us to disbelieve the evidence of these two witnesses. The trial court, in our opinion, has rightly believed the evidence of these two witnesses. The evidence of both these witnesses has clearly established that the appellant has intentionally caused the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant passed under Section 302 of the Indian Penal Code, therefore, does not suffer from any infirmity. The learned Advocate for the appellant was unable to point out any error in the impugned judgment as regards the convictions of the appellant passed on other counts. Thus, this appeal is devoid of any meritWe have carefully gone through the evidence of this witness and we see no hesitation to accept his evidence being credible one. The identity of the appellant being the driver of the truck is fully established. The material on record also proves that the appellant was the associate of Harun Jusab Bhaya. The manner in which the incident took place leaves no manner of doubt that the appellant purposely and intentionally dashed against these Custom Officers wherein Mahindersinh was crushed to death. The appellant on the second time also brought the truck in speed after taking a turn and dashed against Somaji who sustained injuries and later on died on the hospital. In view of these circumstances, we have no manner of doubt that the appellant had intentionally caused the deaths of Mahindersinh Rayjada and Somaji ThakorWe have gone through his evidence carefully and we find that his evidence suffers from no infirmity as regards the identity of the appellant. The learned Advocate for the appellant despite his efforts could not persuade us to disbelieve the evidence of these two witnesses. The trial court, in our opinion, has rightly believed the evidence of these two witnesses. The evidence of both these witnesses has clearly established that the appellant has intentionally caused the deaths of Mahindersinh and Somaji Thakor. The conviction of the appellant passed under Section 302 of the Indian Penal Code, therefore, does not suffer from any infirmity. The learned Advocate for the appellant was unable to point out any error in the impugned judgment as regards the convictions of the appellant passed on other counts. Thus, this appeal is devoid of any

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

provide a method for online deposit of applicable royalty, taxes, contribution to the Special Purpose Vehicle (SPV) and other statutory duties; along with the subsequent online confirmation of such receipt.(V) The mechanism must consist of checks-and-balances which can be implemented across the e-platform, in order to ensure that the sale or purchase of iron-ore is not substantially below the market price.3. In its counter/reply, the State of Karnataka has indicated its broad agreement with the suggestions of the CEC and has incorporated certain additional recommendations including setting up of a Committee consisting of officials of the State Government to monitor the sale of iron-ore through the e-platform on the basis of long term agreements, a Model of which has also been submitted to the Court.4. Other stake-holders like the writ petitioners in Writ Petition (C) No. 562/2009 – Samaj Parivartana Samudaya and ors. have objected to any change from the existing pattern of sale of iron-ore through the Monitoring Committee whereas M/s Vedanta Ltd., an iron-ore lessee operating within the State of Karnataka has supported the stand taken by FIMI South in the present I.A. i.e. I.A. No.248 of 2015.5. The Monitoring Committee through whom iron-ore is currently being sold by e-auction was constituted by the order of this Court dated 2nd September, 2011 accepting the recommendations of the CEC dated 1st September, 2011 to sell the total quantity of illegally extracted iron-ore which at that point of time was 25 MMT (approximately).6. After the sale of the illegally mined iron-ore was complete, this Court by order dated 23rd September, 2011 continued to entrust the duty and responsibility of sale of iron-ore to the Monitoring Committee. The above position was continued by this Court by its Order dated 18.4.2013 disposing of Writ Petition (C) No. 562/2009 and other connected cases. This is how the current status/situation with regard to sale of iron-ore by e-auction through the Court Appointed Monitoring Committee continues.7. In the order of this Court dated 18th April, 2013 in Writ Petition (C) No. 562 of 2009 there is a vivid and graphic description of the enormity of the illegal mining and consequential damage to the ecology and environment that had led to the intervention of this Court and had prompted exercise of its jurisdiction in the present matter. Innovative measures and orders with the aid of Article 142 of the Constitution of India were felt necessary and consequently passed by the Court from time to time including the final order dated 18th April, 2013 to comprehensively deal with the issue of illegal mining and depredation of nature and environment. It is in the above said context that the constitution of the Monitoring Committee and the continuance of its role in the matter of sale of iron-ore by e-auction had been conceived and continued by this Court on the basis of the various orders passed from time to time.8. It is in the aforesaid backdrop and having regard to the progress achieved in terms of what was contemplated and visualized by this Court in its final order dated 18th April, 2013 that the tenability of the prayers made by the FIMI South will have to be considered.9. What has been suggested in the report of the CEC dated 28th April, 2016 and the in-principle approval thereof by the State of Karnataka along with the suggestions offered by the State would seem to indicate that in place of Monitoring Committee constituted by this Court another Monitoring Committee consisting of officials of the State Government (of Karnataka) is proposed to over-see and supervise the sale of iron-ore through a hybrid system of long term contracts and sales through an e-platform including payment of taxes, royalty, etc.10. While it is correct that any trading process has to be free and fair with liberty to the contracting parties to work out their own terms of sale and purchase, what cannot be ignored are the circumstances which had prompted the Court to conceive of and continue with a departure from the normal rule and instead to have a regulated, if not, highly controlled system of sale and purchase of iron-ore. Sale and purchase of iron-ore through the Court Appointed Monitoring Committee and by e-auction is not a singular but a connected facet of what was visualized by the Court in its bid to check, control and regulate mining and also to restore nature and environment to its earlier pristine purity, so far as possible.11. A cap on production and restoration of ecology and environment through a Comprehensive Environment Plans for the Mining Impact Zone (CEPMIZ for short) has been visualized by this Court in its order dated 18th April, 2013. The connected aspects i.e. lifting of the cap or enhancement thereof and launching of the CEPMIZ scheme is under active consideration of this Court in other connected Interlocutory Applications (I.As.). When the said connected issues are pending it cannot be said that the situation has become ripe for the normal rule of sale and purchase to be restored so far as the sale of iron-ore in the State of Karnataka is concerned. The experience of the past has been horrific. It cannot be allowed to come back. Sale and purchase of iron-ore had been conducted in the most outrageous manner and on wholly unacceptable terms resulting, inter alia, in huge leakage of government revenue. Such experiences and events cannot be allowed to resurface. Taking an overall view of the matter, we are of the opinion that time has not come to dispense with the existing policy of sale and purchase of iron-ore in the State of Karnataka through the Court Appointed Monitoring Committee by e-auction. The restoration of normalcy in the process of sale and purchase of iron-ore must wait for the future and at least till such time that significant headways are made in the other connected aspects of the matter dealt with by the final order of this Court dated 18th April, 2013 passed in Writ Petition (Civil) No.562 of 2009.

0[ds]9. What has been suggested in the report of the CEC dated 28th April, 2016 and theapproval thereof by the State of Karnataka along with the suggestions offered by the State would seem to indicate that in place of Monitoring Committee constituted by this Court another Monitoring Committee consisting of officials of the State Government (of Karnataka) is proposed toand supervise the sale ofthrough a hybrid system of long term contracts and sales through anincluding payment of taxes, royalty, etc.10. While it is correct that any trading process has to be free and fair with liberty to the contracting parties to work out their own terms of sale and purchase, what cannot be ignored are the circumstances which had prompted the Court to conceive of and continue with a departure from the normal rule and instead to have a regulated, if not, highly controlled system of sale and purchase ofSale and purchase ofthrough the Court Appointed Monitoring Committee and byis not a singular but a connected facet of what was visualized by the Court in its bid to check, control and regulate mining and also to restore nature and environment to its earlier pristine purity, so far as possible.11. A cap on production and restoration of ecology and environment through a Comprehensive Environment Plans for the Mining Impact Zone (CEPMIZ for short) has been visualized by this Court in its order dated 18th April, 2013. The connected aspects i.e. lifting of the cap or enhancement thereof and launching of the CEPMIZ scheme is under active consideration of this Court in other connected Interlocutory Applications (I.As.). When the said connected issues are pending it cannot be said that the situation has become ripe for the normal rule of sale and purchase to be restored so far as the sale ofin the State of Karnataka is concerned. The experience of the past has been horrific. It cannot be allowed to come back.Sale and purchase ofhad been conducted in the most outrageous manner and on wholly unacceptable terms resulting, inter alia, in huge leakage of government revenue. Such experiences and events cannot be allowed to resurface. Taking an overall view of the matter, we are of the opinion that time has not come to dispense with the existing policy of sale and purchase ofin the State of Karnataka through the Court Appointed Monitoring Committee byThe restoration of normalcy in the process of sale and purchase ofmust wait for the future and at least till such time that significant headways are made in the other connected aspects of the matter dealt with by the final order of this Court dated 18th April, 2013 passed in Writ Petition (Civil) No.562 of 2009.

### 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: provide a method for online deposit of applicable royalty, taxes, contribution to the Special Purpose Vehicle (SPV) and other statutory duties; along with the subsequent online confirmation of such receipt.(V) The mechanism must consist of checks-and-balances which can be implemented across the e-platform, in order to ensure that the sale or purchase of iron-ore is not substantially below the market price.3. In its counter/reply, the State of Karnataka has indicated its broad agreement with the suggestions of the CEC and has incorporated certain additional recommendations including setting up of a Committee consisting of officials of the State Government to monitor the sale of iron-ore through the e-platform on the basis of long term agreements, a Model of which has also been submitted to the Court.4. Other stake-holders like the writ petitioners in Writ Petition (C) No. 562/2009 – Samaj Parivartana Samudaya and ors. have objected to any change from the existing pattern of sale of iron-ore through the Monitoring Committee whereas M/s Vedanta Ltd., an iron-ore lessee operating within the State of Karnataka has supported the stand taken by FIMI South in the present I.A. i.e. I.A. No.248 of 2015.5. The Monitoring Committee through whom iron-ore is currently being sold by e-auction was constituted by the order of this Court dated 2nd September, 2011 accepting the recommendations of the CEC dated 1st September, 2011 to sell the total quantity of illegally extracted iron-ore which at that point of time was 25 MMT (approximately).6. After the sale of the illegally mined iron-ore was complete, this Court by order dated 23rd September, 2011 continued to entrust the duty and responsibility of sale of iron-ore to the Monitoring Committee. The above position was continued by this Court by its Order dated 18.4.2013 disposing of Writ Petition (C) No. 562/2009 and other connected cases. This is how the current status/situation with regard to sale of iron-ore by e-auction through the Court Appointed Monitoring Committee continues.7. In the order of this Court dated 18th April, 2013 in Writ Petition (C) No. 562 of 2009 there is a vivid and graphic description of the enormity of the illegal mining and consequential damage to the ecology and environment that had led to the intervention of this Court and had prompted exercise of its jurisdiction in the present matter. Innovative measures and orders with the aid of Article 142 of the Constitution of India were felt necessary and consequently passed by the Court from time to time including the final order dated 18th April, 2013 to comprehensively deal with the issue of illegal mining and depredation of nature and environment. It is in the above said context that the constitution of the Monitoring Committee and the continuance of its role in the matter of sale of iron-ore by e-auction had been conceived and continued by this Court on the basis of the various orders passed from time to time.8. It is in the aforesaid backdrop and having regard to the progress achieved in terms of what was contemplated and visualized by this Court in its final order dated 18th April, 2013 that the tenability of the prayers made by the FIMI South will have to be considered.9. What has been suggested in the report of the CEC dated 28th April, 2016 and the in-principle approval thereof by the State of Karnataka along with the suggestions offered by the State would seem to indicate that in place of Monitoring Committee constituted by this Court another Monitoring Committee consisting of officials of the State Government (of Karnataka) is proposed to over-see and supervise the sale of iron-ore through a hybrid system of long term contracts and sales through an e-platform including payment of taxes, royalty, etc.10. While it is correct that any trading process has to be free and fair with liberty to the contracting parties to work out their own terms of sale and purchase, what cannot be ignored are the circumstances which had prompted the Court to conceive of and continue with a departure from the normal rule and instead to have a regulated, if not, highly controlled system of sale and purchase of iron-ore. Sale and purchase of iron-ore through the Court Appointed Monitoring Committee and by e-auction is not a singular but a connected facet of what was visualized by the Court in its bid to check, control and regulate mining and also to restore nature and environment to its earlier pristine purity, so far as possible.11. A cap on production and restoration of ecology and environment through a Comprehensive Environment Plans for the Mining Impact Zone (CEPMIZ for short) has been visualized by this Court in its order dated 18th April, 2013. The connected aspects i.e. lifting of the cap or enhancement thereof and launching of the CEPMIZ scheme is under active consideration of this Court in other connected Interlocutory Applications (I.As.). When the said connected issues are pending it cannot be said that the situation has become ripe for the normal rule of sale and purchase to be restored so far as the sale of iron-ore in the State of Karnataka is concerned. The experience of the past has been horrific. It cannot be allowed to come back. Sale and purchase of iron-ore had been conducted in the most outrageous manner and on wholly unacceptable terms resulting, inter alia, in huge leakage of government revenue. Such experiences and events cannot be allowed to resurface. Taking an overall view of the matter, we are of the opinion that time has not come to dispense with the existing policy of sale and purchase of iron-ore in the State of Karnataka through the Court Appointed Monitoring Committee by e-auction. The restoration of normalcy in the process of sale and purchase of iron-ore must wait for the future and at least till such time that significant headways are made in the other connected aspects of the matter dealt with by the final order of this Court dated 18th April, 2013 passed in Writ Petition (Civil) No.562 of 2009. ### Response: 0 ### Explanation: 9. What has been suggested in the report of the CEC dated 28th April, 2016 and theapproval thereof by the State of Karnataka along with the suggestions offered by the State would seem to indicate that in place of Monitoring Committee constituted by this Court another Monitoring Committee consisting of officials of the State Government (of Karnataka) is proposed toand supervise the sale ofthrough a hybrid system of long term contracts and sales through anincluding payment of taxes, royalty, etc.10. While it is correct that any trading process has to be free and fair with liberty to the contracting parties to work out their own terms of sale and purchase, what cannot be ignored are the circumstances which had prompted the Court to conceive of and continue with a departure from the normal rule and instead to have a regulated, if not, highly controlled system of sale and purchase ofSale and purchase ofthrough the Court Appointed Monitoring Committee and byis not a singular but a connected facet of what was visualized by the Court in its bid to check, control and regulate mining and also to restore nature and environment to its earlier pristine purity, so far as possible.11. A cap on production and restoration of ecology and environment through a Comprehensive Environment Plans for the Mining Impact Zone (CEPMIZ for short) has been visualized by this Court in its order dated 18th April, 2013. The connected aspects i.e. lifting of the cap or enhancement thereof and launching of the CEPMIZ scheme is under active consideration of this Court in other connected Interlocutory Applications (I.As.). When the said connected issues are pending it cannot be said that the situation has become ripe for the normal rule of sale and purchase to be restored so far as the sale ofin the State of Karnataka is concerned. The experience of the past has been horrific. It cannot be allowed to come back.Sale and purchase ofhad been conducted in the most outrageous manner and on wholly unacceptable terms resulting, inter alia, in huge leakage of government revenue. Such experiences and events cannot be allowed to resurface. Taking an overall view of the matter, we are of the opinion that time has not come to dispense with the existing policy of sale and purchase ofin the State of Karnataka through the Court Appointed Monitoring Committee byThe restoration of normalcy in the process of sale and purchase ofmust wait for the future and at least till such time that significant headways are made in the other connected aspects of the matter dealt with by the final order of this Court dated 18th April, 2013 passed in Writ Petition (Civil) No.562 of 2009.

Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai

the High Court and the Registrar perform the function of the tribunal, only in cases where proceedings are pending. Proceedings in the case of statutory bodies, like this, need not be a dispute between two contending private parties. It could be a dispute between the adjudicating party and the party against whom the proceedings are taken. In this connection, reliance may be placed on the observations of the Supreme Court in the case of Associated Cement Companies Ltd. v. P. N. Sharma and another, A.I.R. 1965 S.C. 1965 at page 1999 where the Supreme Court observed If a statutory body has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided that the authority is required by the statute to act judicially. In such case the statutory body which adjudicates such a dispute would, in my opinion be a tribunal in terms of Section 2(1)(x) of the Trade and Merchandise Marks Act, 1958. In this case, after the proceeding which was pending by the initiation of the notice dated the 9th May, 1968, the Registrar in deciding this controversy in my opinion, was acting as a tribunal and, therefore, was competent to take action as a tribunal contemplated under Section 56(4) of the Act. 65. As against the above decision, there is a decision of a Division Bench of the same High Court in Registrar of Trade Marks and another v. Kumar Ranjan Sen and others, AIR 1966 Calcutta 311, in which it was laid down as under :- It will be noticed that the word Tribunal as defined in Clause (x) of sub-section (1) of Section 2 does not simply mean the Registrar or the High Court but the Registrar or the High Court, only when proceedings are pending before them. It is a convenient way of describing either the Registrar or the High Court before whom proceedings were pending. Coming now to Section 56, we find that sub-section (1) refers to an application made in the prescribed manner to a High Court or to a Registrar, but it is the Tribunal which can make an order under it of cancellation or varying the registration, as the case may be. It is a mistake to think that the word Tribunal stands in contra-distinction to the word High Court or the Registrar. The word Tribunal has been used as meaning the High Court or the Registrar before whom proceedings are pending. It is in this sense that the word Tribunal has been used in sub- section (4). It is intended to convey that the Tribunal, that is to say, the High Court or the Registrar before whom proceedings are pending may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make an order as referred to in sub-section (1) or sub-section (2). As will appear from sub-section (5), the High Court has itself power to order a rectification of the register. In fact, the Court below, having come to the conclusion that the registration had been improperly done in violation of the provisions of the said Act, was not powerless in the matter, but could of its own motion have rectified the register, even if its conclusion as to the powers of the Deputy Registrar was right. It is clear to us that the use of the word Tribunal in sub-section (4) of Section 56 does not exclude the provisions of sub-section (2) of Section 4. The only thing to note is that in order to attract the provisions of sub-section (4) of Section 56, proceedings must be pending before the Registrar or the persons authorised by him to exercise a particular function under sub-section (2) of Section 4. 66. This decision has been considered by the learned single Judge in Standard Pharmaceuticals case (supra). In our opinion, both the decisions are in line with the view that we have taken in the instant case on the interpretation of the definition of TRIBUNAL. But the point before us is a little different as we are concerned essentially with the extent of jurisdiction of the Registrar and the High Court vis-a-vis other provisions of the Act. 67. In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellants opposition to the registration of respondents Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 01.02.1993 and has since been registered as C.M. (Main) 414 of 1992. Thereafter, on 04.08.1993, the appellant filed a rectification petition under Sections 45 and 46 of the Act for removing the entry relating to the Trade Mark for which Registration Certificate was granted to the respondents on 30.11.1992. The appellant has also filed a suit for passing-off (Suit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellants Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendments will relate back to the date of the application, if not to the date of plaint. 68. In view of the pendency of these proceedings in the High Court and specially in view of Section 107 of the Act, the Registrar could not legally issue any suo motu notice to the appellant under Section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted.

1[ds]19. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the TRIBUNAL31. Under Section 6 read with Section 7 of the Act, a Register of Trade Marks, in two parts, namely, Part A and Part B, is to be maintained with the original Register kept at the Head Office of the Trade Marks Registry and copies thereof at the Branch Offices. All registered Trade Marks with the names, addresses and descriptions of the proprietors, and all notifications of assignments are to be entered in that Register. Section 9 indicates the requisites for registration of a Trade Mark in Part A or Part B. Sub-section (5) of Section 9 gives guidelines to the TRIBUNAL to follow in determining one of the relevant criteria for that purpose32. There is a prohibition contained in Section 12 on the registration of a Trade Mark which is identical or deceptively similar to an already registered mark except as provided in sub-section (3) thereof which authorises the Registrar to permit the registration by more than one proprietor of Trade Marks which are identical or nearly resemble each other (whether any such Trade Mark is already registered or not) in respect of the same goods or description of goods subject to such conditions and limitations as he may think fit to impose8. The functions and extent of jurisdiction of the Registrar and that of the High Court which, incidentally, has also been constituted as the Appellate Authority of the Registrar, have been distinctly set out in different provisions of the Act. There are, however, certain matters for which jurisdiction has been given to the TRIBUNAL which, by its definition, includes the High Court and the Registrar and, therefore, the question is can both be said to have concurrent jurisdiction over matters as are set out, for example, in Sections 9, 10, 26, 45, 46, 47 and 5649. If the proceeding is cognisable both by the Registrar and the High Court, which of the two will have jurisdiction to entertain such proceeding to the exclusion of the other or the jurisdiction being concurrent, can the proceeding go on simultaneously before the High Court and the Registrar, resulting, may be, in conflicting decisions at the end, is a question which seems to be answered by the words before which the proceeding concerned is pending occurring in the definition of TRIBUNAL in Section 2(1)(x) of the Act. Let us test whether the answer is correct55. The extent of jurisdiction conferred by Section 56 on the Registrar to rectify the Register, is, however, curtailed by Section 107 which provides that an application for rectification shall, in certain situations, be made only to the High Court. These situations are mentioned in sub-section (1) of Section 107, namely, where in a suit for infringement of the registered Trade Mark, the validity of the registration is questioned by the defendant or the defendant, in that suit, raises the defence contemplated by Section 30(1)(d) in which the acts which do not constitute an infringement, have been specified, and the plaintiff in reply to this defence questions the validity of the defendants Trade Mark. In these situations, the validity of the registration of the Trade Mark can be determined only by the High Court and not by the Registrar56. Section 107 thus impels the proceedings to be instituted only in the High Court. The jurisdiction of the Registrar in those cases which are covered by Section 107 is totally excluded. Significantly, Section 107(2) provides that if an application for rectification is made to the Registrar under Section 46 or Section 47(4) or Section 56, the Registrar may, if he thinks fit, refer that application, at any stage of the proceeding, to the High Court57. Similarly, under Section 111 of the Act, in a pending suit relating to infringement of a Trade Mark, if it is brought to the notice of the Court that any rectification proceedings relating to plaintiffs or defendants Trade Mark are pending either before the Registrar or the High Court, the proceedings in the suit shall be stayed pending final decision of the High Court or the Registrar. Even if such proceedings are not pending either before the Registrar or the High Court, the trial court, if prima facie satisfied that the plea regarding invalidity of plaintiffs or defendants Trade Mark is tenable, may frame an issue and adjourn the case for three months to enable the party concerned to apply to the High Court for rectification of the Register. If within three months, the party concerned does not approach the High Court, the plea regarding invalidity of Trade Mark would be treated as abandoned but if such an application has been given hearing, the suit would be stayed awaiting final decision of the High Court. The finding of the High Court would bind the parties and the issue relating to the invalidity of Trade Mark would be decided in terms of those findings58. In this background, the phrase before which the proceeding concerned is pending stands out prominently to convey the idea that if the proceeding is pending before the Registrar, it becomes the TRIBUNAL. Similarly, if the proceeding is pending before the High Court, then the High Court has to be treated as TRIBUNAL. Thus, the jurisdiction of the Registrar and the High Court, though apparently concurrent in certain matters, is mutually exclusive. That is to say, if a particular proceeding is pending before the Registrar, any other proceeding, which may, in any way, relate to the pending proceeding, will have to be initiated before and taken up by the Registrar and the High Court will act as the Appellate Authority of the Registrar under Section 109. It is obvious that if the proceedings are pending before the High Court, the Registrar will keep his hands off and not touch those or any other proceedings which may, in any way, relate to those proceedings, as the High Court, which has to be the High Court having jurisdiction as set out in Section 3, besides being the Appellate Authority of the Registrar has primacy over the Registrar in all matters under the Act. Any other interpretation of the definition of TRIBUNAL would not be in consonance with the scheme of the Act or the contextual background set out therein and may lead to conflicting decision on the same question by the Registrar and the High Court besides generating multiplicity of proceedings59. Learned counsel for the respondent-Chinar Trust, at this stage, invoked the Rule of Punctuation in English Grammar and contended that the definition of TRIBUNAL is amply clear and requires no interpretative exercise as there is a distinction between the Registrar and the High Court inasmuch as the Registrar will have jurisdiction irrespective of the pendency of any proceeding, the High Court will have jurisdiction only when proceeding concerned is pending before it. This he tried to show by pointing out that the words as the case may be are placed between two commas, one at the beginning immediately after the word Registrar and the other at the end, with the result that the words Tribunal means the Registrar stand out distinctly, while the words High Court before which the proceeding concerned is pending stand out separately as an independent phrase. It is contended that the words before which the proceeding concerned is pending will not be applicable to the Registrar and, therefore, the Registrar can exercise the jurisdiction under Section 56 irrespective of pendency of any proceeding60. Learned counsel for the Chinar Trust is trying to give a measure of importance to the punctuation mark comma, more than it deserves. If comma were that important, there, incidentally, is another comma before and after the word High Court. This comma obviously separates the phrase before which the proceeding concerned is pending from the word High Court with the result that this phrase becomes applicable both to High Court and the Registrar. The word concerned in this phrase is also of significance inasmuch as the word TRIBUNAL has been used in different sections in relation to different proceedings. At some places in the Act, all the three words, namely, Registrar, High Court and Tribunal have been used which indicate that if the proceeding under that particular provision is pending before the Registrar then on account of that proceeding, the Registrar becomes the TRIBUNAL. So also, if the proceeding is pending before the High Court then that proceeding makes the High Court a TRIBUNAL. It is in that sense that the word proceeding concerned has to be understood61. Not content with the rejection of the above contention, learned counsel for the respondent invoked another rule of English grammar relating to the use of pronouns which and whom and contended that if the phrase before which the proceeding concerned is pending were meant to apply to the Registrar, the Legislature would have used the pronoun whom instead of which and the phrase would have read before whom the proceeding concerned is pending. The High Court, it is contended, is an inanimate object and, therefore, the pronoun which has been used62. Pronoun means for-a-noun. It is defined as a word used instead of a noun. The Pronoun with which we are concerned in this case is the relative pronoun, namely, the pronoun WHICH, which, incidentally, can be used in many other forms, namely, as an interrogative pronoun, an interrogative adjective, or as a relative adjective. Its use is not limited to inanimate objects or animals but it can also be used for people as explained in A Practical English Grammar (A. J. Thomson and A. V. Martinet - Fourth Edition). The two Nouns, namely, the Registrar and the High Court, used in the definition of TRIBUNAL are followed by the relative pronoun which and, therefore, the phrase before which the proceeding concerned is pending would relate to both the Nouns, namely, the Registrar and the High Court. This rule of Grammar which was sought to be pressed into aid by the learned counsel for the respondent is, therefore, of no use to him63. Moreover, in a situation of this nature, mere rule of Grammar would not lead to correct interpretation of the definition which has to be analysed, as we have already done, in the background of those provisions in which the word TRIBUNAL has been used together with the purpose for which it has been used keeping in mind the overall scheme of the Act67. In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellants opposition to the registration of respondents Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 01.02.1993 and has since been registered as C.M. (Main) 414 of 1992. Thereafter, on 04.08.1993, the appellant filed a rectification petition under Sections 45 and 46 of the Act for removing the entry relating to the Trade Mark for which Registration Certificate was granted to the respondents on 30.11.1992. The appellant has also filed a suit for passing-off (Suit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellants Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendments will relate back to the date of the application, if not to the date of plaint68. In view of the pendency of these proceedings in the High Court and specially in view of Section 107 of the Act, the Registrar could not legally issue any suo motu notice to the appellant under Section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted.

### 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 High Court and the Registrar perform the function of the tribunal, only in cases where proceedings are pending. Proceedings in the case of statutory bodies, like this, need not be a dispute between two contending private parties. It could be a dispute between the adjudicating party and the party against whom the proceedings are taken. In this connection, reliance may be placed on the observations of the Supreme Court in the case of Associated Cement Companies Ltd. v. P. N. Sharma and another, A.I.R. 1965 S.C. 1965 at page 1999 where the Supreme Court observed If a statutory body has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi judicial act provided that the authority is required by the statute to act judicially. In such case the statutory body which adjudicates such a dispute would, in my opinion be a tribunal in terms of Section 2(1)(x) of the Trade and Merchandise Marks Act, 1958. In this case, after the proceeding which was pending by the initiation of the notice dated the 9th May, 1968, the Registrar in deciding this controversy in my opinion, was acting as a tribunal and, therefore, was competent to take action as a tribunal contemplated under Section 56(4) of the Act. 65. As against the above decision, there is a decision of a Division Bench of the same High Court in Registrar of Trade Marks and another v. Kumar Ranjan Sen and others, AIR 1966 Calcutta 311, in which it was laid down as under :- It will be noticed that the word Tribunal as defined in Clause (x) of sub-section (1) of Section 2 does not simply mean the Registrar or the High Court but the Registrar or the High Court, only when proceedings are pending before them. It is a convenient way of describing either the Registrar or the High Court before whom proceedings were pending. Coming now to Section 56, we find that sub-section (1) refers to an application made in the prescribed manner to a High Court or to a Registrar, but it is the Tribunal which can make an order under it of cancellation or varying the registration, as the case may be. It is a mistake to think that the word Tribunal stands in contra-distinction to the word High Court or the Registrar. The word Tribunal has been used as meaning the High Court or the Registrar before whom proceedings are pending. It is in this sense that the word Tribunal has been used in sub- section (4). It is intended to convey that the Tribunal, that is to say, the High Court or the Registrar before whom proceedings are pending may, after giving notice in the prescribed manner to the parties concerned and after giving them an opportunity of being heard, make an order as referred to in sub-section (1) or sub-section (2). As will appear from sub-section (5), the High Court has itself power to order a rectification of the register. In fact, the Court below, having come to the conclusion that the registration had been improperly done in violation of the provisions of the said Act, was not powerless in the matter, but could of its own motion have rectified the register, even if its conclusion as to the powers of the Deputy Registrar was right. It is clear to us that the use of the word Tribunal in sub-section (4) of Section 56 does not exclude the provisions of sub-section (2) of Section 4. The only thing to note is that in order to attract the provisions of sub-section (4) of Section 56, proceedings must be pending before the Registrar or the persons authorised by him to exercise a particular function under sub-section (2) of Section 4. 66. This decision has been considered by the learned single Judge in Standard Pharmaceuticals case (supra). In our opinion, both the decisions are in line with the view that we have taken in the instant case on the interpretation of the definition of TRIBUNAL. But the point before us is a little different as we are concerned essentially with the extent of jurisdiction of the Registrar and the High Court vis-a-vis other provisions of the Act. 67. In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellants opposition to the registration of respondents Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 01.02.1993 and has since been registered as C.M. (Main) 414 of 1992. Thereafter, on 04.08.1993, the appellant filed a rectification petition under Sections 45 and 46 of the Act for removing the entry relating to the Trade Mark for which Registration Certificate was granted to the respondents on 30.11.1992. The appellant has also filed a suit for passing-off (Suit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellants Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendments will relate back to the date of the application, if not to the date of plaint. 68. In view of the pendency of these proceedings in the High Court and specially in view of Section 107 of the Act, the Registrar could not legally issue any suo motu notice to the appellant under Section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted. ### Response: 1 ### Explanation: in Section 3, besides being the Appellate Authority of the Registrar has primacy over the Registrar in all matters under the Act. Any other interpretation of the definition of TRIBUNAL would not be in consonance with the scheme of the Act or the contextual background set out therein and may lead to conflicting decision on the same question by the Registrar and the High Court besides generating multiplicity of proceedings59. Learned counsel for the respondent-Chinar Trust, at this stage, invoked the Rule of Punctuation in English Grammar and contended that the definition of TRIBUNAL is amply clear and requires no interpretative exercise as there is a distinction between the Registrar and the High Court inasmuch as the Registrar will have jurisdiction irrespective of the pendency of any proceeding, the High Court will have jurisdiction only when proceeding concerned is pending before it. This he tried to show by pointing out that the words as the case may be are placed between two commas, one at the beginning immediately after the word Registrar and the other at the end, with the result that the words Tribunal means the Registrar stand out distinctly, while the words High Court before which the proceeding concerned is pending stand out separately as an independent phrase. It is contended that the words before which the proceeding concerned is pending will not be applicable to the Registrar and, therefore, the Registrar can exercise the jurisdiction under Section 56 irrespective of pendency of any proceeding60. Learned counsel for the Chinar Trust is trying to give a measure of importance to the punctuation mark comma, more than it deserves. If comma were that important, there, incidentally, is another comma before and after the word High Court. This comma obviously separates the phrase before which the proceeding concerned is pending from the word High Court with the result that this phrase becomes applicable both to High Court and the Registrar. The word concerned in this phrase is also of significance inasmuch as the word TRIBUNAL has been used in different sections in relation to different proceedings. At some places in the Act, all the three words, namely, Registrar, High Court and Tribunal have been used which indicate that if the proceeding under that particular provision is pending before the Registrar then on account of that proceeding, the Registrar becomes the TRIBUNAL. So also, if the proceeding is pending before the High Court then that proceeding makes the High Court a TRIBUNAL. It is in that sense that the word proceeding concerned has to be understood61. Not content with the rejection of the above contention, learned counsel for the respondent invoked another rule of English grammar relating to the use of pronouns which and whom and contended that if the phrase before which the proceeding concerned is pending were meant to apply to the Registrar, the Legislature would have used the pronoun whom instead of which and the phrase would have read before whom the proceeding concerned is pending. The High Court, it is contended, is an inanimate object and, therefore, the pronoun which has been used62. Pronoun means for-a-noun. It is defined as a word used instead of a noun. The Pronoun with which we are concerned in this case is the relative pronoun, namely, the pronoun WHICH, which, incidentally, can be used in many other forms, namely, as an interrogative pronoun, an interrogative adjective, or as a relative adjective. Its use is not limited to inanimate objects or animals but it can also be used for people as explained in A Practical English Grammar (A. J. Thomson and A. V. Martinet - Fourth Edition). The two Nouns, namely, the Registrar and the High Court, used in the definition of TRIBUNAL are followed by the relative pronoun which and, therefore, the phrase before which the proceeding concerned is pending would relate to both the Nouns, namely, the Registrar and the High Court. This rule of Grammar which was sought to be pressed into aid by the learned counsel for the respondent is, therefore, of no use to him63. Moreover, in a situation of this nature, mere rule of Grammar would not lead to correct interpretation of the definition which has to be analysed, as we have already done, in the background of those provisions in which the word TRIBUNAL has been used together with the purpose for which it has been used keeping in mind the overall scheme of the Act67. In the instant case, it has already been indicated above that when the Assistant Registrar of Trade Marks dismissed appellants opposition to the registration of respondents Trade Mark by its order dated 12.8.1992, it filed an appeal in the Delhi High Court, which was admitted on 01.02.1993 and has since been registered as C.M. (Main) 414 of 1992. Thereafter, on 04.08.1993, the appellant filed a rectification petition under Sections 45 and 46 of the Act for removing the entry relating to the Trade Mark for which Registration Certificate was granted to the respondents on 30.11.1992. The appellant has also filed a suit for passing-off (Suit No. 1705 of 1994) in the Delhi High Court against the respondents in which an order of temporary injunction has been granted in favour of the appellant which has been upheld by the Division Bench of the High Court as also by this Court. In that suit, an amendment application has also been filed so as to include the ground of infringement of the appellants Trade Mark but that application has not yet been disposed of. It is, however, obvious that if the application is allowed, the amendments will relate back to the date of the application, if not to the date of plaint68. In view of the pendency of these proceedings in the High Court and specially in view of Section 107 of the Act, the Registrar could not legally issue any suo motu notice to the appellant under Section 56(4) of the Act for cancellation of the Certificate of Registration/Renewal already granted.

Kahan Singh & Others Vs. State of Haryana

true both by the trial Court as well as by the High Court. Their evidence receives support from the evidence of P. W. 8, Gobind Ram and P. W. 9, Gurcharan Singh. According to P. W. 9, at about the time of the occurrence. he was returning to his house after answering the calls of nature. At that time he saw the four appellants proceeding to the scene of occurrence. At that tune the appellants Kahan Singh and Gopi Chand were armed with burchas and Bahadur and Bhushan Lal were armed with Kulharis; sometime later he came to know about the murder of Moti Ram and Balak Ram. This witness also appears to be an independent witness, and his evidence had commended itself to the trial Court as well as to the High Court. The evidence of Gobind Ram is to the effect that on the morning in question he heard cries from the scene of occurrence. On hearing those cries, he proceeded towards the scene. When he had covered about four killas, he saw the appellants coming from the opposite directions. At that time they were all armed. He enquired with them as to what had happened. They told him that they had taught a lesson to Moti Ram and Balak Ram. His evidence has also been believed by both the Court. Ordinarily this Court does not reappraise evidence already considered by two Courts. We have found no reason to depart from that rule in this case. Apart from pointing out certain minor discrepancies in the evidence of these witnesses nothing substantial was shown to us to discredit the evidence in the case. The probabilities of the case lend support to the evidence of these witnesses. The party of the appellants must have been smarting at the rebuff they received from the deceased persons in the matter of purchase of land referred to earlier. This incident must have added to the already existing enmity between them and the party of the deceased persons, and must have served as an immediate provocation. The injuries found on the person of the deceased also go to indicate that the appellants must have been the aggressors.13. The three Court witnesses examined in the case tried in a somewhat feeble manner to support the case of the appellants. Their evidence was mutually contradictory. Each one of them had a version of his own and further the evidence given by them in Court materially differs from the statements made by them during investigation. Hence the trial Court as well as the High Court were right in placing no reliance on their testimony. The learned Counsel for the appellants made a somewhat hesitant attempt to commend their evidence for our acceptance. Their evidence is discrepant and the version given by them is basically improbable.14. Some comment was also made on the fact that the trial Court and the High Court erred in not taking into consideration the evidence of P. Ws. 6 and 7. It is clear from the evidence of these witnesses that they had turned hostile to the prosecution. The Public Prosecutor was allowed to cross-examine them. The trial Court and the High Court did not refer to this evidence. The contention of Mr. Mukherjee was that the trial Court and the High Court should have attempted to salvage something out of their evidence. But there was nothing to salvage from their evidence. The effect of their evidence is that they had not seen the occurrence. Therefore there was no question of separating the grain from the chaff.15. The only substantial argument advanced on behalf of the appellants is that the charges under which they were tried were defective and therefore the trial is vitiated. It is true that the trial Court should not have framed the alternative charges referred to earlier. If it wanted to proceed with the case against Rattan Lal as well as it should have included him along with the other accused and framed common charges. On the facts of this case there was no question of framing an alternative charge. It is not a case wherein the aid of Section 236, Cr. P. C. could have been taken. All the same there is absolutely no reason to think that the accused had been prejudiced by the alternative charges mentioned earlier. As seen earlier, the prosecution led evidence only in support of the charge that the four appellants were responsible for the murders of Moti Ram and Balak Ram. No evidence whatsoever has been led in support of the alternative charges. Counsel for the appellants was not able to show us how the accused can be said to have been prejudiced by the alternative charges. This Court has ruled in Willie (William) Slaney v. The State of Madhya Pradesh, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ), that a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. That does not touch jurisdiction. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Some decisions were read to us showing that if the prosecution speaks in discordant voices as to the person or persons who are responsible for the offence, that would be a ground for acquitting the accused. It is not necessary to refer to those decisions in view of the decision of this Court in WiIliam Slaneys case, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ) (supra), the essential question being whether the accused were prejudiced by the charge. As mentioned earlier we are unable to hold that the appellants in this case were prejudiced by the alternative charges referred to earlier.

0[ds]Therefore the complaint of P. W. 4, Harnam Das that the police were trying to sabotage the prosecution case cannot be dismissed as being frivolous.From the two versions put forward by the prosecution and the accused, it is clear that an incident did take place at the place and tune mentioned in the charge as a result of which the two deceased persons received serious injuries, one of them namely Moti Ram died very soon after the incident and the other Balak Ram on November 1, 1966. The medical evidence discloses that Moti Ram had received as many as 12 injures, six of them were incised wounds and two were contusions. One of the contusions was in the rightIts dimension was 4"xl". That injury had fractured his skull, the bones of the skull were broken into many pieces. The Medical Officer who had conducted theof Moti Ram was of the opinion that primarily the deceased must have died as a result of that injury. Balak Ram had sustained six injuries; three of them were contusions, one was an incised injury. Further he had a big swelling: extending from the angle of right mandible upwards above the ear and right side of the scalp. Theexamination disclosed a big haematoma under the scalp. The Medical Officer was of the opinion that the death must have been the result of shock and haemorrhage due to the two blows given on the head of Balak Ram viz. injuries Nos. 1 and 5.The three Court witnesses examined in the case tried in a somewhat feeble manner to support the case of the appellants. Their evidence was mutually contradictory. Each one of them had a version of his own and further the evidence given by them in Court materially differs from the statements made by them during investigation. Hence the trial Court as well as the High Court were right in placing no reliance on their testimony. The learned Counsel for the appellants made a somewhat hesitant attempt to commend their evidence for our acceptance. Their evidence is discrepant and the version given by them is basically improbable.14. Some comment was also made on the fact that the trial Court and the High Court erred in not taking into consideration the evidence of P. Ws. 6 and 7. It is clear from the evidence of these witnesses that they had turned hostile to the prosecution. The Public Prosecutor was allowed tothem. The trial Court and the High Court did not refer to this evidence. The contention of Mr. Mukherjee was that the trial Court and the High Court should have attempted to salvage something out of their evidence. But there was nothing to salvage from their evidence. The effect of their evidence is that they had not seen the occurrence. Therefore there was no question of separating the grain from the chaff.It is true that the trial Court should not have framed the alternative charges referred to earlier. If it wanted to proceed with the case against Rattan Lal as well as it should have included him along with the other accused and framed common charges. On the facts of this case there was no question of framing an alternative charge. It is not a case wherein the aid of Section 236, Cr. P. C. could have been taken. All the same there is absolutely no reason to think that the accused had been prejudiced by the alternative charges mentioned earlier. As seen earlier, the prosecution led evidence only in support of the charge that the four appellants were responsible for the murders of Moti Ram and Balak Ram. No evidence whatsoever has been led in support of the alternative charges. Counsel for the appellants was not able to show us how the accused can be said to have been prejudiced by the alternative charges. This Court has ruled in Willie (William) Slaney v. The State of Madhya Pradesh, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ), that a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. That does not touch jurisdiction. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Some decisions were read to us showing that if the prosecution speaks in discordant voices as to the person or persons who are responsible for the offence, that would be a ground for acquitting the accused. It is not necessary to refer to those decisions in view of the decision of this Court in WiIliam Slaneys case, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ) (supra), the essential question being whether the accused were prejudiced by the charge. As mentioned earlier we are unable to hold that the appellants in this case were prejudiced by the alternative charges referred to earlier.

### 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: true both by the trial Court as well as by the High Court. Their evidence receives support from the evidence of P. W. 8, Gobind Ram and P. W. 9, Gurcharan Singh. According to P. W. 9, at about the time of the occurrence. he was returning to his house after answering the calls of nature. At that time he saw the four appellants proceeding to the scene of occurrence. At that tune the appellants Kahan Singh and Gopi Chand were armed with burchas and Bahadur and Bhushan Lal were armed with Kulharis; sometime later he came to know about the murder of Moti Ram and Balak Ram. This witness also appears to be an independent witness, and his evidence had commended itself to the trial Court as well as to the High Court. The evidence of Gobind Ram is to the effect that on the morning in question he heard cries from the scene of occurrence. On hearing those cries, he proceeded towards the scene. When he had covered about four killas, he saw the appellants coming from the opposite directions. At that time they were all armed. He enquired with them as to what had happened. They told him that they had taught a lesson to Moti Ram and Balak Ram. His evidence has also been believed by both the Court. Ordinarily this Court does not reappraise evidence already considered by two Courts. We have found no reason to depart from that rule in this case. Apart from pointing out certain minor discrepancies in the evidence of these witnesses nothing substantial was shown to us to discredit the evidence in the case. The probabilities of the case lend support to the evidence of these witnesses. The party of the appellants must have been smarting at the rebuff they received from the deceased persons in the matter of purchase of land referred to earlier. This incident must have added to the already existing enmity between them and the party of the deceased persons, and must have served as an immediate provocation. The injuries found on the person of the deceased also go to indicate that the appellants must have been the aggressors.13. The three Court witnesses examined in the case tried in a somewhat feeble manner to support the case of the appellants. Their evidence was mutually contradictory. Each one of them had a version of his own and further the evidence given by them in Court materially differs from the statements made by them during investigation. Hence the trial Court as well as the High Court were right in placing no reliance on their testimony. The learned Counsel for the appellants made a somewhat hesitant attempt to commend their evidence for our acceptance. Their evidence is discrepant and the version given by them is basically improbable.14. Some comment was also made on the fact that the trial Court and the High Court erred in not taking into consideration the evidence of P. Ws. 6 and 7. It is clear from the evidence of these witnesses that they had turned hostile to the prosecution. The Public Prosecutor was allowed to cross-examine them. The trial Court and the High Court did not refer to this evidence. The contention of Mr. Mukherjee was that the trial Court and the High Court should have attempted to salvage something out of their evidence. But there was nothing to salvage from their evidence. The effect of their evidence is that they had not seen the occurrence. Therefore there was no question of separating the grain from the chaff.15. The only substantial argument advanced on behalf of the appellants is that the charges under which they were tried were defective and therefore the trial is vitiated. It is true that the trial Court should not have framed the alternative charges referred to earlier. If it wanted to proceed with the case against Rattan Lal as well as it should have included him along with the other accused and framed common charges. On the facts of this case there was no question of framing an alternative charge. It is not a case wherein the aid of Section 236, Cr. P. C. could have been taken. All the same there is absolutely no reason to think that the accused had been prejudiced by the alternative charges mentioned earlier. As seen earlier, the prosecution led evidence only in support of the charge that the four appellants were responsible for the murders of Moti Ram and Balak Ram. No evidence whatsoever has been led in support of the alternative charges. Counsel for the appellants was not able to show us how the accused can be said to have been prejudiced by the alternative charges. This Court has ruled in Willie (William) Slaney v. The State of Madhya Pradesh, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ), that a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. That does not touch jurisdiction. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Some decisions were read to us showing that if the prosecution speaks in discordant voices as to the person or persons who are responsible for the offence, that would be a ground for acquitting the accused. It is not necessary to refer to those decisions in view of the decision of this Court in WiIliam Slaneys case, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ) (supra), the essential question being whether the accused were prejudiced by the charge. As mentioned earlier we are unable to hold that the appellants in this case were prejudiced by the alternative charges referred to earlier. ### Response: 0 ### Explanation: Therefore the complaint of P. W. 4, Harnam Das that the police were trying to sabotage the prosecution case cannot be dismissed as being frivolous.From the two versions put forward by the prosecution and the accused, it is clear that an incident did take place at the place and tune mentioned in the charge as a result of which the two deceased persons received serious injuries, one of them namely Moti Ram died very soon after the incident and the other Balak Ram on November 1, 1966. The medical evidence discloses that Moti Ram had received as many as 12 injures, six of them were incised wounds and two were contusions. One of the contusions was in the rightIts dimension was 4"xl". That injury had fractured his skull, the bones of the skull were broken into many pieces. The Medical Officer who had conducted theof Moti Ram was of the opinion that primarily the deceased must have died as a result of that injury. Balak Ram had sustained six injuries; three of them were contusions, one was an incised injury. Further he had a big swelling: extending from the angle of right mandible upwards above the ear and right side of the scalp. Theexamination disclosed a big haematoma under the scalp. The Medical Officer was of the opinion that the death must have been the result of shock and haemorrhage due to the two blows given on the head of Balak Ram viz. injuries Nos. 1 and 5.The three Court witnesses examined in the case tried in a somewhat feeble manner to support the case of the appellants. Their evidence was mutually contradictory. Each one of them had a version of his own and further the evidence given by them in Court materially differs from the statements made by them during investigation. Hence the trial Court as well as the High Court were right in placing no reliance on their testimony. The learned Counsel for the appellants made a somewhat hesitant attempt to commend their evidence for our acceptance. Their evidence is discrepant and the version given by them is basically improbable.14. Some comment was also made on the fact that the trial Court and the High Court erred in not taking into consideration the evidence of P. Ws. 6 and 7. It is clear from the evidence of these witnesses that they had turned hostile to the prosecution. The Public Prosecutor was allowed tothem. The trial Court and the High Court did not refer to this evidence. The contention of Mr. Mukherjee was that the trial Court and the High Court should have attempted to salvage something out of their evidence. But there was nothing to salvage from their evidence. The effect of their evidence is that they had not seen the occurrence. Therefore there was no question of separating the grain from the chaff.It is true that the trial Court should not have framed the alternative charges referred to earlier. If it wanted to proceed with the case against Rattan Lal as well as it should have included him along with the other accused and framed common charges. On the facts of this case there was no question of framing an alternative charge. It is not a case wherein the aid of Section 236, Cr. P. C. could have been taken. All the same there is absolutely no reason to think that the accused had been prejudiced by the alternative charges mentioned earlier. As seen earlier, the prosecution led evidence only in support of the charge that the four appellants were responsible for the murders of Moti Ram and Balak Ram. No evidence whatsoever has been led in support of the alternative charges. Counsel for the appellants was not able to show us how the accused can be said to have been prejudiced by the alternative charges. This Court has ruled in Willie (William) Slaney v. The State of Madhya Pradesh, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ), that a mere defect in the charge is no ground for setting aside a conviction. Procedural laws are designed to subserve the ends of justice and not to frustrate them by mere technicalities. The object of the charge is to give an accused notice of the matter he is charged with. That does not touch jurisdiction. If the necessary information is conveyed to him and no prejudice is caused to him because of the charges, the accused cannot succeed by merely showing that the charges framed were defective. Some decisions were read to us showing that if the prosecution speaks in discordant voices as to the person or persons who are responsible for the offence, that would be a ground for acquitting the accused. It is not necessary to refer to those decisions in view of the decision of this Court in WiIliam Slaneys case, (1955) 2 SCR 1140 = (AIR 1956 SC 116 ) (supra), the essential question being whether the accused were prejudiced by the charge. As mentioned earlier we are unable to hold that the appellants in this case were prejudiced by the alternative charges referred to earlier.

Kalyan Singh Chouhan Vs. C.P.Joshi

Act, the scope of inquiry shall remain confined to two questions—(a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an inquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or(b) any votes were improperly refused or rejected in regard to the returned candidate.(2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.(3) For the purpose of enabling an inquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed.(4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.(5) The bar on inquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re-count to be different from the one arrived at by the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the Court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re-counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of Sub-clause (iv), and not Sub-clause (iii) of clause (d) of Sub-section (1) of Section 100 of the Act." 27. Therefore, in the case at hand, the election petitioner/respondent has claimed only that there has been irregularity/illegality in counting of 6 tendered votes and the case squarely falls within the ambit of Section 100(1)(d)(iii) of the Act, 1951. Election petitioner has further pleaded that the result of the election stood materially affected because of improper receiving the six tendered votes and in absence of any Recrimination Petition in the case the appellant cannot be permitted to lead evidence on the fact which is not in issue. 28. The judgment in Wilfred DSouzas case (supra) has distinguishable features. In that case, the appellant had asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes and a specific prayer had been made by the appellant in the election petition that the election of the respondent be declared void and the appellant be declared to be duly elected. The respondent had denied that the tendered votes were cast by genuine voters. The issue had been framed in that case as under: “Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account.” The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence.That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act, 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand.

0[ds]The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence.That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act, 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand.

### 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: Act, the scope of inquiry shall remain confined to two questions—(a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an inquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or(b) any votes were improperly refused or rejected in regard to the returned candidate.(2) A recrimination by the returned candidate or any other party can be filed under Section 97(1) in a case where in an election petition an additional declaration is claimed that any candidate other than the returned candidate has been duly elected.(3) For the purpose of enabling an inquiry that any votes have been improperly cast in favour of any candidate other than the returned candidate or any votes have been improperly refused or rejected in regard to the returned candidate the Election Court shall acquire jurisdiction to do so only on two conditions being satisfied: (i) the election petition seeks a declaration that any candidate other than the returned candidate has been duly elected over and above the declaration that the election of the returned candidate is void; and (ii) a recrimination petition under Section 97(1) is filed.(4) A recrimination petition must satisfy the same requirements as that of an election petition in the matter of pleadings, signing and verification as an election petition is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.(5) The bar on inquiry enacted by Section 97 read with Section 100(1)(d)(iii) of the Act is attracted when the validity of the votes is to be gone into and adjudged or in other words the question of improper reception, refusal or rejection of any vote or reception of any vote which is void is to be gone into. The bar is not attracted to a case where it is merely a question of correct counting of the votes without entering into adjudication as to propriety, impropriety or validity of acceptance, rejection or reception of any vote. In other words, where on a re-count the Election Judge finds the result of re-count to be different from the one arrived at by the Returning Officer or when the Election Judge finds that there was an error of counting the bar is not attracted because the Court in a pure and simple counting carried out by it or under its directions is not adjudicating upon any issue as to improper reception, refusal or rejection of any vote or the reception of any vote which is void but is performing mechanical process of counting or re-counting by placing the vote at the place where it ought to have been placed. A case of error in counting would fall within the purview of Sub-clause (iv), and not Sub-clause (iii) of clause (d) of Sub-section (1) of Section 100 of the Act." 27. Therefore, in the case at hand, the election petitioner/respondent has claimed only that there has been irregularity/illegality in counting of 6 tendered votes and the case squarely falls within the ambit of Section 100(1)(d)(iii) of the Act, 1951. Election petitioner has further pleaded that the result of the election stood materially affected because of improper receiving the six tendered votes and in absence of any Recrimination Petition in the case the appellant cannot be permitted to lead evidence on the fact which is not in issue. 28. The judgment in Wilfred DSouzas case (supra) has distinguishable features. In that case, the appellant had asserted that the result of the election of the respondent had been materially affected by the improper reception, refusal and rejection of votes and a specific prayer had been made by the appellant in the election petition that the election of the respondent be declared void and the appellant be declared to be duly elected. The respondent had denied that the tendered votes were cast by genuine voters. The issue had been framed in that case as under: “Whether the petitioner proves that the vote or votes were initially improperly received and should be removed and in their place tendered vote or votes should be taken into account.” The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence.That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act, 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand. ### Response: 0 ### Explanation: The Election Tribunal therein did not record any evidence on behalf of the respondents and proceeded to decide the case after the evidence of the witnesses of the appellant had been recorded and after the box containing the relevant papers had been opened and those papers were examined. In view of the fact that the appellant had adduced prima facie proof in respect of two of the tendered ballot papers, the Election Tribunal was to call upon the respondent to adduce his evidence and the evidence should not be constrained only to the two tendered ballot papers in respect of which the appellant had not adduced any evidence, but would relate to some or all the other 8 tendered ballot papers in respect of which the appellant had not adduced any evidence.That was, admittedly, a case wherein a Recrimination Petition under Section 97 of the Act, 1951 had been filed. In the instant case, there is no such claim made by the parties. In the instant case, an application had been filed to summon the other 4 tendered votes, also making a submission that those documents were required by the parties to resolve the controversy without giving any reason or justification for the same. Admittedly, there is no reference to these 4 tendered votes either in the election petition or in the written statement. The said 4 tendered votes neither had been relied upon in the reply by the appellant nor had been entered in the list of documents. Thus, the judgment in this case is quite distinguishable from the case at hand.

State Of Maharashtra Vs. B.E. Billimoria

not including, -(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated." A plain reading of the provision would show that any land on which construction is not permissible under the building regulations in force in the area would not come within the ambit of vacant land. Sub-rule (9) of Rule 2 of the Building Rules framed by the Collector of Poona for Koregaon Park lays down that not more than one-third of the total area of any building plot shall be built upon and in calculating the area covered by a building the plinth area of the building and other structures excepting compound walls, shall be taken into account. It further provides that any area covered by staircase and projections of any kind shall be considered as built over. The appellant does not dispute the applicability of this Building Rule to Koregaon Park area where plot of land CTS No. 82 is situate. The definition of "vacant land" as given in Section 2(q) clearly provides that land on which construction of a building is not permissible under the building regulations in force in the area has to to be excluded. As under the relevant rules in force in the area construction was not permissible on two-third of the area of the plot, the High Court was perfectly justified in holding that for determining the vacant land in CTS No. 82, Koregaon Park, Pune, two-third portion of each of the respondents had to be excluded and thus the vacant land held by each one of them in the said area was only 905 sq. meters. In fact, on the plain language of the Statute and the prohibition contained in the Building Rules in Koregaon Park area, which are in operation, it is not possible to take any other view. 6. Learned counsel for the appellant has also assailed the finding of the High Court that the area of the flats held by the respondents in Bombay should be excluded and has submitted that there is no legal basis for doing so. In our opinion, the contention raised has no substance. The relevant provisions in this regard are Sub-sections (8) and (9) of Section 4 and Explanation appended to the said Section which are being reproduced below: "(8) Where a person, being a member of a housing co-operative society registered or deemed to be registered under any law for the time being in force, holds vacant land allotted to him by such society, then the extent of land so held shall also be taken into account in calculating the extent of vacant land held by such person.(9) Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.(10) xx xx xx(11) xx xx xxExplanation - For the purposes of this section and Sections 6, 8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with dwelling unit therein) if he -(i) owns such land and the building; or(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities; or(iii) possesses such land but owns the building, the possession being as a tenant under as lease or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities." 7. What is important to note here in that for the applicability of Sub-section (8) it is necessary that a person should have been allotted a vacant land by a housing co-operative society. Similarly, to come within the purview of Sub-section (9) the person must hold vacant land and also any other land on which there is a building with a dwelling unit. The meaning of the expression "any other land on which there is a building" has been given in the Explanation to Section 4 and this shows that the person must either own the land and the building or own the land and possess the building or possess the land and the building or possess the land but own the building. Therefore, the ownership or possession of the land over which the building stands is a necessary condition for applicability of anyone of the Sub-sections of Section 4. The respondents have merely been allotted flats in a building owned by a co-operative society. There is absolutely no material on record to show that they are either owners of any land or they are in possession of any land. It is the housing co-operative society which is the owner of the land over which the building has been constructed and the respondents are merely allottees of one of the flats in the building. Therefore they cannot be held to be either owners of any land or in possession of any land and consequently Sub-section (8) or (9) of Section 4 would not apply. In these circumstances, the view taken by the Competent Authority and the Appellate Authority that the area of the flats in Bombay had to be clubbed with the vacant land held by the respondents in Pune was patently wrong and the High Court has rightly set aside the same. In view of the discussion made above, the

0[ds]This provision makes it absolutely clear that where any firm or incorporated association or body of individuals holds vacant land, then the right or interest of any person in such vacant land shall be taken into account on the basis of his share in such firm or association or body. In view of this specific provision only the share of respondent nos.1 and 2 had to be taken into consideration in CTS No. 82, Koregaon Park, Pune, as both of them together hold the said plot. Section 45 of the Transfer of Property Act deals with joint transfer for consideration and it lays down that where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. The second paragraph of this Section lays down that in the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. In view of this specific provision both the respondents shall be presumed to be owners of equal shares in the plot as there was no evidence to the contrary. Therefore, the High Court rightly held that each of the respondents held half area of the aforesaid plot, namely, 2714.05 sq.plain reading of the provision would show that any land on which construction is not permissible under the building regulations in force in the area would not come within the ambit of vacant land. Sub-rule (9) of Rule 2 of the Building Rules framed by the Collector of Poona for Koregaon Park lays down that not more than one-third of the total area of any building plot shall be built upon and in calculating the area covered by a building the plinth area of the building and other structures excepting compound walls, shall be taken into account. It further provides that any area covered by staircase and projections of any kind shall be considered as built over. The appellant does not dispute the applicability of this Building Rule to Koregaon Park area where plot of land CTS No. 82 is situate. The definition of "vacant land" as given in Section 2(q) clearly provides that land on which construction of a building is not permissible under the building regulations in force in the area has to to be excluded. As under the relevant rules in force in the area construction was not permissible on two-third of the area of the plot, the High Court was perfectly justified in holding that for determining the vacant land in CTS No. 82, Koregaon Park, Pune, two-third portion of each of the respondents had to be excluded and thus the vacant land held by each one of them in the said area was only 905 sq. meters. In fact, on the plain language of the Statute and the prohibition contained in the Building Rules in Koregaon Park area, which are in operation, it is not possible to take any otherthe applicability of Sub-section (8) it is necessary that a person should have been allotted a vacant land by a housing co-operative society. Similarly, to come within the purview of Sub-section (9) the person must hold vacant land and also any other land on which there is a building with a dwelling unit. The meaning of the expression "any other land on which there is a building" has been given in the Explanation to Section 4 and this shows that the person must either own the land and the building or own the land and possess the building or possess the land and the building or possess the land but own the building. Therefore, the ownership or possession of the land over which the building stands is a necessary condition for applicability of anyone of the Sub-sections of Section 4. The respondents have merely been allotted flats in a building owned by a co-operative society. There is absolutely no material on record to show that they are either owners of any land or they are in possession of any land. It is the housing co-operative society which is the owner of the land over which the building has been constructed and the respondents are merely allottees of one of the flats in the building. Therefore they cannot be held to be either owners of any land or in possession of any land and consequently Sub-section (8) or (9) of Section 4 would not apply. In these circumstances, the view taken by the Competent Authority and the Appellate Authority that the area of the flats in Bombay had to be clubbed with the vacant land held by the respondents in Pune was patently wrong and the High Court has rightly set aside the

### 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: not including, -(i) land on which construction of a building is not permissible under the building regulations in force in the area in which such land is situated." A plain reading of the provision would show that any land on which construction is not permissible under the building regulations in force in the area would not come within the ambit of vacant land. Sub-rule (9) of Rule 2 of the Building Rules framed by the Collector of Poona for Koregaon Park lays down that not more than one-third of the total area of any building plot shall be built upon and in calculating the area covered by a building the plinth area of the building and other structures excepting compound walls, shall be taken into account. It further provides that any area covered by staircase and projections of any kind shall be considered as built over. The appellant does not dispute the applicability of this Building Rule to Koregaon Park area where plot of land CTS No. 82 is situate. The definition of "vacant land" as given in Section 2(q) clearly provides that land on which construction of a building is not permissible under the building regulations in force in the area has to to be excluded. As under the relevant rules in force in the area construction was not permissible on two-third of the area of the plot, the High Court was perfectly justified in holding that for determining the vacant land in CTS No. 82, Koregaon Park, Pune, two-third portion of each of the respondents had to be excluded and thus the vacant land held by each one of them in the said area was only 905 sq. meters. In fact, on the plain language of the Statute and the prohibition contained in the Building Rules in Koregaon Park area, which are in operation, it is not possible to take any other view. 6. Learned counsel for the appellant has also assailed the finding of the High Court that the area of the flats held by the respondents in Bombay should be excluded and has submitted that there is no legal basis for doing so. In our opinion, the contention raised has no substance. The relevant provisions in this regard are Sub-sections (8) and (9) of Section 4 and Explanation appended to the said Section which are being reproduced below: "(8) Where a person, being a member of a housing co-operative society registered or deemed to be registered under any law for the time being in force, holds vacant land allotted to him by such society, then the extent of land so held shall also be taken into account in calculating the extent of vacant land held by such person.(9) Where a person holds vacant land and also holds any other land on which there is a building with a dwelling unit therein, the extent of such other land occupied by the building and the building and the land appurtenant thereto shall also be taken into account in calculating the extent of vacant land held by such person.(10) xx xx xx(11) xx xx xxExplanation - For the purposes of this section and Sections 6, 8 and 18 a person shall be deemed to hold any land on which there is a building (whether or not with dwelling unit therein) if he -(i) owns such land and the building; or(ii) owns such land but possesses the building or possesses such land and the building, the possession, in either case, being as a tenant under a lease, the unexpired period of which is not less than ten years at the commencement of this Act, or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities and partly in any other of the said capacity or capacities; or(iii) possesses such land but owns the building, the possession being as a tenant under as lease or as a mortgagee or under an irrevocable power of attorney or a hire-purchase agreement or partly in one of the said capacities or partly in any other of the said capacity or capacities." 7. What is important to note here in that for the applicability of Sub-section (8) it is necessary that a person should have been allotted a vacant land by a housing co-operative society. Similarly, to come within the purview of Sub-section (9) the person must hold vacant land and also any other land on which there is a building with a dwelling unit. The meaning of the expression "any other land on which there is a building" has been given in the Explanation to Section 4 and this shows that the person must either own the land and the building or own the land and possess the building or possess the land and the building or possess the land but own the building. Therefore, the ownership or possession of the land over which the building stands is a necessary condition for applicability of anyone of the Sub-sections of Section 4. The respondents have merely been allotted flats in a building owned by a co-operative society. There is absolutely no material on record to show that they are either owners of any land or they are in possession of any land. It is the housing co-operative society which is the owner of the land over which the building has been constructed and the respondents are merely allottees of one of the flats in the building. Therefore they cannot be held to be either owners of any land or in possession of any land and consequently Sub-section (8) or (9) of Section 4 would not apply. In these circumstances, the view taken by the Competent Authority and the Appellate Authority that the area of the flats in Bombay had to be clubbed with the vacant land held by the respondents in Pune was patently wrong and the High Court has rightly set aside the same. In view of the discussion made above, the ### Response: 0 ### Explanation: This provision makes it absolutely clear that where any firm or incorporated association or body of individuals holds vacant land, then the right or interest of any person in such vacant land shall be taken into account on the basis of his share in such firm or association or body. In view of this specific provision only the share of respondent nos.1 and 2 had to be taken into consideration in CTS No. 82, Koregaon Park, Pune, as both of them together hold the said plot. Section 45 of the Transfer of Property Act deals with joint transfer for consideration and it lays down that where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical as nearly as may be, with the interests to which they were respectively entitled in the fund; and where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. The second paragraph of this Section lays down that in the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property. In view of this specific provision both the respondents shall be presumed to be owners of equal shares in the plot as there was no evidence to the contrary. Therefore, the High Court rightly held that each of the respondents held half area of the aforesaid plot, namely, 2714.05 sq.plain reading of the provision would show that any land on which construction is not permissible under the building regulations in force in the area would not come within the ambit of vacant land. Sub-rule (9) of Rule 2 of the Building Rules framed by the Collector of Poona for Koregaon Park lays down that not more than one-third of the total area of any building plot shall be built upon and in calculating the area covered by a building the plinth area of the building and other structures excepting compound walls, shall be taken into account. It further provides that any area covered by staircase and projections of any kind shall be considered as built over. The appellant does not dispute the applicability of this Building Rule to Koregaon Park area where plot of land CTS No. 82 is situate. The definition of "vacant land" as given in Section 2(q) clearly provides that land on which construction of a building is not permissible under the building regulations in force in the area has to to be excluded. As under the relevant rules in force in the area construction was not permissible on two-third of the area of the plot, the High Court was perfectly justified in holding that for determining the vacant land in CTS No. 82, Koregaon Park, Pune, two-third portion of each of the respondents had to be excluded and thus the vacant land held by each one of them in the said area was only 905 sq. meters. In fact, on the plain language of the Statute and the prohibition contained in the Building Rules in Koregaon Park area, which are in operation, it is not possible to take any otherthe applicability of Sub-section (8) it is necessary that a person should have been allotted a vacant land by a housing co-operative society. Similarly, to come within the purview of Sub-section (9) the person must hold vacant land and also any other land on which there is a building with a dwelling unit. The meaning of the expression "any other land on which there is a building" has been given in the Explanation to Section 4 and this shows that the person must either own the land and the building or own the land and possess the building or possess the land and the building or possess the land but own the building. Therefore, the ownership or possession of the land over which the building stands is a necessary condition for applicability of anyone of the Sub-sections of Section 4. The respondents have merely been allotted flats in a building owned by a co-operative society. There is absolutely no material on record to show that they are either owners of any land or they are in possession of any land. It is the housing co-operative society which is the owner of the land over which the building has been constructed and the respondents are merely allottees of one of the flats in the building. Therefore they cannot be held to be either owners of any land or in possession of any land and consequently Sub-section (8) or (9) of Section 4 would not apply. In these circumstances, the view taken by the Competent Authority and the Appellate Authority that the area of the flats in Bombay had to be clubbed with the vacant land held by the respondents in Pune was patently wrong and the High Court has rightly set aside the

PAVAN VASUDEO SHARMA Vs. THE STATE OF MAHARASHTRA THR. SECRETARY

were apprehended during investigation of the kidnapping case. No material in that behalf is produced on record. Nothing is clear on record as to who was the third person. b) According to PW11 Police Naik Nagare he had lost consciousness for a while after he was assaulted by those three persons; that after he regained consciousness, he dialed 100 from his mobile and intimated about the loss of hisservice weapon and walkie talkie. It is somewhat incongruent that the persons who robbed him of his service weapon and walkie talkie would leave his mobile intact. c) In terms of version of PW2 Seema, mobile number 9850520922 was subscribed by her husband Bhima Waghmare. On the other hand, the evidence led by the prosecution itself in the form of testimony of PW5 Sachin Mahadev Shinde shows that mobile number 9850520922 was subscribed by one Sanjay S Roy. Again, the prosecution has failed to establish the link, if any, between said Sanjay S Roy and Bhima Waghmare and whether said Sanjay S Roy had ever handed over his mobile to Bhima Waghmare. d) PW2 Seema in her original version had expressed suspicion about certain professional rivals of her husband. e) The assertion that one of the persons making ransom calls had disclosed that they had killed a person at Karjat did not come in the examination-in-chief of PW12 Sanjay Lokhande but appeared in his cross-examination. It was thus not the specific case of the prosecution that any extra judicial confession was made to PW12 Sanjay Lokhande. f) The matter has one more dimension. While ordering acquittal of Accused No.2, insofar as principal charges are concerned, his conviction for offence under Section 37(1) read with Section 135 of the Bombay Police Act was maintained by the High Court. We, thus, have to proceed on the footing that Accused No. 2 was also guilty of snatching the service weapon of PW11 Police Naik Nagare but not of murder. g) There was a gap of about 15 days between the snatching of the service weapon and murder. 14. With the acquittal of Accused No.2 of the principal charge under Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone who was guilty of the offence punishable under Section 302 IPC. 15. Two circumstances which are principally relied upon by the prosecution are already mentioned hereinabove. The first circumstance regarding mobile phone is not proved at all. The mobile number was not subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S. Roy. No link between these two persons has been established nor any bill in the name of said Bhima Waghmare was produced on record. Since the evidence that the mobile number was subscribed by said Sanjay S. Roy was led by the prosecution itself, it cannot be assumed that said mobile number was, in fact, subscribed by Bhima Waghmare. The connection which would link the accused with the murder of Bhima Waghmare, on this front is completely missing. As regards the second circumstance, it is true that the bullet recovered from the body of the deceased matched with the service weapon which was allocated to PW11 Police Naik Nagare but the theory that the weapon was snatched by the accused is not sufficiently established. No Test Identification Parade was held and if held, no material in that behalf has been produced on record. The second circumstance, therefore, is not sufficiently established as against the accused. 16. The law on the point of appreciation of cases based on circumstantial evidence is very clear. It was laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116C as under:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ?must or should? and not ?may be? established. There is not only a grammatical but a legal distinction between ?may be proved? and ?must be or should be proved? as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 ; 1973 SCC (Cri) 1033 ; 1973 Cri LJ 1783 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]?Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be? and ‘must be? is long and divides vague conjectures from sure conclusions.? (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.? 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.? 17. Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man.

1[ds]13. The facts narrated above bring out the followingGoing by FIR at Exhibit 106, three persons were responsible for robbing PW11 Police Naik Nagare of his service weapon. Though the description of all three persons was given in FIR Exhibit 106, no Test Identification Parade was undertaken when four suspects were apprehended during investigation of the kidnapping case. No material in that behalf is produced on record. Nothing is clear on record as to who was the thirdAccording to PW11 Police Naik Nagare he had lost consciousness for a while after he was assaulted by those three persons; that after he regained consciousness, he dialed 100 from his mobile and intimated about the loss of hisservice weapon and walkie talkie. It is somewhat incongruent that the persons who robbed him of his service weapon and walkie talkie would leave his mobileIn terms of version of PW2 Seema, mobile number 9850520922 was subscribed by her husband Bhima Waghmare. On the other hand, the evidence led by the prosecution itself in the form of testimony of PW5 Sachin Mahadev Shinde shows that mobile number 9850520922 was subscribed by one Sanjay S Roy. Again, the prosecution has failed to establish the link, if any, between said Sanjay S Roy and Bhima Waghmare and whether said Sanjay S Roy had ever handed over his mobile to BhimaPW2 Seema in her original version had expressed suspicion about certain professional rivals of herThe assertion that one of the persons making ransom calls had disclosed that they had killed a person at Karjat did not come in the examination-in-chief of PW12 Sanjay Lokhande but appeared in his cross-examination. It was thus not the specific case of the prosecution that any extra judicial confession was made to PW12 SanjayThe matter has one more dimension. While ordering acquittal of Accused No.2, insofar as principal charges are concerned, his conviction for offence under Section 37(1) read with Section 135 of the Bombay Police Act was maintained by the High Court. We, thus, have to proceed on the footing that Accused No. 2 was also guilty of snatching the service weapon of PW11 Police Naik Nagare but not ofThere was a gap of about 15 days between the snatching of the service weapon and murder.With the acquittal of Accused No.2 of the principal charge under Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone who was guilty of the offence punishable under Section 302 IPC.Two circumstances which are principally relied upon by the prosecution are already mentioned hereinabove. The first circumstance regarding mobile phone is not proved at all. The mobile number was not subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S. Roy. No link between these two persons has been established nor any bill in the name of said Bhima Waghmare was produced on record. Since the evidence that the mobile number was subscribed by said Sanjay S. Roy was led by the prosecution itself, it cannot be assumed that said mobile number was, in fact, subscribed by Bhima Waghmare. The connection which would link the accused with the murder of Bhima Waghmare, on this front is completely missing. As regards the second circumstance, it is true that the bullet recovered from the body of the deceased matched with the service weapon which was allocated to PW11 Police Naik Nagare but the theory that the weapon was snatched by the accused is not sufficiently established. No Test Identification Parade was held and if held, no material in that behalf has been produced on record. The second circumstance, therefore, is not sufficiently established as against the accused.The law on the point of appreciation of cases based on circumstantial evidence is very clear.Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man.

### 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: were apprehended during investigation of the kidnapping case. No material in that behalf is produced on record. Nothing is clear on record as to who was the third person. b) According to PW11 Police Naik Nagare he had lost consciousness for a while after he was assaulted by those three persons; that after he regained consciousness, he dialed 100 from his mobile and intimated about the loss of hisservice weapon and walkie talkie. It is somewhat incongruent that the persons who robbed him of his service weapon and walkie talkie would leave his mobile intact. c) In terms of version of PW2 Seema, mobile number 9850520922 was subscribed by her husband Bhima Waghmare. On the other hand, the evidence led by the prosecution itself in the form of testimony of PW5 Sachin Mahadev Shinde shows that mobile number 9850520922 was subscribed by one Sanjay S Roy. Again, the prosecution has failed to establish the link, if any, between said Sanjay S Roy and Bhima Waghmare and whether said Sanjay S Roy had ever handed over his mobile to Bhima Waghmare. d) PW2 Seema in her original version had expressed suspicion about certain professional rivals of her husband. e) The assertion that one of the persons making ransom calls had disclosed that they had killed a person at Karjat did not come in the examination-in-chief of PW12 Sanjay Lokhande but appeared in his cross-examination. It was thus not the specific case of the prosecution that any extra judicial confession was made to PW12 Sanjay Lokhande. f) The matter has one more dimension. While ordering acquittal of Accused No.2, insofar as principal charges are concerned, his conviction for offence under Section 37(1) read with Section 135 of the Bombay Police Act was maintained by the High Court. We, thus, have to proceed on the footing that Accused No. 2 was also guilty of snatching the service weapon of PW11 Police Naik Nagare but not of murder. g) There was a gap of about 15 days between the snatching of the service weapon and murder. 14. With the acquittal of Accused No.2 of the principal charge under Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone who was guilty of the offence punishable under Section 302 IPC. 15. Two circumstances which are principally relied upon by the prosecution are already mentioned hereinabove. The first circumstance regarding mobile phone is not proved at all. The mobile number was not subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S. Roy. No link between these two persons has been established nor any bill in the name of said Bhima Waghmare was produced on record. Since the evidence that the mobile number was subscribed by said Sanjay S. Roy was led by the prosecution itself, it cannot be assumed that said mobile number was, in fact, subscribed by Bhima Waghmare. The connection which would link the accused with the murder of Bhima Waghmare, on this front is completely missing. As regards the second circumstance, it is true that the bullet recovered from the body of the deceased matched with the service weapon which was allocated to PW11 Police Naik Nagare but the theory that the weapon was snatched by the accused is not sufficiently established. No Test Identification Parade was held and if held, no material in that behalf has been produced on record. The second circumstance, therefore, is not sufficiently established as against the accused. 16. The law on the point of appreciation of cases based on circumstantial evidence is very clear. It was laid down by this Court in Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116C as under:- "153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned ?must or should? and not ?may be? established. There is not only a grammatical but a legal distinction between ?may be proved? and ?must be or should be proved? as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 ; 1973 SCC (Cri) 1033 ; 1973 Cri LJ 1783 where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047]?Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between ‘may be? and ‘must be? is long and divides vague conjectures from sure conclusions.? (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.? 154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.? 17. Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man. ### Response: 1 ### Explanation: 13. The facts narrated above bring out the followingGoing by FIR at Exhibit 106, three persons were responsible for robbing PW11 Police Naik Nagare of his service weapon. Though the description of all three persons was given in FIR Exhibit 106, no Test Identification Parade was undertaken when four suspects were apprehended during investigation of the kidnapping case. No material in that behalf is produced on record. Nothing is clear on record as to who was the thirdAccording to PW11 Police Naik Nagare he had lost consciousness for a while after he was assaulted by those three persons; that after he regained consciousness, he dialed 100 from his mobile and intimated about the loss of hisservice weapon and walkie talkie. It is somewhat incongruent that the persons who robbed him of his service weapon and walkie talkie would leave his mobileIn terms of version of PW2 Seema, mobile number 9850520922 was subscribed by her husband Bhima Waghmare. On the other hand, the evidence led by the prosecution itself in the form of testimony of PW5 Sachin Mahadev Shinde shows that mobile number 9850520922 was subscribed by one Sanjay S Roy. Again, the prosecution has failed to establish the link, if any, between said Sanjay S Roy and Bhima Waghmare and whether said Sanjay S Roy had ever handed over his mobile to BhimaPW2 Seema in her original version had expressed suspicion about certain professional rivals of herThe assertion that one of the persons making ransom calls had disclosed that they had killed a person at Karjat did not come in the examination-in-chief of PW12 Sanjay Lokhande but appeared in his cross-examination. It was thus not the specific case of the prosecution that any extra judicial confession was made to PW12 SanjayThe matter has one more dimension. While ordering acquittal of Accused No.2, insofar as principal charges are concerned, his conviction for offence under Section 37(1) read with Section 135 of the Bombay Police Act was maintained by the High Court. We, thus, have to proceed on the footing that Accused No. 2 was also guilty of snatching the service weapon of PW11 Police Naik Nagare but not ofThere was a gap of about 15 days between the snatching of the service weapon and murder.With the acquittal of Accused No.2 of the principal charge under Section 302, we are now called upon to see whether the material on record sufficiently establishes that it was Accused No.1 alone who was guilty of the offence punishable under Section 302 IPC.Two circumstances which are principally relied upon by the prosecution are already mentioned hereinabove. The first circumstance regarding mobile phone is not proved at all. The mobile number was not subscribed by deceased Bhima Waghmare but was subscribed by Sanjay S. Roy. No link between these two persons has been established nor any bill in the name of said Bhima Waghmare was produced on record. Since the evidence that the mobile number was subscribed by said Sanjay S. Roy was led by the prosecution itself, it cannot be assumed that said mobile number was, in fact, subscribed by Bhima Waghmare. The connection which would link the accused with the murder of Bhima Waghmare, on this front is completely missing. As regards the second circumstance, it is true that the bullet recovered from the body of the deceased matched with the service weapon which was allocated to PW11 Police Naik Nagare but the theory that the weapon was snatched by the accused is not sufficiently established. No Test Identification Parade was held and if held, no material in that behalf has been produced on record. The second circumstance, therefore, is not sufficiently established as against the accused.The law on the point of appreciation of cases based on circumstantial evidence is very clear.Applying the principles as culled out in the aforesaid decision, which have stood the test of time, in our view, the matter is not free from doubt. The circumstances relied upon must rule out every single hypothesis except the guilt of the person accused of an offence. There are too many missing links in the present matter and in our considered view, the material on record does not exclude every single hypothesis except the guilt of the man.

Ramesh Kumar And Ors Vs. Bhatinda Integrated Cooperative Cotton Spinning Mill and Ors

Now so far as the submission on behalf of the land owners that while considering the annual increase at the rate of 12%, the High Court ought to have applied the cumulative rate and reliance placed upon the decision of this Court in Rameshbhai Jivanbhai Patel (Supra) and in the case of Ashok Kumar (Supra) are concerned, it is true that as held by this Court in aforesaid two decisions increase in the market value should be at a cumulative rate and not at a flat rate. In the case of Rameshbhai Jivanbhai Patel (Supra) in paragraph 18, it is specifically observed and held that when market value is sought to be ascertained with reference to transactions which took place before the acquisition, the law adopted is to collect the year to year increase. It is further observed and held that as the percentage of increase is always with reference to the previous years market value, the appropriate method is to adopt the increase cumulatively and not applying a flat rate. However, at the same time it is also observed and held in the said decision that it is reasonably safe to determine the market value by providing appropriate escalation over the approved market value of nearby lands in the previous years, when relied on sale transactions/acquisitions precede the subject acquisition by only a few years, i.e., upto 4-5 years. It is further observed in the said decision in para 15 that beyond that it may be unsafe, even if it relates to a neighbouring land. In para 15 it is observed and held as under: Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on-sale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the `rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. In the present case both, the Reference Court as well as the High Court, have determined the value of the land considering the Sale Deed dated 24.05.1979 which is more than 9 years before the notification of the acquisition. Therefore, considering the observations made by this Court in para 15 in the case of Rameshbhai Jivanbhai Patel (Supra) reproduced hereinabove and considering the fact that time gap between the sale deed relied upon and the date of notification of acquisition is more than 9 years, the courts below ought to have been very cautious in relying upon the Sale Deed dated 24.05.1979. Be that it may and assuming that the Sale Deed dated 24.05.1979 was the best evidence available to determine the value of land acquired in that case also taking annual increase at the rate of 12% is not justified. We are of the opinion that, in the facts and circumstances of the case the annual increase/escalation ought to have been at the rate of 10% maximum. Even otherwise, it is required to be noted that State of Punjab suffered due to militancy from 1979 onwards till 1992 and because of that the prices would have crashed. Therefore, to grant the escalation/price rise at the rate of 12% would not be justified at all. After considering the case of Rameshbhai Jivanbhai Patel (Supra), it is observed and held by this Court in the case of Lal Chand (Supra) that even if the transaction is 2 to 3 years prior to the acquisition, the Court should, before adopting a standard escalation satisfy itself that there were no adverse circumstances. It is further observed and held that the question is therefore, necessary before increasing the price with reference to the old transactions. Therefore, assuming that the appellants are right in submitting that the increase in land value should have been adopted on cumulative basis, in the peculiar facts and circumstances of the case noted hereinabove, we see no reason to interfere with the impugned judgment and order passed by the High Court. 6.4 Now so far as the submission on behalf of the appellants of not taking into consideration the other sale deeds, it is required to be noted that those sale deeds are with respect to small portions of land and thereafter rightly discarded. 6.5 Now so far as the deduction at the rate of 15% towards the development charges, it also does not call for any interference of this Court considering the fact that the land in question at the relevant time was an agricultural land. However, taking into consideration the fact that the sale instance dated 24.07.1979 relied upon was a quite big chunk of land and the location of the acquired land and the land was acquired for spinning mill, the High Court has rightly adopted 15% cut, which in the facts and circumstances of the case is not required to be interfered with. 7. At this stage, it is also required to be noted that though the land was acquired in the year 1988, the same was made operational only in the year 1992 and therefore, has gone into liquidation in the year 2003. The entire amount of compensation as determined by the High Court has been paid.

0[ds]6.1 In the present case the Notification under Section 4 of the Act has been issued on 06.06.1988. The land in question was acquired for the public purpose for establishing Bhatinda Integrated Cooperative Cotton Spinning and Ginning Mills Ltd. The Land Acquisition Officer, Bhatinda awarded the compensation considering the value of the land at the rate of Rs.25,000/- per acre. The Reference Court relying upon the sale deed dated 24.05.1979 as Ex. AW6/C by which the land admeasuring 43 kanals 13 marlas out of the acquired land was purchased by Shri Sudarshan Kumar and Mrs. Surinder Anand at the rate of Rs.50,000/- per acre and thereafter adding 12% per acre and thereafter adopting the cut of 25% determined the compensation at Rs.1,12,000/- per acre. Thereafter the High Court by the impugned common Judgment and Order has allowed the appeals preferred by the spinning mills and dismissed the appeals preferred by the land owners, by determining the value at Rs.88,400/- per acre after adopting cut of 15%.6.3 Now so far as the submission on behalf of the land owners that while considering the annual increase at the rate of 12%, the High Court ought to have applied the cumulative rate and reliance placed upon the decision of this Court in Rameshbhai Jivanbhai Patel (Supra) and in the case of Ashok Kumar (Supra) are concerned, it is true that as held by this Court in aforesaid two decisions increase in the market value should be at a cumulative rate and not at a flat rate. In the case of Rameshbhai Jivanbhai Patel (Supra) in paragraph 18, it is specifically observed and held that when market value is sought to be ascertained with reference to transactions which took place before the acquisition, the law adopted is to collect the year to year increase. It is further observed and held that as the percentage of increase is always with reference to the previous years market value, the appropriate method is to adopt the increase cumulatively and not applying a flat rate. However, at the same time it is also observed and held in the said decision that it is reasonably safe to determine the market value by providing appropriate escalation over the approved market value of nearby lands in the previous years, when relied on sale transactions/acquisitions precede the subject acquisition by only a few years, i.e., upto 4-5 years. It is further observed in the said decision in para 15 that beyond that it may be unsafe, even if it relates to a neighbouring land. In para 15 it is observed and held as under:Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on-sale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the `rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.In the present case both, the Reference Court as well as the High Court, have determined the value of the land considering the Sale Deed dated 24.05.1979 which is more than 9 years before the notification of the acquisition. Therefore, considering the observations made by this Court in para 15 in the case of Rameshbhai Jivanbhai Patel (Supra) reproduced hereinabove and considering the fact that time gap between the sale deed relied upon and the date of notification of acquisition is more than 9 years, the courts below ought to have been very cautious in relying upon the Sale Deed dated 24.05.1979. Be that it may and assuming that the Sale Deed dated 24.05.1979 was the best evidence available to determine the value of land acquired in that case also taking annual increase at the rate of 12% is not justified. We are of the opinion that, in the facts and circumstances of the case the annual increase/escalation ought to have been at the rate of 10% maximum. Even otherwise, it is required to be noted that State of Punjab suffered due to militancy from 1979 onwards till 1992 and because of that the prices would have crashed. Therefore, to grant the escalation/price rise at the rate of 12% would not be justified at all. After considering the case of Rameshbhai Jivanbhai Patel (Supra), it is observed and held by this Court in the case of Lal Chand (Supra) that even if the transaction is 2 to 3 years prior to the acquisition, the Court should, before adopting a standard escalation satisfy itself that there were no adverse circumstances. It is further observed and held that the question is therefore, necessary before increasing the price with reference to the old transactions. Therefore, assuming that the appellants are right in submitting that the increase in land value should have been adopted on cumulative basis, in the peculiar facts and circumstances of the case noted hereinabove, we see no reason to interfere with the impugned judgment and order passed by the High Court.6.4 Now so far as the submission on behalf of the appellants of not taking into consideration the other sale deeds, it is required to be noted that those sale deeds are with respect to small portions of land and thereafter rightly discarded.6.5 Now so far as the deduction at the rate of 15% towards the development charges, it also does not call for any interference of this Court considering the fact that the land in question at the relevant time was an agricultural land. However, taking into consideration the fact that the sale instance dated 24.07.1979 relied upon was a quite big chunk of land and the location of the acquired land and the land was acquired for spinning mill, the High Court has rightly adopted 15% cut, which in the facts and circumstances of the case is not required to be interfered with.7. At this stage, it is also required to be noted that though the land was acquired in the year 1988, the same was made operational only in the year 1992 and therefore, has gone into liquidation in the year 2003. The entire amount of compensation as determined by the High Court has been paid.

### 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: Now so far as the submission on behalf of the land owners that while considering the annual increase at the rate of 12%, the High Court ought to have applied the cumulative rate and reliance placed upon the decision of this Court in Rameshbhai Jivanbhai Patel (Supra) and in the case of Ashok Kumar (Supra) are concerned, it is true that as held by this Court in aforesaid two decisions increase in the market value should be at a cumulative rate and not at a flat rate. In the case of Rameshbhai Jivanbhai Patel (Supra) in paragraph 18, it is specifically observed and held that when market value is sought to be ascertained with reference to transactions which took place before the acquisition, the law adopted is to collect the year to year increase. It is further observed and held that as the percentage of increase is always with reference to the previous years market value, the appropriate method is to adopt the increase cumulatively and not applying a flat rate. However, at the same time it is also observed and held in the said decision that it is reasonably safe to determine the market value by providing appropriate escalation over the approved market value of nearby lands in the previous years, when relied on sale transactions/acquisitions precede the subject acquisition by only a few years, i.e., upto 4-5 years. It is further observed in the said decision in para 15 that beyond that it may be unsafe, even if it relates to a neighbouring land. In para 15 it is observed and held as under: Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on-sale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the `rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase. In the present case both, the Reference Court as well as the High Court, have determined the value of the land considering the Sale Deed dated 24.05.1979 which is more than 9 years before the notification of the acquisition. Therefore, considering the observations made by this Court in para 15 in the case of Rameshbhai Jivanbhai Patel (Supra) reproduced hereinabove and considering the fact that time gap between the sale deed relied upon and the date of notification of acquisition is more than 9 years, the courts below ought to have been very cautious in relying upon the Sale Deed dated 24.05.1979. Be that it may and assuming that the Sale Deed dated 24.05.1979 was the best evidence available to determine the value of land acquired in that case also taking annual increase at the rate of 12% is not justified. We are of the opinion that, in the facts and circumstances of the case the annual increase/escalation ought to have been at the rate of 10% maximum. Even otherwise, it is required to be noted that State of Punjab suffered due to militancy from 1979 onwards till 1992 and because of that the prices would have crashed. Therefore, to grant the escalation/price rise at the rate of 12% would not be justified at all. After considering the case of Rameshbhai Jivanbhai Patel (Supra), it is observed and held by this Court in the case of Lal Chand (Supra) that even if the transaction is 2 to 3 years prior to the acquisition, the Court should, before adopting a standard escalation satisfy itself that there were no adverse circumstances. It is further observed and held that the question is therefore, necessary before increasing the price with reference to the old transactions. Therefore, assuming that the appellants are right in submitting that the increase in land value should have been adopted on cumulative basis, in the peculiar facts and circumstances of the case noted hereinabove, we see no reason to interfere with the impugned judgment and order passed by the High Court. 6.4 Now so far as the submission on behalf of the appellants of not taking into consideration the other sale deeds, it is required to be noted that those sale deeds are with respect to small portions of land and thereafter rightly discarded. 6.5 Now so far as the deduction at the rate of 15% towards the development charges, it also does not call for any interference of this Court considering the fact that the land in question at the relevant time was an agricultural land. However, taking into consideration the fact that the sale instance dated 24.07.1979 relied upon was a quite big chunk of land and the location of the acquired land and the land was acquired for spinning mill, the High Court has rightly adopted 15% cut, which in the facts and circumstances of the case is not required to be interfered with. 7. At this stage, it is also required to be noted that though the land was acquired in the year 1988, the same was made operational only in the year 1992 and therefore, has gone into liquidation in the year 2003. The entire amount of compensation as determined by the High Court has been paid. ### Response: 0 ### Explanation: after adopting cut of 15%.6.3 Now so far as the submission on behalf of the land owners that while considering the annual increase at the rate of 12%, the High Court ought to have applied the cumulative rate and reliance placed upon the decision of this Court in Rameshbhai Jivanbhai Patel (Supra) and in the case of Ashok Kumar (Supra) are concerned, it is true that as held by this Court in aforesaid two decisions increase in the market value should be at a cumulative rate and not at a flat rate. In the case of Rameshbhai Jivanbhai Patel (Supra) in paragraph 18, it is specifically observed and held that when market value is sought to be ascertained with reference to transactions which took place before the acquisition, the law adopted is to collect the year to year increase. It is further observed and held that as the percentage of increase is always with reference to the previous years market value, the appropriate method is to adopt the increase cumulatively and not applying a flat rate. However, at the same time it is also observed and held in the said decision that it is reasonably safe to determine the market value by providing appropriate escalation over the approved market value of nearby lands in the previous years, when relied on sale transactions/acquisitions precede the subject acquisition by only a few years, i.e., upto 4-5 years. It is further observed in the said decision in para 15 that beyond that it may be unsafe, even if it relates to a neighbouring land. In para 15 it is observed and held as under:Normally, recourse is taken to the mode of determining the market value by providing appropriate escalation over the proved market value of nearby lands in previous years (as evidenced by sale transactions or acquisition), where there is no evidence of any contemporaneous sale transactions or acquisitions of comparable lands in the neighbourhood. The said method is reasonably safe where the relied-on-sale transactions/acquisitions precedes the subject acquisition by only a few years, that is upto four to five years. Beyond that it may be unsafe, even if it relates to a neighbouring land. What may be a reliable standard if the gap is only a few years, may become unsafe and unreliable standard where the gap is larger. For example, for determining the market value of a land acquired in 1992, adopting the annual increase method with reference to a sale or acquisition in 1970 or 1980 may have many pitfalls. This is because, over the course of years, the `rate of annual increase may itself undergo drastic change apart from the likelihood of occurrence of varying periods of stagnation in prices or sudden spurts in prices affecting the very standard of increase.In the present case both, the Reference Court as well as the High Court, have determined the value of the land considering the Sale Deed dated 24.05.1979 which is more than 9 years before the notification of the acquisition. Therefore, considering the observations made by this Court in para 15 in the case of Rameshbhai Jivanbhai Patel (Supra) reproduced hereinabove and considering the fact that time gap between the sale deed relied upon and the date of notification of acquisition is more than 9 years, the courts below ought to have been very cautious in relying upon the Sale Deed dated 24.05.1979. Be that it may and assuming that the Sale Deed dated 24.05.1979 was the best evidence available to determine the value of land acquired in that case also taking annual increase at the rate of 12% is not justified. We are of the opinion that, in the facts and circumstances of the case the annual increase/escalation ought to have been at the rate of 10% maximum. Even otherwise, it is required to be noted that State of Punjab suffered due to militancy from 1979 onwards till 1992 and because of that the prices would have crashed. Therefore, to grant the escalation/price rise at the rate of 12% would not be justified at all. After considering the case of Rameshbhai Jivanbhai Patel (Supra), it is observed and held by this Court in the case of Lal Chand (Supra) that even if the transaction is 2 to 3 years prior to the acquisition, the Court should, before adopting a standard escalation satisfy itself that there were no adverse circumstances. It is further observed and held that the question is therefore, necessary before increasing the price with reference to the old transactions. Therefore, assuming that the appellants are right in submitting that the increase in land value should have been adopted on cumulative basis, in the peculiar facts and circumstances of the case noted hereinabove, we see no reason to interfere with the impugned judgment and order passed by the High Court.6.4 Now so far as the submission on behalf of the appellants of not taking into consideration the other sale deeds, it is required to be noted that those sale deeds are with respect to small portions of land and thereafter rightly discarded.6.5 Now so far as the deduction at the rate of 15% towards the development charges, it also does not call for any interference of this Court considering the fact that the land in question at the relevant time was an agricultural land. However, taking into consideration the fact that the sale instance dated 24.07.1979 relied upon was a quite big chunk of land and the location of the acquired land and the land was acquired for spinning mill, the High Court has rightly adopted 15% cut, which in the facts and circumstances of the case is not required to be interfered with.7. At this stage, it is also required to be noted that though the land was acquired in the year 1988, the same was made operational only in the year 1992 and therefore, has gone into liquidation in the year 2003. The entire amount of compensation as determined by the High Court has been paid.

Prakash Nath Khanna and Anr Vs. Commissioner of Income Tax and Anr

employed there is clear. (See Smt. Nandini Statpathy v. P.L. Dani and Anr. (AIR 1978 SC 1025 ) In the present case as noted above, the provisions of Section 276-CC are in clear terms. There is no scope for trying to clear any doubt or ambiguity as urged by learned counsel for the appellants. Interpretation sought to be put on Section 276-CC to the effect that if a return is filed under sub-section (4) of section 139 it means that the requirements of sub-section (1) of Section 139 cannot be accepted for more reasons than one.19. One of the significant terms used in Section 276-CC is "in due time". The time within which the return is to be furnished in indicated only in sub-section (1) of Section 139 and not in sub-section (4) of Section 139. That being so, even if a return is filed in terms of sub-section (4) of Section 139 that would not dilute the infraction in not furnishing the return in due time as prescribed under sub-section (1) of Section 139. Otherwise, the use of the expression "in due time" would loose its relevance and it cannot be said that the said expression was used without any purpose. Before substitution of the expression "clause (i) of sub-section (1) of section 142" by Direct Tax Laws (Amendment) Act. 1987 w.e.f. 1.4.1989 the expression used was "sub-section (2) of section 139". At the relevant point of time the assessing officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by Section 276-CC relate to non-furnishing of return within the time in terms of sub-section (1) or indicated in the notice given under sub-section (2) of Section 139. There is no condonation of the said infraction, even if a return is filed in terms of sub-section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under sub-sections (1) or (2) of Section 139 would get benefit by filing the return under Section 139(4) much later. This cannot certainly be the legislative intent.20. Another plea which was urged with some amount of vehemence was that the provisions of Section 276-CC are applicable only when there is discovery of the failure regarding evasion of tax. It was submitted that since the return under sub-section (4) of Section 139 was filed before the discovery of any evasion, the provision has no application. The case at hand cannot be covered by the expression "in any other case". This argument though attractive has no substance.21. The provision consists of two parts. First relates to the infractions warranting penal consequences and the second, measure of punishment. The second part in turn envisages two situations. The first situation is where there is discovery of the failure involving the evasion of tax of a particular amount. For the said infraction stringent penal consequences have been provided. Second situation covers all cases except the first situation elaborated above.22. The term of imprisonment is higher when the amount of tax which would have been evaded but for the discovery of the failure to furnish the return exceeds one hundred thousand rupees. If the plea of the appellants is accepted it would mean that in a given case where there is infraction and where a return has not been furnished in terms of sub-section (1) of Section 139 or even in response to a notice issued in terms of sub-section (2), the consequences flowing from non-furnishing of return would get obliterated. At the relevant point of time Section 139(4)(a) permitted filing of return where return has not been filed within sub-section (1) and sub-section (2). The time limit was provided in clause (b). Section 276-CC refers to "due time" in relation to sub-sections (1) and (2) of Section 139 and not to sub-section (4). Had the Legislature intended to cover sub-section (4) also, use of expression "Section 139" alone would have sufficed. It cannot be said that Legislature without any purpose or intent specified only the sub-sections (1) and (2) and the conspicuous omission of sub-section (4) has no meaning or purpose behind it. Sub-section (4) of Section 139 cannot by any stretch of imagination control operation of sub-section (1) wherein a fixed period for furnishing the return is stipulated. The mere fact that for purposes of assessment and carrying forward and to set off losses it is treated as one filed within sub-sections (1) or (2) cannot be pressed into service to claim it to be actually one such, though it is factually and really not by extending it beyond its legitimate purpose.23. Whether there was wilful failure to furnish the return is a matter which is to be adjudicated factually by the Court which deals with the prosecution case. Section 278-E is relevant for this purpose and the same reads as follows: "278-E: Presumption as to culpable mental state-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.Explanation : In this sub-section, "culpable mental state" includes intention, motive or knowledge of a fact or belief in, or reason to believe a fact(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability". 24. There is a statutory presumption prescribed in Section 278-E. The Court has to presume the existence of culpable mental state, and absence of such mental state can be pleaded by an accused as a defence in respect to the act charged as an offence in the prosecution.

0[ds]18. The heading of the Section or the marginal note may be relied upon to clear any doubt or ambiguity in the interpretation of the provision and to discern the legislative intent. In C.I.T v. Ahmedbhai Umarbhai and Co. (AIR 1950 SC 135) after referring to the view expressed by Lord Machnaghten in Balraj Kunwar v. Jagatpal Singh (ILR 26 All. 393 (PC), it was held that marginal notes in an Indian Statute, as in an Act of Parliament cannot be referred to for the purpose of construing the statute. Similar view was expressed in Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors. (1979 (2) SCC 468 ), and Kalawatibai v. Soirvabai and ors. (AIR 1991 SC 1981). Marginal note certainly cannot control the meaning of the body of the Section if the language employed there is clear. (See Smt. Nandini Statpathy v. P.L. Dani and Anr. (AIR 1978 SC 1025 ) In the present case as noted above, the provisions of Section 276-CC are in clear terms. There is no scope for trying to clear any doubt or ambiguity as urged by learned counsel for the appellants. Interpretation sought to be put on Section 276-CC to the effect that if a return is filed under sub-section (4) of section 139 it means that the requirements of sub-section (1) of Section 139 cannot be accepted for more reasons than one.19. One of the significant terms used in Section 276-CC is "in due time". The time within which the return is to be furnished in indicated only in sub-section (1) of Section 139 and not in sub-section (4) of Section 139. That being so, even if a return is filed in terms of sub-section (4) of Section 139 that would not dilute the infraction in not furnishing the return in due time as prescribed under sub-section (1) of Section 139. Otherwise, the use of the expression "in due time" would loose its relevance and it cannot be said that the said expression was used without any purpose. Before substitution of the expression "clause (i) of sub-section (1) of section 142" by Direct Tax Laws (Amendment) Act. 1987 w.e.f. 1.4.1989 the expression used was "sub-section (2) of section 139". At the relevant point of time the assessing officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by Section 276-CC relate to non-furnishing of return within the time in terms of sub-section (1) or indicated in the notice given under sub-section (2) of Section 139. There is no condonation of the said infraction, even if a return is filed in terms of sub-section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under sub-sections (1) or (2) of Section 139 would get benefit by filing the return under Section 139(4) much later. This cannot certainly be the legislative intent.20. Another plea which was urged with some amount of vehemence was that the provisions of Section 276-CC are applicable only when there is discovery of the failure regarding evasion of tax. It was submitted that since the return under sub-section (4) of Section 139 was filed before the discovery of any evasion, the provision has no application. The case at hand cannot be covered by the expression "in any other case". This argument though attractive has no substance.21. The provision consists of two parts. First relates to the infractions warranting penal consequences and the second, measure of punishment. The second part in turn envisages two situations. The first situation is where there is discovery of the failure involving the evasion of tax of a particular amount. For the said infraction stringent penal consequences have been provided. Second situation covers all cases except the first situation elaborated above.22. The term of imprisonment is higher when the amount of tax which would have been evaded but for the discovery of the failure to furnish the return exceeds one hundred thousand rupees. If the plea of the appellants is accepted it would mean that in a given case where there is infraction and where a return has not been furnished in terms of sub-section (1) of Section 139 or even in response to a notice issued in terms of sub-section (2), the consequences flowing from non-furnishing of return would get obliterated. At the relevant point of time Section 139(4)(a) permitted filing of return where return has not been filed within sub-section (1) and sub-section (2). The time limit was provided in clause (b). Section 276-CC refers to "due time" in relation to sub-sections (1) and (2) of Section 139 and not to sub-section (4). Had the Legislature intended to cover sub-section (4) also, use of expression "Section 139" alone would have sufficed. It cannot be said that Legislature without any purpose or intent specified only the sub-sections (1) and (2) and the conspicuous omission of sub-section (4) has no meaning or purpose behind it. Sub-section (4) of Section 139 cannot by any stretch of imagination control operation of sub-section (1) wherein a fixed period for furnishing the return is stipulated. The mere fact that for purposes of assessment and carrying forward and to set off losses it is treated as one filed within sub-sections (1) or (2) cannot be pressed into service to claim it to be actually one such, though it is factually and really not by extending it beyond its legitimate purpose.23. Whether there was wilful failure to furnish the return is a matter which is to be adjudicated factually by the Court which deals with the prosecution case. Section 278-E is relevant for this purpose and the same reads asPresumption as to culpable mental state-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.Explanation : In this sub-section, "culpable mental state" includes intention, motive or knowledge of a fact or belief in, or reason to believe a fact(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability".There is a statutory presumption prescribed in Section 278-E. The Court has to presume the existence of culpable mental state, and absence of such mental state can be pleaded by an accused as a defence in respect to the act charged as an offence in the

### 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: employed there is clear. (See Smt. Nandini Statpathy v. P.L. Dani and Anr. (AIR 1978 SC 1025 ) In the present case as noted above, the provisions of Section 276-CC are in clear terms. There is no scope for trying to clear any doubt or ambiguity as urged by learned counsel for the appellants. Interpretation sought to be put on Section 276-CC to the effect that if a return is filed under sub-section (4) of section 139 it means that the requirements of sub-section (1) of Section 139 cannot be accepted for more reasons than one.19. One of the significant terms used in Section 276-CC is "in due time". The time within which the return is to be furnished in indicated only in sub-section (1) of Section 139 and not in sub-section (4) of Section 139. That being so, even if a return is filed in terms of sub-section (4) of Section 139 that would not dilute the infraction in not furnishing the return in due time as prescribed under sub-section (1) of Section 139. Otherwise, the use of the expression "in due time" would loose its relevance and it cannot be said that the said expression was used without any purpose. Before substitution of the expression "clause (i) of sub-section (1) of section 142" by Direct Tax Laws (Amendment) Act. 1987 w.e.f. 1.4.1989 the expression used was "sub-section (2) of section 139". At the relevant point of time the assessing officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by Section 276-CC relate to non-furnishing of return within the time in terms of sub-section (1) or indicated in the notice given under sub-section (2) of Section 139. There is no condonation of the said infraction, even if a return is filed in terms of sub-section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under sub-sections (1) or (2) of Section 139 would get benefit by filing the return under Section 139(4) much later. This cannot certainly be the legislative intent.20. Another plea which was urged with some amount of vehemence was that the provisions of Section 276-CC are applicable only when there is discovery of the failure regarding evasion of tax. It was submitted that since the return under sub-section (4) of Section 139 was filed before the discovery of any evasion, the provision has no application. The case at hand cannot be covered by the expression "in any other case". This argument though attractive has no substance.21. The provision consists of two parts. First relates to the infractions warranting penal consequences and the second, measure of punishment. The second part in turn envisages two situations. The first situation is where there is discovery of the failure involving the evasion of tax of a particular amount. For the said infraction stringent penal consequences have been provided. Second situation covers all cases except the first situation elaborated above.22. The term of imprisonment is higher when the amount of tax which would have been evaded but for the discovery of the failure to furnish the return exceeds one hundred thousand rupees. If the plea of the appellants is accepted it would mean that in a given case where there is infraction and where a return has not been furnished in terms of sub-section (1) of Section 139 or even in response to a notice issued in terms of sub-section (2), the consequences flowing from non-furnishing of return would get obliterated. At the relevant point of time Section 139(4)(a) permitted filing of return where return has not been filed within sub-section (1) and sub-section (2). The time limit was provided in clause (b). Section 276-CC refers to "due time" in relation to sub-sections (1) and (2) of Section 139 and not to sub-section (4). Had the Legislature intended to cover sub-section (4) also, use of expression "Section 139" alone would have sufficed. It cannot be said that Legislature without any purpose or intent specified only the sub-sections (1) and (2) and the conspicuous omission of sub-section (4) has no meaning or purpose behind it. Sub-section (4) of Section 139 cannot by any stretch of imagination control operation of sub-section (1) wherein a fixed period for furnishing the return is stipulated. The mere fact that for purposes of assessment and carrying forward and to set off losses it is treated as one filed within sub-sections (1) or (2) cannot be pressed into service to claim it to be actually one such, though it is factually and really not by extending it beyond its legitimate purpose.23. Whether there was wilful failure to furnish the return is a matter which is to be adjudicated factually by the Court which deals with the prosecution case. Section 278-E is relevant for this purpose and the same reads as follows: "278-E: Presumption as to culpable mental state-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.Explanation : In this sub-section, "culpable mental state" includes intention, motive or knowledge of a fact or belief in, or reason to believe a fact(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability". 24. There is a statutory presumption prescribed in Section 278-E. The Court has to presume the existence of culpable mental state, and absence of such mental state can be pleaded by an accused as a defence in respect to the act charged as an offence in the prosecution. ### Response: 0 ### Explanation: of the Section if the language employed there is clear. (See Smt. Nandini Statpathy v. P.L. Dani and Anr. (AIR 1978 SC 1025 ) In the present case as noted above, the provisions of Section 276-CC are in clear terms. There is no scope for trying to clear any doubt or ambiguity as urged by learned counsel for the appellants. Interpretation sought to be put on Section 276-CC to the effect that if a return is filed under sub-section (4) of section 139 it means that the requirements of sub-section (1) of Section 139 cannot be accepted for more reasons than one.19. One of the significant terms used in Section 276-CC is "in due time". The time within which the return is to be furnished in indicated only in sub-section (1) of Section 139 and not in sub-section (4) of Section 139. That being so, even if a return is filed in terms of sub-section (4) of Section 139 that would not dilute the infraction in not furnishing the return in due time as prescribed under sub-section (1) of Section 139. Otherwise, the use of the expression "in due time" would loose its relevance and it cannot be said that the said expression was used without any purpose. Before substitution of the expression "clause (i) of sub-section (1) of section 142" by Direct Tax Laws (Amendment) Act. 1987 w.e.f. 1.4.1989 the expression used was "sub-section (2) of section 139". At the relevant point of time the assessing officer was empowered to issue a notice requiring furnishing of a return within the time indicated therein. That means the infractions which are covered by Section 276-CC relate to non-furnishing of return within the time in terms of sub-section (1) or indicated in the notice given under sub-section (2) of Section 139. There is no condonation of the said infraction, even if a return is filed in terms of sub-section (4). Accepting such a plea would mean that a person who has not filed a return within the due time as prescribed under sub-sections (1) or (2) of Section 139 would get benefit by filing the return under Section 139(4) much later. This cannot certainly be the legislative intent.20. Another plea which was urged with some amount of vehemence was that the provisions of Section 276-CC are applicable only when there is discovery of the failure regarding evasion of tax. It was submitted that since the return under sub-section (4) of Section 139 was filed before the discovery of any evasion, the provision has no application. The case at hand cannot be covered by the expression "in any other case". This argument though attractive has no substance.21. The provision consists of two parts. First relates to the infractions warranting penal consequences and the second, measure of punishment. The second part in turn envisages two situations. The first situation is where there is discovery of the failure involving the evasion of tax of a particular amount. For the said infraction stringent penal consequences have been provided. Second situation covers all cases except the first situation elaborated above.22. The term of imprisonment is higher when the amount of tax which would have been evaded but for the discovery of the failure to furnish the return exceeds one hundred thousand rupees. If the plea of the appellants is accepted it would mean that in a given case where there is infraction and where a return has not been furnished in terms of sub-section (1) of Section 139 or even in response to a notice issued in terms of sub-section (2), the consequences flowing from non-furnishing of return would get obliterated. At the relevant point of time Section 139(4)(a) permitted filing of return where return has not been filed within sub-section (1) and sub-section (2). The time limit was provided in clause (b). Section 276-CC refers to "due time" in relation to sub-sections (1) and (2) of Section 139 and not to sub-section (4). Had the Legislature intended to cover sub-section (4) also, use of expression "Section 139" alone would have sufficed. It cannot be said that Legislature without any purpose or intent specified only the sub-sections (1) and (2) and the conspicuous omission of sub-section (4) has no meaning or purpose behind it. Sub-section (4) of Section 139 cannot by any stretch of imagination control operation of sub-section (1) wherein a fixed period for furnishing the return is stipulated. The mere fact that for purposes of assessment and carrying forward and to set off losses it is treated as one filed within sub-sections (1) or (2) cannot be pressed into service to claim it to be actually one such, though it is factually and really not by extending it beyond its legitimate purpose.23. Whether there was wilful failure to furnish the return is a matter which is to be adjudicated factually by the Court which deals with the prosecution case. Section 278-E is relevant for this purpose and the same reads asPresumption as to culpable mental state-(1) In any prosecution for any offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.Explanation : In this sub-section, "culpable mental state" includes intention, motive or knowledge of a fact or belief in, or reason to believe a fact(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability".There is a statutory presumption prescribed in Section 278-E. The Court has to presume the existence of culpable mental state, and absence of such mental state can be pleaded by an accused as a defence in respect to the act charged as an offence in the

T.V. RAMAKRISHNA REDDY Vs. M. MALLAPPA & ANR

suits for injunction. 12. In this background, we will have to consider the facts of the present case. 13. The plaintiff-appellant claims to be the owner of the suit property on the basis of a sale-deed executed by one K.P. Govinda Reddy in his favour on 13.4.1992. In turn, according to him, the said property was sold by one Smt. Varalakshmamma in favour of his vendor K.P. Govinda Reddy on 26.3.1971. He claims that he had mortgaged the suit property for taking loan from one financial institution. He further claimed that an endorsement was also issued by the Corporation of City of Bangalore that Khata regarding the suit property is transferred to the appellant. According to the plaintiff-appellant, when the Bangalore Mahanagar Palike withdrew the Khata in his favour, he went to the High Court and succeeded therein. 14. Per contra, the defendant No.2 (respondent No.1 herein) is specifically denying the title of the plaintiff- appellant. He claims to be the owner of the suit property on the basis of a sale-deed dated 5.4.1984 from one M. Shivalingaiah. He also claims to be in peaceful possession and enjoyment of the same on the basis of the said sale- deed. It is his case that K.P. Govinda Reddy got the title set up falsely and created fabricated documents with regard to possession. It is also his case that compound wall was constructed by him and not by the plaintiff, as claimed. 15. It could thus clearly be seen that this is not a case where the plaintiff-appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiff-appellants title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided. 16. In that view of the matter, we do not find any reason to interfere with the judgment and order passed by the Karnataka High Court. 17. Insofar as the reliance on the order passed by the learned single judge of the Karnataka High Court dated 10.2.2000 in Writ Petition No.38853 of 1999 is concerned, it will be relevant to refer to the following observations made therein: 3. It is evident from the plain reading of the above that any entry made in the Corporation Register by fraud, misrepresentation or suppression of facts or by furnishing false, incorrect and incomplete material could be corrected within a period of three years from the date of such recording. The Order in the instant case was passed admittedly much beyond the period of limitation prescribed by the provision extracted above. The same is therefore unsustainable on that ground itself. The parties being in litigation before the Civil Court could upon adjudication of the controversy regarding the title to the property approach the Corporation for any modification in the entry which is no more any modification in the entry which is no more than a fiscal entry relevant only for purpose of payment of taxes and does not by itself create or extinguish title to the property in regard to which it is made. Till such time the competent Court declared the 3rd respondent as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Sec. 114-A of the Act. 4. This writ petition accordingly succeeds and is hereby allowed. The impugned order shall stand quashed reserving liberty for the parties to have the matter adjudicated upon by the Civil Court and to approach the Corporation for a fresh entry/modification of the existing entry to bring the same in consonance with the Civil Courts determination. No costs. 18. It could thus be clearly seen that the High Court in the said order has clearly noted that the parties are in litigation before the Civil Court and that adjudication of controversy regarding the title of the suit property could be done only by the Civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant only for the purpose of payment of taxes and does not by itself create or extinguish title to the property. The Court observed that till such time the competent Court declared the third respondent therein as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114- A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter adjudicated upon by the Civil Court. 19. In that view of the matter, the said judgment and order would be of no assistance to the case of the plaintiff- appellant. 20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692 : 11. It is well settled by catena of judg- ments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circum- stances, plaintiff cannot maintain a suit for bare injunction. 21. In the facts of the present case, it cannot be said at this stage that the dispute raised by the defendant No.2 with regard to title is not genuine nor can it be said that the title of the plaintiff-appellant over the suit property is free from cloud. The issue with regard to title can be decided only after the full-fledged trial on the basis of the evidence that would be led by the parties in support of their rival claims.

0[ds]9. The issue is no more res integra. The position has been crystalised by this Court in the case of Anathula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594 in paragraph 21, which read thus:21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:(a) Where a cloud is raised over the plaintiffs title and he does not have posses- sion, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiffs title is not in dispute or under a cloud, but he is out of possession, he has to sue for posses- sion with a consequential injunction. Where there is merely an interference with the plaintiffs lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.(b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for in- junction will be decided with reference to the finding on possession. But in cases where de jure possession has to be estab- lished on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appro- priate issue regarding title (either specific, or implied as noticed in Annaimuthu The- var [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202 ] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or ren- der a finding on a question of title, in a suit for injunction. Even where there are neces- sary pleadings and issue, if the matter in- volves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of com- prehensive suit for declaration of title, in- stead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, and appropriate issue relat- ing to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the excep- tion to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and posses- sion suing for injunction, should not be driven to the costlier and more cumber- some remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to en- croach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiffs title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.11. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.15. It could thus clearly be seen that this is not a case where the plaintiff-appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiff-appellants title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided.16. In that view of the matter, we do not find any reason to interfere with the judgment and order passed by the Karnataka High Court.18. It could thus be clearly seen that the High Court in the said order has clearly noted that the parties are in litigation before the Civil Court and that adjudication of controversy regarding the title of the suit property could be done only by the Civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant only for the purpose of payment of taxes and does not by itself create or extinguish title to the property. The Court observed that till such time the competent Court declared the third respondent therein as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114- A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter adjudicated upon by the Civil Court.19. In that view of the matter, the said judgment and order would be of no assistance to the case of the plaintiff- appellant.20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692 :11. It is well settled by catena of judg- ments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circum- stances, plaintiff cannot maintain a suit for bare injunction.21. In the facts of the present case, it cannot be said at this stage that the dispute raised by the defendant No.2 with regard to title is not genuine nor can it be said that the title of the plaintiff-appellant over the suit property is free from cloud. The issue with regard to title can be decided only after the full-fledged trial on the basis of the evidence that would be led by the parties in support of their rival claims.

### 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: suits for injunction. 12. In this background, we will have to consider the facts of the present case. 13. The plaintiff-appellant claims to be the owner of the suit property on the basis of a sale-deed executed by one K.P. Govinda Reddy in his favour on 13.4.1992. In turn, according to him, the said property was sold by one Smt. Varalakshmamma in favour of his vendor K.P. Govinda Reddy on 26.3.1971. He claims that he had mortgaged the suit property for taking loan from one financial institution. He further claimed that an endorsement was also issued by the Corporation of City of Bangalore that Khata regarding the suit property is transferred to the appellant. According to the plaintiff-appellant, when the Bangalore Mahanagar Palike withdrew the Khata in his favour, he went to the High Court and succeeded therein. 14. Per contra, the defendant No.2 (respondent No.1 herein) is specifically denying the title of the plaintiff- appellant. He claims to be the owner of the suit property on the basis of a sale-deed dated 5.4.1984 from one M. Shivalingaiah. He also claims to be in peaceful possession and enjoyment of the same on the basis of the said sale- deed. It is his case that K.P. Govinda Reddy got the title set up falsely and created fabricated documents with regard to possession. It is also his case that compound wall was constructed by him and not by the plaintiff, as claimed. 15. It could thus clearly be seen that this is not a case where the plaintiff-appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiff-appellants title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided. 16. In that view of the matter, we do not find any reason to interfere with the judgment and order passed by the Karnataka High Court. 17. Insofar as the reliance on the order passed by the learned single judge of the Karnataka High Court dated 10.2.2000 in Writ Petition No.38853 of 1999 is concerned, it will be relevant to refer to the following observations made therein: 3. It is evident from the plain reading of the above that any entry made in the Corporation Register by fraud, misrepresentation or suppression of facts or by furnishing false, incorrect and incomplete material could be corrected within a period of three years from the date of such recording. The Order in the instant case was passed admittedly much beyond the period of limitation prescribed by the provision extracted above. The same is therefore unsustainable on that ground itself. The parties being in litigation before the Civil Court could upon adjudication of the controversy regarding the title to the property approach the Corporation for any modification in the entry which is no more any modification in the entry which is no more than a fiscal entry relevant only for purpose of payment of taxes and does not by itself create or extinguish title to the property in regard to which it is made. Till such time the competent Court declared the 3rd respondent as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Sec. 114-A of the Act. 4. This writ petition accordingly succeeds and is hereby allowed. The impugned order shall stand quashed reserving liberty for the parties to have the matter adjudicated upon by the Civil Court and to approach the Corporation for a fresh entry/modification of the existing entry to bring the same in consonance with the Civil Courts determination. No costs. 18. It could thus be clearly seen that the High Court in the said order has clearly noted that the parties are in litigation before the Civil Court and that adjudication of controversy regarding the title of the suit property could be done only by the Civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant only for the purpose of payment of taxes and does not by itself create or extinguish title to the property. The Court observed that till such time the competent Court declared the third respondent therein as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114- A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter adjudicated upon by the Civil Court. 19. In that view of the matter, the said judgment and order would be of no assistance to the case of the plaintiff- appellant. 20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692 : 11. It is well settled by catena of judg- ments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circum- stances, plaintiff cannot maintain a suit for bare injunction. 21. In the facts of the present case, it cannot be said at this stage that the dispute raised by the defendant No.2 with regard to title is not genuine nor can it be said that the title of the plaintiff-appellant over the suit property is free from cloud. The issue with regard to title can be decided only after the full-fledged trial on the basis of the evidence that would be led by the parties in support of their rival claims. ### Response: 0 ### Explanation: only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for in- junction will be decided with reference to the finding on possession. But in cases where de jure possession has to be estab- lished on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appro- priate issue regarding title (either specific, or implied as noticed in Annaimuthu The- var [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202 ] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or ren- der a finding on a question of title, in a suit for injunction. Even where there are neces- sary pleadings and issue, if the matter in- volves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of com- prehensive suit for declaration of title, in- stead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, and appropriate issue relat- ing to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the excep- tion to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and posses- sion suing for injunction, should not be driven to the costlier and more cumber- some remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to en- croach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.10. It could thus be seen that this Court in unequivocal terms has held that where the plaintiffs title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. It has been clearly held that if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.11. No doubt, this Court has held that where there are necessary pleadings regarding title and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. However, it has been held that such cases are the exception to the normal rule that question of title will not be decided in suits for injunction.15. It could thus clearly be seen that this is not a case where the plaintiff-appellant can be said to have a clear title over the suit property or that there is no cloud on plaintiff-appellants title over the suit property. The question involved is one which requires adjudication after the evidence is led and questions of fact and law are decided.16. In that view of the matter, we do not find any reason to interfere with the judgment and order passed by the Karnataka High Court.18. It could thus be clearly seen that the High Court in the said order has clearly noted that the parties are in litigation before the Civil Court and that adjudication of controversy regarding the title of the suit property could be done only by the Civil Court. The entry with the Corporation is nothing more than a fiscal entry relevant only for the purpose of payment of taxes and does not by itself create or extinguish title to the property. The Court observed that till such time the competent Court declared the third respondent therein as the true owner of the property, the Corporation could not on its own correct the entry after a period of 3 years stipulated under Section 114- A of the Act. The High Court has therefore set aside the order reserving liberty for the parties to have the matter adjudicated upon by the Civil Court.19. In that view of the matter, the said judgment and order would be of no assistance to the case of the plaintiff- appellant.20. It will also be relevant to refer to the following observations of this Court in the case of Jharkhand State Housing Board v. Didar Singh and another (2019) 17 SCC 692 :11. It is well settled by catena of judg- ments of this Court that in each and every case where the defendant disputes the title of the plaintiff it is not necessary that in all those cases plaintiff has to seek the relief of declaration. A suit for mere injunction does not lie only when the defendant raises a genuine dispute with regard to title and when he raises a cloud over the title of the plaintiff, then necessarily in those circum- stances, plaintiff cannot maintain a suit for bare injunction.21. In the facts of the present case, it cannot be said at this stage that the dispute raised by the defendant No.2 with regard to title is not genuine nor can it be said that the title of the plaintiff-appellant over the suit property is free from cloud. The issue with regard to title can be decided only after the full-fledged trial on the basis of the evidence that would be led by the parties in support of their rival claims.

State Of Assam & Another Vs. Bimal Kumar Pandit

in question. In fact, even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicated. The Orissa High Court had struck down the order of dismissal on the ground that the notice was defective and so, the provisions of Art. 311 (2) had been contravened. This Court in reversing the conclusion of the Orissa High Court, observed that "in the context, it must have been obvious to the respondent that the punishment proposed was removal from service and respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." It may be added incidentally that the punishment which had been suggested by the Tribunal was removal from service, as distinguished from dismissal, and this court held that the impugned notice must be deemed to have referred to that punishment as the action proposed to be taken against the Government servant. Therefore, this decision, in substance, is against the contention raised by Mr. Chatterjee.14. There are, however, some decisions which seems to lend support to Mr. Chatterjees argument and it is, therefore, necessary to examine them. In the case of The State of Andhra v. Ramayya Suri, AIR 1957 Andhra 370 the Andhra Pradesh High Court has held that "under Art 311(2) the authority concerned should necessarily in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted but also the reasons for coming to that conclusion." If this observation is intended to lay down a general rule that in every case the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delinquent government servant, we must hold that the said view is note justified by the requirements of Art. 311(2). We ought, however, to add that in the case with which the Andhra Pradesh High Court was dealing, it appeared that the Government did not agree with the Tribunal in regard to its finding on the third charge and so, its conclusion on the said charge which was different from that of the Tribunal, weighed in its mind in proposing to take the specified action against the Government servant. In such a case, it would be legitimate to hold that the public servant did not know what was weighing in the mind of the Government and so, did not get an adequate opportunity to challenge the view which the Government was inclined to take in respect of the third charge framed against him. On these facts, we think, the High Court was justified in taking the view that the Government should have indicated in the notice its conclusion on the third charge. That however, does not mean that in the notice, the Government ought to state its grounds or reasons in support of its conclusion. It is the finding or the conclusion which is weighing in the mind of the Government that must, in such a case, be communicated to the public servant.15. In Bimal Charan Mitra v. State of Orissa (5) AIR 1957 Orissa 184 the Orissa High Court has held that "the service of the copy of the findings of the punishing authority On the public servant is mandatory and the service of the report of the enquiring officer who is not the punishing Authority when there is no indication at all in the notice that the authority competent to punish agrees with those findings cannot constitute substantial compliance with the requirements of Art. 311 (2)." This decision seems to suggest that in issuing the notice under Art. 311(2) the appropriate authority must, besides serving the copy of the enquiring officers report on the government servant supply the said officer the finding of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion this view is erroneous.16. The same comment falls to be made about another decision of the said High Court in Krishan. Gopal Mukherjee v. The State, AIR 1960 Orissa 37.17. The last decision to which reference must be made in the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley AIR 1954 Bom 351 . In this case, Chief Justice Chagla has observed that under Art. 311(2) it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant. This view is clearly right. But then in support of this conclusion the learned Chief Justice has observed that the public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him; and Mr. Chatterjee relies upon this sentence to support his argument that the grounds on which the State proposes to act must be communicated to the public servant. In our opinion, the statement must be read along with the conclusion of the High Court and so read it would clearly show that what the Chief Justice intended to lay down was that the findings recorded in the enquiry report which constitute the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjees argument that the notice issued under Art. 311 (2) must expressly state that the appropriate authority accepts the findings of the enquiry officer and must give reasons in support of the action proposed to be taken against him.18.

1[ds]It is now well settled that a public officer against whom disciplinary proceedings are intended to be taken is entitled to have two opportunities before disciplinary action is finally taken against him. An enquiry must be conducted according to the rules prescribed in that behalf and consistently with the requirements of natural justice. At this enquiry, the public officer concerned would be entitled to test the evidence adduced against him by cross-examination, where necessary, and to lead his ownother words, at this first stage of the proceedings he is entitled to have an opportunity to defend himself. When the enquiry is over and the enquiring officer submits his report, the dismissing authority has to consider the report and decide whether it agrees with the conclusions of the report or not. If the findings in the report or not. If the findings in the report are against the public officer and the dismissing authority agrees with the said findings, a stage is reached for giving another opportunity to the public officer to show why disciplinary actions should not be taken against him. In issuing the second notice, the dismissing authority naturally has to come to a tentative or provisional conclusion about the guilt of the public officer as well as about the punishment which would meet the requirement of justice in his case, and it is only after reaching conclusions in both these matters provisionally that the dismissing authority issues the second notice. There is no doubt that in response to this notice, the public officer is entitled to show cause not only against the action proposed to be taken against him, but also against the validity or the correctness of the findings recorded by the enquiring officer and provisionally accepted by the dismissing authority. In other words, the second opportunity enables the public officer to cover the whole ground and to plead that no case had been made out against him for taking any disciplinary action and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. This position is not inseems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authoring as to the punishment that should be imposed on him, obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority, otherwise there would be no sense and no purpose in issuing the notice under Art. 311(2). Besides, we may add that in the present case, the affidavit made by appellant No. 2 clearly shows that before the impugned notice was served on the respondent, the Government had accepted the findings of the enquiring officer which means that the Government agreed with the enquiring officer in regard to both sets of findings recorded by him. Therefore, we do not think that the failure to state expressly that the dismissing authority has accepted the findings recorded in the report against the delinquent officer, justifies the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under Art. 311(2). On receiving the notice in the present case it must have been obvious to the respondent that the findings recorded against him by the enquiring officer had been accepted by the appellants and so, we think it would not be reasonable to accept the view that in the present case, he had no reasonable opportunity as required by Art. 311order to give the delinquent officer a reasonable opportunity to show cause under Art. 311 (2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Art. 311(2) justify the view that the failure to make such a statement amounts to contravention of Art. 311(2).In dealing with this point we must bear in mind the fact that a cony of the enquiry report had been enclosed with the notice, and so reading the notice in a common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in theirdoes not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer. Therefore, we do not think that the decision of this Court in Khem Chands case, 1958 SCR 1080: (AIR 1958 SC 300 ) supports Mr. Chatterjees contention.In Bimal Charan Mitra v. State of Orissa (5) AIR 1957 Orissa 184 the Orissa High Court has held that "the service of the copy of the findings of the punishing authority On the public servant is mandatory and the service of the report of the enquiring officer who is not the punishing Authority when there is no indication at all in the notice that the authority competent to punish agrees with those findings cannot constitute substantial compliance with the requirements of Art. 311 (2)." This decision seems to suggest that in issuing the notice under Art. 311(2) the appropriate authority must, besides serving the copy of the enquiring officers report on the government servant supply the said officer the finding of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion this view is erroneous.The same comment falls to be made about another decision of the said High Court in Krishan. Gopal Mukherjee v. The State, AIR 1960 Orissa 37.The last decision to which reference must be made in the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley AIR 1954 Bom 351 . In this case, Chief Justice Chagla has observed that under Art. 311(2) it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant. This view is clearly right. But then in support of this conclusion the learned Chief Justice has observed that the public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him; and Mr. Chatterjee relies upon this sentence to support his argument that the grounds on which the State proposes to act must be communicated to the public servant. In our opinion, the statement must be read along with the conclusion of the High Court and so read it would clearly show that what the Chief Justice intended to lay down was that the findings recorded in the enquiry report which constitute the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjees argument that the notice issued under Art. 311 (2) must expressly state that the appropriate authority accepts the findings of the enquiry officer and must give reasons in support of the action proposed to be taken against him.

### 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: in question. In fact, even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicated. The Orissa High Court had struck down the order of dismissal on the ground that the notice was defective and so, the provisions of Art. 311 (2) had been contravened. This Court in reversing the conclusion of the Orissa High Court, observed that "in the context, it must have been obvious to the respondent that the punishment proposed was removal from service and respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service." It may be added incidentally that the punishment which had been suggested by the Tribunal was removal from service, as distinguished from dismissal, and this court held that the impugned notice must be deemed to have referred to that punishment as the action proposed to be taken against the Government servant. Therefore, this decision, in substance, is against the contention raised by Mr. Chatterjee.14. There are, however, some decisions which seems to lend support to Mr. Chatterjees argument and it is, therefore, necessary to examine them. In the case of The State of Andhra v. Ramayya Suri, AIR 1957 Andhra 370 the Andhra Pradesh High Court has held that "under Art 311(2) the authority concerned should necessarily in its order requiring the civil servant to show cause give not only the punishment proposed to be inflicted but also the reasons for coming to that conclusion." If this observation is intended to lay down a general rule that in every case the appropriate authority must state its own grounds or reasons for proposing to take any specific action against the delinquent government servant, we must hold that the said view is note justified by the requirements of Art. 311(2). We ought, however, to add that in the case with which the Andhra Pradesh High Court was dealing, it appeared that the Government did not agree with the Tribunal in regard to its finding on the third charge and so, its conclusion on the said charge which was different from that of the Tribunal, weighed in its mind in proposing to take the specified action against the Government servant. In such a case, it would be legitimate to hold that the public servant did not know what was weighing in the mind of the Government and so, did not get an adequate opportunity to challenge the view which the Government was inclined to take in respect of the third charge framed against him. On these facts, we think, the High Court was justified in taking the view that the Government should have indicated in the notice its conclusion on the third charge. That however, does not mean that in the notice, the Government ought to state its grounds or reasons in support of its conclusion. It is the finding or the conclusion which is weighing in the mind of the Government that must, in such a case, be communicated to the public servant.15. In Bimal Charan Mitra v. State of Orissa (5) AIR 1957 Orissa 184 the Orissa High Court has held that "the service of the copy of the findings of the punishing authority On the public servant is mandatory and the service of the report of the enquiring officer who is not the punishing Authority when there is no indication at all in the notice that the authority competent to punish agrees with those findings cannot constitute substantial compliance with the requirements of Art. 311 (2)." This decision seems to suggest that in issuing the notice under Art. 311(2) the appropriate authority must, besides serving the copy of the enquiring officers report on the government servant supply the said officer the finding of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion this view is erroneous.16. The same comment falls to be made about another decision of the said High Court in Krishan. Gopal Mukherjee v. The State, AIR 1960 Orissa 37.17. The last decision to which reference must be made in the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley AIR 1954 Bom 351 . In this case, Chief Justice Chagla has observed that under Art. 311(2) it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant. This view is clearly right. But then in support of this conclusion the learned Chief Justice has observed that the public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him; and Mr. Chatterjee relies upon this sentence to support his argument that the grounds on which the State proposes to act must be communicated to the public servant. In our opinion, the statement must be read along with the conclusion of the High Court and so read it would clearly show that what the Chief Justice intended to lay down was that the findings recorded in the enquiry report which constitute the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjees argument that the notice issued under Art. 311 (2) must expressly state that the appropriate authority accepts the findings of the enquiry officer and must give reasons in support of the action proposed to be taken against him.18. ### Response: 1 ### Explanation: and then to urge that if he fails in substantiating his innocence, the action proposed to be taken against him is either unduly severe or not called for. This position is not inseems to us that it would be plain to the delinquent officer that the issuance of the notice indicating the provisional conclusions of the dismissing authoring as to the punishment that should be imposed on him, obviously and clearly implies that the findings recorded against him by the enquiring officer have been accepted by the dismissing authority, otherwise there would be no sense and no purpose in issuing the notice under Art. 311(2). Besides, we may add that in the present case, the affidavit made by appellant No. 2 clearly shows that before the impugned notice was served on the respondent, the Government had accepted the findings of the enquiring officer which means that the Government agreed with the enquiring officer in regard to both sets of findings recorded by him. Therefore, we do not think that the failure to state expressly that the dismissing authority has accepted the findings recorded in the report against the delinquent officer, justifies the conclusion that the notice given in that behalf does not afford a reasonable opportunity to the delinquent officer under Art. 311(2). On receiving the notice in the present case it must have been obvious to the respondent that the findings recorded against him by the enquiring officer had been accepted by the appellants and so, we think it would not be reasonable to accept the view that in the present case, he had no reasonable opportunity as required by Art. 311order to give the delinquent officer a reasonable opportunity to show cause under Art. 311 (2), it is essential that the conclusions provisionally reached by the dismissing authority must, in such cases, be specified in the notice. But where the dismissing authority purports to proceed to issue the notice against the delinquent officer after accepting the enquiry report in its entirety, it cannot be said that the dismissing authority must say that it has so accepted the report. As we have already indicated, it is desirable that even in such cases a statement to that effect should be made. But we do not think that the words used in Art. 311(2) justify the view that the failure to make such a statement amounts to contravention of Art. 311(2).In dealing with this point we must bear in mind the fact that a cony of the enquiry report had been enclosed with the notice, and so reading the notice in a common sense manner, the respondent would not have found any difficulty in realising that the action proposed to be taken against him proceeded on the basis that the appellants had accepted the conclusions of the enquiring officer in theirdoes not mean that in every case, the appropriate authority is under a constitutional obligation to state in the notice that it has accepted the adverse findings recorded by the enquiring officer before it indicates the nature of the action proposed to be taken against the delinquent officer. Therefore, we do not think that the decision of this Court in Khem Chands case, 1958 SCR 1080: (AIR 1958 SC 300 ) supports Mr. Chatterjees contention.In Bimal Charan Mitra v. State of Orissa (5) AIR 1957 Orissa 184 the Orissa High Court has held that "the service of the copy of the findings of the punishing authority On the public servant is mandatory and the service of the report of the enquiring officer who is not the punishing Authority when there is no indication at all in the notice that the authority competent to punish agrees with those findings cannot constitute substantial compliance with the requirements of Art. 311 (2)." This decision seems to suggest that in issuing the notice under Art. 311(2) the appropriate authority must, besides serving the copy of the enquiring officers report on the government servant supply the said officer the finding of the punishing authority and this requirement is treated as a mandatory requirement under Art. 311(2). In our opinion this view is erroneous.The same comment falls to be made about another decision of the said High Court in Krishan. Gopal Mukherjee v. The State, AIR 1960 Orissa 37.The last decision to which reference must be made in the decision of the Bombay High Court in the State of Bombay v. Gajanan Mahadev Badley AIR 1954 Bom 351 . In this case, Chief Justice Chagla has observed that under Art. 311(2) it is not sufficient that the State should call upon the servant to show cause against the quantum of punishment intended to be inflicted upon him; the State must also call upon the servant to show cause against the decision arrived at by a departmental enquiry if that decision constitutes the ground on which the Government proposes to take action against the servant. This view is clearly right. But then in support of this conclusion the learned Chief Justice has observed that the public servant must have an opportunity to show cause not only against the punishment but also against the grounds on which the State proposes to punish him; and Mr. Chatterjee relies upon this sentence to support his argument that the grounds on which the State proposes to act must be communicated to the public servant. In our opinion, the statement must be read along with the conclusion of the High Court and so read it would clearly show that what the Chief Justice intended to lay down was that the findings recorded in the enquiry report which constitute the ground on which the Government proposes to take action must be communicated to the public servant. Therefore, this decision does not support Mr. Chatterjees argument that the notice issued under Art. 311 (2) must expressly state that the appropriate authority accepts the findings of the enquiry officer and must give reasons in support of the action proposed to be taken against him.

IN RE: COGNIZANCE FOR EXTENSION OF LIMITATION Vs.

1. Due to the onset of COVID-19 pandemic, this Court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State). By an order dated 27.03.2020 this Court extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 15.03.2020 was extended from time to time. Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.

1[ds]We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: 1. Due to the onset of COVID-19 pandemic, this Court took suo motu cognizance of the situation arising from difficulties that might be faced by the litigants across the country in filing petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under any special laws (both Central or State). By an order dated 27.03.2020 this Court extended the period of limitation prescribed under the general law or special laws whether compoundable or not with effect from 15.03.2020 till further orders. The order dated 15.03.2020 was extended from time to time. Though, we have not seen the end of the pandemic, there is considerable improvement. The lockdown has been lifted and the country is returning to normalcy. Almost all the Courts and Tribunals are functioning either physically or by virtual mode. We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end. ### Response: 1 ### Explanation: We are of the opinion that the order dated 15.03.2020 has served its purpose and in view of the changing scenario relating to the pandemic, the extension of limitation should come to an end.

Management of The Bangalore Woollen Cotton & Silk Mills Company Limited Vs. B. Dasappa, M.T. Represented By The Binny Mills Labour Association

be refused if the Tribunal is satisfied that the Managements action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis on which the Management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workmans misconduct that the Management has not acted bona fide.A finding that the Management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the Management has reached.In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the Management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.11. It appears to us that in the present case the Tribunal has not followed the principles laid down in above cases. While there are certain observations which might make one think that the Tribunal had in mind the principles that the finding on which permission is asked for had to be perverse before permission could be refused, it is clear that the Tribunal instead of addressing itself to the question whether on the materials on the record the conclusion reached by the Management could reasonably be reached, asked itself the question whether that was the correct conclusion. Thus after recording the view that the question whether Dasappa did go to the dispensary or not had not much bearing on the merits of the case the Tribunal observed : "The main point for consideration is whether from` the material placed before us by the Association it could be concluded that it was the respondent who kept the article underneath the cleaners seat." The question was not whether this could be concluded but whether on the materials on the record any reasonable man could have come to the conclusion that this was true. After discussing the evidence in detail and saying that there was a break in the link in the chain of evidence in so far as the Management had not proved as to where articles of this type had been kept, it proceeded to observed further thus : "We are prepared to observe that the Manager has acted bona fide in the conduct of the enquiry but we are of opinion that having regard to all the circumstances he might not have accepted the version of M. W. 2".12. It is worth noticing that the Tribunal itself recorded a conclusion that there could be no doubt that the article which was discovered from under the cushion was the property of the Hebbal Mills. The Tribunal seems to have been much concerned about the question as to where such articles had been kept on the particular day. We are unable to agree that the absence of proof as to where the article had been kept on the particular day, would be of much assistance. The really important question was whether -leaving out the story of confession which it must be mentioned was retracted almost immediately-the account given by Syed Ameer was believable. The Tribunal rightly thought, whether Dasappa had really gone to the dispensary or not was not of much importance. For even if he had gone to the dispensary it might not have been impossible for him to remove the rug piece from inside the Mill.The Tribunal was not called upon to decide whether in its opinion the evidence given by these witnesses was true but only whether when the Manager stated that he considered this evidence credible, he had acted like a reasonable person.13. We are not concerned in this case with the question whether the view taken by the Tribunal was a better view than the view taken by the Manager. It appears clear that the Tribunal placed the wrong standard before it in addressing to itself the question whether the evidence conclusively proved the guilt of Dasappa. In our opinion, if the correct approach as directed in the decisions of this Court had been applied the Tribunal was bound to come to the conclusion on the materials on the record that a reasonable man could come to the conclusion that Dasappa was guilty of theft and that the Management had acted bona fide.14. The Tribunal has not recorded any finding that the principles of natural justice were not followed. It was faintly suggested by Mr. Jha on behalf of the respondent that the Management ought to have asked Dasappa whether he wanted to adduce any evidence and in so far as this was not done the principles of natural justice had been violated. It does not appear that at any time any complaint was made that Dasappa had not been given an opportunity to adduce evidence. A perusal of the proceedings before the Manager would indicate that the Manager was really anxious to find out the truth of the matter and for that purpose gave every opportunity to Dasappa to cross-examine the witnesses, had the evidence interpreted in Dasappas own language and asked him after cross-examination of almost each of the witnesses whether he had any reason to believe that that witness bore any ill-will or any grudge against him. It couldnt be fairly urged therefore that the principles of natural justice were not observed in this case. Nor is there any justification for thinking that the Management had any intention to victimise this man.15. Our conclusion therefore is that the Tribunal erred in refusing the permission asked for. In view, however, of the undertaking given to us on behalf of the appellant that the proposed order of discharged will not be enforced, it is not necessary for us to make any order granting permission.

0[ds]10. The settled position in law therefore is that permission should be refused if the Tribunal is satisfied that the Managements action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis on which the Management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workmans misconduct that the Management has not acted bona fide.A finding that the Management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the Management has reached.In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the Management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.11. It appears to us that in the present case the Tribunal has not followed the principles laid down in above cases. While there are certain observations which might make one think that the Tribunal had in mind the principles that the finding on which permission is asked for had to be perverse before permission could be refused, it is clear that the Tribunal instead of addressing itself to the question whether on the materials on the record the conclusion reached by the Management could reasonably be reached, asked itself the question whether that was the correct conclusion. Thus after recording the view that the question whether Dasappa did go to the dispensary or not had not much bearing on the merits of the case the Tribunal observed : "The main point for consideration is whether from` the material placed before us by the Association it could be concluded that it was the respondent who kept the article underneath the cleaners seat." The question was not whether this could be concluded but whether on the materials on the record any reasonable man could have come to the conclusion that this was true.It is worth noticing that the Tribunal itself recorded a conclusion that there could be no doubt that the article which was discovered from under the cushion was the property of the Hebbal Mills. The Tribunal seems to have been much concerned about the question as to where such articles had been kept on the particular day. We are unable to agree that the absence of proof as to where the article had been kept on the particular day, would be of much assistance. The really important question was whetherleaving out the story of confession which it must be mentioned was retracted almostaccount given by Syed Ameer was believable. The Tribunal rightly thought, whether Dasappa had really gone to the dispensary or not was not of much importance. For even if he had gone to the dispensary it might not have been impossible for him to remove the rug piece from inside the Mill.The Tribunal was not called upon to decide whether in its opinion the evidence given by these witnesses was true but only whether when the Manager stated that he considered this evidence credible, he had acted like a reasonable person.13. We are not concerned in this case with the question whether the view taken by the Tribunal was a better view than the view taken by the Manager. It appears clear that the Tribunal placed the wrong standard before it in addressing to itself the question whether the evidence conclusively proved the guilt of Dasappa. In our opinion, if the correct approach as directed in the decisions of this Court had been applied the Tribunal was bound to come to the conclusion on the materials on the record that a reasonable man could come to the conclusion that Dasappa was guilty of theft and that the Management had acted bona fide.14. The Tribunal has not recorded any finding that the principles of natural justice were not followed. It was faintly suggested by Mr. Jha on behalf of the respondent that the Management ought to have asked Dasappa whether he wanted to adduce any evidence and in so far as this was not done the principles of natural justice had been violated. It does not appear that at any time any complaint was made that Dasappa had not been given an opportunity to adduce evidence. A perusal of the proceedings before the Manager would indicate that the Manager was really anxious to find out the truth of the matter and for that purpose gave every opportunity to Dasappa tothe witnesses, had the evidence interpreted in Dasappas own language and asked him afterof almost each of the witnesses whether he had any reason to believe that that witness bore anyor any grudge against him. It couldnt be fairly urged therefore that the principles of natural justice were not observed in this case. Nor is there any justification for thinking that the Management had any intention to victimise this man.15. Our conclusion therefore is that the Tribunal erred in refusing the permission asked for. In view, however, of the undertaking given to us on behalf of the appellant that the proposed order of discharged will not be enforced, it is not necessary for us to make any order granting permission.

### 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: be refused if the Tribunal is satisfied that the Managements action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis on which the Management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workmans misconduct that the Management has not acted bona fide.A finding that the Management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the Management has reached.In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the Management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.11. It appears to us that in the present case the Tribunal has not followed the principles laid down in above cases. While there are certain observations which might make one think that the Tribunal had in mind the principles that the finding on which permission is asked for had to be perverse before permission could be refused, it is clear that the Tribunal instead of addressing itself to the question whether on the materials on the record the conclusion reached by the Management could reasonably be reached, asked itself the question whether that was the correct conclusion. Thus after recording the view that the question whether Dasappa did go to the dispensary or not had not much bearing on the merits of the case the Tribunal observed : "The main point for consideration is whether from` the material placed before us by the Association it could be concluded that it was the respondent who kept the article underneath the cleaners seat." The question was not whether this could be concluded but whether on the materials on the record any reasonable man could have come to the conclusion that this was true. After discussing the evidence in detail and saying that there was a break in the link in the chain of evidence in so far as the Management had not proved as to where articles of this type had been kept, it proceeded to observed further thus : "We are prepared to observe that the Manager has acted bona fide in the conduct of the enquiry but we are of opinion that having regard to all the circumstances he might not have accepted the version of M. W. 2".12. It is worth noticing that the Tribunal itself recorded a conclusion that there could be no doubt that the article which was discovered from under the cushion was the property of the Hebbal Mills. The Tribunal seems to have been much concerned about the question as to where such articles had been kept on the particular day. We are unable to agree that the absence of proof as to where the article had been kept on the particular day, would be of much assistance. The really important question was whether -leaving out the story of confession which it must be mentioned was retracted almost immediately-the account given by Syed Ameer was believable. The Tribunal rightly thought, whether Dasappa had really gone to the dispensary or not was not of much importance. For even if he had gone to the dispensary it might not have been impossible for him to remove the rug piece from inside the Mill.The Tribunal was not called upon to decide whether in its opinion the evidence given by these witnesses was true but only whether when the Manager stated that he considered this evidence credible, he had acted like a reasonable person.13. We are not concerned in this case with the question whether the view taken by the Tribunal was a better view than the view taken by the Manager. It appears clear that the Tribunal placed the wrong standard before it in addressing to itself the question whether the evidence conclusively proved the guilt of Dasappa. In our opinion, if the correct approach as directed in the decisions of this Court had been applied the Tribunal was bound to come to the conclusion on the materials on the record that a reasonable man could come to the conclusion that Dasappa was guilty of theft and that the Management had acted bona fide.14. The Tribunal has not recorded any finding that the principles of natural justice were not followed. It was faintly suggested by Mr. Jha on behalf of the respondent that the Management ought to have asked Dasappa whether he wanted to adduce any evidence and in so far as this was not done the principles of natural justice had been violated. It does not appear that at any time any complaint was made that Dasappa had not been given an opportunity to adduce evidence. A perusal of the proceedings before the Manager would indicate that the Manager was really anxious to find out the truth of the matter and for that purpose gave every opportunity to Dasappa to cross-examine the witnesses, had the evidence interpreted in Dasappas own language and asked him after cross-examination of almost each of the witnesses whether he had any reason to believe that that witness bore any ill-will or any grudge against him. It couldnt be fairly urged therefore that the principles of natural justice were not observed in this case. Nor is there any justification for thinking that the Management had any intention to victimise this man.15. Our conclusion therefore is that the Tribunal erred in refusing the permission asked for. In view, however, of the undertaking given to us on behalf of the appellant that the proposed order of discharged will not be enforced, it is not necessary for us to make any order granting permission. ### Response: 0 ### Explanation: 10. The settled position in law therefore is that permission should be refused if the Tribunal is satisfied that the Managements action is not bona fide or that the principles of natural justice have been violated or that the materials on the basis on which the Management came to a certain conclusion could not justify any reasonable person in coming to such a conclusion. In most cases it will happen where the materials are such that no reasonable person could have come to the conclusion as regards the workmans misconduct that the Management has not acted bona fide.A finding that the Management has acted bona fide will ordinarily not be reached if the materials are such that a reasonable man could not have come to the conclusion which the Management has reached.In every case therefore it would be proper for the Tribunal to address itself to the question, after ascertaining that the principles of natural justice have not been violated, whether the materials on which the Management has reached a conclusion adverse to the workman, a reasonable person could reach such a conclusion.11. It appears to us that in the present case the Tribunal has not followed the principles laid down in above cases. While there are certain observations which might make one think that the Tribunal had in mind the principles that the finding on which permission is asked for had to be perverse before permission could be refused, it is clear that the Tribunal instead of addressing itself to the question whether on the materials on the record the conclusion reached by the Management could reasonably be reached, asked itself the question whether that was the correct conclusion. Thus after recording the view that the question whether Dasappa did go to the dispensary or not had not much bearing on the merits of the case the Tribunal observed : "The main point for consideration is whether from` the material placed before us by the Association it could be concluded that it was the respondent who kept the article underneath the cleaners seat." The question was not whether this could be concluded but whether on the materials on the record any reasonable man could have come to the conclusion that this was true.It is worth noticing that the Tribunal itself recorded a conclusion that there could be no doubt that the article which was discovered from under the cushion was the property of the Hebbal Mills. The Tribunal seems to have been much concerned about the question as to where such articles had been kept on the particular day. We are unable to agree that the absence of proof as to where the article had been kept on the particular day, would be of much assistance. The really important question was whetherleaving out the story of confession which it must be mentioned was retracted almostaccount given by Syed Ameer was believable. The Tribunal rightly thought, whether Dasappa had really gone to the dispensary or not was not of much importance. For even if he had gone to the dispensary it might not have been impossible for him to remove the rug piece from inside the Mill.The Tribunal was not called upon to decide whether in its opinion the evidence given by these witnesses was true but only whether when the Manager stated that he considered this evidence credible, he had acted like a reasonable person.13. We are not concerned in this case with the question whether the view taken by the Tribunal was a better view than the view taken by the Manager. It appears clear that the Tribunal placed the wrong standard before it in addressing to itself the question whether the evidence conclusively proved the guilt of Dasappa. In our opinion, if the correct approach as directed in the decisions of this Court had been applied the Tribunal was bound to come to the conclusion on the materials on the record that a reasonable man could come to the conclusion that Dasappa was guilty of theft and that the Management had acted bona fide.14. The Tribunal has not recorded any finding that the principles of natural justice were not followed. It was faintly suggested by Mr. Jha on behalf of the respondent that the Management ought to have asked Dasappa whether he wanted to adduce any evidence and in so far as this was not done the principles of natural justice had been violated. It does not appear that at any time any complaint was made that Dasappa had not been given an opportunity to adduce evidence. A perusal of the proceedings before the Manager would indicate that the Manager was really anxious to find out the truth of the matter and for that purpose gave every opportunity to Dasappa tothe witnesses, had the evidence interpreted in Dasappas own language and asked him afterof almost each of the witnesses whether he had any reason to believe that that witness bore anyor any grudge against him. It couldnt be fairly urged therefore that the principles of natural justice were not observed in this case. Nor is there any justification for thinking that the Management had any intention to victimise this man.15. Our conclusion therefore is that the Tribunal erred in refusing the permission asked for. In view, however, of the undertaking given to us on behalf of the appellant that the proposed order of discharged will not be enforced, it is not necessary for us to make any order granting permission.

K. Raheja Corporation Private Limited & Another Vs. State of Goa Through Its Secretary (Industries) & Others

will not preclude the GIDC from re-considering the applications for allotment made by the companies in accordance with law.100. In those cases, where approvals were granted under the SEZ Act but the SEZs were not notified, the show cause notices have been issued by the Central Government. We have already held that the Central Government has power to withdraw the approvals. It is for the concerned Companies to give reply to the show cause notices. The show cause notices will have to be decided by taking into consideration the fact that the allotment of lands by the GIDC is held to be illegal. In those cases where approvals are not granted under the SEZ Act, it is obvious that the applications/proposals cannot be processed further as the Government of Goa has withdrawn the recommendation. Therefore, no fault can be found with the decision of the Central Government holding that such proposals shall be treated as dropped in as much as the recommendation of the State Government is necessary for grant of approval. As far as three notified SEZs are concerned, the stand of the Central Government is that the Government of Goa should negotiate with the developers. The notifications have been issued on the basis of the allotment of lands by the GIDC. As the allotments of lands are held to be illegal, notifications cannot be acted upon now. In the petitions filed by the companies, there is a challenge to the direction issued by the Government of Goa to the GIDC to revoke the leases. There is also a challenge to the show cause notices issued by the GIDC on the basis of the said direction. As we have held that the allotments made to the said companies is illegal, it is not necessary to deal with the said challenges. In view of the finding recorded by us that the allotment of lands made to the companies is illegal, the possession of the lands will have to be restored to the GIDC. The original owners of the lands have not challenged the acquisition of the said lands. Hence, the player made in the Public Interest Writ Petitions for return of the lands to the original owners cannot be granted. As we have held that the applications for allotment of lands made by the said companies can be considered afresh in accordance with law, we are directing that the parties shall maintain status quo as of today in respect of the said lands for a period of 4 months from today. If the said companies are interested in fresh consideration of their applications for allotment, they are entitled to apply to the GIDC in that behalf. In such event, the applications of the companies shall be considered afresh by the GIDC in accordance with law notwithstanding the direction issued to maintain status quo as of today in respect of the said lands.SUMMARY OF FINDINGS101. The main findings recorded by us can be summarized as under:(i) On the basis of the consideration of the provisions of SEZ Act and the SEZ Rules, we hold that before the Board of Approval approves the proposal and before the Letter of Approval is issued by the Central Government, the State Government can always withdraw its recommendation in case the proposal is initiated under Sub-section (2) of Section 3 of the SEZ Act. In such a case, Approval cannot be granted on the basis of the recommendation which is withdrawn. Even after a Letter of Approval is issued, but before the notification under section 4(1) is issued, the Board of approval and/or the Central Government has a power to withdraw the approval on the basis of withdrawal of the recommendations by the State Government. However, the approval can be cancelled/withdrawn in such a case only after following the principles of natural justice. The fact that several steps have been taken by the developers on the basis of approval will certainly be a relevant consideration which will have to be taken into account by the board.(ii) Whether the Central Government can de-notify a notified SEZ without the consent of the developer is a question which need not be decided in the present Petitions inasmuch as the action of the Central Government of declining to de-notify the SEZ in three cases has not been specifically challenged before us in any of the Petitions.(iii) It is not possible to hold that the said policy decision of withdrawing the earlier SEZ policy is either arbitrary or illegal. The decision is legal which based on consideration of public interest.(iv)There was no direction issued by the State Government in exercise of powers under Section 16 of the GIDC Act to allot any land for the purposes of setting up SEZs.(v) The power under Clause (a) of Section 14 of the transfer of lands vesting in GIDC can be exercised only with a view to ensure establishment, growth and development of industries. Therefore, the exercise of power under Section 14 for grant of land for setting up SEZs will depend on the factual situation such as the purpose for which it is going to be used by the SEZ. If the land is to be allotted or transferred to SEZ predominantly for promoting or establishing or developing industries, then the power to allot can be lawfully exercised.(vi) The allotment of lands to the companies has been made in undue haste without proper scrutiny of their applications. The allotment of lands has been made arbitrarily. Procedure adopted in the allotment is not fair and transparent. The allotments made by the GIDC do not stand the test of reasonableness.(vii) In the present case, considering the decision of the Government of Goa of withdrawal of SEZ policy which based on consideration of public interest, it will be inequitable to hold the State Government or the GIDC to be bound by its alleged promise and representation.(viii) The Writ Petitions filed in public interest are no liable to be dismissed on the ground of delay and latches.

1[ds]CONSIDERATION OF QUESTIONS (a), (b) and (c)forwarding the proposal, the State government is required to attach the copies of the relevant notifications issued by it in this regard. Thus, unless recommendation of the State Government in accordance with(6) of Section 3 read with Rule 4 is received by the Board, an approval cannot be granted by the Board. In case of the second mode, where an application is directly made by the person to the Board, though the board can grant approval, without the concurrence of the State Government, the SEZ cannot be notified under(1) of Section 4. The power to grant recommendation will include power to withdraw the Recommendation. Thus, after recommending a proposal of a person, for the reasons recorded, the State Government can always withdraw its recommendation before the Board grants approval under(9) of Section 3. After recommendation is withdrawn, approval under9 of section 3 cannot be granted by the Board on the basis of the proposal under2 of section 3. Even if the recommendation is withdrawn, the person may make an application in accordance with(3) of Section 2 or even the Central Government can exercise power under the proviso to(4) of Section 3 of the SEZwithout such certificate from the State Government or its authorized agency, a notification under(1) of Section 4 cannot be issued even in case where the second mode has been adopted by the persons concerned. Thus, even after approval is granted, without certification by the State Government or its authorized agency, the Notification under Section 4(1) cannot beapproved units come into existence only after the approval is granted in accordance with Section 15 and, therefore, before publication of the notification under(1) of Section 4, no approved unit in the SEZ can be in existence. Therefore, the submission made that under(13) of Section 3, a developer can allocate space or built up area to the entrepreneur even before the Notification under(1) of Section 4 is issued cannot becopies of the agreements are not placed on record. Even in this petition, there is no pleading that approval has been granted under section 15 to the units proposed to be set up by the Cipla limited.The stand taken by the Assistant Solicitor General of India is that the Central Government has power to effect cancellation of the notification under section 4(1), but in the present case, in respect of three notified SEZs, it has been decided not to exercise the said powers. In fact, he has placed on record extracts of minutes of 41st meeting of the Board of Approval resolving toa particular SEZ at a particular place. Whether the Central Government cana notified SEZ without the consent of the developer is a question which need not be decided in the present Petitions inasmuch as the action of the Central Government of declining tothe SEZ in three cases has not been specifically challenged before us in any of the Petitions. Thus, on the basis of the consideration of the provisions of SEZ Act and the SEZ Rules, we hold that before the Board of Approval approves the proposal and before the Letter of Approval is issued by the Central Government, the State Government can always withdraw its recommendation in case the proposal is initiated under(2) of Section 3 of the SEZ Act. In such a case, Approval cannot be granted on the basis of the recommendation which is withdrawn. Even after a Letter of Approval is issued, but before the notification under section 4(1) is issued, the board and/or the Central Government has a power to withdraw the approval on the basis of withdrawal of the recommendations by the State Government. However, the approval can be cancelled or withdrawn in such a case only after following the principles of natural justice. The fact that several steps have been taken by the developer on the basis of approval will certainly be a relevant consideration which will have to be taken into account by thethe circumstances, it is not possible to hold that the decision of the State Government to withdraw from SEZ Policy is arbitrary and that it is based only on public outcry. An argument has been canvassed across the bar that the industrial policy adopted by the Government of Goa for the year 2003 makes a reference to the establishment of setting up of SEZs. It must be stated here that the said industrial policy was formulated prior to coming into force of the SEZ Act and the Policy of 2006 is a policy regarding setting up of SEZ in terms of the SEZ Act. After the SEZ Act came into force, the SEZs can be established only under the said Act. The Policy formulated in the year 2006 has been withdrawn by a subsequent policy decision approved by the Council ofthe present cases, the companies have not shown any breach of the constitutional provisions. The role played by a State Government under the scheme of SEZ Act is already discussed in detail. It is for the state to decide whether a recommendation can be made or consent can be given for setting up SEZ in the state and therefore, the state has power to formulate policy in that behalf. There are no mala fides alleged or shown. The policy decision is stated to be taken in public interest. It is based on consideration of reports and relevant factors. It is impossible to hold that the said policy decision of withdrawing the earlier policy is either arbitrary or illegal. Another question is whether the doctrine of promissory estoppel will prevent the State Government from applying the said decision to the said companies. The said aspect is discussedthe GIDC can hold lands which are either acquired under the said Act of 1894 or which are vested in it by the State Government. In the present case, we are concerned with the lands acquired under the said Act of 1984. Therefore, the lands which are available at the disposal of the GIDC are public properties and, therefore, the GIDC is under an obligation to sell or transfer the lands by acting fairly.Inview of the law laid down by the Apex Court, the GIDC cannot arbitrarily allot lands vested in it and the alienations made by the GIDC must stand the test of reasonableness. The allotment of the public properties vested in the GIDC can be made only in a fair and transparent manner and that also in public interest. Therefore, the action of allotment of large tracts of lands to the companies will have to be tested on the touchstone ofit can be safely concluded that there was no direction issued by the State Government in exercise of powers under Section 16 of the GIDC Act to allot any land for the purposes of setting upit is clear that none of the 3 applications made by the said company which were on record contained a request for grant of land for the purpose of setting up SEZ. It is not the case made out that any other application apart from the said 3 applications was made by the said company. Moreover, the board of the GIDC did not consider the application made by the said company on 2nd March 2006. From the resolution passed by the board it appears that what was considered by the board was a request made by the said company to the State Government to allot the land. There is no communication in writing by the state government in that behalf except for the noting made by the Industries Minister "in principle approval be given". There is a note of the Chief Secretary which records that the managing director should advise the said company to apply under the SEZ Act. There is no request either by the said company or by the State Government to allot the land for setting up a Special Economic Zone though the Resolution passed by the Board makes a reference to it. Even in this Case, there is nothing placed on record to show that any scrutiny of the application of the said Company was made. In fact the decision of the Board shows that the Application made by the said company to GIDC was not considered by the board and what was considered was the "request" of theis nothing on record to show that project reports were filed by the companies. There is nothing on record to show that any further documents showing their experience and financial capacity were placed before the GIDC. There is no application of mind by the GIDC. Before allotment of such large lands there was absolutely no scrutiny of the applications and the applicants with reference to their experience in the field and financialallotment is not in respect of small plots of land but allotment is in respect of the lands which exceed an area of 30,00,000 sq. meter to selected few companies. Assuming that in April, 2006, the Board was to hold a meeting and grant permission for setting up 100 SEZs, such huge public property could not have been allotted by the GIDC in such arbitrary and irrational manner. We are not even going to the controversy about the rates at which the lands were allotted. There is no transparency in the procedure for allotment of lands by the GIDC.There were extensive submissions made in the public interest litigation based on the report of the Comptroller and Auditor General of India. It is pointed out that serious irregularities and illegalities in the allotment of lands in favour of the Companies have been recorded in said report (hereinafter referred to as "the CAG Report.)" Reliance is placed on Chapter VII of the said CAG Report and it was contended that to the several irregularities and illegalities pointed out in the report, there is no answer by the GIDC. It must be noted at this stage that in view of Article 151 of the Constitution of India and in particular Clause (2) thereof, the report will have to be placed by the Honourable Governor before the Legislature of the State and it is for the Legislature for the State to take further steps in that behalf. The report is recommendatory in nature and as of today, the same is not placed before the Legislature. Therefore, the argument based on the CAG report cannot be taken intohave already held for the reasons recorded that the decision of the Government of Goa of the withdrawal of its Special Economic Zones policy is legal and valid. The said decision is guided by considerations of larger public interest. The State Government found that setting up of Special Economic Zones will not be in larger public interest. Various aspects including its effect on resources of the State and possibility of large scale migrations have been considered by the State Government. Therefore, in the present case, considering the decision of the Government of Goa of withdrawal of SEZ policy which is based on consideration of public interest, it will be inequitable to hold the State Government or the GIDC to be bound by its alleged promise and representation. Though the allotments made to the companies is illegal, their Applications can be considered afresh by the GIDC for allotment of the same lands for any lawful purpose except for setting up of special economic zones. If fresh allotment cannot be made, the GIDC will have to refund the amounts received towards deposit, lease premium, interest and rent as per notice dated 13th June 2008 at the time of the companies handing over the possession of lands.By carrying out amendment to the Writ Petitions Nos.310,314 and 316 of 2008, a challenge was also made to the grant of approvals and notifications under the SEZ Act. The Writ Petitions were filed in April, 2008 and therefore, it cannot be said that due to the alleged delay and latches on the part of the Petitioners in PIL Writ Petitions, the companies have materially changed their position. The Petitioners in the said three petitions filed the Petitions after securing copies of relevant documents by making applications under the Right to information Act. Therefore, there is no undue delay in filing these petitions. Considering the averments in the Petitions and material on record, the Petitioners have approached the Courtwe are not going into the legality and validity of the direction under However, this will not preclude the GIDC fromthe applications for allotment made by the companies in accordance with law.100. In those cases, where approvals were granted under the SEZ Act but the SEZs were not notified, the show cause notices have been issued by the Central Government. We have already held that the Central Government has power to withdraw the approvals. It is for the concerned Companies to give reply to the show cause notices. The show cause notices will have to be decided by taking into consideration the fact that the allotment of lands by the GIDC is held to be illegal. In those cases where approvals are not granted under the SEZ Act, it is obvious that the applications/proposals cannot be processed further as the Government of Goa has withdrawn the recommendation. Therefore, no fault can be found with the decision of the Central Government holding that such proposals shall be treated as dropped in as much as the recommendation of the State Government is necessary for grant of approval. As far as three notified SEZs are concerned, the stand of the Central Government is that the Government of Goa should negotiate with the developers. The notifications have been issued on the basis of the allotment of lands by the GIDC. As the allotments of lands are held to be illegal, notifications cannot be acted upon now. In the petitions filed by the companies, there is a challenge to the direction issued by the Government of Goa to the GIDC to revoke the leases. There is also a challenge to the show cause notices issued by the GIDC on the basis of the saidwe have held that the allotments made to the said companies is illegal, it is not necessary to deal with the said challenges. In view of the finding recorded by us that the allotment of lands made to the companies is illegal, the possession of the lands will have to be restored to the GIDC. The original owners of the lands have not challenged the acquisition of the said lands. Hence, the player made in the Public Interest Writ Petitions for return of the lands to the original owners cannot be granted. As we have held that the applications for allotment of lands made by the said companies can be considered afresh in accordance with law, we are directing that the parties shall maintain status quo as of today in respect of the said lands for a period of 4 months from today. If the said companies are interested in fresh consideration of their applications for allotment, they are entitled to apply to the GIDC in that behalf. In such event, the applications of the companies shall be considered afresh by the GIDC in accordance with law notwithstanding the direction issued to maintain status quo as of today in respect of the said lands.The main findings recorded by us can be summarized as under:(i) On the basis of the consideration of the provisions of SEZ Act and the SEZ Rules, we hold that before the Board of Approval approves the proposal and before the Letter of Approval is issued by the Central Government, the State Government can always withdraw its recommendation in case the proposal is initiated under(2) of Section 3 of the SEZ Act. In such a case, Approval cannot be granted on the basis of the recommendation which is withdrawn. Even after a Letter of Approval is issued, but before the notification under section 4(1) is issued, the Board of approval and/or the Central Government has a power to withdraw the approval on the basis of withdrawal of the recommendations by the State Government. However, the approval can be cancelled/withdrawn in such a case only after following the principles of natural justice. The fact that several steps have been taken by the developers on the basis of approval will certainly be a relevant consideration which will have to be taken into account by the board.(ii) Whether the Central Government cana notified SEZ without the consent of the developer is a question which need not be decided in the present Petitions inasmuch as the action of the Central Government of declining tothe SEZ in three cases has not been specifically challenged before us in any of the Petitions.(iii) It is not possible to hold that the said policy decision of withdrawing the earlier SEZ policy is either arbitrary or illegal. The decision is legal which based on consideration of public interest.(iv)There was no direction issued by the State Government in exercise of powers under Section 16 of the GIDC Act to allot any land for the purposes of setting up SEZs.(v) The power under Clause (a) of Section 14 of the transfer of lands vesting in GIDC can be exercised only with a view to ensure establishment, growth and development of industries. Therefore, the exercise of power under Section 14 for grant of land for setting up SEZs will depend on the factual situation such as the purpose for which it is going to be used by the SEZ. If the land is to be allotted or transferred to SEZ predominantly for promoting or establishing or developing industries, then the power to allot can be lawfully exercised.(vi) The allotment of lands to the companies has been made in undue haste without proper scrutiny of their applications. The allotment of lands has been made arbitrarily. Procedure adopted in the allotment is not fair and transparent. The allotments made by the GIDC do not stand the test of reasonableness.(vii) In the present case, considering the decision of the Government of Goa of withdrawal of SEZ policy which based on consideration of public interest, it will be inequitable to hold the State Government or the GIDC to be bound by its alleged promise and representation.(viii) The Writ Petitions filed in public interest are no liable to be dismissed on the ground of delay and latches.

### 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: will not preclude the GIDC from re-considering the applications for allotment made by the companies in accordance with law.100. In those cases, where approvals were granted under the SEZ Act but the SEZs were not notified, the show cause notices have been issued by the Central Government. We have already held that the Central Government has power to withdraw the approvals. It is for the concerned Companies to give reply to the show cause notices. The show cause notices will have to be decided by taking into consideration the fact that the allotment of lands by the GIDC is held to be illegal. In those cases where approvals are not granted under the SEZ Act, it is obvious that the applications/proposals cannot be processed further as the Government of Goa has withdrawn the recommendation. Therefore, no fault can be found with the decision of the Central Government holding that such proposals shall be treated as dropped in as much as the recommendation of the State Government is necessary for grant of approval. As far as three notified SEZs are concerned, the stand of the Central Government is that the Government of Goa should negotiate with the developers. The notifications have been issued on the basis of the allotment of lands by the GIDC. As the allotments of lands are held to be illegal, notifications cannot be acted upon now. In the petitions filed by the companies, there is a challenge to the direction issued by the Government of Goa to the GIDC to revoke the leases. There is also a challenge to the show cause notices issued by the GIDC on the basis of the said direction. As we have held that the allotments made to the said companies is illegal, it is not necessary to deal with the said challenges. In view of the finding recorded by us that the allotment of lands made to the companies is illegal, the possession of the lands will have to be restored to the GIDC. The original owners of the lands have not challenged the acquisition of the said lands. Hence, the player made in the Public Interest Writ Petitions for return of the lands to the original owners cannot be granted. As we have held that the applications for allotment of lands made by the said companies can be considered afresh in accordance with law, we are directing that the parties shall maintain status quo as of today in respect of the said lands for a period of 4 months from today. If the said companies are interested in fresh consideration of their applications for allotment, they are entitled to apply to the GIDC in that behalf. In such event, the applications of the companies shall be considered afresh by the GIDC in accordance with law notwithstanding the direction issued to maintain status quo as of today in respect of the said lands.SUMMARY OF FINDINGS101. The main findings recorded by us can be summarized as under:(i) On the basis of the consideration of the provisions of SEZ Act and the SEZ Rules, we hold that before the Board of Approval approves the proposal and before the Letter of Approval is issued by the Central Government, the State Government can always withdraw its recommendation in case the proposal is initiated under Sub-section (2) of Section 3 of the SEZ Act. In such a case, Approval cannot be granted on the basis of the recommendation which is withdrawn. Even after a Letter of Approval is issued, but before the notification under section 4(1) is issued, the Board of approval and/or the Central Government has a power to withdraw the approval on the basis of withdrawal of the recommendations by the State Government. However, the approval can be cancelled/withdrawn in such a case only after following the principles of natural justice. The fact that several steps have been taken by the developers on the basis of approval will certainly be a relevant consideration which will have to be taken into account by the board.(ii) Whether the Central Government can de-notify a notified SEZ without the consent of the developer is a question which need not be decided in the present Petitions inasmuch as the action of the Central Government of declining to de-notify the SEZ in three cases has not been specifically challenged before us in any of the Petitions.(iii) It is not possible to hold that the said policy decision of withdrawing the earlier SEZ policy is either arbitrary or illegal. The decision is legal which based on consideration of public interest.(iv)There was no direction issued by the State Government in exercise of powers under Section 16 of the GIDC Act to allot any land for the purposes of setting up SEZs.(v) The power under Clause (a) of Section 14 of the transfer of lands vesting in GIDC can be exercised only with a view to ensure establishment, growth and development of industries. Therefore, the exercise of power under Section 14 for grant of land for setting up SEZs will depend on the factual situation such as the purpose for which it is going to be used by the SEZ. If the land is to be allotted or transferred to SEZ predominantly for promoting or establishing or developing industries, then the power to allot can be lawfully exercised.(vi) The allotment of lands to the companies has been made in undue haste without proper scrutiny of their applications. The allotment of lands has been made arbitrarily. Procedure adopted in the allotment is not fair and transparent. The allotments made by the GIDC do not stand the test of reasonableness.(vii) In the present case, considering the decision of the Government of Goa of withdrawal of SEZ policy which based on consideration of public interest, it will be inequitable to hold the State Government or the GIDC to be bound by its alleged promise and representation.(viii) The Writ Petitions filed in public interest are no liable to be dismissed on the ground of delay and latches. ### Response: 1 ### Explanation: are not going into the legality and validity of the direction under However, this will not preclude the GIDC fromthe applications for allotment made by the companies in accordance with law.100. In those cases, where approvals were granted under the SEZ Act but the SEZs were not notified, the show cause notices have been issued by the Central Government. We have already held that the Central Government has power to withdraw the approvals. It is for the concerned Companies to give reply to the show cause notices. The show cause notices will have to be decided by taking into consideration the fact that the allotment of lands by the GIDC is held to be illegal. In those cases where approvals are not granted under the SEZ Act, it is obvious that the applications/proposals cannot be processed further as the Government of Goa has withdrawn the recommendation. Therefore, no fault can be found with the decision of the Central Government holding that such proposals shall be treated as dropped in as much as the recommendation of the State Government is necessary for grant of approval. As far as three notified SEZs are concerned, the stand of the Central Government is that the Government of Goa should negotiate with the developers. The notifications have been issued on the basis of the allotment of lands by the GIDC. As the allotments of lands are held to be illegal, notifications cannot be acted upon now. In the petitions filed by the companies, there is a challenge to the direction issued by the Government of Goa to the GIDC to revoke the leases. There is also a challenge to the show cause notices issued by the GIDC on the basis of the saidwe have held that the allotments made to the said companies is illegal, it is not necessary to deal with the said challenges. In view of the finding recorded by us that the allotment of lands made to the companies is illegal, the possession of the lands will have to be restored to the GIDC. The original owners of the lands have not challenged the acquisition of the said lands. Hence, the player made in the Public Interest Writ Petitions for return of the lands to the original owners cannot be granted. As we have held that the applications for allotment of lands made by the said companies can be considered afresh in accordance with law, we are directing that the parties shall maintain status quo as of today in respect of the said lands for a period of 4 months from today. If the said companies are interested in fresh consideration of their applications for allotment, they are entitled to apply to the GIDC in that behalf. In such event, the applications of the companies shall be considered afresh by the GIDC in accordance with law notwithstanding the direction issued to maintain status quo as of today in respect of the said lands.The main findings recorded by us can be summarized as under:(i) On the basis of the consideration of the provisions of SEZ Act and the SEZ Rules, we hold that before the Board of Approval approves the proposal and before the Letter of Approval is issued by the Central Government, the State Government can always withdraw its recommendation in case the proposal is initiated under(2) of Section 3 of the SEZ Act. In such a case, Approval cannot be granted on the basis of the recommendation which is withdrawn. Even after a Letter of Approval is issued, but before the notification under section 4(1) is issued, the Board of approval and/or the Central Government has a power to withdraw the approval on the basis of withdrawal of the recommendations by the State Government. However, the approval can be cancelled/withdrawn in such a case only after following the principles of natural justice. The fact that several steps have been taken by the developers on the basis of approval will certainly be a relevant consideration which will have to be taken into account by the board.(ii) Whether the Central Government cana notified SEZ without the consent of the developer is a question which need not be decided in the present Petitions inasmuch as the action of the Central Government of declining tothe SEZ in three cases has not been specifically challenged before us in any of the Petitions.(iii) It is not possible to hold that the said policy decision of withdrawing the earlier SEZ policy is either arbitrary or illegal. The decision is legal which based on consideration of public interest.(iv)There was no direction issued by the State Government in exercise of powers under Section 16 of the GIDC Act to allot any land for the purposes of setting up SEZs.(v) The power under Clause (a) of Section 14 of the transfer of lands vesting in GIDC can be exercised only with a view to ensure establishment, growth and development of industries. Therefore, the exercise of power under Section 14 for grant of land for setting up SEZs will depend on the factual situation such as the purpose for which it is going to be used by the SEZ. If the land is to be allotted or transferred to SEZ predominantly for promoting or establishing or developing industries, then the power to allot can be lawfully exercised.(vi) The allotment of lands to the companies has been made in undue haste without proper scrutiny of their applications. The allotment of lands has been made arbitrarily. Procedure adopted in the allotment is not fair and transparent. The allotments made by the GIDC do not stand the test of reasonableness.(vii) In the present case, considering the decision of the Government of Goa of withdrawal of SEZ policy which based on consideration of public interest, it will be inequitable to hold the State Government or the GIDC to be bound by its alleged promise and representation.(viii) The Writ Petitions filed in public interest are no liable to be dismissed on the ground of delay and latches.

Central Bank of India Limited Vs. Sirir Kumar Shaw

respondents application filed under S.33C (2) of the Industrial Disputes Act. This appeal has been filed in pursuance of special leave granted by this Court.2. In order to understand the point implied in this case it is not necessary to refer to the details of the Sastry Award of 1953 or the Desai Award which ceased to apply in the year 1966. The bipartite agreement referred to earlier was entered into between the parties thereafter. Paragraph 5.2 of that agreement deals with the special allowance payable to the clerical staff. Twenty categories are listed under this and category (six) is "special Assistants". In paragraph 5.6 of that agreement the special allowance provided for under paragraph 5.2 is said to be intended to compensate a workman for performance or discharge of certain additional duties and functions requiring greater skill or responsibilities, over and above the routine duties and functions of a workman in the same cadre. The additional duties and functions involving greater skill or responsibility which would entitle a workman to a special allowance, are more particularly enumerated, for each category of workmen, in Appendix B. In that Appendix the portion relevant for our purpose is the following :(i) .................................(ii) Signing vouchers, cheques, drafts, pay orders, advices, bill schedules, statements, certificates, etc.,(iii) Checking all vouchers, advices, statements, bill returns, books of accounts, etc.,(iv) .................................The Labour Court noted from the respondents evidence that his duties as the clearing house representative included (i) receiving of cheques, (ii) posting of cheques in sheets with supplied by the Central Bank of India Ltd., (iii) comparison of total in sheets with the books of the Bank mentioned in the sheets, (iv) scrutinising of vouchers received along with cheques, (v) preparation of debit and credit clearing vouchers for submission to the Reserve Bank, and (vi) attending the duties at special clearings on behalf of the Bank. Exhibit 5 is one of the sheets in which posting was made by the respondent. Exhibits 6 and 7 are the debit and credit slips or vouchers prepared by him. He also prepared the debit and credit statements like Exts. 9 and 10.3. Now the procedure in the clearing house appears to be this : Each bank sends a representative to the clearing house which is maintained by the Reserve Bank of India with all cheques paid into it by its customers and drawn on various other banks. They also send their books for this purpose and send vouchers along with the cheques. In the clearing house they receive the cheques drawn only various persons on their bank but paid into their accounts in other banks. Therefore Ext. 5 gives an idea of the cheques delivered by the Central Bank of India on 6-5-1969 on the left hand column and the cheques received by it on the right-hand column. When the representative of the Central Bank of India goes to the clearing house he should have had the left hand column filled up and thereafter on receiving the various cheques from other banks and checking them up with the books from those banks brought by the clearing house representatives of those banks as also the vouchers brought by them make the entries on the right hand side of Ext. 5. On that day the Central bank of India delivered cheques worth Rs. 1, 60, 31, 043.50 and received cheques worth Rs. 189, 31.205.26. Therefore, it had to pay Rs. 29, 00, 161.76. On the same day in the special clearing house the Central Bank of India delivered cheques worth Rs. 4, 43, 233.67 and received cheques worth Rs. 1.51, 396.77. There was, therefore, a credit of Rs. 2, 91, 836.90 in favour of the Central Bank of India and clearing receipt thereof is Ext. 6. Exhibit 7 shows the clearing house receipt in favour of Reserve bank of India of Rs. 29, 00.161.76 to which we referred earlier. Exhibits 9 and 10 are authorisations to either debit or credit the account of the Central Bank of India in respect of the same just now mentioned. A mere mention of the duties of the clearing house representative will show how important his duties are. Rule 12(a) of the Calcutta Clearing House Rules provide :Each member bank shall be represented in the clearing house by a competent clerk who shall deliver and receive the documents coloured. One or more assistant clerks shall also attend, when required, so that these may be no delay in closing the clearing."Now clearly what the respondent was doing amounts to checking of vouchers, statements and signing vouchers. Admittedly in order to be entitled to the special allowance one need not do all the duties mentioned in Appendix B. The evidence of Mr. B. B. Ojha, Witness No. 2 who in charge of the clearing department of the Central bank of India also shows that the respondent did the comparison and checking. It is unnecessary to say anything more. These facts establish that the respondent was discharging additional duties and functions requiring greater skill or responsibilities, over and above the routine duties and functions of a workman in the same cadre as required under paragraph 5.6 of the bipartite agreement in accordance with appendix "B" to the agreement.5. There is some slight difficulty in interpreting the term "Special Assistant." It appears that there is a category of persons called special assistants. They also get the special allowance mentioned in paragraph 5.2 if they do any of the duties mentioned in Appendix "B".6. Paragraph 5.6 which is general in terms does not refer to a special assistant alone being entitled to special allowance. It is obvious from reading of that paragraph that all workmen are entitled to special allowance provided they discharge certain additional duties and functions requiring greater skills or responsibilities over and above routine duties and functions of a workmen in the same cadre mentioned in Appendix B. The fact that the respondent was not called a special Assistant dose not make any difference to this situation.

0[ds]3. Now the procedure in the clearing house appears to be this : Each bank sends a representative to the clearing house which is maintained by the Reserve Bank of India with all cheques paid into it by its customers and drawn on various other banks. They also send their books for this purpose and send vouchers along with the cheques. In the clearing house they receive the cheques drawn only various persons on their bank but paid into their accounts in other banks. Therefore Ext. 5 gives an idea of the cheques delivered by the Central Bank of India onon the left hand column and the cheques received by it on thecolumn. When the representative of the Central Bank of India goes to the clearing house he should have had the left hand column filled up and thereafter on receiving the various cheques from other banks and checking them up with the books from those banks brought by the clearing house representatives of those banks as also the vouchers brought by them make the entries on the right hand side of Ext. 5. On that day the Central bank of India delivered cheques worth Rs. 1, 60, 31, 043.50 and received cheques worth Rs. 189, 31.205.26. Therefore, it had to pay Rs. 29, 00, 161.76. On the same day in the special clearing house the Central Bank of India delivered cheques worth Rs. 4, 43, 233.67 and received cheques worth Rs. 1.51, 396.77. There was, therefore, a credit of Rs. 2, 91, 836.90 in favour of the Central Bank of India and clearing receipt thereof is Ext. 6. Exhibit 7 shows the clearing house receipt in favour of Reserve bank of India of Rs. 29, 00.161.76 to which we referred earlier. Exhibits 9 and 10 are authorisations to either debit or credit the account of the Central Bank of India in respect of the same just now mentioned. A mere mention of the duties of the clearing house representative will show how important his duties are. Rule 12(a) of the Calcutta Clearing House Rules provide :Each member bank shall be represented in the clearing house by a competent clerk who shall deliver and receive the documents coloured. One or more assistant clerks shall also attend, when required, so that these may be no delay in closing the clearing."Now clearly what the respondent was doing amounts to checking of vouchers, statements and signing vouchers. Admittedly in order to be entitled to the special allowance one need not do all the duties mentioned in Appendix B. The evidence of Mr. B. B. Ojha, Witness No. 2 who in charge of the clearing department of the Central bank of India also shows that the respondent did the comparison and checking. It is unnecessary to say anything more. These facts establish that the respondent was discharging additional duties and functions requiring greater skill or responsibilities, over and above the routine duties and functions of a workman in the same cadre as required under paragraph 5.6 of the bipartite agreement in accordance with appendix "B" to the agreement.5. There is some slight difficulty in interpreting the term "Special Assistant." It appears that there is a category of persons called special assistants. They also get the special allowance mentioned in paragraph 5.2 if they do any of the duties mentioned in Appendix "B".6. Paragraph 5.6 which is general in terms does not refer to a special assistant alone being entitled to special allowance. It is obvious from reading of that paragraph that all workmen are entitled to special allowance provided they discharge certain additional duties and functions requiring greater skills or responsibilities over and above routine duties and functions of a workmen in the same cadre mentioned in Appendix B. The fact that the respondent was not called a special Assistant dose not make any difference to this situation.

### 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: respondents application filed under S.33C (2) of the Industrial Disputes Act. This appeal has been filed in pursuance of special leave granted by this Court.2. In order to understand the point implied in this case it is not necessary to refer to the details of the Sastry Award of 1953 or the Desai Award which ceased to apply in the year 1966. The bipartite agreement referred to earlier was entered into between the parties thereafter. Paragraph 5.2 of that agreement deals with the special allowance payable to the clerical staff. Twenty categories are listed under this and category (six) is "special Assistants". In paragraph 5.6 of that agreement the special allowance provided for under paragraph 5.2 is said to be intended to compensate a workman for performance or discharge of certain additional duties and functions requiring greater skill or responsibilities, over and above the routine duties and functions of a workman in the same cadre. The additional duties and functions involving greater skill or responsibility which would entitle a workman to a special allowance, are more particularly enumerated, for each category of workmen, in Appendix B. In that Appendix the portion relevant for our purpose is the following :(i) .................................(ii) Signing vouchers, cheques, drafts, pay orders, advices, bill schedules, statements, certificates, etc.,(iii) Checking all vouchers, advices, statements, bill returns, books of accounts, etc.,(iv) .................................The Labour Court noted from the respondents evidence that his duties as the clearing house representative included (i) receiving of cheques, (ii) posting of cheques in sheets with supplied by the Central Bank of India Ltd., (iii) comparison of total in sheets with the books of the Bank mentioned in the sheets, (iv) scrutinising of vouchers received along with cheques, (v) preparation of debit and credit clearing vouchers for submission to the Reserve Bank, and (vi) attending the duties at special clearings on behalf of the Bank. Exhibit 5 is one of the sheets in which posting was made by the respondent. Exhibits 6 and 7 are the debit and credit slips or vouchers prepared by him. He also prepared the debit and credit statements like Exts. 9 and 10.3. Now the procedure in the clearing house appears to be this : Each bank sends a representative to the clearing house which is maintained by the Reserve Bank of India with all cheques paid into it by its customers and drawn on various other banks. They also send their books for this purpose and send vouchers along with the cheques. In the clearing house they receive the cheques drawn only various persons on their bank but paid into their accounts in other banks. Therefore Ext. 5 gives an idea of the cheques delivered by the Central Bank of India on 6-5-1969 on the left hand column and the cheques received by it on the right-hand column. When the representative of the Central Bank of India goes to the clearing house he should have had the left hand column filled up and thereafter on receiving the various cheques from other banks and checking them up with the books from those banks brought by the clearing house representatives of those banks as also the vouchers brought by them make the entries on the right hand side of Ext. 5. On that day the Central bank of India delivered cheques worth Rs. 1, 60, 31, 043.50 and received cheques worth Rs. 189, 31.205.26. Therefore, it had to pay Rs. 29, 00, 161.76. On the same day in the special clearing house the Central Bank of India delivered cheques worth Rs. 4, 43, 233.67 and received cheques worth Rs. 1.51, 396.77. There was, therefore, a credit of Rs. 2, 91, 836.90 in favour of the Central Bank of India and clearing receipt thereof is Ext. 6. Exhibit 7 shows the clearing house receipt in favour of Reserve bank of India of Rs. 29, 00.161.76 to which we referred earlier. Exhibits 9 and 10 are authorisations to either debit or credit the account of the Central Bank of India in respect of the same just now mentioned. A mere mention of the duties of the clearing house representative will show how important his duties are. Rule 12(a) of the Calcutta Clearing House Rules provide :Each member bank shall be represented in the clearing house by a competent clerk who shall deliver and receive the documents coloured. One or more assistant clerks shall also attend, when required, so that these may be no delay in closing the clearing."Now clearly what the respondent was doing amounts to checking of vouchers, statements and signing vouchers. Admittedly in order to be entitled to the special allowance one need not do all the duties mentioned in Appendix B. The evidence of Mr. B. B. Ojha, Witness No. 2 who in charge of the clearing department of the Central bank of India also shows that the respondent did the comparison and checking. It is unnecessary to say anything more. These facts establish that the respondent was discharging additional duties and functions requiring greater skill or responsibilities, over and above the routine duties and functions of a workman in the same cadre as required under paragraph 5.6 of the bipartite agreement in accordance with appendix "B" to the agreement.5. There is some slight difficulty in interpreting the term "Special Assistant." It appears that there is a category of persons called special assistants. They also get the special allowance mentioned in paragraph 5.2 if they do any of the duties mentioned in Appendix "B".6. Paragraph 5.6 which is general in terms does not refer to a special assistant alone being entitled to special allowance. It is obvious from reading of that paragraph that all workmen are entitled to special allowance provided they discharge certain additional duties and functions requiring greater skills or responsibilities over and above routine duties and functions of a workmen in the same cadre mentioned in Appendix B. The fact that the respondent was not called a special Assistant dose not make any difference to this situation. ### Response: 0 ### Explanation: 3. Now the procedure in the clearing house appears to be this : Each bank sends a representative to the clearing house which is maintained by the Reserve Bank of India with all cheques paid into it by its customers and drawn on various other banks. They also send their books for this purpose and send vouchers along with the cheques. In the clearing house they receive the cheques drawn only various persons on their bank but paid into their accounts in other banks. Therefore Ext. 5 gives an idea of the cheques delivered by the Central Bank of India onon the left hand column and the cheques received by it on thecolumn. When the representative of the Central Bank of India goes to the clearing house he should have had the left hand column filled up and thereafter on receiving the various cheques from other banks and checking them up with the books from those banks brought by the clearing house representatives of those banks as also the vouchers brought by them make the entries on the right hand side of Ext. 5. On that day the Central bank of India delivered cheques worth Rs. 1, 60, 31, 043.50 and received cheques worth Rs. 189, 31.205.26. Therefore, it had to pay Rs. 29, 00, 161.76. On the same day in the special clearing house the Central Bank of India delivered cheques worth Rs. 4, 43, 233.67 and received cheques worth Rs. 1.51, 396.77. There was, therefore, a credit of Rs. 2, 91, 836.90 in favour of the Central Bank of India and clearing receipt thereof is Ext. 6. Exhibit 7 shows the clearing house receipt in favour of Reserve bank of India of Rs. 29, 00.161.76 to which we referred earlier. Exhibits 9 and 10 are authorisations to either debit or credit the account of the Central Bank of India in respect of the same just now mentioned. A mere mention of the duties of the clearing house representative will show how important his duties are. Rule 12(a) of the Calcutta Clearing House Rules provide :Each member bank shall be represented in the clearing house by a competent clerk who shall deliver and receive the documents coloured. One or more assistant clerks shall also attend, when required, so that these may be no delay in closing the clearing."Now clearly what the respondent was doing amounts to checking of vouchers, statements and signing vouchers. Admittedly in order to be entitled to the special allowance one need not do all the duties mentioned in Appendix B. The evidence of Mr. B. B. Ojha, Witness No. 2 who in charge of the clearing department of the Central bank of India also shows that the respondent did the comparison and checking. It is unnecessary to say anything more. These facts establish that the respondent was discharging additional duties and functions requiring greater skill or responsibilities, over and above the routine duties and functions of a workman in the same cadre as required under paragraph 5.6 of the bipartite agreement in accordance with appendix "B" to the agreement.5. There is some slight difficulty in interpreting the term "Special Assistant." It appears that there is a category of persons called special assistants. They also get the special allowance mentioned in paragraph 5.2 if they do any of the duties mentioned in Appendix "B".6. Paragraph 5.6 which is general in terms does not refer to a special assistant alone being entitled to special allowance. It is obvious from reading of that paragraph that all workmen are entitled to special allowance provided they discharge certain additional duties and functions requiring greater skills or responsibilities over and above routine duties and functions of a workmen in the same cadre mentioned in Appendix B. The fact that the respondent was not called a special Assistant dose not make any difference to this situation.

PRAKASH CHAND MEENA Vs. STATE OF RAJASTHAN AND ANR

Kurian Joseph, J. - Leave granted. 2. The appellant approached this Court aggrieved by the denial of protection under Section 438 Cr.P.C. in respect of FIR No.202 dated 05.10.2017 registered at Police Station Banipark, District Jaipur (West). 3. This Court, on 23.01.2018, passed the following order:- Issue notice. In the event of the petitioner being arrested in connection with FIR No.202 dated 05.10.2017 registered at Police Station Banipark, District Jaipur (West), he shall be released on execution of bond for a sum of Rs.1,00,000/- (Rupees One Lac) with two solvent sureties for the like amount. We make it clear that this order is passed subject to other conditions under Section 438(2) of the Cr.P.C. and the petitioner shall cooperate with the investigation. 4. We are informed that the investigation has been completed and the final report has been filed. The Court has taken cognizance. The appellant has been summoned. Now the case is at the stage of consideration of charge. In the meanwhile, by order dated 15.02.2018, it appears the petitioner has been released on regular bail by the Trial Court, apparently on the basis that the appellant has been granted anticipatory bail by this Court. On going through the order dated 15.02.2018, we do not find any other consideration.

1[ds]4. We are informed that the investigation has been completed and the final report has been filed. The Court has taken cognizance. The appellant has been summoned. Now the case is at the stage of consideration of charge. In the meanwhile, by order dated 15.02.2018, it appears the petitioner has been released on regular bail by the Trial Court, apparently on the basis that the appellant has been granted anticipatory bail by this Court. On going through the order dated 15.02.2018, we do not find any other consideration.

### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: Kurian Joseph, J. - Leave granted. 2. The appellant approached this Court aggrieved by the denial of protection under Section 438 Cr.P.C. in respect of FIR No.202 dated 05.10.2017 registered at Police Station Banipark, District Jaipur (West). 3. This Court, on 23.01.2018, passed the following order:- Issue notice. In the event of the petitioner being arrested in connection with FIR No.202 dated 05.10.2017 registered at Police Station Banipark, District Jaipur (West), he shall be released on execution of bond for a sum of Rs.1,00,000/- (Rupees One Lac) with two solvent sureties for the like amount. We make it clear that this order is passed subject to other conditions under Section 438(2) of the Cr.P.C. and the petitioner shall cooperate with the investigation. 4. We are informed that the investigation has been completed and the final report has been filed. The Court has taken cognizance. The appellant has been summoned. Now the case is at the stage of consideration of charge. In the meanwhile, by order dated 15.02.2018, it appears the petitioner has been released on regular bail by the Trial Court, apparently on the basis that the appellant has been granted anticipatory bail by this Court. On going through the order dated 15.02.2018, we do not find any other consideration. ### Response: 1 ### Explanation: 4. We are informed that the investigation has been completed and the final report has been filed. The Court has taken cognizance. The appellant has been summoned. Now the case is at the stage of consideration of charge. In the meanwhile, by order dated 15.02.2018, it appears the petitioner has been released on regular bail by the Trial Court, apparently on the basis that the appellant has been granted anticipatory bail by this Court. On going through the order dated 15.02.2018, we do not find any other consideration.

Bharat Coking Coal Ltd. Vs. Steel Abrasers & Allied Prodcuts

as laid down by ISI, the appellant could legitimately demand handling charges besides the notified price, in terms of Note 14, argued Mr. Salve. To bring home his contention Mr. Salve relied upon the following averments made in the counter-affidavit filed on behalf of the appellant in the High Court : "It is stated that after in direct heating of coal in Beehive Oven (B.H.) and B.P. Plants coke is produced. After manufacture of coke further handling is required for sale of coke. It is stated that Pit Head Haru Coke is an assorted sizes of coke having various size ranges. Coke below 1/2" size of 12 M.M. size constitutes upto 6 to 8 per cent of total Pit Head coke. As per Indian Standard Specification (I.S.) under size tolerance is 10 per cent. Further Indian Standards Specification for Foundry Coke is 4" (-100). This constitute about 80 per cent of the total product.It is stated that loading is not possible at Pit-Head. Therefore shifting, sizing either by manual or by fork-lifting and storing in different loading points is under taken either manually or by vehicles. The colliery owners are spending substantial money to carry out despatch of coke according to specification as improper handing of coke may result in breaking. The operation required before despatch to suit Indian Standard Specification generates substantial rejection. The expenditures incurred in screening, stacking, loading and transportation into despatchable container is termed as handling charges. 10. While dealing with the contentions of Mr. Salve, Mr. Sanyal, appearing for the respondent, did not dispute that as regards coke pit heads as referred to in Note 10(1) would mean coke even plants. He, however, contended that besides the prices as notified, the appellant could claim only transportation charge if the coke was transported beyond a distance of 3 Kms to the loading point under Note 10(2) and the duties and levies referred to in Note 12. According to Mr. Sanyal Mr. Salves reliance on Note 14 to justify the impugned demand was wholly misplaced for the simple reason that neither did the respondent ask for special size of coke nor did the appellant undertake any process for its benefication. In other words, according to Mr. Sanyal, the appellant sold to the respondent coke of `specified size as mentioned in the table and not of special size so as to attract the provision of Note 14. While on this point he referred to the note as appearing in the table to contend that if the appellant had supplied coal of special size in terms of the note it might have laid any claim under Note 14. 11. Having carefully considered the respective contentions of the learned counsel in the light of the material on record we are inclined to accept the contentions of Mr. Salve in preference to those of Mr. Sanyal. From a combined reading of the relevant clauses of the Order and the notes appended to the notification referred to earlier we may draw the following conclusion : (i) The Central Government may, by Gazette Notification, fix the sale price of different grades and sizes of coal and coke and for different collieries, including plants for the production of coke.(ii) The prices so fixed are applicable to sale of coal at pit heads and of coke at coke oven plants.(iii) Prices given in table V of the notification for hard coke shall not apply to small sized hardcoke and other types of cokes as mentioned.(iv) No colliery owner shall sell and no person shall purchase coal or coke at a price which is in excess of the notified price.(v) However, besides the price so fixed, the colliery owner is entitled to realise (a) costs for transportation beyond a distance of 3 Kms to the loading point at the specific rates, (b) excise duty, royalty, cess, sales tax and other taxes/levies if any and (c) additional charges as may be negotiated between the producer and the purchaser for undertaking special sizing or benefication. 12. Terminological coal as mined is known as run of the mine and taking a cue from the same we may conveniently describe the coke as initially produced in the plant as run-of-the plant. The run-of the plant has been categorised as hard coke of different classes and grades in Table I and their prices fixed accordingly in Table V of the notification depending upon its ash content. That the coke so produced has to be suitably handled to segregate those required for foundries according to ISI specification is evident not only from the statements made in the counter affidavit of the appellant, but also from the foreword of the ISI report as quoted earlier. The Exercise so undertaken by the appellant to screen the run-of-the plant which has an unspecified size distribution to get the extra large size, specially earmarked for foundry would certainly be one for special sizing within the meaning of Note 14. The contention of Mr. Sanyal that since the respondent has not contracted for supply of special size it was not bound to pay for the same cannot be accepted as, in view of the definition of size under the Order, the appellant is obligated to sell only according to specifications of ISI. The note referred to in the table of ISI notification does not come in aid of Mr. Sanyal as it only empowers the ISI to specify different size ranges for special use besides those specified in the table and has no bearing to the issue involved in this appeal.13. Coming now to impugned judgment we find that in negativing the contention of the appellant based on Note 14, the High Court observed that the said Note had no manner of application to the facts of the case as the respondent did not purchase special size of coal. Unfortunately in taking the above observation the High Court failed to notice the definition of size under the Order and the report of the ISI in this regard.

1[ds]11. Having carefully considered the respective contentions of the learned counsel in the light of the material on record we are inclined to accept the contentions of Mr. Salve in preference to those of Mr. Sanyal. From a combined reading of the relevant clauses of the Order and the notes appended to the notification referred to earlier we may draw the following conclusionThe Central Government may, by Gazette Notification, fix the sale price of different grades and sizes of coal and coke and for different collieries, including plants for the production of coke.(ii) The prices so fixed are applicable to sale of coal at pit heads and of coke at coke oven plants.(iii) Prices given in table V of the notification for hard coke shall not apply to small sized hardcoke and other types of cokes as mentioned.(iv) No colliery owner shall sell and no person shall purchase coal or coke at a price which is in excess of the notified price.(v) However, besides the price so fixed, the colliery owner is entitled to realise (a) costs for transportation beyond a distance of 3 Kms to the loading point at the specific rates, (b) excise duty, royalty, cess, sales tax and other taxes/levies if any and (c) additional charges as may be negotiated between the producer and the purchaser for undertaking special sizing or benefication.Terminological coal as mined is known as run of the mine and taking a cue from the same we may conveniently describe the coke as initially produced in the plant as run-of-the plant. The run-of the plant has been categorised as hard coke of different classes and grades in Table I and their prices fixed accordingly in Table V of the notification depending upon its ash content. That the coke so produced has to be suitably handled to segregate those required for foundries according to ISI specification is evident not only from the statements made in the counter affidavit of the appellant, but also from the foreword of the ISI report as quoted earlier. The Exercise so undertaken by the appellant to screen the run-of-the plant which has an unspecified size distribution to get the extra large size, specially earmarked for foundry would certainly be one for special sizing within the meaning of Note 14. The contention of Mr. Sanyal that since the respondent has not contracted for supply of special size it was not bound to pay for the same cannot be accepted as, in view of the definition of size under the Order, the appellant is obligated to sell only according to specifications of ISI. The note referred to in the table of ISI notification does not come in aid of Mr. Sanyal as it only empowers the ISI to specify different size ranges for special use besides those specified in the table and has no bearing to the issue involved in this appeal.13. Coming now to impugned judgment we find that in negativing the contention of the appellant based on Note 14, the High Court observed that the said Note had no manner of application to the facts of the case as the respondent did not purchase special size of coal. Unfortunately in taking the above observation the High Court failed to notice the definition of size under the Order and the report of the ISI in this regard.

### 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: as laid down by ISI, the appellant could legitimately demand handling charges besides the notified price, in terms of Note 14, argued Mr. Salve. To bring home his contention Mr. Salve relied upon the following averments made in the counter-affidavit filed on behalf of the appellant in the High Court : "It is stated that after in direct heating of coal in Beehive Oven (B.H.) and B.P. Plants coke is produced. After manufacture of coke further handling is required for sale of coke. It is stated that Pit Head Haru Coke is an assorted sizes of coke having various size ranges. Coke below 1/2" size of 12 M.M. size constitutes upto 6 to 8 per cent of total Pit Head coke. As per Indian Standard Specification (I.S.) under size tolerance is 10 per cent. Further Indian Standards Specification for Foundry Coke is 4" (-100). This constitute about 80 per cent of the total product.It is stated that loading is not possible at Pit-Head. Therefore shifting, sizing either by manual or by fork-lifting and storing in different loading points is under taken either manually or by vehicles. The colliery owners are spending substantial money to carry out despatch of coke according to specification as improper handing of coke may result in breaking. The operation required before despatch to suit Indian Standard Specification generates substantial rejection. The expenditures incurred in screening, stacking, loading and transportation into despatchable container is termed as handling charges. 10. While dealing with the contentions of Mr. Salve, Mr. Sanyal, appearing for the respondent, did not dispute that as regards coke pit heads as referred to in Note 10(1) would mean coke even plants. He, however, contended that besides the prices as notified, the appellant could claim only transportation charge if the coke was transported beyond a distance of 3 Kms to the loading point under Note 10(2) and the duties and levies referred to in Note 12. According to Mr. Sanyal Mr. Salves reliance on Note 14 to justify the impugned demand was wholly misplaced for the simple reason that neither did the respondent ask for special size of coke nor did the appellant undertake any process for its benefication. In other words, according to Mr. Sanyal, the appellant sold to the respondent coke of `specified size as mentioned in the table and not of special size so as to attract the provision of Note 14. While on this point he referred to the note as appearing in the table to contend that if the appellant had supplied coal of special size in terms of the note it might have laid any claim under Note 14. 11. Having carefully considered the respective contentions of the learned counsel in the light of the material on record we are inclined to accept the contentions of Mr. Salve in preference to those of Mr. Sanyal. From a combined reading of the relevant clauses of the Order and the notes appended to the notification referred to earlier we may draw the following conclusion : (i) The Central Government may, by Gazette Notification, fix the sale price of different grades and sizes of coal and coke and for different collieries, including plants for the production of coke.(ii) The prices so fixed are applicable to sale of coal at pit heads and of coke at coke oven plants.(iii) Prices given in table V of the notification for hard coke shall not apply to small sized hardcoke and other types of cokes as mentioned.(iv) No colliery owner shall sell and no person shall purchase coal or coke at a price which is in excess of the notified price.(v) However, besides the price so fixed, the colliery owner is entitled to realise (a) costs for transportation beyond a distance of 3 Kms to the loading point at the specific rates, (b) excise duty, royalty, cess, sales tax and other taxes/levies if any and (c) additional charges as may be negotiated between the producer and the purchaser for undertaking special sizing or benefication. 12. Terminological coal as mined is known as run of the mine and taking a cue from the same we may conveniently describe the coke as initially produced in the plant as run-of-the plant. The run-of the plant has been categorised as hard coke of different classes and grades in Table I and their prices fixed accordingly in Table V of the notification depending upon its ash content. That the coke so produced has to be suitably handled to segregate those required for foundries according to ISI specification is evident not only from the statements made in the counter affidavit of the appellant, but also from the foreword of the ISI report as quoted earlier. The Exercise so undertaken by the appellant to screen the run-of-the plant which has an unspecified size distribution to get the extra large size, specially earmarked for foundry would certainly be one for special sizing within the meaning of Note 14. The contention of Mr. Sanyal that since the respondent has not contracted for supply of special size it was not bound to pay for the same cannot be accepted as, in view of the definition of size under the Order, the appellant is obligated to sell only according to specifications of ISI. The note referred to in the table of ISI notification does not come in aid of Mr. Sanyal as it only empowers the ISI to specify different size ranges for special use besides those specified in the table and has no bearing to the issue involved in this appeal.13. Coming now to impugned judgment we find that in negativing the contention of the appellant based on Note 14, the High Court observed that the said Note had no manner of application to the facts of the case as the respondent did not purchase special size of coal. Unfortunately in taking the above observation the High Court failed to notice the definition of size under the Order and the report of the ISI in this regard. ### Response: 1 ### Explanation: 11. Having carefully considered the respective contentions of the learned counsel in the light of the material on record we are inclined to accept the contentions of Mr. Salve in preference to those of Mr. Sanyal. From a combined reading of the relevant clauses of the Order and the notes appended to the notification referred to earlier we may draw the following conclusionThe Central Government may, by Gazette Notification, fix the sale price of different grades and sizes of coal and coke and for different collieries, including plants for the production of coke.(ii) The prices so fixed are applicable to sale of coal at pit heads and of coke at coke oven plants.(iii) Prices given in table V of the notification for hard coke shall not apply to small sized hardcoke and other types of cokes as mentioned.(iv) No colliery owner shall sell and no person shall purchase coal or coke at a price which is in excess of the notified price.(v) However, besides the price so fixed, the colliery owner is entitled to realise (a) costs for transportation beyond a distance of 3 Kms to the loading point at the specific rates, (b) excise duty, royalty, cess, sales tax and other taxes/levies if any and (c) additional charges as may be negotiated between the producer and the purchaser for undertaking special sizing or benefication.Terminological coal as mined is known as run of the mine and taking a cue from the same we may conveniently describe the coke as initially produced in the plant as run-of-the plant. The run-of the plant has been categorised as hard coke of different classes and grades in Table I and their prices fixed accordingly in Table V of the notification depending upon its ash content. That the coke so produced has to be suitably handled to segregate those required for foundries according to ISI specification is evident not only from the statements made in the counter affidavit of the appellant, but also from the foreword of the ISI report as quoted earlier. The Exercise so undertaken by the appellant to screen the run-of-the plant which has an unspecified size distribution to get the extra large size, specially earmarked for foundry would certainly be one for special sizing within the meaning of Note 14. The contention of Mr. Sanyal that since the respondent has not contracted for supply of special size it was not bound to pay for the same cannot be accepted as, in view of the definition of size under the Order, the appellant is obligated to sell only according to specifications of ISI. The note referred to in the table of ISI notification does not come in aid of Mr. Sanyal as it only empowers the ISI to specify different size ranges for special use besides those specified in the table and has no bearing to the issue involved in this appeal.13. Coming now to impugned judgment we find that in negativing the contention of the appellant based on Note 14, the High Court observed that the said Note had no manner of application to the facts of the case as the respondent did not purchase special size of coal. Unfortunately in taking the above observation the High Court failed to notice the definition of size under the Order and the report of the ISI in this regard.

FORECH INDIA LTD Vs. EDELWEISS ASSETS RECONSTRUCTION CO. LTD

7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows: 238. Provisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.18. Shri Daves ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside. The NCLT proceedings will now continue from the stage at which they have been left off. Obviously, the company petition pending before the High Court cannot be proceeded with further in view of Section 238 of the Code. The writ petitions that are pending before the High Court have also to be disposed of in light of the fact that proceedings under the Code must run their entire course. We, therefore, allow the appeal and set aside the High Courts judgment. 19. Mr. Sen also referred us to a judgment of the learned Single Judge of the High Court of Bombay reported, in (2018) 2 AIR Bom R 350 in PSL Limited vs. Jotun India Private Limited. The Learned Single Judge, after referring to the self-same provisions of the Code and subordinate legislation made thereunder, held as follows:- 93. The fact that post notice winding up petitions continue to be governed by the Companies Act, 1956, only means – that to those proceedings it will be the Companies Act, 1956 which will apply. It does not, however, mean that if, in a post-notice winding up petition a new proceeding is filed under IBC, and where orders are passed by NCLT, including under Section 14 of IBC, the consequences provided for under IBC will not apply to post notice proceeding, whatever their stage may be. xxx xxx xxx 98. Furthermore, this transitional provision cannot in any way affect the remedies available to a person under IBC, vis-a-vis the company against whom a winding up petition is filed and retained in the High Court, as the same would amount to treating IBC as if it did not exist on the statute book and would deprive persons of the benefit of the new legislation. This is contrary to the plain language of IBC. If the contentions of petitioner were to be accepted, it would mean that in respect of companies, where a post notice winding up petition is admitted or a provisional liquidator appointed, provisions of IBC can never apply to such companies for all times to come. xxx xxx xxx 100. The mere fact that post notice winding up proceedings are to be dealt with in accordance with the provisions of the Companies Act, 1956, does not bar the applicability of the provisions of IBC in general to proceedings validly instituted under IBC, [nor] does it mean that such proceeding can be suspended. 20. This judgment was upheld by a Division Bench of the Bombay High Court. We may hasten to add that the law declared by this judgment has our approval. 21. The resultant position, therefore, is that we agree with the learned counsel for the appellant that the Appellate Tribunals reasoning is not correct. Section 11 of the Code specifies which persons are not eligible to initiate proceedings under it. In particular, Section 11(d) reads as follows: 11. Persons not entitled to make applications- The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:- xxx xxx xxx (d) a corporate debtor in respect of whom a liquidation order has been made. Explanation - For the purposes of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor. 22. This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of whom a liquidation order has been made. From a reading of this Section, it does not follow that until a liquidation order has been made against the corporate debtor, an Insolvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal. Hence, any reference to Section 11 in the context of the problem before us is wholly irrelevant. However, we decline to interfere with the ultimate order passed by the Appellate Tribunal because it is clear that the financial creditors application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code.

0[ds]16. We are of the view that Rules 26 and 27 clearly refer to a pre- admission scenario as is clear from a plain reading of Rules 26 and 27, which make it clear that the notice contained in Form No. 6 has to be served in not less than 14 days before the date of hearing. Hence, the expression was admitted in Form No. 6 only means that notice has been issued in the winding up petition which is then fixed for hearing before the Company Judge on a certain day. Thus, the Madras High Court view is plainly incorrect whereas the Bombay High Court view is correct in law17. The resultant position in law is that, as a first step, when the Code was enacted, only winding up petitions, where no notice under Rule 26 of the Companies (Court) Rules was served, were to be transferred to the NCLT and treated as petitions under the Code. However, on a working of the Code, the Government realized that parallel proceedings in the High Courts as well as before the adjudicating authority in the Code would stultify the objective sought to be achieved by the Code, which is to resuscitate the corporate debtors who are in the red. In accordance with this objective, the Rules kept being amended, until finally Section 434 was itself substituted in 2018, in which a proviso was added by which even in winding up petitions where notice has been served and which are pending in the High Courts, any person could apply for transfer of such petitions to the NCLT under the Code, which would then have to be transferred by the High Court to the adjudicating authority and treated as an insolvency petition under the Code. This statutory scheme has been referred to, albeit in the context of Section 20 of the SICA, in our judgment which is contained in Jaipur Metals & Electricals Employees Organization Through General Secretary Mr. Tej Ram Meena vs. Jaipur Metals & Electricals Ltd. Through its Managing Director &Ors., being a judgment by a Division Bench of this Court dated 12.12.201821. The resultant position, therefore, is that we agree with the learned counsel for the appellant that the Appellate Tribunals reasoning is not correct. Section 11 of the Code specifies which persons are not eligible to initiate proceedings under it.22. This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of whom a liquidation order has been made. From a reading of this Section, it does not follow that until a liquidation order has been made against the corporate debtor, an Insolvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal. Hence, any reference to Section 11 in the context of the problem before us is wholly irrelevant. However, we decline to interfere with the ultimate order passed by the Appellate Tribunal because it is clear that the financial creditors application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code.

### 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: 7 application under the Code on 11.01.2018, on which an order has been passed admitting such application by the NCLT on 13.04.2018. This proceeding is an independent proceeding which has nothing to do with the transfer of pending winding up proceedings before the High Court. It was open for Respondent No. 3 at any time before a winding up order is passed to apply under Section 7 of the Code. This is clear from a reading of Section 7 together with Section 238 of the Code which reads as follows: 238. Provisions of this Code to override other laws.—The provisions of this Code shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law.18. Shri Daves ingenious argument that since Section 434 of the Companies Act, 2013 is amended by the Eleventh Schedule of the Code, the amended Section 434 must be read as being part of the Code and not the Companies Act, 2013, must be rejected for the reason that though Section 434 of the Companies Act, 2013 is substituted by the Eleventh Schedule of the Code, yet Section 434, as substituted, appears only in the Companies Act, 2013 and is part and parcel of that Act. This being so, if there is any inconsistency between Section 434 as substituted and the provisions of the Code, the latter must prevail. We are of the view that the NCLT was absolutely correct in applying Section 238 of the Code to an independent proceeding instituted by a secured financial creditor, namely, the Alchemist Asset Reconstruction Company Ltd. This being the case, it is difficult to comprehend how the High Court could have held that the proceedings before the NCLT were without jurisdiction. On this score, therefore, the High Court judgment has to be set aside. The NCLT proceedings will now continue from the stage at which they have been left off. Obviously, the company petition pending before the High Court cannot be proceeded with further in view of Section 238 of the Code. The writ petitions that are pending before the High Court have also to be disposed of in light of the fact that proceedings under the Code must run their entire course. We, therefore, allow the appeal and set aside the High Courts judgment. 19. Mr. Sen also referred us to a judgment of the learned Single Judge of the High Court of Bombay reported, in (2018) 2 AIR Bom R 350 in PSL Limited vs. Jotun India Private Limited. The Learned Single Judge, after referring to the self-same provisions of the Code and subordinate legislation made thereunder, held as follows:- 93. The fact that post notice winding up petitions continue to be governed by the Companies Act, 1956, only means – that to those proceedings it will be the Companies Act, 1956 which will apply. It does not, however, mean that if, in a post-notice winding up petition a new proceeding is filed under IBC, and where orders are passed by NCLT, including under Section 14 of IBC, the consequences provided for under IBC will not apply to post notice proceeding, whatever their stage may be. xxx xxx xxx 98. Furthermore, this transitional provision cannot in any way affect the remedies available to a person under IBC, vis-a-vis the company against whom a winding up petition is filed and retained in the High Court, as the same would amount to treating IBC as if it did not exist on the statute book and would deprive persons of the benefit of the new legislation. This is contrary to the plain language of IBC. If the contentions of petitioner were to be accepted, it would mean that in respect of companies, where a post notice winding up petition is admitted or a provisional liquidator appointed, provisions of IBC can never apply to such companies for all times to come. xxx xxx xxx 100. The mere fact that post notice winding up proceedings are to be dealt with in accordance with the provisions of the Companies Act, 1956, does not bar the applicability of the provisions of IBC in general to proceedings validly instituted under IBC, [nor] does it mean that such proceeding can be suspended. 20. This judgment was upheld by a Division Bench of the Bombay High Court. We may hasten to add that the law declared by this judgment has our approval. 21. The resultant position, therefore, is that we agree with the learned counsel for the appellant that the Appellate Tribunals reasoning is not correct. Section 11 of the Code specifies which persons are not eligible to initiate proceedings under it. In particular, Section 11(d) reads as follows: 11. Persons not entitled to make applications- The following persons shall not be entitled to make an application to initiate corporate insolvency resolution process under this Chapter, namely:- xxx xxx xxx (d) a corporate debtor in respect of whom a liquidation order has been made. Explanation - For the purposes of this section, a corporate debtor includes a corporate applicant in respect of such corporate debtor. 22. This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of whom a liquidation order has been made. From a reading of this Section, it does not follow that until a liquidation order has been made against the corporate debtor, an Insolvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal. Hence, any reference to Section 11 in the context of the problem before us is wholly irrelevant. However, we decline to interfere with the ultimate order passed by the Appellate Tribunal because it is clear that the financial creditors application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code. ### Response: 0 ### Explanation: 16. We are of the view that Rules 26 and 27 clearly refer to a pre- admission scenario as is clear from a plain reading of Rules 26 and 27, which make it clear that the notice contained in Form No. 6 has to be served in not less than 14 days before the date of hearing. Hence, the expression was admitted in Form No. 6 only means that notice has been issued in the winding up petition which is then fixed for hearing before the Company Judge on a certain day. Thus, the Madras High Court view is plainly incorrect whereas the Bombay High Court view is correct in law17. The resultant position in law is that, as a first step, when the Code was enacted, only winding up petitions, where no notice under Rule 26 of the Companies (Court) Rules was served, were to be transferred to the NCLT and treated as petitions under the Code. However, on a working of the Code, the Government realized that parallel proceedings in the High Courts as well as before the adjudicating authority in the Code would stultify the objective sought to be achieved by the Code, which is to resuscitate the corporate debtors who are in the red. In accordance with this objective, the Rules kept being amended, until finally Section 434 was itself substituted in 2018, in which a proviso was added by which even in winding up petitions where notice has been served and which are pending in the High Courts, any person could apply for transfer of such petitions to the NCLT under the Code, which would then have to be transferred by the High Court to the adjudicating authority and treated as an insolvency petition under the Code. This statutory scheme has been referred to, albeit in the context of Section 20 of the SICA, in our judgment which is contained in Jaipur Metals & Electricals Employees Organization Through General Secretary Mr. Tej Ram Meena vs. Jaipur Metals & Electricals Ltd. Through its Managing Director &Ors., being a judgment by a Division Bench of this Court dated 12.12.201821. The resultant position, therefore, is that we agree with the learned counsel for the appellant that the Appellate Tribunals reasoning is not correct. Section 11 of the Code specifies which persons are not eligible to initiate proceedings under it.22. This Section is of limited application and only bars a corporate debtor from initiating a petition under Section 10 of the Code in respect of whom a liquidation order has been made. From a reading of this Section, it does not follow that until a liquidation order has been made against the corporate debtor, an Insolvency Petition may be filed under Section 7 or Section 9 as the case may be, as has been held by the Appellate Tribunal. Hence, any reference to Section 11 in the context of the problem before us is wholly irrelevant. However, we decline to interfere with the ultimate order passed by the Appellate Tribunal because it is clear that the financial creditors application which has been admitted by the Tribunal is clearly an independent proceeding which must be decided in accordance with the provisions of the Code.

Mongibai Hariram Vs. State Of Maharashtra And Another

a period of one month or if the landlord re-allots the premises to another person within a year of the tenants eviction. The Court has a discretion to pass such an order on the application of the tenant. If the Act provides by S. 6 that the landlord cannot occupy the premises which had become vacant on the eviction of the tenant within a month of the receipt of the intimation of vacancy by the State Government, there is no conflict between that provision and the discretionary power vested in the Court under sub-s. (1) of S. 17. The Court, undoubtedly, cannot exercise such a discretionary power when another enactment by its language provides for the landlords not occupying the premises for a period in excess of a month. Under sub-s. (2) of S. 17, a landlord is liable to conviction if he keeps premises unoccupied without reasonable cause or if he fails to comply with the order passed under sub-s. (1) of S. 17. No question of conviction in the latter circumstances arises if as indicated earlier the Court will not pass an order of re-allotment to the evicted tenant in case the premises are subject to the provisions of S. 6 of the Act. The non-occupation of the premises within one month of the ejection of the tenant on the ground that the premises are situate in an area covered by the notification under S. 6 (1) of the Act will be non-occupation of the premises for reasonable causes and, therefore, there can be no occasion for a conviction on the ground that the premises were kept unoccupied within a period of one month from the date of recovery of possession. 38. We do not, therefore, consider that there is any real conflict between the provisions of S. 6 of the Act and the provisions of Ss. 13 or 17 of the Rent Act. 39. It is also to be noticed that the Act was enacted later than the Rent Act. The legislature is presumed to know the provisions of the Rent Act. It did not make an exception from requisition with respect to premises becoming vacant on the eviction of a tenant on the ground mentioned in S. 13(1)(g) of the Rent Act. On the contrary, not only sub-s. (1) of S. 6 speaks of the vacancy of the premises on a tenant ceasing to occupy them but the Explanation to S. 6 clearly states that the premises which are in the occupation of a tenant shall be deemed to become vacant when such tenant ceases to be in occupation by eviction. An exception could have been made in case of evictions for a particular reason, such as in Cl. (g) of sub-s. (1) of S. 13 of the Act. The legislature made no such exception. 40. The field of operation of the two Acts, the Rent Act and the Act, are different. The Rent Act deals with the question arising between the landlord and the tenant on account of the incidents of tenancy, while the Act deals with the necessities of a public purpose as determined by Government in a particular area for which notification under sub-s. (1) of S. 6 has been issued, keeping in mind the interests of the landlord also. 41. The Civil Court, in deciding a suit for eviction, simply takes into consideration the needs of the landlord vis-a-vis the tenant and the grounds of eviction. It does not take into consideration the requirements of any public purpose. It adjudicates between the rights of the landlord and the tenant in accordance with the statutory provisions of the Rent Act. The State Government, on the other hand, when considering the question of requisitioning the premises under sub-s. (4) of S. 6 does not consider such matters but considers only whether the purpose for which it is to requisition the premises is a public purpose or not. If it is satisfied that it requires the premises for a public purpose, it has not to consider the considerations affecting the landlord except when the landlord applies for permission under S 6 (3) of the Act. It has certainly no occasion to consider the interests of the tenant as the premises can be requisitioned only when they are vacant or are deemed vacant in view of somebody occupying it in contravention of the provisions of the Act. If the Government happens to requisition the premises for the person who had been evicted therefrom in execution of a decree of a civil Court it does not mean that the Government is not respecting the decree of the Court and is acting against public interest or the interests of administration of justice. 42. To hold that the benefit to the Act cannot be given to persons evicted on the ground that the landlord required the premises for his use would not only deprive the evicted person from getting the premises allotted to himself but would also deprive many other homeless persons besides some special class of persons allotments to whom would clearly come within public purpose. Merely because there is a possibility of the evicted person getting allotted the premises he had been evicted from, does not appear to us to be good reason for holding that the provisions of S. 6 of the Act do not apply to the requisitioning of premises when the premises became vacant on the eviction of a tenant by a Civil Court on the ground that the landlord required the premises for his own use. 43. K. A. Nambiar is no part to these proceedings and this should also prove fatal to the writ petition by the appellants when the appellants seek the quashing of the order of requisition and the order of allotment to K. A. Nambiar. 44. We, therefore, agree with the High Court that the requisition order cannot be said to be mala fide. The result will be that the appeal fails and is dismissed with costs. 45. Order:

0[ds]35. Section 13 (1) (g) of the Rent Act entitles the landlord to recover possession of the premises if the Court is satisfied that the premises are reasonably and bona fide required by the landlord for occupation by himself or by any person for whose benefit the premises are held or where the landlord is a trustee of a public charitable trust the premises are required for occupation for the purposes of the trust. It is open to doubt whether a trustee-landlord, as the plaintiffs-appellants are, and be said to require the premises for occupation for himself. The first part of S. 13 (1) (g) appears to contemplate persons who receive or are entitled to receive rents on their own account and not to persons who receive or are entitled to receive rents as a trustee. A trustee-landlord can require the premises under Section 13 (1) (g) for occupation for purposes of the trust. The trustee-landlord himself need not be a homeless person. No occasion arose in the ejectment suit for the Court to determine whether reasonable accommodation was available for the tenant and whether greater hardship would be caused to the landlord if no ejectment be ordered as the suit was uncontested36. The provisions of S. 13 (2) (A) of the Rent Act show that the needs of the armed forces of the Union or their families get precedence over the needs of the landlord.The needs of the landlord, therefore, are not such a controlling factor as to over-ride the provisions of the Act if the requisition of the premises in suit comes within them. Requisition under the Act is for a public purpose and there seems to be no good reason why the needs of the landlord be not deemed subservient to the requirements of public purposes as judged by the State Government37. Another ground for the non-applicability of the Act to such ejected person, is urged on the basis of the provisions of S. 17 of the Rent Act. Sub-section (1) of S. 17 empowers the Court to order the landlord to re-allot the premises to the tenant who had been evicted therefrom in case the landlord does not occupy the premises within a period of one month or if the landlord re-allots the premises to another person within a year of the tenants eviction. The Court has a discretion to pass such an order on the application of the tenant. If the Act provides by S. 6 that the landlord cannot occupy the premises which had become vacant on the eviction of the tenant within a month of the receipt of the intimation of vacancy by the State Government, there is no conflict between that provision and the discretionary power vested in the Court under sub-s. (1) of S. 17. The Court, undoubtedly, cannot exercise such a discretionary power when another enactment by its language provides for the landlords not occupying the premises for a period in excess of a month. Under sub-s. (2) of S. 17, a landlord is liable to conviction if he keeps premises unoccupied without reasonable cause or if he fails to comply with the order passed under sub-s. (1) of S. 17. No question of conviction in the latter circumstances arises if as indicated earlier the Court will not pass an order of re-allotment to the evicted tenant in case the premises are subject to the provisions of S. 6 of the Act. The non-occupation of the premises within one month of the ejection of the tenant on the ground that the premises are situate in an area covered by the notification under S. 6 (1) of the Act will be non-occupation of the premises for reasonable causes and, therefore, there can be no occasion for a conviction on the ground that the premises were kept unoccupied within a period of one month from the date of recovery of possession38. We do not, therefore, consider that there is any real conflict between the provisions of S. 6 of the Act and the provisions of Ss. 13 or 17 of the Rent Act39. It is also to be noticed that the Act was enacted later than the Rent Act. The legislature is presumed to know the provisions of the Rent Act. It did not make an exception from requisition with respect to premises becoming vacant on the eviction of a tenant on the ground mentioned in S. 13(1)(g) of the Rent Act. On the contrary, not only sub-s. (1) of S. 6 speaks of the vacancy of the premises on a tenant ceasing to occupy them but the Explanation to S. 6 clearly states that the premises which are in the occupation of a tenant shall be deemed to become vacant when such tenant ceases to be in occupation by eviction. An exception could have been made in case of evictions for a particular reason, such as in Cl. (g) of sub-s. (1) of S. 13 of the Act. The legislature made no such exception40. The field of operation of the two Acts, the Rent Act and the Act, are different. The Rent Act deals with the question arising between the landlord and the tenant on account of the incidents of tenancy, while the Act deals with the necessities of a public purpose as determined by Government in a particular area for which notification under sub-s. (1) of S. 6 has been issued, keeping in mind the interests of the landlord also41. The Civil Court, in deciding a suit for eviction, simply takes into consideration the needs of the landlord vis-a-vis the tenant and the grounds of eviction. It does not take into consideration the requirements of any public purpose. It adjudicates between the rights of the landlord and the tenant in accordance with the statutory provisions of the Rent Act. The State Government, on the other hand, when considering the question of requisitioning the premises under sub-s. (4) of S. 6 does not consider such matters but considers only whether the purpose for which it is to requisition the premises is a public purpose or not. If it is satisfied that it requires the premises for a public purpose, it has not to consider the considerations affecting the landlord except when the landlord applies for permission under S 6 (3) of the Act. It has certainly no occasion to consider the interests of the tenant as the premises can be requisitioned only when they are vacant or are deemed vacant in view of somebody occupying it in contravention of the provisions of the Act. If the Government happens to requisition the premises for the person who had been evicted therefrom in execution of a decree of a civil Court it does not mean that the Government is not respecting the decree of the Court and is acting against public interest or the interests of administration of justice42. To hold that the benefit to the Act cannot be given to persons evicted on the ground that the landlord required the premises for his use would not only deprive the evicted person from getting the premises allotted to himself but would also deprive many other homeless persons besides some special class of persons allotments to whom would clearly come within public purpose. Merely because there is a possibility of the evicted person getting allotted the premises he had been evicted from, does not appear to us to be good reason for holding that the provisions of S. 6 of the Act do not apply to the requisitioning of premises when the premises became vacant on the eviction of a tenant by a Civil Court on the ground that the landlord required the premises for his own use43. K. A. Nambiar is no part to these proceedings and this should also prove fatal to the writ petition by the appellants when the appellants seek the quashing of the order of requisition and the order of allotment to K. A. Nambiar44. We, therefore, agree with the High Court that the requisition order cannot be said to be mala fide.

### 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 period of one month or if the landlord re-allots the premises to another person within a year of the tenants eviction. The Court has a discretion to pass such an order on the application of the tenant. If the Act provides by S. 6 that the landlord cannot occupy the premises which had become vacant on the eviction of the tenant within a month of the receipt of the intimation of vacancy by the State Government, there is no conflict between that provision and the discretionary power vested in the Court under sub-s. (1) of S. 17. The Court, undoubtedly, cannot exercise such a discretionary power when another enactment by its language provides for the landlords not occupying the premises for a period in excess of a month. Under sub-s. (2) of S. 17, a landlord is liable to conviction if he keeps premises unoccupied without reasonable cause or if he fails to comply with the order passed under sub-s. (1) of S. 17. No question of conviction in the latter circumstances arises if as indicated earlier the Court will not pass an order of re-allotment to the evicted tenant in case the premises are subject to the provisions of S. 6 of the Act. The non-occupation of the premises within one month of the ejection of the tenant on the ground that the premises are situate in an area covered by the notification under S. 6 (1) of the Act will be non-occupation of the premises for reasonable causes and, therefore, there can be no occasion for a conviction on the ground that the premises were kept unoccupied within a period of one month from the date of recovery of possession. 38. We do not, therefore, consider that there is any real conflict between the provisions of S. 6 of the Act and the provisions of Ss. 13 or 17 of the Rent Act. 39. It is also to be noticed that the Act was enacted later than the Rent Act. The legislature is presumed to know the provisions of the Rent Act. It did not make an exception from requisition with respect to premises becoming vacant on the eviction of a tenant on the ground mentioned in S. 13(1)(g) of the Rent Act. On the contrary, not only sub-s. (1) of S. 6 speaks of the vacancy of the premises on a tenant ceasing to occupy them but the Explanation to S. 6 clearly states that the premises which are in the occupation of a tenant shall be deemed to become vacant when such tenant ceases to be in occupation by eviction. An exception could have been made in case of evictions for a particular reason, such as in Cl. (g) of sub-s. (1) of S. 13 of the Act. The legislature made no such exception. 40. The field of operation of the two Acts, the Rent Act and the Act, are different. The Rent Act deals with the question arising between the landlord and the tenant on account of the incidents of tenancy, while the Act deals with the necessities of a public purpose as determined by Government in a particular area for which notification under sub-s. (1) of S. 6 has been issued, keeping in mind the interests of the landlord also. 41. The Civil Court, in deciding a suit for eviction, simply takes into consideration the needs of the landlord vis-a-vis the tenant and the grounds of eviction. It does not take into consideration the requirements of any public purpose. It adjudicates between the rights of the landlord and the tenant in accordance with the statutory provisions of the Rent Act. The State Government, on the other hand, when considering the question of requisitioning the premises under sub-s. (4) of S. 6 does not consider such matters but considers only whether the purpose for which it is to requisition the premises is a public purpose or not. If it is satisfied that it requires the premises for a public purpose, it has not to consider the considerations affecting the landlord except when the landlord applies for permission under S 6 (3) of the Act. It has certainly no occasion to consider the interests of the tenant as the premises can be requisitioned only when they are vacant or are deemed vacant in view of somebody occupying it in contravention of the provisions of the Act. If the Government happens to requisition the premises for the person who had been evicted therefrom in execution of a decree of a civil Court it does not mean that the Government is not respecting the decree of the Court and is acting against public interest or the interests of administration of justice. 42. To hold that the benefit to the Act cannot be given to persons evicted on the ground that the landlord required the premises for his use would not only deprive the evicted person from getting the premises allotted to himself but would also deprive many other homeless persons besides some special class of persons allotments to whom would clearly come within public purpose. Merely because there is a possibility of the evicted person getting allotted the premises he had been evicted from, does not appear to us to be good reason for holding that the provisions of S. 6 of the Act do not apply to the requisitioning of premises when the premises became vacant on the eviction of a tenant by a Civil Court on the ground that the landlord required the premises for his own use. 43. K. A. Nambiar is no part to these proceedings and this should also prove fatal to the writ petition by the appellants when the appellants seek the quashing of the order of requisition and the order of allotment to K. A. Nambiar. 44. We, therefore, agree with the High Court that the requisition order cannot be said to be mala fide. The result will be that the appeal fails and is dismissed with costs. 45. Order: ### Response: 0 ### Explanation: to re-allot the premises to the tenant who had been evicted therefrom in case the landlord does not occupy the premises within a period of one month or if the landlord re-allots the premises to another person within a year of the tenants eviction. The Court has a discretion to pass such an order on the application of the tenant. If the Act provides by S. 6 that the landlord cannot occupy the premises which had become vacant on the eviction of the tenant within a month of the receipt of the intimation of vacancy by the State Government, there is no conflict between that provision and the discretionary power vested in the Court under sub-s. (1) of S. 17. The Court, undoubtedly, cannot exercise such a discretionary power when another enactment by its language provides for the landlords not occupying the premises for a period in excess of a month. Under sub-s. (2) of S. 17, a landlord is liable to conviction if he keeps premises unoccupied without reasonable cause or if he fails to comply with the order passed under sub-s. (1) of S. 17. No question of conviction in the latter circumstances arises if as indicated earlier the Court will not pass an order of re-allotment to the evicted tenant in case the premises are subject to the provisions of S. 6 of the Act. The non-occupation of the premises within one month of the ejection of the tenant on the ground that the premises are situate in an area covered by the notification under S. 6 (1) of the Act will be non-occupation of the premises for reasonable causes and, therefore, there can be no occasion for a conviction on the ground that the premises were kept unoccupied within a period of one month from the date of recovery of possession38. We do not, therefore, consider that there is any real conflict between the provisions of S. 6 of the Act and the provisions of Ss. 13 or 17 of the Rent Act39. It is also to be noticed that the Act was enacted later than the Rent Act. The legislature is presumed to know the provisions of the Rent Act. It did not make an exception from requisition with respect to premises becoming vacant on the eviction of a tenant on the ground mentioned in S. 13(1)(g) of the Rent Act. On the contrary, not only sub-s. (1) of S. 6 speaks of the vacancy of the premises on a tenant ceasing to occupy them but the Explanation to S. 6 clearly states that the premises which are in the occupation of a tenant shall be deemed to become vacant when such tenant ceases to be in occupation by eviction. An exception could have been made in case of evictions for a particular reason, such as in Cl. (g) of sub-s. (1) of S. 13 of the Act. The legislature made no such exception40. The field of operation of the two Acts, the Rent Act and the Act, are different. The Rent Act deals with the question arising between the landlord and the tenant on account of the incidents of tenancy, while the Act deals with the necessities of a public purpose as determined by Government in a particular area for which notification under sub-s. (1) of S. 6 has been issued, keeping in mind the interests of the landlord also41. The Civil Court, in deciding a suit for eviction, simply takes into consideration the needs of the landlord vis-a-vis the tenant and the grounds of eviction. It does not take into consideration the requirements of any public purpose. It adjudicates between the rights of the landlord and the tenant in accordance with the statutory provisions of the Rent Act. The State Government, on the other hand, when considering the question of requisitioning the premises under sub-s. (4) of S. 6 does not consider such matters but considers only whether the purpose for which it is to requisition the premises is a public purpose or not. If it is satisfied that it requires the premises for a public purpose, it has not to consider the considerations affecting the landlord except when the landlord applies for permission under S 6 (3) of the Act. It has certainly no occasion to consider the interests of the tenant as the premises can be requisitioned only when they are vacant or are deemed vacant in view of somebody occupying it in contravention of the provisions of the Act. If the Government happens to requisition the premises for the person who had been evicted therefrom in execution of a decree of a civil Court it does not mean that the Government is not respecting the decree of the Court and is acting against public interest or the interests of administration of justice42. To hold that the benefit to the Act cannot be given to persons evicted on the ground that the landlord required the premises for his use would not only deprive the evicted person from getting the premises allotted to himself but would also deprive many other homeless persons besides some special class of persons allotments to whom would clearly come within public purpose. Merely because there is a possibility of the evicted person getting allotted the premises he had been evicted from, does not appear to us to be good reason for holding that the provisions of S. 6 of the Act do not apply to the requisitioning of premises when the premises became vacant on the eviction of a tenant by a Civil Court on the ground that the landlord required the premises for his own use43. K. A. Nambiar is no part to these proceedings and this should also prove fatal to the writ petition by the appellants when the appellants seek the quashing of the order of requisition and the order of allotment to K. A. Nambiar44. We, therefore, agree with the High Court that the requisition order cannot be said to be mala fide.

M/S Queen'S Educational Society Vs. Commr.Of Income Tax

if it comes to the notice of the prescribed authority that the conditions on which approval was given, have been violated or the circumstances mentioned in 13th proviso exists, then by following the procedure envisaged in 13th proviso, the prescribed authority can withdraw the approval.(3) The capital expenditure wholly and exclusively to the objects of education is entitled to exemption and would not constitute part of the total income.(4) The educational institutions, which are registered as a Society, would continue to retain their character as such and would be eligible to apply for exemption under Section 10(23C)(vi) of the Act. [See para 8.7 of the judgment-Aditanar Educational Institution case (supra)](5) Where more than 15% of income of an educational institution is accumulated on or after 1st April, 2002, the period of accumulation of the amount exceeding 15% is not permissible beyond five years, provided the excess income has been applied or accumulated for application wholly and exclusively for the purpose of education.(6) The judgment of Uttrakhand High Court rendered in the case of Queens Educational Society (supra) and the connected matters, is not applicable to cases fall within the provision of Section 10(23C)(vi) of the Act. There are various reasons, which have been discussed in para 8.8 of the judgment, and the judgment of Allahabad High Court rendered in the case of City Montessori School (supra) lays down the correct law.” And finally held: “8.15 As a sequel to the aforesaid discussion, these petitions are allowed and the impugned orders passed by the Chief Commissioner of Income Tax withdrawing the exemption granted under Section 10(23C)(iv) of the Act are hereby quashed. However, the revenue is at liberty to pass any fresh orders, if such a necessity is felt after taking into consideration the various propositions of law culled out by us in para 8.13 and various other paras.8.16 The writ petitions stand disposed of in the above terms.” 24. The view of the Punjab and Haryana High Court has been followed by the Delhi High Court in St. Lawrence Educational Society (Regd.) v. Commissioner of Income Tax & Anr., (2011) 53 DTR (Del) 130. Also in Tolani Education Society v. Deputy Director of Income Tax (Exemption) & Ors., (2013) 351 ITR 184 , the Bombay High Court has expressed a view in line with the Punjab and Haryana High Court view, following the judgments of this Court in the Surat Art Silk Manufacturers Association Case and Aditanar Educational Institution case as follows: “…..The fact that the Petitioner has a surplus of income over expenditure for the three years in question, cannot by any stretch of logical reasoning lead to the conclusion that the Petitioner does not exist solely for educational purposes or, as that Chief Commissioner held that the Petitioner exists for profit. The test to be applied is as to whether the predominant nature of the activity is educational. In the present case, the sole and dominant nature of the activity is education and the Petitioner exists solely for the purposes of imparting education. An incidental surplus which is generated, and which has resulted in additions to the fixed assets is utilized as the balance-sheet would indicate towards upgrading the facilities of the college including for the purchase of library books and the improvement of infrastructure. With the advancement of technology, no college or institution can afford to remain stagnant. The Income-tax Act 1961 does not condition the grant of an exemption under Section 10(23C) on the requirement that a college must maintain the status-quo, as it were, in regard to its knowledge based infrastructure. Nor for that matter is an educational institution prohibited from upgrading its infrastructure on educational facilities save on the pain of losing the benefit of the exemption under Section 10(23C). Imposing such a condition which is not contained in the statute would lead to a perversion of the basic purpose for which such exemptions have been granted to educational institutions. Knowledge in contemporary times is technology driven. Educational institutions have to modernise, upgrade and respond to the changing ethos of education.Education has to be responsive to a rapidly evolving society. The provisions of Section 10(23C) cannot be interpreted regressively to deny exemptions. So long as the institution exists solely for educational purposes and not for profit, the test is met.” 25. We approve the judgments of the Punjab and Haryana, Delhi and Bombay High Courts. Since we have set aside the judgment of the Uttarakhand High Court and since the Chief CIT’s orders cancelling exemption which were set aside by the Punjab and Haryana High Court were passed almost solely upon the law declared by the Uttarakhand High Court, it is clear that these orders cannot stand. Consequently, Revenue’s appeals from the Punjab and Haryana High Court’s judgment dated 29.1.2010 and the judgments following it are dismissed. We reiterate that the correct tests which have been culled out in the three Supreme Court judgments stated above, namely, Surat Art Silk Cloth, Aditanar, and American Hotel and Lodging, would all apply to determine whether an educational institution exists solely for educational purposes and not for purposes of profit. In addition, we hasten to add that the 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully. If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with Section 11 of the Income Tax Act.

0[ds]15. It is clear that the High Court did not apply its mind independently. What has been copied is one paragraph from the Supreme Court judgment in Aditanar followed by a paragraph of faulty reasoning by the Assessing Officer and the said faulty reasoning of the Assessing Officer has been wrongly said to be the law laid down by the Apex Court.Secondly, the extracted portion from the said judgment in the judgment of the Uttarakhand High Court concerned itself with question two, namely, whether the educational society is supported wholly or in part by voluntary contributions. It is part of paragraph 80 of the said judgment. If the sentences after the quoted portion are also set out, it becomes clear that the passage relied upon by the High Court has absolutely nothing to do with the present case.It is clear, therefore, that the Uttarakhand High Court has erred by quoting a non existent passage from an applicable judgment, namely, Aditanar and quoting a portion of a property tax judgment which expressly stated that rulings arising out of the Income Tax Act would not be applicable. Quite apart from this, it also went on to further quote from a portion of the said property tax judgment which was rendered in the context of whether an educational society is supported wholly or in part by voluntary contributions, something which is completely foreign to Section 10(23C) (iiiad). The final conclusion that if a surplus is made by an educational society and ploughed back to construct its own premises would fall foul of Section 10(23C) is to ignore the language of the Section and to ignore the tests laid down in the Surat Art Silk Cloth case, Aditanar case and the American Hotel and Lodging case. It is clear that when a surplus is ploughed back for educational purposes, the educational institution exists solely for educational purposes and not for purposes of profit.It is these orders that were set aside by the judgment of the Punjab and Haryana High Court impugned by the Revenue before us.We approve the judgments of the Punjab and Haryana, Delhi and Bombay High Courts. Since we have set aside the judgment of the Uttarakhand High Court and since the Chieforders cancelling exemption which were set aside by the Punjab and Haryana High Court were passed almost solely upon the law declared by the Uttarakhand High Court, it is clear that these orders cannot stand. Consequently,appeals from the Punjab and Haryana Highjudgment dated 29.1.2010 and the judgments following it are dismissed. We reiterate that the correct tests which have been culled out in the three Supreme Court judgments stated above, namely, Surat Art Silk Cloth, Aditanar, and American Hotel and Lodging, would all apply to determine whether an educational institution exists solely for educational purposes and not for purposes of profit. In addition, we hasten to add that the 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully. If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with Section 11 of the Income Tax 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: if it comes to the notice of the prescribed authority that the conditions on which approval was given, have been violated or the circumstances mentioned in 13th proviso exists, then by following the procedure envisaged in 13th proviso, the prescribed authority can withdraw the approval.(3) The capital expenditure wholly and exclusively to the objects of education is entitled to exemption and would not constitute part of the total income.(4) The educational institutions, which are registered as a Society, would continue to retain their character as such and would be eligible to apply for exemption under Section 10(23C)(vi) of the Act. [See para 8.7 of the judgment-Aditanar Educational Institution case (supra)](5) Where more than 15% of income of an educational institution is accumulated on or after 1st April, 2002, the period of accumulation of the amount exceeding 15% is not permissible beyond five years, provided the excess income has been applied or accumulated for application wholly and exclusively for the purpose of education.(6) The judgment of Uttrakhand High Court rendered in the case of Queens Educational Society (supra) and the connected matters, is not applicable to cases fall within the provision of Section 10(23C)(vi) of the Act. There are various reasons, which have been discussed in para 8.8 of the judgment, and the judgment of Allahabad High Court rendered in the case of City Montessori School (supra) lays down the correct law.” And finally held: “8.15 As a sequel to the aforesaid discussion, these petitions are allowed and the impugned orders passed by the Chief Commissioner of Income Tax withdrawing the exemption granted under Section 10(23C)(iv) of the Act are hereby quashed. However, the revenue is at liberty to pass any fresh orders, if such a necessity is felt after taking into consideration the various propositions of law culled out by us in para 8.13 and various other paras.8.16 The writ petitions stand disposed of in the above terms.” 24. The view of the Punjab and Haryana High Court has been followed by the Delhi High Court in St. Lawrence Educational Society (Regd.) v. Commissioner of Income Tax & Anr., (2011) 53 DTR (Del) 130. Also in Tolani Education Society v. Deputy Director of Income Tax (Exemption) & Ors., (2013) 351 ITR 184 , the Bombay High Court has expressed a view in line with the Punjab and Haryana High Court view, following the judgments of this Court in the Surat Art Silk Manufacturers Association Case and Aditanar Educational Institution case as follows: “…..The fact that the Petitioner has a surplus of income over expenditure for the three years in question, cannot by any stretch of logical reasoning lead to the conclusion that the Petitioner does not exist solely for educational purposes or, as that Chief Commissioner held that the Petitioner exists for profit. The test to be applied is as to whether the predominant nature of the activity is educational. In the present case, the sole and dominant nature of the activity is education and the Petitioner exists solely for the purposes of imparting education. An incidental surplus which is generated, and which has resulted in additions to the fixed assets is utilized as the balance-sheet would indicate towards upgrading the facilities of the college including for the purchase of library books and the improvement of infrastructure. With the advancement of technology, no college or institution can afford to remain stagnant. The Income-tax Act 1961 does not condition the grant of an exemption under Section 10(23C) on the requirement that a college must maintain the status-quo, as it were, in regard to its knowledge based infrastructure. Nor for that matter is an educational institution prohibited from upgrading its infrastructure on educational facilities save on the pain of losing the benefit of the exemption under Section 10(23C). Imposing such a condition which is not contained in the statute would lead to a perversion of the basic purpose for which such exemptions have been granted to educational institutions. Knowledge in contemporary times is technology driven. Educational institutions have to modernise, upgrade and respond to the changing ethos of education.Education has to be responsive to a rapidly evolving society. The provisions of Section 10(23C) cannot be interpreted regressively to deny exemptions. So long as the institution exists solely for educational purposes and not for profit, the test is met.” 25. We approve the judgments of the Punjab and Haryana, Delhi and Bombay High Courts. Since we have set aside the judgment of the Uttarakhand High Court and since the Chief CIT’s orders cancelling exemption which were set aside by the Punjab and Haryana High Court were passed almost solely upon the law declared by the Uttarakhand High Court, it is clear that these orders cannot stand. Consequently, Revenue’s appeals from the Punjab and Haryana High Court’s judgment dated 29.1.2010 and the judgments following it are dismissed. We reiterate that the correct tests which have been culled out in the three Supreme Court judgments stated above, namely, Surat Art Silk Cloth, Aditanar, and American Hotel and Lodging, would all apply to determine whether an educational institution exists solely for educational purposes and not for purposes of profit. In addition, we hasten to add that the 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully. If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with Section 11 of the Income Tax Act. ### Response: 0 ### Explanation: 15. It is clear that the High Court did not apply its mind independently. What has been copied is one paragraph from the Supreme Court judgment in Aditanar followed by a paragraph of faulty reasoning by the Assessing Officer and the said faulty reasoning of the Assessing Officer has been wrongly said to be the law laid down by the Apex Court.Secondly, the extracted portion from the said judgment in the judgment of the Uttarakhand High Court concerned itself with question two, namely, whether the educational society is supported wholly or in part by voluntary contributions. It is part of paragraph 80 of the said judgment. If the sentences after the quoted portion are also set out, it becomes clear that the passage relied upon by the High Court has absolutely nothing to do with the present case.It is clear, therefore, that the Uttarakhand High Court has erred by quoting a non existent passage from an applicable judgment, namely, Aditanar and quoting a portion of a property tax judgment which expressly stated that rulings arising out of the Income Tax Act would not be applicable. Quite apart from this, it also went on to further quote from a portion of the said property tax judgment which was rendered in the context of whether an educational society is supported wholly or in part by voluntary contributions, something which is completely foreign to Section 10(23C) (iiiad). The final conclusion that if a surplus is made by an educational society and ploughed back to construct its own premises would fall foul of Section 10(23C) is to ignore the language of the Section and to ignore the tests laid down in the Surat Art Silk Cloth case, Aditanar case and the American Hotel and Lodging case. It is clear that when a surplus is ploughed back for educational purposes, the educational institution exists solely for educational purposes and not for purposes of profit.It is these orders that were set aside by the judgment of the Punjab and Haryana High Court impugned by the Revenue before us.We approve the judgments of the Punjab and Haryana, Delhi and Bombay High Courts. Since we have set aside the judgment of the Uttarakhand High Court and since the Chieforders cancelling exemption which were set aside by the Punjab and Haryana High Court were passed almost solely upon the law declared by the Uttarakhand High Court, it is clear that these orders cannot stand. Consequently,appeals from the Punjab and Haryana Highjudgment dated 29.1.2010 and the judgments following it are dismissed. We reiterate that the correct tests which have been culled out in the three Supreme Court judgments stated above, namely, Surat Art Silk Cloth, Aditanar, and American Hotel and Lodging, would all apply to determine whether an educational institution exists solely for educational purposes and not for purposes of profit. In addition, we hasten to add that the 13th proviso to Section 10(23C) is of great importance in that assessing authorities must continuously monitor from assessment year to assessment year whether such institutions continue to apply their income and invest or deposit their funds in accordance with the law laid down. Further, it is of great importance that the activities of such institutions be looked at carefully. If they are not genuine, or are not being carried out in accordance with all or any of the conditions subject to which approval has been given, such approval and exemption must forthwith be withdrawn. All these cases are disposed of making it clear that revenue is at liberty to pass fresh orders if such necessity is felt after taking into consideration the various provisions of law contained in Section 10(23C) read with Section 11 of the Income Tax Act.

Prabrakar Yeshwant Joshi & Others Vs. State of Maharashtra & Others

rules and cannot therefore have the effect of amending the rules of 1960. As we have already held on art interpretation of the rules of 1960 that they do not support the contention of the petitioners, the question whether the resolution has the force of rules may not be relevant in this context, but none the less in our view, there is force in the contention of Shri Kumaramangalam, learned advocate for the respondents, that even the 1960 rules have no statutory force and are no better than the executive instructions issued from time to time by means of resolutions. It may be observed that the rules referred to are part of the resolution of 1960. The resolution itself lays down the principles and in the end formulates those principles in terms of rules, which however are not purported to be made under any provision of law or even under Art. 309. There also is nothing to indicate that the procedure and formalities required for making rules have been gone through.It is next contended that the persons from the Hyderabad service did not have 7 years even as officiating Deputy Engineers but were only deemed to have been appointed as temporary engineers as from 31-3-1957. This contention also, in our view, has no force because the respondents who were from Hyderabad State were in fact selected by the Hyderabad Public Service Commission as Assistant Engineers and would have been appointed as such but for the States Reorganisation Act which came into force as from 1-11-1956. Had they been appointed earlier. they would have had to be equated with the posts in Bombay. In fact as the notification issued by the Hyderabad Public Service Commission furnished by Mr. Joshi shows, the candidates who were lo be selected were required to serve in any of the districts of Hyderabad State Hyderabad proper or according to the allocation in the reorganised set up of the State if and when it took place. It was therefore, in the contemplation of the Public Service Commission that the State would be reorganised and the candidates selected may be required to serve in the reorganised State. The allocation of persons after the reorganisation from one, State to the other was subject to the Reorganisation Act which dealt with matters pertaining to allocation, transfer, fixation of service conditions, seniority etc. The claims of the respondents who were allotted. from the Hyderabad State arose earlier than the appointments of the petitioner- , and the Government of Bombay and subsequently the Maharashtra Government was entitled to consider these claims and to give redress.9. It is again argued that if they had a claim under the States Reorganisation Act, they should have been treated as Deputy Engineers from 1st Nov. 1956, and not from 31st March 1957 and therefore they could not be considered as having been dealt with under the States Reorganisation Act. We are unable to accept the force of this argument because it was open to the Government of the State to which they were allotted to take into consideration the fact that they would have been appointed in the erstwhile State from a particular date, to treat them as such and to equate their posts which they would have held. In these circumstances, there is no statutory bar or rule which prohibits the Government of Maharashtra from deeming their appointment as from 31-3-1957 for the limited purpose of seniority and promotion.Apart from these contentions it appears to us that there is another formidable obstacle in the way of the petitioners success and it is that under the 1957 Resolution for promotion to the post of officiating Executive Engineers, they should be put oil the Select List by a committee of the Chief Engineers to be prepared each year for that purpose. When promotions are made on the basis of seniority-cum-merit, all that can be required is that persons entitled to promotion should be considered and if having been considered they have been left out, they would have no claim to promotion as a matter of right. In State of Mysore v. Syed Mahmood([1958] 3 S. C. R. 363.) this Court had so held. Bachawat, J. speaking for the Court observed at p. 366,"Where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted."10. It is however stated that no list was made for 1966 which is the crucial year in so far as the petitioners are concerned because their 7 years would have been completed in June 1965 and they would have been entitled to be considered for promotion in 1966. In answer to this contention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time but they were also not entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, but, in our view, it is significant that they did not possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16.

0[ds]It would be apparent from the 1941 rules that they merely provide for fixation of seniority of the direct recruits and officers promoted to the substantive vacancies but have nothing to do with the qualifications required for promotion to the next higher rank. Rule 6 of 1960 deals with class I posts. Clauses 1, 2 and 3 of this rule provide (1) that 25 per cent posts in class I are to be filled by promotees, (2) that for absorption into class 1, class II Officer must have a permanent service in class II cadre, (b) have 15 years of service in class II in temporary and permanent capacities, and (c) that he must be holding an officiating divisional rank at the time of such absorption. Clause 3 deals with inter se seniority between the Assistant Engineers and Class II promotees to the post of Executive Engineers. The absorption referred to in r. 6 is a permanent absorption because cl. 2 provides that on such absorption the class IT officers shall be confirmed as Executive Engineers. Clause 6 gives no indication that class II officers whether direct recruits or promotees cannot be promoted as officiating Executive Engineers. That is dealt with by cl. 2 of as officiating Engineers. That is dealt with by cl. 2 of r. 7 which r. 7 which provides that Class II officers should have as far as possible at least 6 years longer service than the promotee under consideration from class 1, viz., Assistant Engineers, and further that he should at least have seven years service. Even this rule does not indicate that the qualifying service of either of six years or of 7 years specified in the rule has to be permanent service. In cl. (ii) of r. 6 it is provided that 15 year, of service in class II for absorption as Executive Engineer can be in temporary or permanent capacities. There is nothing in r. (ii) to militate against the interpretation that the service specified there can be the total service of any description whether provisional, temporary or permanent. If promotion from class IT a, officiating Executive Engineer can only he made after 7 years of permanent service, then there would be no meaning in including the temporary service in class IT for the purpose of absorption as Executive Engineer. Even r.8 upon which Shri Gupte has laid great emphasis in support of hi, contention. does not, in our view, justify an interpretation that the 7 years service required to entitle persons in class II for promotion as an officiating Executive Engineer should be permanent service in classwe have seen earlier, cl. (ii) of r. 7 does not use the word belong but requires only that the person under consideration for promotion should be from class II service. To be in class II service the Deputy Engineer promoted from subordinate service has to put in at least 3 years of service as officiating Deputy Engineer before being confirmed and thereafter he can when he is promoted to the next higher rank be confirmed as Executive Engineer if he has put in 15 years in class II service in temporary or permanent capacities and is holding an officiating divisional rank, namely of an Executive Engineer. If temporary service can be taken into account for confirmation as an Executive Engineer, so can officiating service, and if officiating service can be taken into consideration, there is no impediment to a Deputy Engineer with 7 years service whether officiating, temporary or permanent to entitle him for promotion as an Executive Engineer.The list that is referred to in cl. (i) of r. 8 must be read with the further provision in that rule that for inclusion in that list of persons a graduate shall have to his credit not less than 3, a diploma holder not less than 8 and a non qualified person not less than 13 years of service as overseers. In our view it is the list of such persons that is referred to in cl. (ii) of r. 8 and not that there should be a list of persons actually officiating as Engineers for further promotion to the same post which will have little meaning , for there cannot be a promotion of a person in the same cadre of g service who is already promoted whether as an officiating or temporary or permanent incumbent. If cl. (i) of r. 8 provides that class IT cadre shall be recruited by competitive examination, the promotees also are promoted from the list of persons considered fit to hold sub divisional charge, i.e., posts of Deputy Engineers. If in the case of direct recruits the appointment is without reference to confirmation, it cannot be any different in the case of promotees.8. We cannot, therefore, accept the contention of Shri Gupte that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under r. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation. On the other hand, the subsequent resolution of the Government of 1963 makes it abundantly clear that the seniority of promotees should be considered as from the date of promotion to officiate continuously irrespective of whether the appointments are made in temporary or permanent vacancies. It is no doubt submitted that this does not have the force of rules and cannot therefore have the effect of amending the rules of 1960. As we have already held on art interpretation of the rules of 1960 that they do not support the contention of the petitioners, the question whether the resolution has the force of rules may not be relevant in this context, but none the less in our view, there is force in the contention of Shri Kumaramangalam, learned advocate for the respondents, that even the 1960 rules have no statutory force and are no better than the executive instructions issued from time to time by means of resolutions. It may be observed that the rules referred to are part of the resolution of 1960. The resolution itself lays down the principles and in the end formulates those principles in terms of rules, which however are not purported to be made under any provision of law or even under Art. 309. There also is nothing to indicate that the procedure and formalities required for making rules have been gone through.It is next contended that the persons from the Hyderabad service did not have 7 years even as officiating Deputy Engineers but were only deemed to have been appointed as temporary engineers as from 31-3-1957. This contention also, in our view, has no force because the respondents who were from Hyderabad State were in fact selected by the Hyderabad Public Service Commission as Assistant Engineers and would have been appointed as such but for the States Reorganisation Act which came into force as from 1-11-1956. Had they been appointed earlier. they would have had to be equated with the posts in Bombay. In fact as the notification issued by the Hyderabad Public Service Commission furnished by Mr. Joshi shows, the candidates who were lo be selected were required to serve in any of the districts of Hyderabad State Hyderabad proper or according to the allocation in the reorganised set up of the State if and when it took place. It was therefore, in the contemplation of the Public Service Commission that the State would be reorganised and the candidates selected may be required to serve in the reorganised State. The allocation of persons after the reorganisation from one, State to the other was subject to the Reorganisation Act which dealt with matters pertaining to allocation, transfer, fixation of service conditions, seniority etc. The claims of the respondents who were allotted. from the Hyderabad State arose earlier than the appointments of the petitioner- , and the Government of Bombay and subsequently the Maharashtra Government was entitled to consider these claims and to give redress.9. It is again argued that if they had a claim under the States Reorganisation Act, they should have been treated as Deputy Engineers from 1st Nov. 1956, and not from 31st March 1957 and therefore they could not be considered as having been dealt with under the States Reorganisation Act. We are unable to accept the force of this argument because it was open to the Government of the State to which they were allotted to take into consideration the fact that they would have been appointed in the erstwhile State from a particular date, to treat them as such and to equate their posts which they would have held. In these circumstances, there is no statutory bar or rule which prohibits the Government of Maharashtra from deeming their appointment as from 31-3-1957 for the limited purpose of seniority and promotion.Apart from these contentions it appears to us that there is another formidable obstacle in the way of the petitioners success and it is that under the 1957 Resolution for promotion to the post of officiating Executive Engineers, they should be put oil the Select List by a committee of the Chief Engineers to be prepared each year for that purpose. When promotions are made on the basis of seniority-cum-merit, all that can be required is that persons entitled to promotion should be considered and if having been considered they have been left out, they would have no claim to promotion as a matter ofanswer to this contention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time but they were also not entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, but, in our view, it is significant that they did not possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16.

### 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: rules and cannot therefore have the effect of amending the rules of 1960. As we have already held on art interpretation of the rules of 1960 that they do not support the contention of the petitioners, the question whether the resolution has the force of rules may not be relevant in this context, but none the less in our view, there is force in the contention of Shri Kumaramangalam, learned advocate for the respondents, that even the 1960 rules have no statutory force and are no better than the executive instructions issued from time to time by means of resolutions. It may be observed that the rules referred to are part of the resolution of 1960. The resolution itself lays down the principles and in the end formulates those principles in terms of rules, which however are not purported to be made under any provision of law or even under Art. 309. There also is nothing to indicate that the procedure and formalities required for making rules have been gone through.It is next contended that the persons from the Hyderabad service did not have 7 years even as officiating Deputy Engineers but were only deemed to have been appointed as temporary engineers as from 31-3-1957. This contention also, in our view, has no force because the respondents who were from Hyderabad State were in fact selected by the Hyderabad Public Service Commission as Assistant Engineers and would have been appointed as such but for the States Reorganisation Act which came into force as from 1-11-1956. Had they been appointed earlier. they would have had to be equated with the posts in Bombay. In fact as the notification issued by the Hyderabad Public Service Commission furnished by Mr. Joshi shows, the candidates who were lo be selected were required to serve in any of the districts of Hyderabad State Hyderabad proper or according to the allocation in the reorganised set up of the State if and when it took place. It was therefore, in the contemplation of the Public Service Commission that the State would be reorganised and the candidates selected may be required to serve in the reorganised State. The allocation of persons after the reorganisation from one, State to the other was subject to the Reorganisation Act which dealt with matters pertaining to allocation, transfer, fixation of service conditions, seniority etc. The claims of the respondents who were allotted. from the Hyderabad State arose earlier than the appointments of the petitioner- , and the Government of Bombay and subsequently the Maharashtra Government was entitled to consider these claims and to give redress.9. It is again argued that if they had a claim under the States Reorganisation Act, they should have been treated as Deputy Engineers from 1st Nov. 1956, and not from 31st March 1957 and therefore they could not be considered as having been dealt with under the States Reorganisation Act. We are unable to accept the force of this argument because it was open to the Government of the State to which they were allotted to take into consideration the fact that they would have been appointed in the erstwhile State from a particular date, to treat them as such and to equate their posts which they would have held. In these circumstances, there is no statutory bar or rule which prohibits the Government of Maharashtra from deeming their appointment as from 31-3-1957 for the limited purpose of seniority and promotion.Apart from these contentions it appears to us that there is another formidable obstacle in the way of the petitioners success and it is that under the 1957 Resolution for promotion to the post of officiating Executive Engineers, they should be put oil the Select List by a committee of the Chief Engineers to be prepared each year for that purpose. When promotions are made on the basis of seniority-cum-merit, all that can be required is that persons entitled to promotion should be considered and if having been considered they have been left out, they would have no claim to promotion as a matter of right. In State of Mysore v. Syed Mahmood([1958] 3 S. C. R. 363.) this Court had so held. Bachawat, J. speaking for the Court observed at p. 366,"Where the promotion is based on seniority-cum-merit the officer cannot claim promotion as a matter of right by virtue of his seniority alone. If he is found unfit to discharge the duties of the higher post, he may be passed over and an officer junior to him may be promoted."10. It is however stated that no list was made for 1966 which is the crucial year in so far as the petitioners are concerned because their 7 years would have been completed in June 1965 and they would have been entitled to be considered for promotion in 1966. In answer to this contention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time but they were also not entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, but, in our view, it is significant that they did not possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16. ### Response: 0 ### Explanation: direct recruits the appointment is without reference to confirmation, it cannot be any different in the case of promotees.8. We cannot, therefore, accept the contention of Shri Gupte that a promotee officiating Deputy Engineer Class II is not entitled to be considered for promotion under r. 7 to the post of an officiating Executive Engineer unless he has put in 7 years of service from the date of confirmation. On the other hand, the subsequent resolution of the Government of 1963 makes it abundantly clear that the seniority of promotees should be considered as from the date of promotion to officiate continuously irrespective of whether the appointments are made in temporary or permanent vacancies. It is no doubt submitted that this does not have the force of rules and cannot therefore have the effect of amending the rules of 1960. As we have already held on art interpretation of the rules of 1960 that they do not support the contention of the petitioners, the question whether the resolution has the force of rules may not be relevant in this context, but none the less in our view, there is force in the contention of Shri Kumaramangalam, learned advocate for the respondents, that even the 1960 rules have no statutory force and are no better than the executive instructions issued from time to time by means of resolutions. It may be observed that the rules referred to are part of the resolution of 1960. The resolution itself lays down the principles and in the end formulates those principles in terms of rules, which however are not purported to be made under any provision of law or even under Art. 309. There also is nothing to indicate that the procedure and formalities required for making rules have been gone through.It is next contended that the persons from the Hyderabad service did not have 7 years even as officiating Deputy Engineers but were only deemed to have been appointed as temporary engineers as from 31-3-1957. This contention also, in our view, has no force because the respondents who were from Hyderabad State were in fact selected by the Hyderabad Public Service Commission as Assistant Engineers and would have been appointed as such but for the States Reorganisation Act which came into force as from 1-11-1956. Had they been appointed earlier. they would have had to be equated with the posts in Bombay. In fact as the notification issued by the Hyderabad Public Service Commission furnished by Mr. Joshi shows, the candidates who were lo be selected were required to serve in any of the districts of Hyderabad State Hyderabad proper or according to the allocation in the reorganised set up of the State if and when it took place. It was therefore, in the contemplation of the Public Service Commission that the State would be reorganised and the candidates selected may be required to serve in the reorganised State. The allocation of persons after the reorganisation from one, State to the other was subject to the Reorganisation Act which dealt with matters pertaining to allocation, transfer, fixation of service conditions, seniority etc. The claims of the respondents who were allotted. from the Hyderabad State arose earlier than the appointments of the petitioner- , and the Government of Bombay and subsequently the Maharashtra Government was entitled to consider these claims and to give redress.9. It is again argued that if they had a claim under the States Reorganisation Act, they should have been treated as Deputy Engineers from 1st Nov. 1956, and not from 31st March 1957 and therefore they could not be considered as having been dealt with under the States Reorganisation Act. We are unable to accept the force of this argument because it was open to the Government of the State to which they were allotted to take into consideration the fact that they would have been appointed in the erstwhile State from a particular date, to treat them as such and to equate their posts which they would have held. In these circumstances, there is no statutory bar or rule which prohibits the Government of Maharashtra from deeming their appointment as from 31-3-1957 for the limited purpose of seniority and promotion.Apart from these contentions it appears to us that there is another formidable obstacle in the way of the petitioners success and it is that under the 1957 Resolution for promotion to the post of officiating Executive Engineers, they should be put oil the Select List by a committee of the Chief Engineers to be prepared each year for that purpose. When promotions are made on the basis of seniority-cum-merit, all that can be required is that persons entitled to promotion should be considered and if having been considered they have been left out, they would have no claim to promotion as a matter ofanswer to this contention the affidavit on behalf of the respondents shows that the select list of the Deputy Engineers fit for promotion to the post of Executive Engineers in class I was prepared for the year 1964 and 1965 according to the principles and rules laid down in the resolutions of 14th December 1957 and 29th April 1960. None of the petitioners, it is averred, was included in the Select List for 1964 or 1965 because not only did any of them not have the requisite seven years service as Deputy Engineer at the relevant time but they were also not entitled to be included because of the classes of recommendation earned by them during the relevant period. The petitioners however denied in their rejoinder that the lists were prepared keeping in view the criteria laid down by the rules, but, in our view, it is significant that they did not possess the required length of service in class II for them to be entitled to promotion when the respondents were included in the list and promoted as such they cannot challenge the appointments made as being in violation of Art. 14 or Art. 16.

Ram Kumar Vs. State of Haryana

the appellants name was clearly mentioned in the applications, his involvement in the incident does not get in any way lessened or obliterated. It is also pertinent to note that the evidence given by P.W. 4 in connection with what had happened on the day of the incident when Panchayat was convened and even on previous two days, could not be effectively challenged in the cross-examination. 11. It was next contended by the learned counsel for the appellant that the road near the bara was a zigzag and narrow one and the car could not have come carrying the appellant and the other accused as alleged by the prosecution. Even this contention cannot be accepted for the simple reason that in the cross-examination of the witness P.W. 4, it has been brought out by the defence itself that on one side of their bara, agricultural land was situated and even in further cross-examination of the same witness, it has been brought out that there was sufficient electric light on the vacant place towards which their bara opened. It is also further pertinent to not that there was no cross-examination of these witnesses on the aspect whether the car could have come or not on the spot or whether there was any zig-zag road. In fact, such a suggestion was not even put to any of the eye witnesses. Therefore, it is too late in the day for the learned counsel to submit that the car could not have come near the spot. So far as the presence of electric light is concerned, the witness had clearly stated that there were number of bulbs near the bara and they were burning.12. Learned counsel then submitted that the witness Mansa Ram had a weak eye-sight. Even this submission cannot be of any avail for the simple reason that when cross-examined, the witness Mansa Ram P.W. 5, stated his eye sight had become weak after the death of his younger son, Balwant Singh and that his long distance eye sight was all right.13. It was next submitted that if according to the prosecution three persons were sleeping in the bara on their cots, how only one cot was found by the police. In this connection it has to be observed that in the cross-examination of witness Mansa Ram, P.W. 5, it was brought out that a number of persons were sitting on their cots when they had collected at the spot after the incident and the other cots lying on the spot were removed for that purpose and only one cot on which the deceased was sleeping at the time of the incident was not removed from the spot. This explanation, which is accepted by both the Courts below, cannot be said to be in any way an unreasonable explanation. 14. It was then contended that the FIR itself appeared to be a concocted one and as such detailed averments were made therein and such detailed averments could not be written on the bus stand as alleged by P.W. 4, Dalel Singh. It is pertinent to note that nothing substantial in this connection could be taken out in the cross-examination. The statement of the witness in respect of the recording of the FIR on the bus stand is fully corroborated by the evidence of ASI, Vijay Singh. Even such a contention was not canvassed before the High Court in support of the appeal. It is, therefore, clearly an after-thought. 15. It was also contended that according to the version of the eye witnesses they waited for about one or one and a half hour at village Shamgarh after the incident before taking the victim to the hospital and this was improbable. We fail to appreciate this submission. It has to be kept in view that between 9. 30 to 10 p.m. the incident had happened at the village. The accused who had come in car had thereafter fled. Villagers had gathered on the spot. The evidence shows that they were in search of a vehicle to take the deceased to the hospital at Nilokheri which was a couple of kilometres away. After procuring the jeep, they could take the victim to the hospital. That would naturally take quite some time. Therefore, one and a half hours cannot be said to be an unduly long period which had elapsed before the victim could be taken to the hospital. 16. It was next contended that when the investigating officer had admitted that he had recorded statement of several persons, evidence at the stage of trial was given only by the victims close relatives - P.W. 4, is elder brother and P.W. 5, his father. In our view when the eye witnesses who were in company of the deceased at the time of the assault and who had witnessed the assault were examined there remained no occasion to examine other witnesses who obviously had come on the spot after the incident and would not have thrown any light on the actual happening of the incident. It was not the case of any one that along with the deceased and the eye witnesses there were any other witnesses present in the bara when the assault was mounted by the accused. Consequently, this argument is of no avail to the appellant.17. It was lastly submitted that the High Court ought not to have imposed the fine of Rs. 25, 000/- in the application filed by the complainant. In our view, this contention cannot be of any avail for the simple reason that when the High Court found that the deceased was done away with in such a brutal manner on the night of the incident, the accused should bear the fine of Rs. 25, 000/-. It could not have been said that such a discretionary order was not justified in the facts and circumstances of the case.18. These are the only submissions made by the learned counsel for the appellant. We find no substance in any of them.

0[ds]5. As this is an appeal on special leave, the concurrent findings reached by both the Courts on evidence cannot be lightly brushed aside and unless it is shown that the findings are against the weight of evidence or vitiated by any error of law, normally this Court would not interfere as a matter of course with such findings. It is in that light that we have to consider the main contentions canvassed by the learned counsel for the appellant in support of thisis, therefore, not possible to agree with the contention of the learned counsel for the appellant that there was no occasion for this witness or even his father, Mansa Ram to sleep in this bara. It has also to be kept in view that there was bitter litigation pending in connection with the ownership of this bara between the complainants side and the accuseds side. The complainants side had succeeded in the District Court and the appeal was pending in the High Court. Even apart from that, the evidence of P.W. 4 shows that two days prior to the date of the incident, the appellant Ram Kumar and his supporters had abused them and asked them to vacate the bara and that attempt failed. The act was also repeated on the previous day and even on the date of the incident, a Panchayat had to be convened by the complainants side where the accused did not remain present and in that sequence the incident that occurred on the night of that very day had to be appreciated. When such constant threats were given by the appellants and his suppporters in connection with the bara, it would be quite natural for the witnesses to sleep with the deceased in the said bara to protect their possession. Consequently, it is not possible to agree with the contention of the learned senior counsel for the appellant that these witnesses would not have been present in the bara at the time of the incident.The learned senior counsel next submitted that if the information had reachedVijender Singh P.W. 10, at about 11.10 p.m. onwhen he received the wireless message which had stated that firing was taking place at 11.08 p.m., it is not possible to believe that the firing had taken place in the bara between 9.30 to 10 p.m. and this showed that the prosecution hadthe incident. It is difficult to agree with thisour view, the aforesaid reasoning of the High Court is well sustained on evidence and therefore, it is not possible to agree with the submission of the learned counsel for the appellant that the incident was tried to beby the prosecution or that the eye witnesses would not have been present and it was a blind murder.9. It was next submitted that the medical evidence showed that the deceased had received the bullet only on the left side of his face and that would indicate that he must be sleeping when the pistol injury was given to him. Even this submission cannot be of any use to the appellant for the simple reason that being apprehensive of injury from pistol, the deceased would naturally have turned his face to avoid the injury and in the process might have been hit on the left side because only one shot was fired at the deceased.10. It was next contended that the statement Ex. DL andmade in the remand application by the police did not implicate the appellant. This submission was rightly rejected by the High Court which has observed that the English translation was defective and the original application in Hindi showed that Ram Kumar, appellant was in the company of other persons and had appeared on the scene and fired the fatal shot. Even if some other persons were mentioned in the remand applications, once the appellants name was clearly mentioned in the applications, his involvement in the incident does not get in any way lessened or obliterated. It is also pertinent to note that the evidence given by P.W. 4 in connection with what had happened on the day of the incident when Panchayat was convened and even on previous two days, could not be effectively challenged in the. It was then contended that the FIR itself appeared to be a concocted one and as such detailed averments were made therein and such detailed averments could not be written on the bus stand as alleged by P.W. 4, Dalel Singh. It is pertinent to note that nothing substantial in this connection could be taken out in theP.W. 4, is elder brother and P.W. 5, his father. In our view when the eye witnesses who were in company of the deceased at the time of the assault and who had witnessed the assault were examined there remained no occasion to examine other witnesses who obviously had come on the spot after the incident and would not have thrown any light on the actual happening of the incident. It was not the case of any one that along with the deceased and the eye witnesses there were any other witnesses present in the bara when the assault was mounted by the accused. Consequently, this argument is of no avail to the appellant.17. It was lastly submitted that the High Court ought not to have imposed the fine of Rs. 25, 000/in the application filed by the complainant. In our view, this contention cannot be of any avail for the simple reason that when the High Court found that the deceased was done away with in such a brutal manner on the night of the incident, the accused should bear the fine of Rs. 25,It could not have been said that such a discretionary order was not justified in the facts and circumstances of the case.18. These are the only submissions made by the learned counsel for the appellant. We find no substance in any of them.

### Instruction: Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction. ### Input: the appellants name was clearly mentioned in the applications, his involvement in the incident does not get in any way lessened or obliterated. It is also pertinent to note that the evidence given by P.W. 4 in connection with what had happened on the day of the incident when Panchayat was convened and even on previous two days, could not be effectively challenged in the cross-examination. 11. It was next contended by the learned counsel for the appellant that the road near the bara was a zigzag and narrow one and the car could not have come carrying the appellant and the other accused as alleged by the prosecution. Even this contention cannot be accepted for the simple reason that in the cross-examination of the witness P.W. 4, it has been brought out by the defence itself that on one side of their bara, agricultural land was situated and even in further cross-examination of the same witness, it has been brought out that there was sufficient electric light on the vacant place towards which their bara opened. It is also further pertinent to not that there was no cross-examination of these witnesses on the aspect whether the car could have come or not on the spot or whether there was any zig-zag road. In fact, such a suggestion was not even put to any of the eye witnesses. Therefore, it is too late in the day for the learned counsel to submit that the car could not have come near the spot. So far as the presence of electric light is concerned, the witness had clearly stated that there were number of bulbs near the bara and they were burning.12. Learned counsel then submitted that the witness Mansa Ram had a weak eye-sight. Even this submission cannot be of any avail for the simple reason that when cross-examined, the witness Mansa Ram P.W. 5, stated his eye sight had become weak after the death of his younger son, Balwant Singh and that his long distance eye sight was all right.13. It was next submitted that if according to the prosecution three persons were sleeping in the bara on their cots, how only one cot was found by the police. In this connection it has to be observed that in the cross-examination of witness Mansa Ram, P.W. 5, it was brought out that a number of persons were sitting on their cots when they had collected at the spot after the incident and the other cots lying on the spot were removed for that purpose and only one cot on which the deceased was sleeping at the time of the incident was not removed from the spot. This explanation, which is accepted by both the Courts below, cannot be said to be in any way an unreasonable explanation. 14. It was then contended that the FIR itself appeared to be a concocted one and as such detailed averments were made therein and such detailed averments could not be written on the bus stand as alleged by P.W. 4, Dalel Singh. It is pertinent to note that nothing substantial in this connection could be taken out in the cross-examination. The statement of the witness in respect of the recording of the FIR on the bus stand is fully corroborated by the evidence of ASI, Vijay Singh. Even such a contention was not canvassed before the High Court in support of the appeal. It is, therefore, clearly an after-thought. 15. It was also contended that according to the version of the eye witnesses they waited for about one or one and a half hour at village Shamgarh after the incident before taking the victim to the hospital and this was improbable. We fail to appreciate this submission. It has to be kept in view that between 9. 30 to 10 p.m. the incident had happened at the village. The accused who had come in car had thereafter fled. Villagers had gathered on the spot. The evidence shows that they were in search of a vehicle to take the deceased to the hospital at Nilokheri which was a couple of kilometres away. After procuring the jeep, they could take the victim to the hospital. That would naturally take quite some time. Therefore, one and a half hours cannot be said to be an unduly long period which had elapsed before the victim could be taken to the hospital. 16. It was next contended that when the investigating officer had admitted that he had recorded statement of several persons, evidence at the stage of trial was given only by the victims close relatives - P.W. 4, is elder brother and P.W. 5, his father. In our view when the eye witnesses who were in company of the deceased at the time of the assault and who had witnessed the assault were examined there remained no occasion to examine other witnesses who obviously had come on the spot after the incident and would not have thrown any light on the actual happening of the incident. It was not the case of any one that along with the deceased and the eye witnesses there were any other witnesses present in the bara when the assault was mounted by the accused. Consequently, this argument is of no avail to the appellant.17. It was lastly submitted that the High Court ought not to have imposed the fine of Rs. 25, 000/- in the application filed by the complainant. In our view, this contention cannot be of any avail for the simple reason that when the High Court found that the deceased was done away with in such a brutal manner on the night of the incident, the accused should bear the fine of Rs. 25, 000/-. It could not have been said that such a discretionary order was not justified in the facts and circumstances of the case.18. These are the only submissions made by the learned counsel for the appellant. We find no substance in any of them. ### Response: 0 ### Explanation: 5. As this is an appeal on special leave, the concurrent findings reached by both the Courts on evidence cannot be lightly brushed aside and unless it is shown that the findings are against the weight of evidence or vitiated by any error of law, normally this Court would not interfere as a matter of course with such findings. It is in that light that we have to consider the main contentions canvassed by the learned counsel for the appellant in support of thisis, therefore, not possible to agree with the contention of the learned counsel for the appellant that there was no occasion for this witness or even his father, Mansa Ram to sleep in this bara. It has also to be kept in view that there was bitter litigation pending in connection with the ownership of this bara between the complainants side and the accuseds side. The complainants side had succeeded in the District Court and the appeal was pending in the High Court. Even apart from that, the evidence of P.W. 4 shows that two days prior to the date of the incident, the appellant Ram Kumar and his supporters had abused them and asked them to vacate the bara and that attempt failed. The act was also repeated on the previous day and even on the date of the incident, a Panchayat had to be convened by the complainants side where the accused did not remain present and in that sequence the incident that occurred on the night of that very day had to be appreciated. When such constant threats were given by the appellants and his suppporters in connection with the bara, it would be quite natural for the witnesses to sleep with the deceased in the said bara to protect their possession. Consequently, it is not possible to agree with the contention of the learned senior counsel for the appellant that these witnesses would not have been present in the bara at the time of the incident.The learned senior counsel next submitted that if the information had reachedVijender Singh P.W. 10, at about 11.10 p.m. onwhen he received the wireless message which had stated that firing was taking place at 11.08 p.m., it is not possible to believe that the firing had taken place in the bara between 9.30 to 10 p.m. and this showed that the prosecution hadthe incident. It is difficult to agree with thisour view, the aforesaid reasoning of the High Court is well sustained on evidence and therefore, it is not possible to agree with the submission of the learned counsel for the appellant that the incident was tried to beby the prosecution or that the eye witnesses would not have been present and it was a blind murder.9. It was next submitted that the medical evidence showed that the deceased had received the bullet only on the left side of his face and that would indicate that he must be sleeping when the pistol injury was given to him. Even this submission cannot be of any use to the appellant for the simple reason that being apprehensive of injury from pistol, the deceased would naturally have turned his face to avoid the injury and in the process might have been hit on the left side because only one shot was fired at the deceased.10. It was next contended that the statement Ex. DL andmade in the remand application by the police did not implicate the appellant. This submission was rightly rejected by the High Court which has observed that the English translation was defective and the original application in Hindi showed that Ram Kumar, appellant was in the company of other persons and had appeared on the scene and fired the fatal shot. Even if some other persons were mentioned in the remand applications, once the appellants name was clearly mentioned in the applications, his involvement in the incident does not get in any way lessened or obliterated. It is also pertinent to note that the evidence given by P.W. 4 in connection with what had happened on the day of the incident when Panchayat was convened and even on previous two days, could not be effectively challenged in the. It was then contended that the FIR itself appeared to be a concocted one and as such detailed averments were made therein and such detailed averments could not be written on the bus stand as alleged by P.W. 4, Dalel Singh. It is pertinent to note that nothing substantial in this connection could be taken out in theP.W. 4, is elder brother and P.W. 5, his father. In our view when the eye witnesses who were in company of the deceased at the time of the assault and who had witnessed the assault were examined there remained no occasion to examine other witnesses who obviously had come on the spot after the incident and would not have thrown any light on the actual happening of the incident. It was not the case of any one that along with the deceased and the eye witnesses there were any other witnesses present in the bara when the assault was mounted by the accused. Consequently, this argument is of no avail to the appellant.17. It was lastly submitted that the High Court ought not to have imposed the fine of Rs. 25, 000/in the application filed by the complainant. In our view, this contention cannot be of any avail for the simple reason that when the High Court found that the deceased was done away with in such a brutal manner on the night of the incident, the accused should bear the fine of Rs. 25,It could not have been said that such a discretionary order was not justified in the facts and circumstances of the case.18. These are the only submissions made by the learned counsel for the appellant. We find no substance in any of them.

Mohan Lal Vs. Mohun Ram

he held that though the statutory right of a minor son to be maintained by his father under Section 20 of the Hindu Adoptions and Maintenance Act, 78 of 1956 cannot invariably and in all cases be regarded as a means of livelihood of a minor, it could be taken into account on the facts and circumstances of the present case. These facts, according to him were : (1) the fact that the appellant was residing with and was being maintained by his father, (2) the admission made by the father that he had acquired other lands by purchasing them and had thus augmented the ancestral property held by him, (3) the price of Rs. 4000 for the land in question was in fact paid by him, and (4) it comprised of Rs. 2000 advanced earlier and the balance of Rs. 2000 paid by him at the time of the execution of the sale. Basing his conclusion on these facts, the Judicial Commissioner held that the appellant could not be said to be a minor, who had no means of livelihood except the land in question, that therefore, Section 11 (2) did not apply and the respondent-tenant was entitled under Section 11 (1) to acquire the proprietary rights in the land excluding the buildings and the trees standing thereon. 5. Section 11 reads as follows : "(1) Notwithstanding any law, custom or contract to the contrary a tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of this Act, be entitled to acquire, on payment of compensation, the right, title and interest of the landowners in the land of the tenancy held by him under the landowner - xx xx xx xx (2) Nothing contained in sub-section (1) shall apply to a landlord, if he has no other means of livelihood, and is a minor - In the case of a minor, sub-section (1) shall not apply during his minority-." 6. Counsel for the appellant did not contest the finding of the Judicial Commissioner that the respondent was inducted on the land as a tenant, and that though the lease period expired in 1960 he was still a tenant until he was evicted by a decree of a Court or had abandoned or otherwise relinquished the tenancy. That being so, there can be no doubt that the respondent was entitled to maintain the application under Section 11 (1). The only question, therefore, which he pressed before us was that the Judicial Commissioner was in error in holding that the obligation of a father to maintain his minor son under the Hindu Adoptions and Maintenance Act can be regarded as a means of livelihood of such a son other than the land in question as contemplated by Section 11 (2). 7. Reading the judgment of the Judicial Commissioner as a whole, it is clear that that was not what the Judicial Commissioner held. What he held was that the expression "means of livelihood" in Section 11 (2) had not been used in any artificial sense but in its ordinary meaning, that the said expression would mean resources of livelihood, that in ascertaining such resources each case would depend on its own facts and circumstances, that the statutory right of a minor to be maintained by his father cannot invariably and always be regarded as a means of livelihood of the minor, but that there may be facts on which such a right may be taken into consideration while deciding the question whether protection under sub-section (2) can be invoked. The Judicial Commissioner then considered the aforesaid four facts and came to the conclusion, that this was not a case where the appellant-minor could be said to be without any means of livelihood other than the land in question. 8. It is not necessary on the facts of the present case to decide whether the statutory right of maintenance of a minor can or cannot be treated as a means of livelihood. There are facts in this case which clearly show that even after the proprietary" rights of the minor in the land in question are acquired by the tenant there would be other means of livelihood left with the appellant . The first and the most obvious one is that there are standing on the land two houses the proprietary rights in which are not sought to be acquired by the respondent. The plan got prepared by the District Judge shows the two houses together with the portions of land appertaining thereto which would still remain with the appellant. The evidence of the appellants father was that the whole of the land together with the trees and the two houses standing thereon was acquired by him for the appellant for Rs. 4000 only. By 1964 when he gave his evidence, the value of the two houses alone was between Rupees 7000 to Rs. 8000. The fathers evidence further shows that he got land measuring 25 to 30 bighas on the death of his father, that he had since them purchased several other pieces of land, thus increasing the extent of the ancestral property held by him. Over and above these lands, he had planted a number of apple and other fruit bearing trees. The property held by him thus was, on his own admission, ancestral property in which the appellant has an interest as a coparcener in a Hindu joint family.It is thus manifest that the land in question is not the only means of the appellants livelihood and even when he is deprived of the proprietary rights therein there would be other properties, even besides the said two houses and the trees, in which he has an interest. Therefore, the conclusion reached by the Judicial Commissioner that the protection under Section 11 (2) could not be availed of by the appellant is correct without any regard being had to his right of maintenance under the Hindu Adoptions and Maintenance Act.

0[ds]6. Counsel for the appellant did not contest the finding of the Judicial Commissioner that the respondent was inducted on the land as a tenant, and that though the lease period expired in 1960 he was still a tenant until he was evicted by a decree of a Court or had abandoned or otherwise relinquished the tenancy.That being so, there can be no doubt that the respondent was entitled to maintain the application under Section 11 (1)7. Reading the judgment of the Judicial Commissioner as a whole, it is clear that that was not what the Judicial Commissioner held. What he held was that the expression "means of livelihood" in Section 11 (2) had not been used in any artificial sense but in its ordinary meaning, that the said expression would mean resources of livelihood, that in ascertaining such resources each case would depend on its own facts and circumstances, that the statutory right of a minor to be maintained by his father cannot invariably and always be regarded as a means of livelihood of the minor, but that there may be facts on which such a right may be taken into consideration while deciding the question whether protection undern (2) can be invoked. The Judicial Commissioner then considered the aforesaid four facts and came to the conclusion, that this was not a case where ther could be said to be without any means of livelihood other than the land in question8. It is not necessary on the facts of the present case to decide whether the statutory right of maintenance of a minor can or cannot be treated as a means of livelihood. There are facts in this case which clearly show that even after the proprietary" rights of the minor in the land in question are acquired by the tenant there would be other means of livelihood left with the appellant . The first and the most obvious one is that there are standing on the land two houses the proprietary rights in which are not sought to be acquired by the respondent. The plan got prepared by the District Judge shows the two houses together with the portions of land appertaining thereto which would still remain with the appellant. The evidence of the appellants father was that the whole of the land together with the trees and the two houses standing thereon was acquired by him for the appellant for Rs. 4000 only. By 1964 when he gave his evidence, the value of the two houses alone was between Rupees 7000 to Rs. 8000. The fathers evidence further shows that he got land measuring 25 to 30 bighas on the death of his father, that he had since them purchased several other pieces of land, thus increasing the extent of the ancestral property held by him. Over and above these lands, he had planted a number of apple and other fruit bearing trees. The property held by him thus was, on his own admission, ancestral property in which the appellant has an interest as a coparcener in a Hindu joint family.It is thus manifest that the land in question is not the only means of the appellants livelihood and even when he is deprived of the proprietary rights therein there would be other properties, even besides the said two houses and the trees, in which he has an interest. Therefore, the conclusion reached by the Judicial Commissioner that the protection under Section 11 (2) could not be availed of by the appellant is correct without any regard being had to his right of maintenance under the Hindu Adoptions and Maintenance 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: he held that though the statutory right of a minor son to be maintained by his father under Section 20 of the Hindu Adoptions and Maintenance Act, 78 of 1956 cannot invariably and in all cases be regarded as a means of livelihood of a minor, it could be taken into account on the facts and circumstances of the present case. These facts, according to him were : (1) the fact that the appellant was residing with and was being maintained by his father, (2) the admission made by the father that he had acquired other lands by purchasing them and had thus augmented the ancestral property held by him, (3) the price of Rs. 4000 for the land in question was in fact paid by him, and (4) it comprised of Rs. 2000 advanced earlier and the balance of Rs. 2000 paid by him at the time of the execution of the sale. Basing his conclusion on these facts, the Judicial Commissioner held that the appellant could not be said to be a minor, who had no means of livelihood except the land in question, that therefore, Section 11 (2) did not apply and the respondent-tenant was entitled under Section 11 (1) to acquire the proprietary rights in the land excluding the buildings and the trees standing thereon. 5. Section 11 reads as follows : "(1) Notwithstanding any law, custom or contract to the contrary a tenant other than a sub-tenant shall, on application made to the compensation officer at any time after the commencement of this Act, be entitled to acquire, on payment of compensation, the right, title and interest of the landowners in the land of the tenancy held by him under the landowner - xx xx xx xx (2) Nothing contained in sub-section (1) shall apply to a landlord, if he has no other means of livelihood, and is a minor - In the case of a minor, sub-section (1) shall not apply during his minority-." 6. Counsel for the appellant did not contest the finding of the Judicial Commissioner that the respondent was inducted on the land as a tenant, and that though the lease period expired in 1960 he was still a tenant until he was evicted by a decree of a Court or had abandoned or otherwise relinquished the tenancy. That being so, there can be no doubt that the respondent was entitled to maintain the application under Section 11 (1). The only question, therefore, which he pressed before us was that the Judicial Commissioner was in error in holding that the obligation of a father to maintain his minor son under the Hindu Adoptions and Maintenance Act can be regarded as a means of livelihood of such a son other than the land in question as contemplated by Section 11 (2). 7. Reading the judgment of the Judicial Commissioner as a whole, it is clear that that was not what the Judicial Commissioner held. What he held was that the expression "means of livelihood" in Section 11 (2) had not been used in any artificial sense but in its ordinary meaning, that the said expression would mean resources of livelihood, that in ascertaining such resources each case would depend on its own facts and circumstances, that the statutory right of a minor to be maintained by his father cannot invariably and always be regarded as a means of livelihood of the minor, but that there may be facts on which such a right may be taken into consideration while deciding the question whether protection under sub-section (2) can be invoked. The Judicial Commissioner then considered the aforesaid four facts and came to the conclusion, that this was not a case where the appellant-minor could be said to be without any means of livelihood other than the land in question. 8. It is not necessary on the facts of the present case to decide whether the statutory right of maintenance of a minor can or cannot be treated as a means of livelihood. There are facts in this case which clearly show that even after the proprietary" rights of the minor in the land in question are acquired by the tenant there would be other means of livelihood left with the appellant . The first and the most obvious one is that there are standing on the land two houses the proprietary rights in which are not sought to be acquired by the respondent. The plan got prepared by the District Judge shows the two houses together with the portions of land appertaining thereto which would still remain with the appellant. The evidence of the appellants father was that the whole of the land together with the trees and the two houses standing thereon was acquired by him for the appellant for Rs. 4000 only. By 1964 when he gave his evidence, the value of the two houses alone was between Rupees 7000 to Rs. 8000. The fathers evidence further shows that he got land measuring 25 to 30 bighas on the death of his father, that he had since them purchased several other pieces of land, thus increasing the extent of the ancestral property held by him. Over and above these lands, he had planted a number of apple and other fruit bearing trees. The property held by him thus was, on his own admission, ancestral property in which the appellant has an interest as a coparcener in a Hindu joint family.It is thus manifest that the land in question is not the only means of the appellants livelihood and even when he is deprived of the proprietary rights therein there would be other properties, even besides the said two houses and the trees, in which he has an interest. Therefore, the conclusion reached by the Judicial Commissioner that the protection under Section 11 (2) could not be availed of by the appellant is correct without any regard being had to his right of maintenance under the Hindu Adoptions and Maintenance Act. ### Response: 0 ### Explanation: 6. Counsel for the appellant did not contest the finding of the Judicial Commissioner that the respondent was inducted on the land as a tenant, and that though the lease period expired in 1960 he was still a tenant until he was evicted by a decree of a Court or had abandoned or otherwise relinquished the tenancy.That being so, there can be no doubt that the respondent was entitled to maintain the application under Section 11 (1)7. Reading the judgment of the Judicial Commissioner as a whole, it is clear that that was not what the Judicial Commissioner held. What he held was that the expression "means of livelihood" in Section 11 (2) had not been used in any artificial sense but in its ordinary meaning, that the said expression would mean resources of livelihood, that in ascertaining such resources each case would depend on its own facts and circumstances, that the statutory right of a minor to be maintained by his father cannot invariably and always be regarded as a means of livelihood of the minor, but that there may be facts on which such a right may be taken into consideration while deciding the question whether protection undern (2) can be invoked. The Judicial Commissioner then considered the aforesaid four facts and came to the conclusion, that this was not a case where ther could be said to be without any means of livelihood other than the land in question8. It is not necessary on the facts of the present case to decide whether the statutory right of maintenance of a minor can or cannot be treated as a means of livelihood. There are facts in this case which clearly show that even after the proprietary" rights of the minor in the land in question are acquired by the tenant there would be other means of livelihood left with the appellant . The first and the most obvious one is that there are standing on the land two houses the proprietary rights in which are not sought to be acquired by the respondent. The plan got prepared by the District Judge shows the two houses together with the portions of land appertaining thereto which would still remain with the appellant. The evidence of the appellants father was that the whole of the land together with the trees and the two houses standing thereon was acquired by him for the appellant for Rs. 4000 only. By 1964 when he gave his evidence, the value of the two houses alone was between Rupees 7000 to Rs. 8000. The fathers evidence further shows that he got land measuring 25 to 30 bighas on the death of his father, that he had since them purchased several other pieces of land, thus increasing the extent of the ancestral property held by him. Over and above these lands, he had planted a number of apple and other fruit bearing trees. The property held by him thus was, on his own admission, ancestral property in which the appellant has an interest as a coparcener in a Hindu joint family.It is thus manifest that the land in question is not the only means of the appellants livelihood and even when he is deprived of the proprietary rights therein there would be other properties, even besides the said two houses and the trees, in which he has an interest. Therefore, the conclusion reached by the Judicial Commissioner that the protection under Section 11 (2) could not be availed of by the appellant is correct without any regard being had to his right of maintenance under the Hindu Adoptions and Maintenance Act.

A. Venkata Subba Rao & Others Vs. State of A.P. & Others

that if the terms of a specific Article do apply to a specific case, one could ignore it and seek a general Article merely on the ground that the latter affords a longer period of limitation for the filing of a suit.61. So far as the present claim for recovery of a tax illegally collected is concerned the authorities are fairly uniform that the period of limitation for a suit making such a claim is governed by Art. 62. Rajputana Malwa Railway Co-operative Stores. Ltd. v. The Ajmer Municipal Board, ILR 32 All 491 arose out of a suit against a Municipal Board for refund of certain octroi duty which they were not legally entitled to levy. The suit for that claim was held to be governed by Art. 62, the learned Judges stating:"The language of Art. 62 is borrowed from the form of count in vogue in England under the common Law Procedure Act of 1852. Prior to the passing of the Supreme Court of Judicature Acts of 1878 and 1875, there was a number of forms of pleading known as the common indebitatus counts, such as counts for money lent, money paid by the plaintiff for the use of the defendant at his request, money received by the defendant for the use of the plaintiff and Co. .................. The most comprehensive of the old common law counts was that for money received by the defendant for the use of the plaintiff. This count was applicable where a defendant received money which in justice and equity belonged to the plaintiff under circumstances which rendered the receipt by the defendant to the use of the plaintiff............... It was a form of claim which was applicable when the plaintiffs money had been wrongfully obtained by the defendant."A similar view was taken of claims of a like nature in Municipal Council Dindigul v. Bombay Co. Ltd., Madras, ILR 52 Mad 207 : (AIR 1929 Mad 409 ), India Sugar and Refineries, Ltd. v. Municipal Council Hospet, ILR (1948) Mad 521; (AIR 1948 Mad 191 ), State of Madras v. Abdul Kadar Tharaganar Firm, AIR 1958 Mad 905 and Municipal Committee, Amritsar v. Amar Dass, AIR 1958 Punj 99. Learned Counsel submitted that these cases proceeded, in great part, on the inapplicability of the shorter periods of limitation provided in the particular statutes for amounts improperly collected thereunder. We do not, however, consider that this militates, in any manner, from the reasoning upon which the decisions are based, for they all refer to the terms of Art. 62, to its scope and their applicability in terms to cases of suit for refund of tax illegally collected. In addition, we might point out that in ILR (1943) Mad 521= (AIR 1943 Mad 191 ), the claim for some of the years for which the suit was filed was dismissed as barred by limitation by applying the three year rule. In fact, learned Counsel conceded that save a solitary decision in Govind Singh v. State of Madhya Pradesh, 1961-12 STC 825: (AIR 1961 Madh Pra 320) to which we shall presently refer, the decisions were uniform in applying Art. 62 to cases of suits for refund of taxes illegally collected. We consider that these decisions are correct and they have applied the proper article of limitation.62. Before referring to Govind Singhs cases 1961-12 STC 825: (AIR 1961 Madh Pra 320) (supra) it would be convenient to clarify the position as regards certain circumstances in which the Article would be applicable without making any exhaustive list. Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Art. 62 is inapplicable. Next even if the claim could have been comprehended under the omnibus caption of the English "action for money had and received", still if there are other more specific articles in the Limitation Act -vide, e.g., Art. 96 (mistake), Art. 97 (consideration which fails) Art. 62 would be inapplicable. Lastly, if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently, Art, 62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment of the receipt.63. It is this last point that was involved in 1961-12 STC 825: (AIR 1961 Madh Pra 320), on which learned Counsel relied as a decision which had refused to apply Art. 62 and applied Art. 120 to a claim for refund of tax overpaid. There the assessee deposited along with his return certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was completed. A suit for the amount of that excess was held to be governed by Art. 120. It is clear that at the time when the assessee made the deposit of the tax he was not entitled to the refund. That right accrued to him only after the completion of the assessment. We consider, therefore, that this decision does not assist the appellant in the construction which he seeks to persuade us to adopt of Art. 62.64. If Art. 62 were the proper Article of limitation applicable, Civil Appeal No. 644 of 1962 has to be dismissed as the suit was filed admittedly beyond three years after the receipt of the money by the respondent. There should also have to be a modification in the decree passed in Civil Appeal No. 306 of 1962. The claim in that suit included the amounts collected from the appellant as surcharge in July, 1947, in December, 1947 and November, 1948, i.e., for all the three surcharges. It is common ground that it he three years period of limitation under Art. 62 was applied the claim for the refund of the surcharge imposed in July. 1947 would be beyond time. The appellant is, therefore, entitled only to his claim for the refund of the amounts collected for the surcharges imposed in December, 1947 and November, 1948.

0[ds]5. It is clear that if the Government was not entitled to the amount of the surcharge, it could not retain the moneys paid by the appellants to it on that account.learned brother Ayyangar has dealt with this question and there is nothing that I have to add to that. I am in full agreement with his view that no relationship of principal and agent or of a fiduciary character had ever come into existence between the appellants and the Government. I wish, however, to observe that I do not see how, even if the appellants were the Governments agents, Government was entitled to the extra profit. Admittedly under the contract between a procuring agent and the Government even if that contract was of agency, the procuring agent was to procure and sell rice at the prices fixed and prevailing at the time respectively of the procurement and sale. It is not disputed that the difference belonged to him. It was in fact said that was the commission to which he was entitled under the contract as an agent. If this is so, the procuring agent would under the contract be entitled to keep the larger difference caused by the selling price having been increased after his procurement. Hence it seems to me that under the contract, irrespective of whatever kind it was, the difference, even though it became larger, belonged to the procuring agent and the Government had no right toagree with my brother Ayyangar that Art. 62 of the Limitation Act governed the case and the claims were not barred if the suits in respect of them were filed within the time there specified. With regard to the meaning of the words "Money received by the defendant, for the plaintiffs use" In that article, I think, as Ayyangar, J. pointed out, the correct view was taken in Mohomed Wahib v. Mahomed Ameer, ILR 32 Cal 527. The suits in ,which the claims arose in circumstances other than those described hereafter the question on limitation has to be decided under Art. 62 only. I do not feel called upon on the present occasion to decide to what other cases, if any, Art. 62 mightam unable to accept this contention. Support for it was sought by the appellants fromv. Writs United Dairies, Ltd. (1922) 127 LT 822. It does not seem to me that that case furnishes any basis for theratio decidendi of the Australian case that the trader had been compelled to pay which was why the payment was held to have amounted to a tax does not apply to the case inThere is not the slightest doubt that the extra profit with which we are concerned had not come to the procuring agents by reason of any merit of their own; it had come into existence only because the exigencies of the circumstances prevailing had compelled the Government to increase the price. The Government had apparently felt doubtful its. earlier methods of realising the extra profits were legal and to avoid the consequently of any illegality, it followed this procedure and to the legality of it I find no objection. If the procedure was legal, as I think it was it could not have resulted in an illegal levy. I would, therefore, hold that where as a result of the requisition and release the Government had obtained moneys from the appellants, the realisation had been legal and did not amount to unathorised levy of tax and the appellants are not entitled to recover them from the Government. For the same reason where in respect of such requisition and release the appellants had not paid money directly, but had entered into engagements to pay moneys, those engagements would be legal andfacie, therefore, it would appear that the procuring agents were merely conducting their business in the purchase of paddy and the sale of rice, on their own account, subject, however, to the regulation and restrictions imposed by the statutory orders and the licences issued thereunder which enabled Government to effectively control in the acquisition and distribution of foodgrains through the usual trade channels to the ultimate consumer in an orderly and equitablemay be pointed out that the order last referred to was to direct these "agents" not to engage in private trade apparently in connection with the sale of the paddy procured. This last document might be ignored s it emanated from the Collector and, as is clear from the context in which it occurred, that it was meant as a warning to the procuring agents not sell the procured paddy or rice except to those authorised to purchase them.Before proceeding further, it is necessary to clarify two matters. First, though Mr. Agarwala referred to the margin between the procurement price and the price at which the procured paddy or rice could be sold as "remuneration," a contention which found favour with the High Court, we do not find it possible to accept the submission. There was a similar margin between the price at which a wholesaler could buy rice and that at which he could sell and similarly, it was the case of the retail dealer, but it is hardly possible to call these as "remuneration." This margin or difference in the purchase and sale price was necessary in order to induce anyone to engage in this business and was of the essence of a control over procurement and distribution which utilised normal trade channels. It would, therefore, be a misnomer to call it "remuneration" or "commission" allowed to an agent and so really no argument can be built on it in favour of the relationship being that of principal andare drawing attention to this feature to emphasise the fact that the several orders of Government imposing the surcharge and enforcing the levy did not proceed on any theory that the procuring agents were "agents" who were called on to account for profits which they made in the business of the agency. It is only necessary to add that not merely procuring agents but wholesalers and retailers who could on no argument be called "agents" were directed to pay the surcharge.No doubt the description in the Procurement Order and the agreement as "agent" is of some value, but is not decisive and one has to gather the real relationship by reference to the entire facts and circumstances. To start with, it is clear that as the purchases were made by the procuring agents out of their own funds, stored at their own cost, the risk of any deterioration , driage orfell on them, they were the full owners of the paddy, procured and they pledged the goods for raising funds. This aspect of their full ownership of the grain purchased is highlighted by the fact that they entered into agreements with the Government itself to sell the rice with them to District Supply Officers at the controlled market prices. Any contention that the procuring agents were not full owners of paddy or rice procured by them must manifestly fail as being inconsistent with the basis upon which this agreement by them to sell to Government was entered into. If further confirmation were needed it is provided by the fact that on the sales by procuring agree to Government under their Supply agreementwas payable which on the terms of the Madras General Sales Tax Act in force at the relevant time, would not have been payable if the paddy and rice were that of Government and which they were holding merely as commission agents on behalf of thedo not consider it necessary to examine this question in its fulness because we are satisfied that the procuring agent when he bought the goods, was purchasing it for himself and not on behalf of the Government. The acceptance of the argument addressed on this aspect would mean that if the procurement agent so desired he might contract in the name of the principal. namely, the Government and thus establish privity between the Government and the purchaser and make the Government liable to pay for the price of the goods at which he had purchased. This situation would, in our opinion, be unthinkable on the scheme of the Procurement Orders and generally of the Food Control Orders under which the procurement and distribution of foodgrains was placed under statutory control. What the Government desired and what was implemented by these several orders was merely the regulation and control of the trade in foodgrains by rendering every activity connected if with it subject to licensing and to the directions of be issued in pursuance thereof and not directly to engage in the trade in foodgrains.35. The respondent can derive no advantage from the obligation on the part of the procuring agents to store the paddy or rice properly a stipulation on which Mr. Agarwala laid considerablethis for two reasons: (1) The purpose of the clause was to ensure that there was no loss of foodgrains which were then a scarce commodity.That this is so would be apparent from the terms of S. 3 (2) (d) of the Essential Supplies Act which was effectuated by cl. 9 of the licence granted under the Madras Foodgrains Control Order, 1947 which applied to all dealers in foodgrains, be they procuring agents (who also, as stated earlier, had to obtain and obtained these licences), wholesalers orsecond reason is that the agreement executed by the procuring agents in which this clause as regards storage in proper godowns and undertaking responsibility for the safe custody of the occurs, is one which was a form intended for execution not merely by procuring agents but also authorised wholesale distributors, i.e., those who purchased their requirements from procuring agents; admittedly the authorised wholesale dealers were not "agents" and the fact that this condition was insisted on even in their case is clear proof that it has no relevance to the question now under discussion. It, therefore, appears to us that the expression "agent" was used in the Intensive Procurement Order as well as in the agreements merely as a convenient expression to designate this class ofmust plainly confess that we are unable to appreciate this argument. A fiduciary relationship would, no doubt, have arisen if the plaintiffs were agents, but if this were rejected we do not see on the basis of what relationship the fiduciary obligation can be rested. The purchase of paddy and rice by them was not as benamidars for Government for their purchases were on their own account with their own monies though at prices fixed by the Government because of the control orders they could sell their goods to others, only the buyers had to be licensed as also to the Government. The control exercised under statutory laws in respect of these matters cannot obviously render the trade of the plaintiffs one which they carried an for the benefit of the Government. If so, we fail to perceive the legal basis upon which the plaintiffs could be said to hold the stocks at grain with them for the benefit of Government. We have already pointed out that all risks of loss, deterioration, interest charges, godown rent etc., were all their responsibility. In the circumstances, we consider there is no basis for the suggestion of a fiduciary obligation de hors a principal and agentdo not see any substance in this argument. The direction to pay such amounts as might be demanded by Government is certainly not a direction contemplated or provided for by the scheme, namely, the Procurement Scheme nor is it a direction as regards the sale. Indeed, learned Counsel did not, when this was pointed out, seriously press this submission for our acceptance.39. Before proceeding further it would be convenient to ascertain the precise legal category into which the surcharge would fall. The dealers including the procurement agent; were dealing on their own account in the matter of purchase and sale of paddy and rice. The price at which they could buy was fixed and the relevant licensing orders specified that they were to sell at the prices which were in force from time to time. While things were in this state, the price at which the procuring agents, wholesalers and others could sell was raised. Of course, in respect of the stacks purchased by them alter that date they would have paid a higher price which would be compensated by the higher price at which they were permitted to sell, but we are concerned with thealready purchased and remaining with them on July 26, 1947, December 6, 1947 and November 20, 1948. Under the Foodgains Control Order under which they were licensed to deal in foodgrains, they were entitle to sell the stacks with them at the prices fixed under the Price Control Order and prevailing on the date of the sale. They would, therefore, have, on an increase in the selling price, the benefit of the enhanced prices. It was this that was sought to be mopped up by Government by the three impugned orders by which the difference between the old and the new prices was directed to be collected as "surcharge".40. It was not suggested that the surcharges could be justified under any of the provisions contained in the Essential Supplies (Temporary Powers) Act. They were not imposed by notified orders promulgated under S. 3, of that enactment and if they were, the question would have to be seriously, considered whether such orders would be within the rule making power under that Act. We have already pointed out that they could not be justified as authorised directions which were permitted to be issued either under the Procurement Order, the agreement executed in pursuance thereof or the Foodgrains Control Order and the licences issued thereunder. That was why the only serious argument that was raised was an attempt to justify them on the ground of the same being a liability to account on behalf of an agent and this contention we have already negatived as lacking substance. There was thus no legal basis upon which the surcharge could be justified and it would, therefore, follow that subject to any argument based upon the claim being barred by limitation, the claim to the refund of the same could not be resisted.41. We shall be dealing with the claims arising in the individual appeals later, but at this stage it is sufficient to point out that as regards the claim for the refund of the surcharge collected on the stocks of paddy and rice in July, 1947, there was no defence to the claim except that the same was barred by limitation. We should, however, add that in all the suits a defence that they were barred by reason of S.16 of the Essential supplies (Temporary Powers) Act, 1946 was raised, but the plea was wholly, untenable and learned Counsel very properly did not seek to urge it before us. When demands for these sums were made they were either paid under protest, or when they, were not so paid, the amounts were recovered by threats that the licences of the merchants should be cancelled.42. As regards the surcharge levied in December on the stocks held by the plaintiffs on December 6, 1947, we have already pointed out that two methods were employed for making this collection. They were (1) by withholding the amounts due to them from Government for rice supplied; and (2) by threats of cancellation of licences. It would follow from what we have stated earlier that if the surcharge was not legal or justifiable, the claim for refund could not be resisted subject again to the question whether the claims for refund could not be resisted subject again to the question whether the claims therefor in the various suits were subject again to the question whether the claims therefor in the various suits were within the period of limitation. When we come to the third surcharge imposed in November 1948, as already indicated, three methods were utilised for the purpose of making the collection. (1) Threat of cancellation of licences, (2) Withholding the amount of the surcharge from the amounts payable by Government for the rice supplied to them by the procuring agents, and (3) requisition from them of paddy or rice of a quantity equal to the stocks held by them on the evening of November 20, 1948 and release of the same after they executed a writing agreeing to pay the amount of surcharge which agreements they honoured by making the payment demanded.The argument that was addressed to the High Court was that whatever might be the position as regards those plaintiffs who had made the payments under protest or on account of the threats to cancel their licences or by deducting the amount due from the Government, merchants who voluntarily entered into agreements of the type we have just set out, stood on a different footing and that in their case they could not legally claim a refund of the amount thus paid in pursuance of these agreements. The High Court was apparently inclined to accept this submission. With great respect to the learned, Judges we consider that there is no substance in this argument. If the theory that the plaintiffs were the agents of the Government be discarded as untenable, there would be no legal basis at all for the surcharge. It would then in effect a tax imposed by an executive fiat without any legislative sanction on the capital value of the stocks of foodgrains held on a particular date. In this connection reference may be made to 56 CER 390, where a scheme by which flour was expropriated by the State at a "declared" price and subsequently sold by the Crown at a "standard" price, the former owner being given the option of buying back flour at the latter price was held to constitute athis connection it has to be borne in mind that the Government was armed with coercive powers to enforce any demand which was legal and in the circumstances, it could hardly be contended that these payments were voluntary in the sense understood in this context.Pausing here, we might advert to two matters: (1) The last words of the learned Lord we have just quoted sufficiently answer an argument addressed to us based upon the rise to which the amount of surcharge collected was to be expended, namely, as bonus to the producers. Secondly the fact that the company obtained licences from the Food Controller on the stipulation that they would pay him the two pence per galion was not considered material for determining their obligation in law to make the payment.Besides, if there is no legal basis for these demands by the Government we consider that it is not possible to characterise them as anything else than as taxes. They were imposed compulsorily by the executive and are sought to be collected by the State by the exercise inter alia of coercive statutory powers, though these latter are vested in Government for very different purposes. We are clearly of opinion that the fact that agreements were taken from some of these merchants affords no defence to their claim for refund.The suit out of which Civil Appeal No. 306 of 1962 arises, namely, O. S. No. 2 of 1951 on the file of the Subordinate Judge, Rajahmundry made a claim for the refund of the surcharges collected from him in July, 1947, December, 1947 and November, 1948. The claim in regard to the surcharges of December, 1947 and November, 1948 were within the three year period of limitation provided by Art. 62, but the claim as regards what was collected in July, 1947 was beyond that period. The learned subordinate Judge who negatived the defence based on the plaintiff being the agent of the Government decreed the suit in its entirety holding that it was not. Art. 62 that applied but Art. 120 of the Indian Limitation Act which prescribes a period of six years. The learned Judges of the High Court having dismissed the suit on the merits had no occasion to consider the proper Article of Limitation that would govern the different claims contained in theview of our decision that the surcharges were not legally levied and that the Government was not authorised to collect them, the question whether the suit is burred by limitation necessarily arises forArticle 120 can apply only, if no other specific Article were applicable, we have to examine the question whether there is any other specific Article applicable and in particular whether the language of the first column of Art. 62 covers a suit making a claim of the nature made in the plaints before us.Having considered the matter carefully we are inclined to prefer the interpretation of the Article by, Mookherjee, J. in Mahomed Wahibs case. ILR 32 Cal 527.What we are solely concerned with is the meaning of the words employed in the first column of the Article which specifies the nature of the suit dealt with. That they were derived and adopted from the terminology employed in the English action for money had and received is not disputed. The Courts in India being Courts administering both law and equity, no doubt we are not concerned with the technicalities of the English forms of action which originated at a time before the judicature Acts when law and equity were administered by different Courts But that is only as regards the merits of a claim and its maintainability in a Court. With great respect to the learned Judges who decided Anantrams and Lingangoudas cases, ILR 50 Cal 475: (AIR 1923 Cal 379 ) and ILR (1953) Bom 214 : (AIR 1958 Bom 79 ), we are unable to agree that the changes which the doctrine has undergone in England have any bearing on what the Article meant in 1871 when the legislature lifted the words descriptive of a form of an English action and incorporated it in the Indian statute. Nor are we impressed with the argument that if the terms of a specific Article do apply to a specific case, one could ignore it and seek a general Article merely on the ground that the latter affords a longer period of limitation for the filing of a suit.61. So far as the present claim for recovery of a tax illegally collected is concerned the authorities are fairly uniform that the period of limitation for a suit making such a claim is governed by Art. 62. Rajputana Malwa RailwayStores. Ltd. v. The Ajmer Municipal Board, ILR 32 All 491 arose out of a suit against a Municipal Board for refund of certain octroi duty which they were not legally entitled tosimilar view was taken of claims of a like nature in Municipal Council Dindigul v. Bombay Co. Ltd., Madras, ILR 52 Mad 207 : (AIR 1929 Mad 409 ), India Sugar and Refineries, Ltd. v. Municipal Council Hospet, ILR (1948) Mad 521; (AIR 1948 Mad 191 ), State of Madras v. Abdul Kadar Tharaganar Firm, AIR 1958 Mad 905 and Municipal Committee, Amritsar v. Amar Dass, AIR 1958 Punj 99. Learned Counsel submitted that these cases proceeded, in great part, on the inapplicability of the shorter periods of limitation provided in the particular statutes for amounts improperly collected thereunder. We do not, however, consider that this militates, in any manner, from the reasoning upon which the decisions are based, for they all refer to the terms of Art. 62, to its scope and their applicability in terms to cases of suit for refund of tax illegally collected. In addition, we might point out that in ILR (1943) Mad 521= (AIR 1943 Mad 191 ), the claim for some of the years for which the suit was filed was dismissed as barred by limitation by applying the three yearfact, learned Counsel conceded that save a solitary decision in Govind Singh v. State of Madhya Pradesh,STC 825: (AIR 1961 Madh Pra 320) to which we shall presently refer, the decisions were uniform in applying Art. 62 to cases of suits for refund of taxes illegally collected. We consider that these decisions are correct and they have applied the proper article of limitation.62. Before referring to Govind Singhs casesSTC 825: (AIR 1961 Madh Pra 320) (supra) it would be convenient to clarify the position as regards certain circumstances in which the Article would be applicable without making any exhaustive list. Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Art. 62 is inapplicable. Next even if the claim could have been comprehended under the omnibus caption of the English "action for money had and received", still if there are other more specific articles in the Limitation Actvide, e.g., Art. 96 (mistake), Art. 97 (consideration which fails) Art. 62 would be inapplicable. Lastly, if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently, Art, 62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment of the receipt.63. It is this last point that was involved inSTC 825: (AIR 1961 Madh Pra 320), on which learned Counsel relied as a decision which had refused to apply Art. 62 and applied Art. 120 to a claim for refund of tax overpaid. There the assessee deposited along with his return certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was completed. A suit for the amount of that excess was held to be governed by Art. 120. It is clear that at the time when the assessee made the deposit of the tax he was not entitled to the refund. That right accrued to him only after the completion of the assessment. We consider, therefore, that this decision does not assist the appellant in the construction which he seeks to persuade us to adopt of Art. 62.64. If Art. 62 were the proper Article of limitation applicable, Civil Appeal No. 644 of 1962 has to be dismissed as the suit was filed admittedly beyond three years after the receipt of the money by the respondent. There should also have to be a modification in the decree passed in Civil Appeal No. 306 of 1962. The claim in that suit included the amounts collected from the appellant as surcharge in July, 1947, in December, 1947 and November, 1948, i.e., for all the three surcharges. It is common ground that it he three years period of limitation under Art. 62 was applied the claim for the refund of the surcharge imposed in July. 1947 would be beyond time. The appellant is, therefore, entitled only to his claim for the refund of the amounts collected for the surcharges imposed in December, 1947 and November, 1948.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: that if the terms of a specific Article do apply to a specific case, one could ignore it and seek a general Article merely on the ground that the latter affords a longer period of limitation for the filing of a suit.61. So far as the present claim for recovery of a tax illegally collected is concerned the authorities are fairly uniform that the period of limitation for a suit making such a claim is governed by Art. 62. Rajputana Malwa Railway Co-operative Stores. Ltd. v. The Ajmer Municipal Board, ILR 32 All 491 arose out of a suit against a Municipal Board for refund of certain octroi duty which they were not legally entitled to levy. The suit for that claim was held to be governed by Art. 62, the learned Judges stating:"The language of Art. 62 is borrowed from the form of count in vogue in England under the common Law Procedure Act of 1852. Prior to the passing of the Supreme Court of Judicature Acts of 1878 and 1875, there was a number of forms of pleading known as the common indebitatus counts, such as counts for money lent, money paid by the plaintiff for the use of the defendant at his request, money received by the defendant for the use of the plaintiff and Co. .................. The most comprehensive of the old common law counts was that for money received by the defendant for the use of the plaintiff. This count was applicable where a defendant received money which in justice and equity belonged to the plaintiff under circumstances which rendered the receipt by the defendant to the use of the plaintiff............... It was a form of claim which was applicable when the plaintiffs money had been wrongfully obtained by the defendant."A similar view was taken of claims of a like nature in Municipal Council Dindigul v. Bombay Co. Ltd., Madras, ILR 52 Mad 207 : (AIR 1929 Mad 409 ), India Sugar and Refineries, Ltd. v. Municipal Council Hospet, ILR (1948) Mad 521; (AIR 1948 Mad 191 ), State of Madras v. Abdul Kadar Tharaganar Firm, AIR 1958 Mad 905 and Municipal Committee, Amritsar v. Amar Dass, AIR 1958 Punj 99. Learned Counsel submitted that these cases proceeded, in great part, on the inapplicability of the shorter periods of limitation provided in the particular statutes for amounts improperly collected thereunder. We do not, however, consider that this militates, in any manner, from the reasoning upon which the decisions are based, for they all refer to the terms of Art. 62, to its scope and their applicability in terms to cases of suit for refund of tax illegally collected. In addition, we might point out that in ILR (1943) Mad 521= (AIR 1943 Mad 191 ), the claim for some of the years for which the suit was filed was dismissed as barred by limitation by applying the three year rule. In fact, learned Counsel conceded that save a solitary decision in Govind Singh v. State of Madhya Pradesh, 1961-12 STC 825: (AIR 1961 Madh Pra 320) to which we shall presently refer, the decisions were uniform in applying Art. 62 to cases of suits for refund of taxes illegally collected. We consider that these decisions are correct and they have applied the proper article of limitation.62. Before referring to Govind Singhs cases 1961-12 STC 825: (AIR 1961 Madh Pra 320) (supra) it would be convenient to clarify the position as regards certain circumstances in which the Article would be applicable without making any exhaustive list. Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Art. 62 is inapplicable. Next even if the claim could have been comprehended under the omnibus caption of the English "action for money had and received", still if there are other more specific articles in the Limitation Act -vide, e.g., Art. 96 (mistake), Art. 97 (consideration which fails) Art. 62 would be inapplicable. Lastly, if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently, Art, 62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment of the receipt.63. It is this last point that was involved in 1961-12 STC 825: (AIR 1961 Madh Pra 320), on which learned Counsel relied as a decision which had refused to apply Art. 62 and applied Art. 120 to a claim for refund of tax overpaid. There the assessee deposited along with his return certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was completed. A suit for the amount of that excess was held to be governed by Art. 120. It is clear that at the time when the assessee made the deposit of the tax he was not entitled to the refund. That right accrued to him only after the completion of the assessment. We consider, therefore, that this decision does not assist the appellant in the construction which he seeks to persuade us to adopt of Art. 62.64. If Art. 62 were the proper Article of limitation applicable, Civil Appeal No. 644 of 1962 has to be dismissed as the suit was filed admittedly beyond three years after the receipt of the money by the respondent. There should also have to be a modification in the decree passed in Civil Appeal No. 306 of 1962. The claim in that suit included the amounts collected from the appellant as surcharge in July, 1947, in December, 1947 and November, 1948, i.e., for all the three surcharges. It is common ground that it he three years period of limitation under Art. 62 was applied the claim for the refund of the surcharge imposed in July. 1947 would be beyond time. The appellant is, therefore, entitled only to his claim for the refund of the amounts collected for the surcharges imposed in December, 1947 and November, 1948. ### Response: 0 ### Explanation: employed in the first column of the Article which specifies the nature of the suit dealt with. That they were derived and adopted from the terminology employed in the English action for money had and received is not disputed. The Courts in India being Courts administering both law and equity, no doubt we are not concerned with the technicalities of the English forms of action which originated at a time before the judicature Acts when law and equity were administered by different Courts But that is only as regards the merits of a claim and its maintainability in a Court. With great respect to the learned Judges who decided Anantrams and Lingangoudas cases, ILR 50 Cal 475: (AIR 1923 Cal 379 ) and ILR (1953) Bom 214 : (AIR 1958 Bom 79 ), we are unable to agree that the changes which the doctrine has undergone in England have any bearing on what the Article meant in 1871 when the legislature lifted the words descriptive of a form of an English action and incorporated it in the Indian statute. Nor are we impressed with the argument that if the terms of a specific Article do apply to a specific case, one could ignore it and seek a general Article merely on the ground that the latter affords a longer period of limitation for the filing of a suit.61. So far as the present claim for recovery of a tax illegally collected is concerned the authorities are fairly uniform that the period of limitation for a suit making such a claim is governed by Art. 62. Rajputana Malwa RailwayStores. Ltd. v. The Ajmer Municipal Board, ILR 32 All 491 arose out of a suit against a Municipal Board for refund of certain octroi duty which they were not legally entitled tosimilar view was taken of claims of a like nature in Municipal Council Dindigul v. Bombay Co. Ltd., Madras, ILR 52 Mad 207 : (AIR 1929 Mad 409 ), India Sugar and Refineries, Ltd. v. Municipal Council Hospet, ILR (1948) Mad 521; (AIR 1948 Mad 191 ), State of Madras v. Abdul Kadar Tharaganar Firm, AIR 1958 Mad 905 and Municipal Committee, Amritsar v. Amar Dass, AIR 1958 Punj 99. Learned Counsel submitted that these cases proceeded, in great part, on the inapplicability of the shorter periods of limitation provided in the particular statutes for amounts improperly collected thereunder. We do not, however, consider that this militates, in any manner, from the reasoning upon which the decisions are based, for they all refer to the terms of Art. 62, to its scope and their applicability in terms to cases of suit for refund of tax illegally collected. In addition, we might point out that in ILR (1943) Mad 521= (AIR 1943 Mad 191 ), the claim for some of the years for which the suit was filed was dismissed as barred by limitation by applying the three yearfact, learned Counsel conceded that save a solitary decision in Govind Singh v. State of Madhya Pradesh,STC 825: (AIR 1961 Madh Pra 320) to which we shall presently refer, the decisions were uniform in applying Art. 62 to cases of suits for refund of taxes illegally collected. We consider that these decisions are correct and they have applied the proper article of limitation.62. Before referring to Govind Singhs casesSTC 825: (AIR 1961 Madh Pra 320) (supra) it would be convenient to clarify the position as regards certain circumstances in which the Article would be applicable without making any exhaustive list. Where the defendant occupies a fiduciary relationship towards the plaintiff it is clear that Art. 62 is inapplicable. Next even if the claim could have been comprehended under the omnibus caption of the English "action for money had and received", still if there are other more specific articles in the Limitation Actvide, e.g., Art. 96 (mistake), Art. 97 (consideration which fails) Art. 62 would be inapplicable. Lastly, if the right to refund does not arise immediately on receipt by the defendant but arises by reason of facts transpiring subsequently, Art, 62 cannot apply, for it proceeds on the basis that the plaintiff has a cause of action for instituting the suit at the very moment of the receipt.63. It is this last point that was involved inSTC 825: (AIR 1961 Madh Pra 320), on which learned Counsel relied as a decision which had refused to apply Art. 62 and applied Art. 120 to a claim for refund of tax overpaid. There the assessee deposited along with his return certain sums. He had overpaid and so was entitled to obtain a refund when the assessment was completed. A suit for the amount of that excess was held to be governed by Art. 120. It is clear that at the time when the assessee made the deposit of the tax he was not entitled to the refund. That right accrued to him only after the completion of the assessment. We consider, therefore, that this decision does not assist the appellant in the construction which he seeks to persuade us to adopt of Art. 62.64. If Art. 62 were the proper Article of limitation applicable, Civil Appeal No. 644 of 1962 has to be dismissed as the suit was filed admittedly beyond three years after the receipt of the money by the respondent. There should also have to be a modification in the decree passed in Civil Appeal No. 306 of 1962. The claim in that suit included the amounts collected from the appellant as surcharge in July, 1947, in December, 1947 and November, 1948, i.e., for all the three surcharges. It is common ground that it he three years period of limitation under Art. 62 was applied the claim for the refund of the surcharge imposed in July. 1947 would be beyond time. The appellant is, therefore, entitled only to his claim for the refund of the amounts collected for the surcharges imposed in December, 1947 and November, 1948.

Society for Un-Aided Private Schools of Rajasthan Vs. U.O.I. & Another

Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS). 142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of government schools, 5.8 % private aided schools and 13.1% private unaided schools. Almost 87.2% of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3% and that of aided schools is 4.7%. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6% and 13.4% respectively. 143. Out of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7% are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7% respectively. The statistics would indicate that the Government schools have the highest percentage of teachers who are professionally trained at 43.4%, followed by aided school (27.8%) and unaided private schools (only 2.3%). However, the learning achievements are higher in private schools compared to Government schools. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education. 144. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the Statute is against holding back or detaining any child from standard I to VIII. 145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the group, rather than the development of self-independence, for the deprecation of intellectual subjects. 146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests. 147. The legislation, in its present form, has got many drawbacks. During the course of discussion, the necessity of constituting a proper Regulatory Body was also raised so that it can effectively supervise and monitor the functioning of these schools and also examine whether the children are being provided with not only free and compulsory education, but quality education. The Regulatory authority can also plug the loopholes, take proper and steps for effective implementation of the Act and can also redress the grievances of the children. 148. Learned Attorney General for India has favoured the setting up of an Adjudicatory/Regulatory Authority to determine the question whether compliance with Section 12(1)(b) and Section 12(1)(c) will have an adverse impact on the financial viability of the school, and if so, to suggest remedies and to deal with issues like expulsion etc. Learned Attorney General indicated the necessity of a statutory amendment if the Regulatory/Adjudicatory body has to be set up under the Act. Proper adjudication mechanism may also pave the way for a successful and effective public-private partnership for setting up educational institutions of best quality so that our children will get quality education. I am sure that the Government will give serious attention to the above aspect of the matter which are of prime importance since we are dealing with the future of the children of this country. PART VI CONCLUSIONS

1[ds]125. As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill which was approved by Pai Foundation is there anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of the minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidates. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.Pai Foundation, it was pointed out by Inamdar, merely permitted the unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. Further, it was also pointed that unaided educational institutions can frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society not out of compulsion, but on their own volition. Inamdar reiterated that no where in Pai Foundation, either in the majority or in the minority opinion, have they found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats. Further, it was pointed that the fixation of percentage of quota is to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State. State regulations, it was pointed out, should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees. Inamdar, disapproved the scheme evolved in Islamic Academy to the extent it allowed States to fix quota for seat sharing between management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. Inamdar held that to admit students being one of the components of right to establish and administer an institution, the State cannot interfere therewith and upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom. Inamdar emphasised the fact that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefore subject to its being fair, transparent and non-exploitative and the same principle applies to non-minority unaided institutions as well. Inamdar also found foul with the judgment in Islamic with regard to the fixation of quota and for seat sharing between the management and the State on the basis of local needs of each State in unaided private educational institutions, both minority and non-minority. Inamdar noticed that Pai Foundation also found foul with the judgment in Unni Krishnan and held that admission of students in unaided minority educational institutions/schools where scope for merit based is practically nil cannot be regulated by the State or University except for providing the qualification and minimum condition of eligibility in the interest of academic standards30. Pai Foundation as well as Inamdar took the view that laws of the land including rules and regulations must apply equally to majority as well as minority institutions and minority institutions must be allowed to do what majority institutions are allowed to do. Pai Foundation examined the expression general laws of the land in juxtaposition with national interest and stated in Para 136 of the judgment that general laws of land applicable to all persons have been held to be applicable to the minority institutions also, for example, laws relating to taxation, sanitation, social welfare, economic regulations, public order and morality31. While examining the scope of Article 30, this fact was specifically referred to in Inamdar (at page 594) and took the view that, in the context of Article 30(1), no right can be absolute and no community can claim its interest above national interest. The expression national interest was used in the context of respecting laws of the land, namely, while imposing restrictions with regard to laws relating to taxation, sanitation, social welfare, economic legislation, public order and morality and not to make an inroad into the fundamental rights guaranteed under Article 19(1)(g) or Article 30(1) of the Constitution32. Comparing the judgments in Inamdar and Pai Foundation, what emerges is that so far as unaided educational institutions are concerned, whether they are established and administered by minority or non-minority communities, they have no legal obligation in the matter of seat sharing and upto the level of under-graduate education they enjoy total freedom. State also cannot compel them to give up a share of the available seats to the candidates chosen by the State. Such an appropriation of seats, it was held, cannot be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution since they have unfettered fundamental right and total freedom to run those institutions subject to the law relating to taxation, sanitation, social welfare, economic legislation, public order and morality105. I am, therefore, of the considered view that Article 21A, as such, does not cast any obligation on the private unaided educational institutions to provide free and compulsory education to children of the age 6 to 14 years. Article 21A casts constitutional obligation on the State to provide free and compulsory education to children of the age 6 to 14 years111. I am of the view, going by the ratio laid down by Pai Foundation and Inamdar, to compel the unaided non minority and minority private educational institutions, to admit 25% of the students on the fee structure determined by the State, is nothing but an invasion as well as appropriation of the rights guaranteed to them under Article 19(1)(g) and Article 30(1) of the Constitution. Legislature cannot under the guise of interest of general public arbitrarily cast burden or responsibility on private citizens running a private school, totally unaided. Section 12(1)(c) was enacted not only to offload or outsource the constitutional obligation of the State to the private unaided educational institutions, but also to burden them with duties which they do not constitutionally owe to children included in Section 2(d) or (e) of the Act or to their parents135. I am of the view that requiring the minority and non-minority institutions to follow the National Curriculum Framework or a Curriculum Framework made by the State, would not abrogate the right under Article 19(1)(g) or Article 30(1) of the Constitution. Requirement that the curriculum adopted by a minority institution should comply with certain basic norms is in consonance with the values enshrined in the Constitution and cannot be considered to be violative of the rights guaranteed to them under Article 30(1). Further, the curriculum framework contemplated by Section 29(1) does not subvert the freedom of an institution to choose the nature of education that it imparts, as well as the affiliation with the CBSE or other educational boards. Over and above, what has been prescribed by those affiliating or recognizing bodies is that these schools have also to follow the curriculum framework contemplated by Section 29(1) so as to achieve the object and purpose of the Act. I, therefore, find no infirmity in the curriculum or evaluation procedure laid down in Section 29 of the Act138. The Act has now brought in the concept of public- private partnership for achieving the goal of Universal Elementary Education. It also stresses upon the importance of preparing and strengthening the schools to address all kinds of diversities arising from inequalities of gender, caste, language, culture, religious or other disabilities. The concept of neighbourhood schools has also been incorporated for the first time through a legislation and the right of access of the children to elementary education of satisfactory and equitable quality has also been ensured. The duties and responsibilities of the appropriate government, local authorities, parents, schools and teachers in providing free and compulsory education, a system for protection of the right of children and a decentralized grievance mechanism has been provided by the Legislature. Obligation has also been cast on the State and the local authority to establish neighbourhood schools within a period of three years from the commencement of the Act and the Central Government and the State Governments have concurrent responsibilities for providing funds for carrying out all the provisions of the Act and the duties and responsibilities cast on the local authorities as well. A provision has also been made in the Act for pre-school education for children above the age of three years. The purpose is to prepare them for elementary education and to provide early childhood care and education for all children until they complete the age of six years and the appropriate government has to take necessary steps for providing free pre-school education for such children. Further, the Act also cast a duty on every parent or guardian to admit or cause to be admitted his or her child or ward, as the case may be, for an elementary education in the neighbourhood school, which is in conformity with Article 51A(k) of the Constitution139. The State has played a dominant role in providing educational services through the Government schools, largely managed by State Governments and local bodies, as well as through privately managed but publicly funded schools called government-aided schools. These aided schools are operated by charitable trusts, voluntary organizations, and religious bodies but receive substantial funding from the government. According to the Indian Human Development Survey (IHDS), 2005 about 67% of students attend government schools, about 5% attend government-aided schools, and 24% attend private schools. Convents and Madrasas account for about 1-2%. The survey conducted by IHDS indicates that in 2005 about 21% of rural and 51% of urban children were enrolled in private schools. Part of this increase in private school enrolment has come about through a decline in enrolment in government-aided schools. In 1994, nearly 22% of rural children were enrolled in government-aided schools. By 2005, this declined to a bare 7% in rural areas and 5% in urban areas. At an all India level, 72% of children are enrolled in government schools, and about 28% are in private schools. The survey further indicates that the children between 6-14 years old, about 40% participated in private sector education either through enrolment in private school (20%), through private tuition (13%), or both (7%). The growing preference for private schooling and the reliance on private tutoring, has to be seen in the context of differences in admission of children in government and private schoolsThe quality of education in government schools, due to various reasons, has gone down considerably. The Act is also envisaged on the belief that the schools run by the appropriate government, local authorities, aided and unaided, minority and non-minority, would provide satisfactory quality education to the children, especially children from disadvantaged and weaker sections140. Private aided educational institutions, though run on aid and grant provided by the State, generally the payment to such schools is not performance oriented. The State Governments provide 100% salary to the teachers on its roll on monthly basis and some State Governments would provide 90%. Generally, the State Governments do not provide capital cost either for construction or for repair and whenever these schools are aided, the school fee is regulated and is generally equal to the fee prevailing in the government schools. The recruitment of teaches by these schools is also subject to the Government regulation like inclusion of a representative of the Government in the selection committee, or the appointment being subject to the approval of the Government141. Currently, all taxes in India are subject to the education cess, which is 3% of the total tax payable. With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS)142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of government schools, 5.8 % private aided schools and 13.1% private unaided schools. Almost 87.2% of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3% and that of aided schools is 4.7%. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6% and 13.4% respectively143. Out of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7% are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7% respectively. The statistics would indicate that the Government schools have the highest percentage of teachers who are professionally trained at 43.4%, followed by aided school (27.8%) and unaided private schools (only 2.3%). However, the learning achievements are higher in private schools compared to Government schools. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education144. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the Statute is against holding back or detaining any child from standard I to VIII145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the group, rather than the development of self-independence, for the deprecation of intellectual subjects146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests147. The legislation, in its present form, has got many drawbacks. During the course of discussion, the necessity of constituting a proper Regulatory Body was also raised so that it can effectively supervise and monitor the functioning of these schools and also examine whether the children are being provided with not only free and compulsory education, but quality education. The Regulatory authority can also plug the loopholes, take proper and steps for effective implementation of the Act and can also redress the grievances of the children

### 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: Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS). 142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of government schools, 5.8 % private aided schools and 13.1% private unaided schools. Almost 87.2% of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3% and that of aided schools is 4.7%. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6% and 13.4% respectively. 143. Out of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7% are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7% respectively. The statistics would indicate that the Government schools have the highest percentage of teachers who are professionally trained at 43.4%, followed by aided school (27.8%) and unaided private schools (only 2.3%). However, the learning achievements are higher in private schools compared to Government schools. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education. 144. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the Statute is against holding back or detaining any child from standard I to VIII. 145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the group, rather than the development of self-independence, for the deprecation of intellectual subjects. 146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests. 147. The legislation, in its present form, has got many drawbacks. During the course of discussion, the necessity of constituting a proper Regulatory Body was also raised so that it can effectively supervise and monitor the functioning of these schools and also examine whether the children are being provided with not only free and compulsory education, but quality education. The Regulatory authority can also plug the loopholes, take proper and steps for effective implementation of the Act and can also redress the grievances of the children. 148. Learned Attorney General for India has favoured the setting up of an Adjudicatory/Regulatory Authority to determine the question whether compliance with Section 12(1)(b) and Section 12(1)(c) will have an adverse impact on the financial viability of the school, and if so, to suggest remedies and to deal with issues like expulsion etc. Learned Attorney General indicated the necessity of a statutory amendment if the Regulatory/Adjudicatory body has to be set up under the Act. Proper adjudication mechanism may also pave the way for a successful and effective public-private partnership for setting up educational institutions of best quality so that our children will get quality education. I am sure that the Government will give serious attention to the above aspect of the matter which are of prime importance since we are dealing with the future of the children of this country. PART VI CONCLUSIONS ### Response: 1 ### Explanation: aided educational institutions, though run on aid and grant provided by the State, generally the payment to such schools is not performance oriented. The State Governments provide 100% salary to the teachers on its roll on monthly basis and some State Governments would provide 90%. Generally, the State Governments do not provide capital cost either for construction or for repair and whenever these schools are aided, the school fee is regulated and is generally equal to the fee prevailing in the government schools. The recruitment of teaches by these schools is also subject to the Government regulation like inclusion of a representative of the Government in the selection committee, or the appointment being subject to the approval of the Government141. Currently, all taxes in India are subject to the education cess, which is 3% of the total tax payable. With effect from assessment year 2009-10, Secondary and Higher Secondary Education Cess of 1% is applicable on the subtotal of taxable income. The proceeds of the cess are directed to a separate non lapsable fund called Prarambhik Shiksha Kosh (PSK), setup by Government of India, to exclusively cater to the elementary education in India. This fund is under the control of the Ministry of Human Resource and Development (MoHRD) and is typically utilized for its flagship programmes Sarva Sikksha Abhiyaan (SSA) and the Mid-day Meal Scheme (MDMS)142. The statistics would indicate that out of the 12,50,775 schools imparting elementary education in the country in 2007-08, 80.2% were all types of government schools, 5.8 % private aided schools and 13.1% private unaided schools. Almost 87.2% of the schools are located in the rural areas. In the rural areas the proportion of private unaided schools is only 9.3% and that of aided schools is 4.7%. However, in the urban areas, the percentage of private unaided and aided schools are as high as 38.6% and 13.4% respectively143. Out of the total students enrolled in primary classes in 2007-08 about 75.4, 6.7 and 17.8% are enrolled in government, aided and unaided schools. The total number of teachers working in these schools in 2007-08 was 56,34,589 of which 69.3, 10.4 and 20.7% are teaching in government, aided and private schools, the average number of teachers per school being 3.9, 8.3 and 6.7% respectively. The statistics would indicate that the Government schools have the highest percentage of teachers who are professionally trained at 43.4%, followed by aided school (27.8%) and unaided private schools (only 2.3%). However, the learning achievements are higher in private schools compared to Government schools. Going through the objects and reasons of the Act, the private unaided educational institutions are roped in not due to lack of sufficient number of schools run by the appropriate Government, local authorities or aided educational institutions, but basically on the principle of social inclusiveness so as to provide satisfactory quality education. Some of the unaided educational institutions provide superior quality education, a fact conceded and it is a constitutional obligation of the appropriate Government, local authority and aided schools not only to provide free and compulsory education, but also quality education144. Positive steps should be taken by the State Governments and the Central Government to supervise and monitor how the schools which are functioning and providing quality education to the children function. Responsibility is much more on the State, especially when the Statute is against holding back or detaining any child from standard I to VIII145. Mr. Murray N. Rothbard, an eminent educationist and Professor in Economics, in his Book Education: Free and Compulsory [1999, Ludurg von Mises Institute, Auburn, Aliana] cautioned that progressive education may destroy the independent thought in the child and a child has little chance to develop his systematic reasoning powers in the study of definite courses. The Book was written after evaluating the experiences of various countries, which have followed free and compulsory education for children for several years. Prohibition of holding back in a class may, according to the author, result that bright pupils are robbed of incentive or opportunity to study and the dull ones are encouraged to believe that success, in the form of grades, promotion etc., will come to them automatically. The author also questioned that since the State began to control education, its evident tendency has been more and more to act in such a manner so as to promote repression and hindrance of education, rather than the true development of the individual. Its tendency has been for compulsion, for enforced equality at the lowest level, for the watering down of the subject and even the abandonment of all formal teaching, for the inculcation of obedience to the State and to the group, rather than the development of self-independence, for the deprecation of intellectual subjects146. I am of the view that the opinions expressed by the academicians like Rothbard command respect and cannot be brushed aside as such because, much more than anything, the State has got a constitutional responsibility to see that our children are given quality education. Provisions of the statute shall not remain a dead letter, remember we are dealing with the lives of our children, a national asset, and the future of the entire country depends upon their upbringing. Our children in the future have to compete with their counter-parts elsewhere in the world at each and every level, both in curricular and extra-curricular fields. Quality education and overall development of the child is of prime importance upon which the entire future of our children and the country rests147. The legislation, in its present form, has got many drawbacks. During the course of discussion, the necessity of constituting a proper Regulatory Body was also raised so that it can effectively supervise and monitor the functioning of these schools and also examine whether the children are being provided with not only free and compulsory education, but quality education. The Regulatory authority can also plug the loopholes, take proper and steps for effective implementation of the Act and can also redress the grievances of the children

Sahibzada Saiyed Muhammedamirabbas Abbassi & Others Vs. The State Of Madhya Bharat& Others

Ratlam for an order that he be appointed a guardian of the person and property of petitioners 2 and 3. On November 23, 1949, the second respondent, Sultan Hamid Khan, cousin of Musharraf Jehan Begam applied that he be appointed guardian of the person and property of petitioners 2 and 3 and by order dated December 5, 1949, the District Court appointed him guardian and rejected the application filed by the first petitioner. Against the order passed by the District Court, Ratlam, Appeal No. 20 of 1950 was filed in the High Court of Madhya Bharat. This appeal was dismissed on March 29, 1954. An application for special leave to appeal to this court under Art. 136 against that order of the High Court was rejected on November 12, 1956.4. The first petitioner had, in the meantime, applied to this court under Art. 32 of the Constitution for the reliefs which have already been set out. To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend. Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide O. 32, R. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.5. The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was acting contrary to their interests and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court. The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good the loss.6. On these allegations, the first petitioner submitted that the minor petitioners were deprived of the equal protection of the laws in force including the Personal Law and were accordingly discriminated against and their property was, by reason of such discrimination in serious danger of being wasted or misappropriated. He also submitted that he could not be denied his rights under the Personal Law governing the minors as their natural guardian, merely because he had acquired a foreign domicile.7. Exercising jurisdiction under Art. 32 of the Constitution, this court may grant relief for enforcement only of the rights conferred by Part III of the Constitution.The alleged right of the first petitioner to guardianship of his minor children under the Personal Law is not one of the fundamental rights guaranteed to him by the Constitution; nor by appointing respondent No. 2 as the guardian of the minors under the Guardians and Wards Act is discrimination practised against the minors. The second respondent was appointed guardian of the minors by order of a competent court, and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a competent tribunal. The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.In the present case, against the order of the District Court appointing the second respondent the guardian of the person and property of the minors, an appeal was preferred to the High Court and that appeal was dismissed. Even an application for special leave to appeal to this court was rejected, and the order of the District Court became final. If, since the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under Art. 32 of the Constitution.8. This court has rejected the application for special leave to appeal under Art. 136; and that order cannot be circumvented by resorting to an application for a writ under Art. 32.Relief under Art. 32 for enforcement of a right conferred by Ch. III can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under Art. 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.9. The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardians and Wards Act or in a suit in the civil court and not in a petition under Art. 32 of the Constitution.

0[ds]4. The first petitioner had, in the meantime, applied to this court under Art. 32 of the Constitution for the reliefs which have already been set out. To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend. Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide O. 32, R. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.5. The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was acting contrary to their interests and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court. The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good thesince the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under Art. 32 of the Constitution.8. This court has rejected the application for special leave to appeal under Art. 136; and that order cannot be circumvented by resorting to an application for a writ under Art. 32.Relief under Art. 32 for enforcement of a right conferred by Ch. III can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under Art. 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.9. The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardians and Wards Act or in a suit in the civil court and not in a petition under Art. 32 of the Constitution.

### 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: Ratlam for an order that he be appointed a guardian of the person and property of petitioners 2 and 3. On November 23, 1949, the second respondent, Sultan Hamid Khan, cousin of Musharraf Jehan Begam applied that he be appointed guardian of the person and property of petitioners 2 and 3 and by order dated December 5, 1949, the District Court appointed him guardian and rejected the application filed by the first petitioner. Against the order passed by the District Court, Ratlam, Appeal No. 20 of 1950 was filed in the High Court of Madhya Bharat. This appeal was dismissed on March 29, 1954. An application for special leave to appeal to this court under Art. 136 against that order of the High Court was rejected on November 12, 1956.4. The first petitioner had, in the meantime, applied to this court under Art. 32 of the Constitution for the reliefs which have already been set out. To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend. Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide O. 32, R. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.5. The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was acting contrary to their interests and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court. The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good the loss.6. On these allegations, the first petitioner submitted that the minor petitioners were deprived of the equal protection of the laws in force including the Personal Law and were accordingly discriminated against and their property was, by reason of such discrimination in serious danger of being wasted or misappropriated. He also submitted that he could not be denied his rights under the Personal Law governing the minors as their natural guardian, merely because he had acquired a foreign domicile.7. Exercising jurisdiction under Art. 32 of the Constitution, this court may grant relief for enforcement only of the rights conferred by Part III of the Constitution.The alleged right of the first petitioner to guardianship of his minor children under the Personal Law is not one of the fundamental rights guaranteed to him by the Constitution; nor by appointing respondent No. 2 as the guardian of the minors under the Guardians and Wards Act is discrimination practised against the minors. The second respondent was appointed guardian of the minors by order of a competent court, and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a competent tribunal. The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.In the present case, against the order of the District Court appointing the second respondent the guardian of the person and property of the minors, an appeal was preferred to the High Court and that appeal was dismissed. Even an application for special leave to appeal to this court was rejected, and the order of the District Court became final. If, since the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under Art. 32 of the Constitution.8. This court has rejected the application for special leave to appeal under Art. 136; and that order cannot be circumvented by resorting to an application for a writ under Art. 32.Relief under Art. 32 for enforcement of a right conferred by Ch. III can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under Art. 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.9. The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardians and Wards Act or in a suit in the civil court and not in a petition under Art. 32 of the Constitution. ### Response: 0 ### Explanation: 4. The first petitioner had, in the meantime, applied to this court under Art. 32 of the Constitution for the reliefs which have already been set out. To this petition, petitioners 2 and 3 were impleaded as party petitioners, the first petitioner alleging that he was their natural guardian and next friend. Evidently, the first petitioner could not claim to be the next friend of the minor petitioners 2 and 3, a guardian of their person and property having been appointed by the District Court, Ratlam unless this court for reasons to be recorded deemed it to be for the welfare of the minors that the first petitioner be permitted to act or be appointed as the case may be (vide O. 32, R. 4 of the Code of Civil Procedure). The first petitioner did not obtain any order of this court permitting him to act as the next friend of petitioners 2 and 3 notwithstanding the order passed by the District Court appointing respondent No. 2 as their guardian.5. The petition filed by the first petitioner is a somewhat prolix document. The first petitioner claimed that the interest of the second respondent who was appointed a guardian by the District Court was adverse to the interests of the minors, and that the latter was, in any event, unfit to be appointed a guardian of the minors, that the second respondent had misappropriated the property of the minors and that he was not looking after the minors and was acting contrary to their interests and that proceedings in the District Court were vitiated on account of partiality and collusion and by reason of deliberate violation of the order passed by the High Court. The petitioner also claimed that the State of Madhya Bharat was bound to take steps to protect the entire property of the minor petitioners 2 and 3, but the first respondent had neglected to do so and had thereby rendered itself liable to make good thesince the date on which the order appointing the guardian of the minors, events have transpired which necessitate a modification of that order the proper remedy of the first petitioner is to apply to the District Court for relief in that behalf and not to approach this court for a writ under Art. 32 of the Constitution.8. This court has rejected the application for special leave to appeal under Art. 136; and that order cannot be circumvented by resorting to an application for a writ under Art. 32.Relief under Art. 32 for enforcement of a right conferred by Ch. III can be granted only on proof of that right and infringement thereof, and if, by the adjudication by a court of competent jurisdiction the right claimed has been negatived, a petition to this court under Art. 32 of the Constitution for enforcement of that right, notwithstanding the adjudication of the civil court, cannot be entertained.9. The relief claimed by the first petitioner for assessing the liability of the respondents on the plea that they have either misappropriated the estate or by negligence caused loss to the estate of the minors, may be obtained in a properly constituted suit and not in a petition under Art. 32 of the Constitution. The property to which the minors are or may be entitled may be ascertained in a proceeding under the Guardians and Wards Act or in a suit in the civil court and not in a petition under Art. 32 of the Constitution.

M/S.Malwa Strips Pvt.Ltd Vs. M/S.Jyoti Ltd

of the Registry to see that on application under Order 41 Rule 5 CPC seeking stay of money decree the appellant has to incorporate a note in regard to his readiness and willingness to comply with the directions under Sub-Rule (3) of Rule 1 of Order 41 CPC. If the appeal is preferred against the decree for payment of money without any stay application under Order 41 Rule 5 CPC then in that event, it is the duty of the appellant to incorporate a note in the memo of appeal in respect of his readiness and willingness to comply with the directions issued by the Court under Sub-Rule (3) of Rule I of Order 41 CPC." 10. We may, however, notice that although the provisions of sub-rule (3) of Rule 1 of Order XLI have been held not to be mandatory, this Court in Kayamuddin Shamsuddin Khan vs. State Bank of India [(1998) 8 SCC 676] opined that non-compliance of a direction to deposit the decreetal amount or part of it or furnish security therefor would result in the dismissal of the stay application but not the entire appeal, stating: "8. This would mean that non-compliance with the direction given regarding deposit under Sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to stay the execution of the decree. In other words, the application for stay of the execution of the decree could be dismissed for such non-compliance but the Court could not give a direction for the dismissal of the appeal itself for such non-compliance." 11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau vs. Bhabhlubhai Virabhai & Co. [(2005) 4 SCC 1] , wherein it was held: "6. Order XLI Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as above said, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases." To the same effect is the decision of this Court in B.P. Agarwal & Anr. vs. Dhanalakshmi Bank Ltd. & ors. [(2008) 3 SCC 397] . The High Court in this case failed to notice the provisions of sub-rule (3) of Rule 1 of Order XLI. The appellate court, indisputably, has the discretion to direct deposit of such amount, as it may think fit, although the decreetal amount has not been deposited in its entirety by the judgment debtor at the time of filing of the appeal. But while granting stay of the execution of the decree, it must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate. The High Court, with respect, failed to notice that suit was one under Order XXXVII of the Code. Whether it was maintainable or not may fall for consideration in the appeal. Even assuming that the same was not maintainable, the question which should have been posed by the High Court was as to whether sufficient cause had been made out to reverse the decree passed in favour of the appellant. Even a decree could have been passed having regard to the defence raised by the respondent under Order XII Rule 6 of the Code. We, therefore, see no justification at all as to why an order of stay of the nature was passed by the High Court. 12. Even if the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety. 13. We, therefore, having regard to the facts and circumstances of this case direct the respondent to deposit a sum of Rs.35 lakhs within a period of four weeks from date. Respondent shall furnish adequate security for the rest of the decreetal amount within the same period. Appellant shall be entitled to withdraw a sum of Rs.30 lakhs out of the said deposited amount without furnishing any security and the rest amount on furnishing security. In the event the respondent fails to comply with the order, the decree shall be executable at once. 14.

1[ds]In terms of sub-rule (5) of Rule 5 of Order XLI, the court shall not make an order staying the execution of the decree notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1.We will proceed on the assumption that although the word `shall has been used in Order XLI Rule 1 (3) of the Code, the same is not mandatory in character, and, thus, may be read asmay, however, notice that although the provisions of sub-rule (3) of Rule 1 of Order XLI have been held not to be mandatory, this Court in Kayamuddin Shamsuddin Khan vs. State Bank of India [(1998) 8 SCC 676] opined that non-compliance of a direction to deposit the decreetal amount or part of it or furnish security therefor would result in the dismissal of the stay application but not the entireif the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in itstherefore, having regard to the facts and circumstances of this case direct the respondent to deposit a sum of Rs.35 lakhs within a period of four weeks from date. Respondent shall furnish adequate security for the rest of the decreetal amount within the same period. Appellant shall be entitled to withdraw a sum of Rs.30 lakhs out of the said deposited amount without furnishing any security and the rest amount on furnishing security. In the event the respondent fails to comply with the order, the decree shall be executable at once.

### 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: of the Registry to see that on application under Order 41 Rule 5 CPC seeking stay of money decree the appellant has to incorporate a note in regard to his readiness and willingness to comply with the directions under Sub-Rule (3) of Rule 1 of Order 41 CPC. If the appeal is preferred against the decree for payment of money without any stay application under Order 41 Rule 5 CPC then in that event, it is the duty of the appellant to incorporate a note in the memo of appeal in respect of his readiness and willingness to comply with the directions issued by the Court under Sub-Rule (3) of Rule I of Order 41 CPC." 10. We may, however, notice that although the provisions of sub-rule (3) of Rule 1 of Order XLI have been held not to be mandatory, this Court in Kayamuddin Shamsuddin Khan vs. State Bank of India [(1998) 8 SCC 676] opined that non-compliance of a direction to deposit the decreetal amount or part of it or furnish security therefor would result in the dismissal of the stay application but not the entire appeal, stating: "8. This would mean that non-compliance with the direction given regarding deposit under Sub-rule (3) of Rule 1 of Order XLI would result in the Court refusing to stay the execution of the decree. In other words, the application for stay of the execution of the decree could be dismissed for such non-compliance but the Court could not give a direction for the dismissal of the appeal itself for such non-compliance." 11. To the same effect is the decision of this Court in Sihor Nagar Palika Bureau vs. Bhabhlubhai Virabhai & Co. [(2005) 4 SCC 1] , wherein it was held: "6. Order XLI Rule 1(3) of the CPC provides that in an appeal against a decree for payment of amount the appellant shall, within the time permitted by the Appellate Court, deposit the amount disputed in the appeal or furnish such security in respect thereof as the Court may think fit. Under Order XLI Rule 5(5) a deposit or security, as above said, is a condition precedent for an order by the Appellate Court staying the execution of the decree. A bare reading of the two provisions referred to hereinabove, shows a discretion having been conferred on the Appellate Court to direct either deposit of the amount disputed in the appeal or to permit such security in respect thereof being furnished as the Appellate Court may think fit. Needless to say that the discretion is to be exercised judicially and not arbitrarily depending on the facts and circumstances of a given case. Ordinarily, execution of a money decree is not stayed inasmuch as satisfaction of money decree does not amount to irreparable injury and in the event of the appeal being allowed, the remedy of restitution is always available to the successful party. Still the power is there, of course, a discretionary power and is meant to be exercised in appropriate cases." To the same effect is the decision of this Court in B.P. Agarwal & Anr. vs. Dhanalakshmi Bank Ltd. & ors. [(2008) 3 SCC 397] . The High Court in this case failed to notice the provisions of sub-rule (3) of Rule 1 of Order XLI. The appellate court, indisputably, has the discretion to direct deposit of such amount, as it may think fit, although the decreetal amount has not been deposited in its entirety by the judgment debtor at the time of filing of the appeal. But while granting stay of the execution of the decree, it must take into consideration the facts and circumstances of the case before it. It is not to act arbitrarily either way. If a stay is granted, sufficient cause must be shown, which means that the materials on record were required to be perused and reasons are to be assigned. Such reasons should be cogent and adequate. The High Court, with respect, failed to notice that suit was one under Order XXXVII of the Code. Whether it was maintainable or not may fall for consideration in the appeal. Even assuming that the same was not maintainable, the question which should have been posed by the High Court was as to whether sufficient cause had been made out to reverse the decree passed in favour of the appellant. Even a decree could have been passed having regard to the defence raised by the respondent under Order XII Rule 6 of the Code. We, therefore, see no justification at all as to why an order of stay of the nature was passed by the High Court. 12. Even if the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in its entirety. 13. We, therefore, having regard to the facts and circumstances of this case direct the respondent to deposit a sum of Rs.35 lakhs within a period of four weeks from date. Respondent shall furnish adequate security for the rest of the decreetal amount within the same period. Appellant shall be entitled to withdraw a sum of Rs.30 lakhs out of the said deposited amount without furnishing any security and the rest amount on furnishing security. In the event the respondent fails to comply with the order, the decree shall be executable at once. 14. ### Response: 1 ### Explanation: In terms of sub-rule (5) of Rule 5 of Order XLI, the court shall not make an order staying the execution of the decree notwithstanding anything contained in the foregoing sub-rules, where the appellant fails to make the deposit or furnish the security specified in sub-rule (3) of rule 1.We will proceed on the assumption that although the word `shall has been used in Order XLI Rule 1 (3) of the Code, the same is not mandatory in character, and, thus, may be read asmay, however, notice that although the provisions of sub-rule (3) of Rule 1 of Order XLI have been held not to be mandatory, this Court in Kayamuddin Shamsuddin Khan vs. State Bank of India [(1998) 8 SCC 676] opined that non-compliance of a direction to deposit the decreetal amount or part of it or furnish security therefor would result in the dismissal of the stay application but not the entireif the said provision is not mandatory, the purpose for which such a provision has been inserted should be taken into consideration. An exceptional case has to be made out for stay of execution of a money decree. The Parliamentary intent should have been given effect to. The High Court has not said that any exceptional case has been made out. It did not arrive at the conclusion that it would cause undue hardship to the respondent if the ordinary rule to direct payment of the decreetal amount or a part of it and/or directly through the judgment debtor to secure the payment of the decretal amount is granted. A strong case should be made out for passing an order of stay of execution of the decree in itstherefore, having regard to the facts and circumstances of this case direct the respondent to deposit a sum of Rs.35 lakhs within a period of four weeks from date. Respondent shall furnish adequate security for the rest of the decreetal amount within the same period. Appellant shall be entitled to withdraw a sum of Rs.30 lakhs out of the said deposited amount without furnishing any security and the rest amount on furnishing security. In the event the respondent fails to comply with the order, the decree shall be executable at once.

Municipal Council Raipur & Anr Vs. State Of Madhya Pradesh

necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section (2) of section 42." A "transport vehicle" is defined in the Motor Vehicles Act, 1939, to mean "a public service vehicle or a goods vehicle", and a "goods vehicle" is defined to mean "any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers." "Goods" is defined as follows:"Goods" includes live-stock, and any thing (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle."6. It seems to us that the accused fell within the definition of a "private carrier" inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property. In this case we are not concerned with the second limb of the definition,and the authority cited by the learned counsel for the accused (Mohamed Zafrul v. Birendra Lall, (AIR 1965 Bom 120 )) which dealt with the second limb, is of no assistance to us.7. The main argument which the learned counsel urges is that the word "includes" in the definition of the expression "motor transport undertaking" helps him because this shows that it is only an undertaking of a commercial nature which was intended to be included within the definition of "motor transport undertaking. He says that a Municipal Council is not carrying on any business but is carrying on statutory obligations imposed upon it and therefore, a Municipal Council cannot be called an undertaking.8. We are unable to accept this contention. First, the Act provides for the welfare of motor transport workers and regulates the conditions of their work. Such beneficial Acts are not, as a rule, construed strictly. Secondly, the words of the definition are plain and not susceptible of any reasonable limitation.It seems to us that by using the word "includes the legislature undoubtedly intended to enlarge the meaning of the expression "motor transport undertaking". The words "private carrier" have been given a specific meaning in the Motor Vehicles Act, 1939, and it is difficult to limit this specific meaning on any reasonable basis. Further, S. 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression "motor transport undertaking".9. Relying on the decision of the House of Lords in Dilworth v. Commr. of Stamps, 1899 AC 99 and the decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Mother Superior Convent School, AIR 1958 Madh Pra 362, the learned counsel contends that sometimes the legislature uses the word "includes" to mean "means and includes". This is undoubtedly so but we are unable to appreciate how this would help the appellants.10. The learned counsel also suggests that we should limit the meaning of the words "private carrier" in the same manner as the Madhya Pradesh High Court limited the meaning of the word "church" occurring in section 2 (4) of the Madhya Pradesh Public Trust Act. We are unable to see any analogy between the two definitions. The definition there is quite different and the High Court was of the view that "the scheme of the Act itself shows that what was intended was to regulate, not religious institutions but religious institutions impressed with the character of a public trust."11.Coming to the last point, we agree with the High Court that the words "public order" in S. 38 (1) (ii) do not include the maintenance of public health.Section 38 reads:"38. Exemptions - (1) Nothing contained in this Act shall apply to or in relation to any transport vehicle -(i) used for the transport of sick or injured persons;(ii) used for any purpose connected with the security of India, or the security of a State, or the maintenance of public order ..."12. The learned counsel relies on the decision of this Court in Ramesh Thappar v. State of Madras, 1950 SCR 594 = (AIR 1950 SC 124 ). In Ramesh Thappars case, 1950 SCR 594 = (AIR 1950 SC 124 ) the question before this Court was "whether the impugned Act (Madras Maintenance of Public Order Act, 1949) insofar as it purports by section 9 (1-A) to authorise the Provincial Government "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State". Patanjali Sastri, J., as he then was, observed:"Now "Public Order" is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society as a result of internal regulations, enforced by the Government which they have established."Later he observed:"Public safety ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent danger to public health may also be regarded as securing public safety."13. The learned counsel urges that "public order" includes "public safety, and the latter comprises "public health". We see no force in this contention and Ramesh Thappars case, 1950 SCR 594 = (AIR 1950 SC 124 ) does not say so. In our view "Public Order" in this context means public peace and tranquility.We agree with the High Court that the functions of the Municipal Council in carrying night soil and in distributing water do not fall within "maintenance of public order."

0[ds]Coming to the first point, we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under S. 242, Cr. P. C., but even so here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were ever stated to him.5. Coming to the second point,it seems to us that the High Court was right in holding that the Municipal Council is a motor transport undertaking as defined in theIt seems to us that the accused fell within the definition of a "private carrier" inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property. In this case we are not concerned with the second limb of the definition,and the authority cited by the learned counsel for the accused (Mohamed Zafrul v. Birendra Lall, (AIR 1965 Bom 120 )) which dealt with the second limb, is of no assistance to us.We are unable to accept this contention. First, the Act provides for the welfare of motor transport workers and regulates the conditions of their work. Such beneficial Acts are not, as a rule, construed strictly. Secondly, the words of the definition are plain and not susceptible of any reasonable limitation.It seems to us that by using the word "includes the legislature undoubtedly intended to enlarge the meaning of the expression "motor transport undertaking". The words "private carrier" have been given a specific meaning inthe Motor Vehicles Act, 1939, and it is difficult to limit this specific meaning on any reasonable basis. Further, S. 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression "motor transportis undoubtedly so but we are unable to appreciate how this would help theare unable to see any analogy between the two definitions. The definition there is quite different and the High Court was of the view that "the scheme of the Act itself shows that what was intended was to regulate, not religious institutions but religious institutions impressed with the character of a public trust."11.Coming to the last point, we agree with the High Court that the words "public order" in S. 38 (1) (ii) do not include the maintenance of publicsee no force in this contention and Ramesh Thappars case, 1950 SCR 594 = (AIR 1950 SC 124 ) does not say so. In our view "Public Order" in this context means public peace and tranquility.We agree with the High Court that the functions of the Municipal Council in carrying night soil and in distributing water do not fall within "maintenance of public order."

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: necessary for the purposes of his business not being a business of providing transport, or who uses the vehicle for any of the purposes specified in sub-section (2) of section 42." A "transport vehicle" is defined in the Motor Vehicles Act, 1939, to mean "a public service vehicle or a goods vehicle", and a "goods vehicle" is defined to mean "any motor vehicle constructed or adapted for use for the carriage of goods, or any motor vehicle not so constructed or adapted when used for the carriage of goods solely or in addition to passengers." "Goods" is defined as follows:"Goods" includes live-stock, and any thing (other than equipment ordinarily used with the vehicle) carried by a vehicle except living persons, but does not include luggage or personal effects carried in a motor car or in a trailer attached to a motor car or the personal luggage of passengers travelling in the vehicle."6. It seems to us that the accused fell within the definition of a "private carrier" inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property. In this case we are not concerned with the second limb of the definition,and the authority cited by the learned counsel for the accused (Mohamed Zafrul v. Birendra Lall, (AIR 1965 Bom 120 )) which dealt with the second limb, is of no assistance to us.7. The main argument which the learned counsel urges is that the word "includes" in the definition of the expression "motor transport undertaking" helps him because this shows that it is only an undertaking of a commercial nature which was intended to be included within the definition of "motor transport undertaking. He says that a Municipal Council is not carrying on any business but is carrying on statutory obligations imposed upon it and therefore, a Municipal Council cannot be called an undertaking.8. We are unable to accept this contention. First, the Act provides for the welfare of motor transport workers and regulates the conditions of their work. Such beneficial Acts are not, as a rule, construed strictly. Secondly, the words of the definition are plain and not susceptible of any reasonable limitation.It seems to us that by using the word "includes the legislature undoubtedly intended to enlarge the meaning of the expression "motor transport undertaking". The words "private carrier" have been given a specific meaning in the Motor Vehicles Act, 1939, and it is difficult to limit this specific meaning on any reasonable basis. Further, S. 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression "motor transport undertaking".9. Relying on the decision of the House of Lords in Dilworth v. Commr. of Stamps, 1899 AC 99 and the decision of the Madhya Pradesh High Court in State of Madhya Pradesh v. Mother Superior Convent School, AIR 1958 Madh Pra 362, the learned counsel contends that sometimes the legislature uses the word "includes" to mean "means and includes". This is undoubtedly so but we are unable to appreciate how this would help the appellants.10. The learned counsel also suggests that we should limit the meaning of the words "private carrier" in the same manner as the Madhya Pradesh High Court limited the meaning of the word "church" occurring in section 2 (4) of the Madhya Pradesh Public Trust Act. We are unable to see any analogy between the two definitions. The definition there is quite different and the High Court was of the view that "the scheme of the Act itself shows that what was intended was to regulate, not religious institutions but religious institutions impressed with the character of a public trust."11.Coming to the last point, we agree with the High Court that the words "public order" in S. 38 (1) (ii) do not include the maintenance of public health.Section 38 reads:"38. Exemptions - (1) Nothing contained in this Act shall apply to or in relation to any transport vehicle -(i) used for the transport of sick or injured persons;(ii) used for any purpose connected with the security of India, or the security of a State, or the maintenance of public order ..."12. The learned counsel relies on the decision of this Court in Ramesh Thappar v. State of Madras, 1950 SCR 594 = (AIR 1950 SC 124 ). In Ramesh Thappars case, 1950 SCR 594 = (AIR 1950 SC 124 ) the question before this Court was "whether the impugned Act (Madras Maintenance of Public Order Act, 1949) insofar as it purports by section 9 (1-A) to authorise the Provincial Government "for the purpose of securing the public safety or the maintenance of public order, to prohibit or regulate the entry into or the circulation, sale or distribution in the Province of Madras or any part thereof of any document or class of documents" is a "law relating to any matter which undermines the security of or tends to overthrow the State". Patanjali Sastri, J., as he then was, observed:"Now "Public Order" is an expression of wide connotation and signifies that state of tranquility which prevails among the members of a political society as a result of internal regulations, enforced by the Government which they have established."Later he observed:"Public safety ordinarily means security of the public or their freedom from danger. In that sense, anything which tends to prevent danger to public health may also be regarded as securing public safety."13. The learned counsel urges that "public order" includes "public safety, and the latter comprises "public health". We see no force in this contention and Ramesh Thappars case, 1950 SCR 594 = (AIR 1950 SC 124 ) does not say so. In our view "Public Order" in this context means public peace and tranquility.We agree with the High Court that the functions of the Municipal Council in carrying night soil and in distributing water do not fall within "maintenance of public order." ### Response: 0 ### Explanation: Coming to the first point, we agree with the High Court that the order of the Magistrate was an order of discharge and not of acquittal. It is true that it is a summons case and no formal charge is necessary to be framed under S. 242, Cr. P. C., but even so here when the accused appeared, before anything was done the accused filed a preliminary objection and no particulars of the offence of which the accused was charged were ever stated to him.5. Coming to the second point,it seems to us that the High Court was right in holding that the Municipal Council is a motor transport undertaking as defined in theIt seems to us that the accused fell within the definition of a "private carrier" inasmuch as the Council owned transport vehicles and used these vehicles solely for the carriage of goods which are its property. In this case we are not concerned with the second limb of the definition,and the authority cited by the learned counsel for the accused (Mohamed Zafrul v. Birendra Lall, (AIR 1965 Bom 120 )) which dealt with the second limb, is of no assistance to us.We are unable to accept this contention. First, the Act provides for the welfare of motor transport workers and regulates the conditions of their work. Such beneficial Acts are not, as a rule, construed strictly. Secondly, the words of the definition are plain and not susceptible of any reasonable limitation.It seems to us that by using the word "includes the legislature undoubtedly intended to enlarge the meaning of the expression "motor transport undertaking". The words "private carrier" have been given a specific meaning inthe Motor Vehicles Act, 1939, and it is difficult to limit this specific meaning on any reasonable basis. Further, S. 38 of the Act, which exempts certain transport vehicles, also proceeds on the basis that a private carrier who is carrying on activities which are not commercial would be included within the expression "motor transportis undoubtedly so but we are unable to appreciate how this would help theare unable to see any analogy between the two definitions. The definition there is quite different and the High Court was of the view that "the scheme of the Act itself shows that what was intended was to regulate, not religious institutions but religious institutions impressed with the character of a public trust."11.Coming to the last point, we agree with the High Court that the words "public order" in S. 38 (1) (ii) do not include the maintenance of publicsee no force in this contention and Ramesh Thappars case, 1950 SCR 594 = (AIR 1950 SC 124 ) does not say so. In our view "Public Order" in this context means public peace and tranquility.We agree with the High Court that the functions of the Municipal Council in carrying night soil and in distributing water do not fall within "maintenance of public order."

Heavy Engineering Mazdoor Union Vs. The State Of Bihar & Ors

property or hold it in trust for him.(cf. Halsburys Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective of the nationality of its members and does not cease to have that nationality even if in times of war it falls under enemy control. (cf. Janson v. Driefontain Consolidated Mines, 1902 AC 484 and Kuenigl v. Donnersmarck, 1966-1 QB 515.) The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association.Therefore, the mere fact that the entire share capital of the respondent-company was contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference. The company and the share-holders being, as aforesaid distinct entities the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government.A notice to the President of India and the said officers of the Central Government, who hold between them all the shares of the company would not be a notice to the company; nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers.5. It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But these powers are derived from the companys memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government.The question whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides such a corporation can easily be identified as the agent of the State as in Graham v. Public Works Commissioners,1901-2 KB 781 where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals.In the absence of a statutory provision, however, a commercial corporation acting on its own behalf even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government.[See State Trading Corporation of India Ltd. v. Commercial Tax Officer, Visakhapatnam, 1964 (4) SCR 99 at p. 188 = (AIR 1963 SC 1811 at p. 1849) per Shah, J. and Tamlin v. Hannaford, 1950-1 KB 18 at pp. 25, 26] Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not commercial functions. [Cf: London County Territorial and Auxiliary Force Association v. Nichols, 1948-2 All ER 432.]6. In this connection the meaning of the word employer as given in Section 2 (g) of the Act may be looked at with some profit as the legislature there has used identical words while defining an employer. An employer under Clause (g) means, in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government the authority prescribed in that behalf or where no such authority is prescribed, the head of the department. No such authority has been prescribed in regard to the business carried on by the respondent company. But that does not mean that the head of the department which gives the directions as aforesaid or which supervises over the functioning of the company is the employer within the meaning of Section 2 (g).The definition of the employer, on the contrary, suggests that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government,such as the posts and telegraphs or the railways, or one carried on by such department through the instrumentality of an agent. We find that the view which we are inclined to take on the interpretation of S. 2 (a) is also taken by the High Courts of Calcutta, Punjab and Bombay. [See Carlsbad Mineral Water Mfg. Co. v. P. K. Sarkar, 1952-1 Lab LJ 488 (Cal); Cantonment Board Ambala v. State of Punjab, 1961-1 Lab LJ 734 = (AIR 1961 Punj 416) and Abdul Rehaman Abdul Gafur v. Mrs. E. Paul, AIR 1963 Bom 267 ]. In our view the contention that the appropriate Government to make the aforesaid references was the State Government and not the Central Government has no merit and cannot be sustained.7. The second contention that the questions referred to were regulated by the companys standing orders and an application for a modification of the said standing orders relating to those questions was actually pending before the certifying authority under the Industrial Employees (Standing Orders) Act precluded a reference thereof under Section 10 of the Act requires no discussion as it is covered by the decision in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen, 1968-1 SCR 581 =(AIR 1968 SC 585 ) and Management of Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S. Railway Workers Union C. A. No. 27 of 1968 D/- 18-9-1968 = (AIR 1969 SC 513 ).

0[ds]we proceed first to examine the meaning of the words used by Parliament in the definition clause of appropriate Government. It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carried on the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in the case of posts and telegraphs or the railways. It was, therefore, rightly conceded both in the High Court as also before us that it is not an industry carried on by the Central Government.In this connection the meaning of the word employer as given in Section 2 (g) of the Act may be looked at with some profit as the legislature there has used identical words while defining an employer. An employer under Clause (g) means, in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government the authority prescribed in that behalf or where no such authority is prescribed, the head of the department. No such authority has been prescribed in regard to the business carried on by the respondent company. But that does not mean that the head of the department which gives the directions as aforesaid or which supervises over the functioning of the company is the employer within the meaning of Section 2 (g).The definition of the employer, on the contrary, suggests that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government,such as the posts and telegraphs or the railways, or one carried on by such department through the instrumentality of an agent. We find that the view which we are inclined to take on the interpretation of S. 2 (a) is also taken by the High Courts of Calcutta, Punjab and Bombay. [See Carlsbad Mineral Water Mfg. Co. v. P. K. Sarkar, 1952-1 Lab LJ 488 (Cal); Cantonment Board Ambala v. State of Punjab, 1961-1 Lab LJ 734 = (AIR 1961 Punj 416) and Abdul Rehaman Abdul Gafur v. Mrs. E. Paul, AIR 1963 Bom 267 ]. In our view the contention that the appropriate Government to make the aforesaid references was the State Government and not the Central Government has no merit and cannot be sustained.7. The second contention that the questions referred to were regulated by the companys standing orders and an application for a modification of the said standing orders relating to those questions was actually pending before the certifying authority under the Industrial Employees (Standing Orders) Act precluded a reference thereof under Section 10 of the Act requires no discussion as it is covered by the decision in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen, 1968-1 SCR 581 =(AIR 1968 SC 585 ) and Management of Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S. Railway Workers Union C. A. No. 27 of 1968 D/- 18-9-1968 = (AIR 1969 SC 513 ).Before considering the authorities cited by counsel before us,we proceed first to examine the meaning of the words used by Parliament in the definition clause of appropriate Government. It is an undisputed fact that the company was incorporated under the Companies Act and it is the company so incorporated which carried on the undertaking. The undertaking, therefore, is not one carried on directly by the Central Government or by any one of its departments as in the case of posts and telegraphs or the railways. It was, therefore, rightly conceded both in the High Court as also before us that it is not an industry carried on by the Central Government.That being the position, the question then is, is the undertaking carried on under the authority of the Central Government? There being nothing in Section 2 (a) to the contrary, the word authority must be construed according to its ordinary meaning and therefore must mean a legal power given by one person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authoritises B to sell certain goods for and on his behalf and B does so, B incurs no liability for so doing in respect of such goods and confers a good title on the purchaser.There clearly arises in such a case the relationship of a principle and an agent. The words "under the authority of" mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master.Can thetherefore, be said to be carrying on its business pursuant to the authority of the Central Government? That obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association.An incorporated company, as is well known, has a separate existence and the law recognises it as a juristic person separate and distinct from its members. This new personality emerges from the moment of its incorporation and from that date the persons subscribing to its memorandum of association and others joining it as members are regarded as a body incorporate or a corporation aggregate and the new person beings to function as an entity.[cf. Saloman v. Saloman and Co.,1897 AC 22].Its rights and obligations are different from those of its shareholders. Action taken against it does not directly affect its shareholders.The company in holding its property and carrying on its business is not the agent of its shareholders. An infringement of its rights does not give a cause of action to its shareholders. Consequently, it has been said that if a man trusts a corporation he trusts that legal persona and must look to its assets for payment; he can call upon the individual shareholders to contribute only if the Act or charter creating the corporation so provides.The liability of an individual member is not increased by the fact that he is the sole person beneficially interested in the property of the corporation and that the other members have become members merely for the purpose of enabling the corporation to become incorporated and possess only a nominal interest in its property or hold it in trust for him.(cf. Halsburys Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective of the nationality of its members and does not cease to have that nationality even if in times of war it falls under enemy control. (cf. Jansonv. Driefontain Consolidated Mines, 1902 AC 484v. Donnersmarck,.) The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association.Therefore, the mere fact that the entire share capital of thewas contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference. The company and thebeing, as aforesaid distinct entities the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government.A notice to the President of India and the said officers of the Central Government, who hold between them all the shares of the company would not be a notice to the company; nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers.5. It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But these powers are derived from the companys memorandum of association and the articles of association and not by reason of the company being the agent of the Centralquestion whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides such a corporation can easily be identified as the agent of the State as in Graham v. Public WorksKB 781 where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals.In the absence of a statutory provision, however, a commercial corporation acting on its own behalf even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government.[See State Trading Corporation of India Ltd. v. Commercial Tax Officer, Visakhapatnam, 1964 (4) SCR 99 at p. 188 = (AIR 1963 SC 1811 at p. 1849) per Shah, J. and TamlinKB 18 at pp. 25, 26]Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not commercial functions. [Cf:London County Territorial and Auxiliary Force Association v. Nichols,

### 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: property or hold it in trust for him.(cf. Halsburys Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective of the nationality of its members and does not cease to have that nationality even if in times of war it falls under enemy control. (cf. Janson v. Driefontain Consolidated Mines, 1902 AC 484 and Kuenigl v. Donnersmarck, 1966-1 QB 515.) The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association.Therefore, the mere fact that the entire share capital of the respondent-company was contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference. The company and the share-holders being, as aforesaid distinct entities the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government.A notice to the President of India and the said officers of the Central Government, who hold between them all the shares of the company would not be a notice to the company; nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers.5. It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But these powers are derived from the companys memorandum of association and the articles of association and not by reason of the company being the agent of the Central Government.The question whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides such a corporation can easily be identified as the agent of the State as in Graham v. Public Works Commissioners,1901-2 KB 781 where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals.In the absence of a statutory provision, however, a commercial corporation acting on its own behalf even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government.[See State Trading Corporation of India Ltd. v. Commercial Tax Officer, Visakhapatnam, 1964 (4) SCR 99 at p. 188 = (AIR 1963 SC 1811 at p. 1849) per Shah, J. and Tamlin v. Hannaford, 1950-1 KB 18 at pp. 25, 26] Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not commercial functions. [Cf: London County Territorial and Auxiliary Force Association v. Nichols, 1948-2 All ER 432.]6. In this connection the meaning of the word employer as given in Section 2 (g) of the Act may be looked at with some profit as the legislature there has used identical words while defining an employer. An employer under Clause (g) means, in relation to an industry carried on by or under the authority of any department of the Central Government or a State Government the authority prescribed in that behalf or where no such authority is prescribed, the head of the department. No such authority has been prescribed in regard to the business carried on by the respondent company. But that does not mean that the head of the department which gives the directions as aforesaid or which supervises over the functioning of the company is the employer within the meaning of Section 2 (g).The definition of the employer, on the contrary, suggests that an industry carried on by or under the authority of the Government means either the industry carried on directly by a department of the Government,such as the posts and telegraphs or the railways, or one carried on by such department through the instrumentality of an agent. We find that the view which we are inclined to take on the interpretation of S. 2 (a) is also taken by the High Courts of Calcutta, Punjab and Bombay. [See Carlsbad Mineral Water Mfg. Co. v. P. K. Sarkar, 1952-1 Lab LJ 488 (Cal); Cantonment Board Ambala v. State of Punjab, 1961-1 Lab LJ 734 = (AIR 1961 Punj 416) and Abdul Rehaman Abdul Gafur v. Mrs. E. Paul, AIR 1963 Bom 267 ]. In our view the contention that the appropriate Government to make the aforesaid references was the State Government and not the Central Government has no merit and cannot be sustained.7. The second contention that the questions referred to were regulated by the companys standing orders and an application for a modification of the said standing orders relating to those questions was actually pending before the certifying authority under the Industrial Employees (Standing Orders) Act precluded a reference thereof under Section 10 of the Act requires no discussion as it is covered by the decision in Management of Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Workmen, 1968-1 SCR 581 =(AIR 1968 SC 585 ) and Management of Shahdara (Delhi) Saharanpur Light Railway Co. Ltd. v. S. S. Railway Workers Union C. A. No. 27 of 1968 D/- 18-9-1968 = (AIR 1969 SC 513 ). ### Response: 0 ### Explanation: person to another to do an act. A person is said to be authorised or to have an authority when he is in such a position that he can act in a certain manner without incurring liability, to which he would be exposed but for the authority, or, so as to produce the same effect as if the person granting the authority had for himself done the act. For instance, if A authoritises B to sell certain goods for and on his behalf and B does so, B incurs no liability for so doing in respect of such goods and confers a good title on the purchaser.There clearly arises in such a case the relationship of a principle and an agent. The words "under the authority of" mean pursuant to the authority, such as where an agent or a servant acts under or pursuant to the authority of his principal or master.Can thetherefore, be said to be carrying on its business pursuant to the authority of the Central Government? That obviously cannot be said of a company incorporated under the Companies Act whose constitution, powers and functions are provided for and regulated by its memorandum of association and the articles of association.An incorporated company, as is well known, has a separate existence and the law recognises it as a juristic person separate and distinct from its members. This new personality emerges from the moment of its incorporation and from that date the persons subscribing to its memorandum of association and others joining it as members are regarded as a body incorporate or a corporation aggregate and the new person beings to function as an entity.[cf. Saloman v. Saloman and Co.,1897 AC 22].Its rights and obligations are different from those of its shareholders. Action taken against it does not directly affect its shareholders.The company in holding its property and carrying on its business is not the agent of its shareholders. An infringement of its rights does not give a cause of action to its shareholders. Consequently, it has been said that if a man trusts a corporation he trusts that legal persona and must look to its assets for payment; he can call upon the individual shareholders to contribute only if the Act or charter creating the corporation so provides.The liability of an individual member is not increased by the fact that he is the sole person beneficially interested in the property of the corporation and that the other members have become members merely for the purpose of enabling the corporation to become incorporated and possess only a nominal interest in its property or hold it in trust for him.(cf. Halsburys Laws of England, 3rd Ed. Vol. 9, p. 9). Such a company even possesses the nationality of the country under the laws of which it is incorporated, irrespective of the nationality of its members and does not cease to have that nationality even if in times of war it falls under enemy control. (cf. Jansonv. Driefontain Consolidated Mines, 1902 AC 484v. Donnersmarck,.) The company so incorporated derives its powers and functions from and by virtue of its memorandum of association and its articles of association.Therefore, the mere fact that the entire share capital of thewas contributed by the Central Government and the fact that all its shares are held by the President and certain officers of the Central Government does not make any difference. The company and thebeing, as aforesaid distinct entities the fact that the President of India and certain officers hold all its shares does not make the company an agent either of the President or the Central Government.A notice to the President of India and the said officers of the Central Government, who hold between them all the shares of the company would not be a notice to the company; nor can a suit maintainable by and in the name of the company be sustained by or in the name of the President and the said officers.5. It is true that besides the Central Government having contributed the entire share capital, extensive powers are conferred on it, including the power to give directions as to how the company should function, the power to appoint directors and even the power to determine the wages and salaries payable by the company to its employees. But these powers are derived from the companys memorandum of association and the articles of association and not by reason of the company being the agent of the Centralquestion whether a corporation is an agent of the State must depend on the facts of each case. Where a statute setting up a corporation so provides such a corporation can easily be identified as the agent of the State as in Graham v. Public WorksKB 781 where Phillimore, J. said that the Crown does in certain cases establish with the consent of Parliament certain officials or bodies who are to be treated as agents of the Crown even though they have the power of contracting as principals.In the absence of a statutory provision, however, a commercial corporation acting on its own behalf even though it is controlled wholly or partially by a Government department, will be ordinarily presumed not to be a servant or agent of the State. The fact that a minister appoints the members or directors of a corporation and he is entitled to call for information, to give directions which are binding on the directors and to supervise over the conduct of the business of the corporation does not render the corporation an agent of the Government.[See State Trading Corporation of India Ltd. v. Commercial Tax Officer, Visakhapatnam, 1964 (4) SCR 99 at p. 188 = (AIR 1963 SC 1811 at p. 1849) per Shah, J. and TamlinKB 18 at pp. 25, 26]Such an inference that the corporation is the agent of the Government may be drawn where it is performing in substance governmental and not commercial functions. [Cf:London County Territorial and Auxiliary Force Association v. Nichols,

Bombay Dyeing & Mfg Co Ltd Vs. Bombay Environmental Action Group & Others

only representative and approved trade union under the Bombay Industrial Relations Act for Greater Bombay. According to them, closure of the cotton mills affected 2,00,000 workers and because of the strike the mills defaulted in making payment of wages, provident funds dues, gratuity, etc. to the workers causing great hardship to them. It played an active role in the revival / rehabilitation of the NTC mills and other sick mills by representing the workers cause before BIFR. It also agrees with the reasons put forward by the appellants as regards the validity of DCR 58 of 2001. It highlights the policy/ objectives thereof in great details. It also states: (i) RMMS has entered into VRS Agreement with the management of several mills. (ii) Nearly 10,000 workers of the NTC mills and more than 25,000 workers of private mills, aggregating in all more than 35,000 workers stand to benefit by the VRS Schemes. (iii) As on date, the NTC mills have discharged their entire liabilities under the VRS Schemes by making payment to the extent of 398.76 crores payable to these workers. (iv) The Maharashtra State Textile Corporation has also cleared the outstanding dues of its workers to the extent of Rs. 22 crores. As regards the private mills, out of the total amount due to the workers under VRS Schemes amounting to 808.75 crores, approximately a sum of 631.05 crores has been paid. (v) However, approximately Rs. 373 crores remain outstanding to be paid to approximately 20,000 workers which payments are directly linked to the development of the lands by the mill owners. It further argues that if the judgment of the High Court is implemented, it would cause irretrievable injury and extreme prejudice to the workers. 279. Mr. Colin Gonsalves, learned Cousel appearing on behalf of GKSS, on the other hand, not only laid emphasis on the so-called defaults of the mill owners but had gone to the extent of urging that the workers dues have not been paid substantively. He further contended that revival scheme has not been given effect to and the amount required to be spent therefore had in fact not been spent. It has further been contended that no guidelines had at all been framed for the Monitoring Committee by the State for overseeing the disbursement of funds. According to it, in the case of Mafatlal center although the scheme was sanctioned in 2001, no payment has been made despite the fact that the company received a sum of Rs. 16 crores from the sale of the built up areas of Mafatlal center at Parel. The workers dues being to the extent of 93 crores, the same are in excess of the legal dues of the workers and only a paltry sum had been paid to them whereas the dues of the banks had been cleared. 280. In these appeals, we are not concerned with the said issues. We may, however, place on record that according to Mr. Sorabjee the statement of Mr. Colin Gonsalves that nothing had been paid to the workers is baseless and irresponsible. It was contended that the Union represented by Mr. Gonsalves impleaded itself in the writ petition filed by it before the High Court against the MCGM as regard non-disposal of layout plan, etc. wherein they categorically stated that it would have no objection to the development of their property subject to realization of the cheques given in favour of the workers. It is stated that the cheques had been fully realized and the workers have enjoyed the benefit of payment. 281. We have pointed out these factors only for the purpose of showing that this litigation was treated to be a platform for even championing the cause of the workers although neither the High Court nor this Court is concerned therewith. 282. In terms of the Regulations, the entire amount is to be deposited in the funds specially created therfor. It is the Committee appointed by the State alone which can spend the amount. The priority as regard disbursal of such amount has categorically been laid down in the regulation itself. If the fund created is not being expended for the purposes mentioned therein, a separate cause of action will arise therefore. It is, thus, not necessary for us to delve deep into the said contentions. Guidelines for the Committee are also not necessary to be laid down. In any event, we are not called upon nor is it necessary to make any attempt in that regard. However, if any occasion arises for any of the parties in this behalf, the aggrieved party indisputably would be at liberty to agitate the same before appropriate forums CONCLUSION 283. The upshot of our aforementioned discussions is: (i) The Public Interest Litigation was maintainable. (ii) DCR 58 is valid in law. DCR 58(1) applies also to closed mills but Sub-regulation (6) of DCR 58 does not apply to sick industries which have not been referred to BIFR. (iii) The clarification made by the State is neither ultra vires Section 37 of the MRTP Act nor is violative of the constitutional provisions. (iv) DCR 58, as inserted in 2001 and as clarified in 2003, is not contrary to the principles governing environmental aspects including the principles of sustainable and planned development vis--vis Article 21 of the Constitution of India. (v) Judicial review of DCR 58 was permissible in law. (vi) Sale of NTC mills was not contrary to the BIFR Scheme as also the orders passed by this Court. (vii) Although, delay and laches play an important role, as we have considered the merit of the matter, the writ petition filed by the Respondent Nos. 1 and 2 is not being dismissed on that ground alone. (viii) It is not necessary for us to go into the question as to whether workers dues have been paid and also as to whether the committee had been applying the fund in terms of DCR 58 or not. However, all such contentions shall remain open.

1[ds]16. Section 2(27) defines regulations made u/s 159 of the MRTP Act and includes zoning and other regulations made as part of a regional plan, development plan or town planning scheme. The land-use maps and the development control rules/ regulations together comprise the development plan u/s 22. The land-use map indicates the zone in which a piece of land falls, in regard whereto the permissible uses are specified in the rules/ regulations. In each of such zonal plan, although the industrial areas have been delineated separately but existence of each of the cotton textile mills therein has specifically been shown which evidently shows that cotton textile mills had been given a special status.33. Regulation 57 of the 1991 Regulations provides for Special Industrial Zone known as I-3 Zone. Manufacture of textile goods do not come within the purview thereof. In terms of the said Regulation, similar restrictions on land user have been provided except service industries and service industrial estates. Change of user is allowed for lands other than lands of cotton textile mills. Regulation 57(4)(c) is in pari materia with Regulation 56(3)(c).46. From what has been noticed hereinbefore, it is evident that as per the suggestion of Ranjit Deshmukh Committee the words or newly were omitted as according to it, it may give rise to a lot of confusion. From paragraph 18.8 of the report also, it appears that the said Committee suggested use of different language, namely, lands after demolition of structure. We find from the said report that the Committee suggested a draft in respect of DCR 58(1)(b) of the Regulations. It is in that context, we may have to consider the second affidavit affirmed by Shri Ramanand Tiwari when he stated that the Cabinet had approved the report albeit not in its entirety.47. The draft regulations thereafter were notified for considering the objections thereto, if any. Several objections were filed, they were considered by the appropriate authority including the planning authority. Evidently, the said two reports were considered by the Cabinet but it intended to give more to the mill owners than what was recommended inter alia by introducing Sub-regulation (6) of DCR 58. The intent and purport of the State is apparent from DCR 58. It accepted a major part of the recommendations of the Deshmukh Committee but thought that the mill owners should be given something more.48. While entertaining a public interest litigation of this nature several aspects of public interest being involved, the Court should find out as to how greater public interest should be subserved and for the said purpose a balance should be struck and harmony should be maintained between several interests such as (a) consideration of ecology; (b) interest of workers (c) interest of public sector institution, other financial institutions, priority claimed due to workers; (d) advancement of public interest in general and not only a particular aspect of public interest; (e) interest and rights of owners; (f) the interest of a sick and closed industry; and (g) schemes framed by BIFR for revival of the company.49. The courts in doing so would have to take into consideration a large number of factors, some of which may be found to be competing with each other. It may not be proper to give undue importance to one at the cost of the other which may ultimately be found to be vital and give effect to the intent and purport for which the legislation was made.53. This Court times without number, however, has laid down the law as regard limited scope of public interest litigation. It sounded note of caution for entertaining public interest litigation in service matters [See Dr. B. Singh Vs. Union of India (UOI) and Others, , in questioning the validity or otherwise of a statute or when a statute is enacted in violation of the direction of a superior court [See Ashoka Kumar Thakur Vs. State of Bihar and others, . But, we cannot also shut our eyes to the fact that this Court has entertained a large number of public interest litigations for protection of environmental and/ or ecology. [See T.N. Godavarman Thirumulpad Vs. Union of India (UOI) and Others,54. Public interest litigations, thus, have been entertained more frequently where a question of violation of the provisions of the statutes governing the environmental or ecology of the country has been brought to its notice in the matter of depletion of forest areas and/ or when the executive while exercising its administrative functions or making subordinate legislations has interfered with the ecological balance with impunity. The High Court of Bombay, therefore, cannot be faulted with for entertaining the writ petition as a public interest litigation.The golden rule of interpretation is that unless literal meaning given to a document leads to anomaly or absurdity, the principles of literal interpretation should be adhered to. [See Compack Pvt. Ltd. Vs. Commissioner of Central Excise, Vadodara, , Gurudevdatta VKSSS Maryadit and Others Vs. State of Maharashtra and Others, , Dayal Singh and Others Vs. Union of India (UOI) and Others, and Swedish Match AB and Another Vs. Securities and Exchange Board, India and Another, .57. We have also been asked by the learned Cousel for the parties to interpret the impugned legislation in the light of constitutional scheme and in particular Articles 14 and 21 of the Constitution of India, the provisions of the MRTP Act, the doctrine of sustainable development and various other principles. In the aforementioned situation, it is not possible for us to take recourse to the golden rule. As would appear from the discussions made hereinafter, we are, however, of the opinion that for correct interpretation of DCR 58, the principles of purposive interpretation should be applied.67. It is well-settled principle of law that in the absence of any context indicating a contrary intention, the same meaning would be attached to the word used in the latter as is given to them in the earlier statute. It is trite that the words or expression used in a statute before and after amendment should be given the same meaning. When the legislature uses the same words in a similar connection, it is to be presumed that in the absence of any context indicating a contrary intention, the same meaning should attach to the words.68. In AIR 1932 92 (Privy Council) , it is stated that an Act should be interpreted having regard to its history and the meaning given to a word cannot be read in a different way than what was interpreted in the earlier repealed section. It is also a fundamental proposition of construction that the effect of deletion of words must receive serious consideration while interpreting a statute as this has been repeatedly affirmed by this Court in a series of judgments. [See Commissioner of Income Tax/excess Profits Tax, Bombay City Vs. Bhogilal Laherchand, , The Mangalore Electric Supply Co. Ltd. Vs. The Commissioner of Income Tax, West Bengal, , His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, and Onkarlal Nandlal Vs. State of Rajasthan and Another, .69. It is furthermore well-known that when the statute makes a distinction between the two phrases and one of the two is expressly deleted, it is contrary to the cardinal principle of statutory construction to hold that what is deleted is brought back into the statute and finds place in words which were already there in the first place.71. It is also a well-settled principle of law that common sense construction rule should be taken recourse to in certain cases as has been adumbrated in Halsburys Laws of England (Fourth Edition) Volume 44(1) (Reissue).73. A statute, it is well known, is to be read as a whole. Subordinate legislation indisputably has to be read in the light of the provisions of the Act whereunder it has been made. It, however, must be read having regard to the purpose and object for which the statute is made. The MRTP Act provides for formulation of regional plans and development plan. The planning authority, before a plan is finalized, is required to see that the provisions thereof have been fully complied with. The MRTP Act provides for appointment of a town planning officer who possesses requisite qualification. The MRTP Act lays down the matters which are mandatorily required to be considered by the planning authority in all the stages, namely, survey, preparation, submission and sanction of development plan. While doing so, it is bound to take into consideration a large number of factors as specified therein. The State has been conferred with a special power to frame development control regulations in terms of Section 159(2) of the MRTP Act. Development Control Regulations have been framed in terms of the said provisions. The State has furthermore been given a power to supervise and maintain control over the planning authorities. Such control may be exercised in more than one manner. The planning authority is not only required to obtain statutory sanction and approval wherever applicable, but the State, has also been conferred with a special power to make a development plan subject, of course, to the condition that the same shall not change the character of such development plan.75. A planning authority, therefore, must take into consideration all the relevant factors, although in a given case, one gets priority over the other. Ordinarily, it would not be for the court to substitute its decision to that of the planning authority unless an appropriate case is made out therefore. When, however, question of public interest comes up, the court indisputably would try to delicately balance the different factors, if possible.Public interest, thus, would be a relevant factor also for interpretation of the statute. Public interest so far as maintenance of ecology is concerned pertains to a constitutional scheme comprising of Articles 14, 21, 48A and 51A(g) of the Constitution of India, the other factors are no less significant. [See also T.N. Godavarman Thirumalpad (through K.M. Chinnappa) Vs. Union of India (UOI) and Others, , N.D. Jayal and Another Vs. Union of India (UOI) and Others, and Vellore Citizens Welfare Forum Vs. Union of India and others, .The amendments in the regulation must be construed in furtherance of the legislative policy and not in derogation thereof. But, while doing so, the past experience of the State which paved the necessities for modifying the earlier regulation should not be forgotten.77. A statutory scheme herein also by way of Section 22 clearly speaks about open spaces. The Legislative Act confers guidelines which advocates the necessity of environmental impact assessment. The State, when it exercises its power u/s 37 of the MRTP Act is required to act within the four-corners of the Act. Any modification or amendment must address the environmental consequences together with other relevant factors.78. As a logical corollary, it must also be determined as to whether the amendments amounted to a minor modification or substantive one. Literal interpretation of the Act and the Rules would give rise to many anomalies. It would not advance the object and purport of the Act. It would also create difficulties in implementing the statutory scheme.79. Having said so, we have no other option but, as indicated hereinbefore, to take recourse to the principles of purposive construction and interpret DCR 58 in accordance with the scope and object of the Act.The amendment in 2001, therefore, must be interpreted having regard to the provisions of the MRTP Act which professed increase in the ecological interest by providing more open space and not decreasing the same, but again the question would be was there any reduction?Whether radical changes were made in the year 2003, when the State made the aforementioned clarification would again be a question which is required to be posed and answered. Was such a clarification in consonance with the reports of Charles Correa Committee and the Ranjit Deshmukh Committee? Did 2000 acres of vacant land which would have been otherwise available come down to 50 acres? Had any balance been struck between the original concept of sharing of lands by Bombay Municipal Corporation, MHADA and the mill owners? It is in the aforementioned backdrop, the nature of change must be considered.80. A policy decision, as is well known, should not be lightly interfered with but it is difficult to accept the submissions made on behalf of the learned Cousel appearing on behalf of the Appellants that the courts cannot exercise their power of judicial review at all. By reason of any legislation whether enacted by the legislature or by way of subordinate legislation, the State gives effect to its legislative policy. Such legislation, however, must not be ultra vires the Constitution. A subordinate legislation apart from being intra vires the Constitution, should not also be ultra vires the parent Act under which it has been made. A subordinate legislation, it is trite, must be reasonable and in consonance with the legislative policy as also give effect to the purport and object of the Act and in good faith.83. The parameters of judicial review in relation to a policy decision would depend upon the nature as also the scope and object of the legislation. No hard and fast rule can be laid down therefore. The court normally would not, however, interfere with a policy decision which has been made by experts in view of the fact that it does not possess such expertise. Divergent opinions, however, have been expressed by the authorities in this behalf. The scope and extent of judicial review of legislation, it is trite, would vary from case to case.84. Reliance has been placed by the Appellants on Maharashtra State Board of Secondary and Higher Secondary Education and Another Vs. Paritosh Bhupeshkumar Sheth and Others, wherein this Court was concerned with a regulation laying down the terms and conditions for revaluating the answer papers. Indisputably, there exists a distinction between regulations, rules and bye-laws. The sources of framing regulations and bye-laws are different and distinct but the same, in our opinion, would not mean that the court will have no jurisdiction to interfere with any policy decision, legislative or otherwise.86. In BALCO Employees Union (Regd.) Vs. Union of India and Others, , this Court while dealing with new economic policies of the elected government held:Any such change may result in adversely affecting some vested interests. Unless any illegality is committed in the execution of the policy or the same is contrary to law or mala fide, a decision bringing about change cannot per se be interfered with by the court.Wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. For testing the correctness of a policy, the appropriate forum is Parliament and not the courts....The embargo as regard exercise of power of judicial review may not be beyond the aforementioned dicta.87. Here, however, we are not at all dealing with an economic policy of the State, but a special planning statute of which economic factor is only one of the components. Even then, it has no bearing with the economic policy affecting the State or general public. DCR 58 deals with only a class of people who owned and possessed cotton textile mills and want revival/ rehabilitation of their sick or closed textile mills or intend to modernize or shift their mills.89. Furthermore, interpretation of a town planning statute which has an environmental aspect leading to application of Articles 14 and 21 of the Constitution of India cannot be held to be within the exclusive domain of the executive. There cannot be any doubt whatsoever, that the validity and/or interpretation of a legislation must be resorted to within the parameters of judicial review, but it is difficult to accept the contention that it is totally excluded.90. Unreasonableness is certainly a ground of striking down a subordinate legislation. A presumption as to the constitutionality of a statute is also to be raised but it does not mean that the environmental factors can altogether be omitted from consideration only because the executive has construed the statute otherwise.91. It is interesting to note that the scope of judicial review is now being expanded in different jurisdictions. Even judicial review on facts has been held to be permissible in law. [See Manager, R.B.I., Bangalore Vs. S. Mani and Others, , Management of Sonepat Cooperative Sugar Mills Ltd. Vs. Ajit Singh, and Cholan Roadways Limited Vs. G. Thirugnanasambandam, .Interpretation and application of constitutional and human rights had never been limited by this Court only to the black letter of law. Expansive meaning of such rights had all along been given by the Courts by taking recourse to creative interpretation which lead to creation of new rights. By way of example, we may point out that by interpreting Article 21, this Court has created new rights including right to environmental protection.94. The Wednesbury principles to which reference has been made in The Trustees of the Port of Madras Vs. Aminchand Pyarelal and Others, in some jurisdiction are being held to be not applicable in view of the development in constitutional law in this behalf. [See e.g. Huang and Ors. v. Secretary of State for the Home Department (2005) 3 All. ER 435, wherein referring to R. v. Secretary of State of the Home Department, ex. P Daly (2001) 3 All ER 433 , it was held that in certain cases, the adjudicator may require to conduct a judicial exercise which is not merely more intrusive than Wednesbury, but involves a full-blown merits judgment, which is yet more than Ex p. Daly requires on a judicial review where the court has to decide a proportionality issue. Law is never static; it changes with the change of time. [See Motor General Traders and Another Vs. State of Andhra Pradesh and Others, and John Vallamattom and Another Vs. Union of India (UOI), .95. For the foregoing reasons, we are of the opinion that in cases where constitutionality and/ or interpretation of any legislation, be it made by the Parliament or an executive authority by way of delegated legislation, is in question, it would be idle to contend that a court of superior jurisdiction cannot exercise the power of judicial review. A distinction must be made between an executive decision laying down a policy and executive decision in exercise of its legislative making power. A legislation be it made by the Parliament/ Legislature or by the executive must be interpreted within the parameters of the well-known principles enunciated by this Court. Whether a legislation would be declared ultra vires or what would be the effect and purport of a legislation upon interpretation thereof will depend upon the legislation in question visvis the constitutional provisions and other relevant factors.97. A bare comparison of the said provisions would show that in sub- regulation (1) of DCR 58, the language remains the same. However, in clause (a) thereof the words or newly have been omitted in the 2001 Regulations. Clause (a) of Sub-regulation (1) provides for change of user in relation to the existing built-up area, subject to the recommendations of BIFR as a package.96. For the purpose of interpretation of DCR 58, it may be beneficial to notice the changes effected by 2001 Regulations visvis 1991 Regulations:100. We have noticed hereinbefore that Regulation 56(3)(b) and Regulation 57(4)(c) also makes specific provisions for grant of change of user in respect of sick mills as a part of a package of measures recommended by BIFR. The drastic changes have, however, been made in clause (b) of Sub- regulation (1) of DCR 58. It refers to a case of redevelopment. In clause (b) the words after demolition of existing structures in case of a redevelopment scheme have been deleted.104. The effect of amendment in clause (b) must be seen from the Table appended thereto. In terms of the Old Regulation in respect of land covering more than 10 hectares, for green area 33% land was to be set apart, and for MHADA 37% thereof, whereas the owner retained 30%. Under the new DCR 58, admittedly the owner of the mill at least obtains construction rights over 63% of the land as the land in terms of Column 3 gets loaded in Column 5. The mill owner furthermore even according to the writ petitioners gets TDR of 37%. Open land in clause (b) is what is not covered by the built-up area. The balance FSI, indisputably, is not open area.105. The meaning of open land must be construed as land other than land required to sustain the built up area. We may now attempt to understand the effect of FSI having regard to a concrete example. If the area of a plot is 1000 sq. m., applying the FSI of 1.33, a person will be entitled to construct a built up area of 1330 sq. m. If he intends to build a two-storeyed building, he will utilize 665 sq. m. of land whereas in a case of ground plus four storeyed building, he will be using 266 sq. m. of land and in case of nine storeyed structure, he will be using only 133 sq. m.106. The greater the height of the building, more lands will be available either by way of public green or private green as also for MHADA. However, in such a case, the plinth area will vary significantly. Whereas in the first case, it would be 665 sq. m., in the third case, it would only be 133 sq.m. although the built up area remains the same.107. Taking the illustration as mentioned hereinbefore, the open land in each case shall vary. Thus, open land would not mean land occupied by the plinth but would mean land other than that is necessary to sustain the built up area. We do not accept the contention of Mr. Salve that clause (b) applies to open land as also lands after demolition of existing structure in case of a redevelopment scheme and only because the words and lands after demolition of existing structures had been deleted, the same may not be of much significance inasmuch as clause (b) of the new regulations will have to be construed in the light of clause (a). It will bear repetition to state that whereas clause (a) refers to change of user in relation to the existing built-up area, clause (b) provides for open lands. The manner in which the development and/ or redevelopment should take place has been clubbed in Sub-regulation (1) of DCR 58 read with Sub-regulation (6) thereof. For proper interpretation, all the relevant provisions are required to be read harmoniously.109. Existing built-up area, in our view, would not be open land. We have also to take note of the fact that the newly built-up area, as existing in the old clause (a) of Sub-regulation (1) of DCR 58 has been omitted, the effect whereof would be noticed a little later. We are not oblivious of the fact that the word and has been used twice in Sub-regulation (1) of DCR 58. It ordinarily shall be read conjunctively and not disjunctively. However, for the purpose of giving effect to the said provisions, the rule of purposive construction is required to be taken recourse to. Sub-regulation (1) speaks of entire open land as well as built-up area. It speaks of the necessity of having the recommendation of BIFR as a package of measures. Such recommendations must be for the revival/rehabilitation of a potentially viable sick mill. The provisions, therefore, may not apply to a mill which is neither sick nor otherwise not potentially viable, subject, of course, to the explanation contained in Note (vi) appended thereto as also Sub-regulation (6) thereof.111. There is no change in Note (i) or Note (ii). Changes have been made in Note (iii) and Notes (iv), (v) and (vi) have been added. Interestingly, from Note (iii), after the words Transferable Development Rights as in Appendix VII and before the words in respect of the lands earmarked for open spaces in column (3), the expression only has been omitted. Thus, whereas earlier transferable development rights could be granted only for the purpose of the open lands which were to be handed over to MCGM, i.e., about 33%, now apart from that, development rights in respect of lands earmarked and handed over as per Column (3) have been made available to the mill owners for utilization thereof as per Column (5) as TDR as aforesaid. The mill owner, therefore, gets FSI of 1.33. He, furthermore, gets corresponding TDR to be utilized in the suburbs area or to sell the same. The idea appears to be to give more FSI and TDR to the person who surrenders the lands.112. Things, however, may be different in a case where the mill owner demolishes a portion of the existing structure and construct new areas so as to be called newly built-up area on that part of the land remaining the other part of the structure that it will come within the purview of clause (a) inasmuch as approval for development would be necessary for the newly built-up area for change of user. In such a case, requirements of clause (b) were not required to be complied with as it would squarely fall within the purview of clause (a).113. The omission of the words or newly from clause (a) provides for a guideline. If the entire structure is to be demolished, the newly built-up area will have to be in terms of clause (b) read with Sub-regulation (6). Such newly built-up structure, having regard to omission from clause (a) would have no role to play if no built-up area existed. Thus, all new constructions including constructions on lands after demolition of the existing structure and new constructions whether under a development or redevelopment scheme would be covered by clause (b) read with Sub-regulation (6) thereof. If new constructions are raised, FSI, in a case of such development or redevelopment, being covered by clause (b) would be for the entire plot, except the built-up area which was existing, FSI having regard to its statutory definition would, thus, have to be calculated having regard to the ratio of the total construction to the area of the plot except the land component of the existing built up area.114. There is no dispute as regard grant of better facility to the mill owners through TDR.In order to determine whether vital changes have been effected by way of the amendment of 2001, both the sub-clauses of Sub-regulation (1) would be necessary to be taken into consideration for construing the words balance FSI.115. The expression balance would mean apart from which in turn would mean apart from the area for which protection has already been given. Balance FSI would, thus, mean FSI which is available for construction after excluding the FSI relatable to an already consumed by the existing built-up structure. Both the phrases open lands as also balance FSI contained in DCR 58(1)(b) play significant role. The word balance is crucial which would naturally mean FSI which is available to be utilized upon open land. Such balance FSI must be apart from the existing FSI. Indisputably, the built-up area had consumed some FSI and, thus, when the expression balance FSI is used, the same would mean additional built-up area. It contemplates that where the entire plot has been used by existing built-up areas and some open land has been left out on the remaining non-built up area of the plot additionally unconsumed FSI could be used. It is in that sense separate. It is true that DCR 58(1) uses the word entire land but the said expression is followed by the expression built-up area. Balance FSI in the aforementioned situation would not mean the FSI which is involved for the purpose of construction of structures not only on the open land which had been existing but also the land which had become open by reason of the demolition of the existing structures. It is only in that sense, as would be amplified from the discussions made hereinafter that the State intended to give additional protection to the mill owners. If open land is given its natural or dictionary meaning, no distinction could be made in between DCR 58(1)(a) and DCR 58(1)(b), which ex facie would lead to an anomaly.116. In view of the fact that the built up area was to be protected in terms of Sub-regulation (1) of DCR 58, afortiori the land component thereof could be protected under clause (b) thereof. Thus, the same land which was protected under clause (a) could not become shareable under clause (b) which would render the distinction between the said provisions otiose. Balance FSI on open lands or otherwise had also been used in Sub-regulation (5) of DCR 58. It also, thus, gives a significant clue to find out the meaning of balance FSI. Additional reason for the aforementioned conclusion is that development or redevelopment of entire open land and built up area of the premises referred to in DCR 58(1), in the event, the findings of the High Court are accepted, there would not be any necessity for the State to use two different words open land and built-up area separately and distinctly.Thus, no basic change had been effected in drafting the regulation to segregate newly built-up areas from existing built-up areas. It cannot be denied that the State intended to give more benefits to the mill owners by reason of 2001 Regulations and, thus, if after demolition of the entire structure the whole plot is treated to be open land and FSI is calculated on the basis thereof the purport and object of the amendment will be defeated. The fact that the State intended to consider the matter relating to amendment having regard to the fact that there had hardly been any takers for the 1991 Scheme as it failed to provide sufficient incentives, cannot be ignored.119. Indisputably, though, the Regulations made by the State which is a piece of subordinate legislation should be read in the light of the statutory scheme made under the legislative act as also having regard to the constitutional scheme as contained in Articles 14, 24, 48A and 51A(g) of the Constitution of India, but while doing so the effect and purport for which such amendment were brought about cannot be lost sight of. The amendments carried out in the MRTP Act from time to time and clearly the provisions of Sub-section (2) of Section 26 of the MRTP Act point out that the State had been leaning towards environmental aspects but that was not the sole objective.120. The title of the regulation reads as a modification to DCR 58. It was, therefore, not in substitution of the resolution of 1991 nor was it framed by way of recasting thereof. In the marginal note, the expression development or redevelopment of land of cotton textile mills has been mentioned. What, therefore, in focus was the land of cotton textile mills. The expression land, thus, plays an important role. Although a marginal note may not be determinative of the content of the provision, it may act as an intrinsic aid to construction. [See Nandini Satpathy Vs. P.L. Dani and Another, .121. The expression development or redevelopment in the marginal note does not advance the contention of the writ petitioners that DCR 58 does not frame change of user to non-textile mill users. Indisputably, having regard to the provisions of the entire Regulation, DCR 58 is a special provision. It is a self-contained code. It provides for a large number of things. The State while making the said legislation was required to provide for almost all the eventualities in respect of the different categories of cotton textile mills. They could be, apart from the sick mills referred to BIFR; (a) closed, (b) non-closed mills intending to modernization, (c) non-closed mills intending to shifting, (d) sick mills which have not been referred to BIFR under SICA and, thus, no scheme wherefor was made. There were multiple options and one mill or the other may fall in more than one category. A closed mill may come within the purview of DCR 58(1)(a) or 58(1)(b) or 58(6). Some of the NTC mills also may come within one or more categories. It is possible and in fact some of the mill owners had opted for one or more of the multiple options of development/ redevelopment activity in terms of the said regulation. By way of example, Ruby Mill opted for both modernization and shifting and permission had been granted therefore. The fact that DCR 58 is a self-contained code is evident from Sub-regulation (8) which provides that funds accruing to a sick, closed or mill requiring modernization or shifting shall be credited to an escrow account, which shall be utilized only for revival/ rehabilitation, modernization or shifting of the industry. Sub- regulation (9) provides a mechanism for putting this into place. The State, not only endeavoured to take care of needs of various categories of cotton textile mills but also made attempts to find out a solution having regard to the fact that the 1991 Regulations did not work. By framing DCR 58, therefore, a mechanism was sought to be provided for achieving the purpose of providing some relief to all players in the field.122. The said Regulations were framed u/s 22(m) of the MRTP Act for controlling and regulating the use and development of land. They are not, and cannot be, treated to be provisions for compulsory acquisition of land. It also does not provide for reservation and/ or designation in a development plan.123. In Sub-regulation (1) of DCR 58, the phrase lands of sick and/ or closed cotton textile mills has been used. The same phrase has been used in Regulations 58(6), 58(8)(a) and 58(9)(a). DCR 58(1) read with DCR 58 (4) although postulates recommendations by BIFR, the words closed mills also find place both in Regulations 58(1) and 58(6).124. DCR 58(1)(a) deals with existing structure which could have been subjected to modification internally. DCR 58(1)(b) deals with the rest of it, namely, open land. Under old regulation, the expression open land would mean such lands which were required to sustain built-up area. The concept finds place in DCR 58(6). In terms of DCR 58(1)(a), thus, no demolition is contemplated which in turn would mean that no sharing of land also is contemplated, i.e., the land owners are not required to surrender any land. However, it contemplates change of user. It contemplates:(i) the old cotton textile mills may continue to operate;(ii) Alternatively, it may take recourse to related user, i.e., user related to such mills.(iii) It could also take recourse to diversified industrial user, meaning thereby, user other than cotton textile mill and would include uses for other industries in terms of the industrial location.125. It is not in dispute that a long list of industries is contained in the said policy. It could further be used for commercial purpose and the same having regard to the regulations would also include residential purposes. In terms of DCR 58(1)(a), there could be no demolition and only the existing structures, namely, those which were existing prior to coming into force of the said Regulation should be developed by utilizing the existing structure which could not either be demolished or reconstructed or relocated.126. The contention of Mr. Salve that the word demolition brought about by reason of 1994 amendment in Section 2(7) of the MRTP Act plays a significant role also cannot be accepted for more than one reason. The amendment of 1994 appears to be clarificatory in nature, having regard to the fact that prior thereto the land owners could carry on demolition without prior intimation and/ or obtaining permission from the corporation. The High Court, therefore, in its judgment wrongly laid undue emphasis thereupon.127. Furthermore, in DCR 58 the word redevelopment had all along been used. By reason of the said amendment, no different meaning which would not be in consonance with the object should be attributed. Whatever that may mean, redevelopment contemplates in its ordinary parlance a renewal or substitution of development and involves pulling down of the structures. Development by way of demolition cannot mean that DCR 58(1) would permit not just the retention of the structure (shell) but also demolition of structure (shell). The purpose for introducing the said amendment, therefore, was for a different purpose and could not have been used for the purpose of construction of DCR 58.128. It has not been disputed that keeping in view of the fact that the structures of the mills had been built long long time back, they had sprawling existing structures. Ranjit Deshmukh Committee Report does not categorically state that the balance FSI has to be calculated only from the open land which was available before demolition and not from the land which became open by reason of demolition of structures existing thereon.129. It is true that the lands of different mills had different built-up areas. Balance FSI was required to be calculated on the basis thereof. The extent of vacant land available for the purpose of distribution would indisputably depend upon the extent of structures which had been standing on the lands but the same is a fortuitous circumstance. Only because in a given case, the extent of the area to be given to MHADA or MCGM would be comparatively less than the case of land belonging to other mills, the same by itself cannot be a ground for construing DCR 58 differently.130. Furthermore, in Note (iv) of DCR 58(1)(b) itself, it is categorically stated that land would become open by demolishing the existing structure which also points to the fact that the contentions of the Respondents Writ Petitioners are not correct in view of the fact that if the land after demolition was already subsumed under open land, it was not necessary to deal with the same subject specifically with land which had become open on demolition. It is also interesting to note that in DCR 58(6)(a) the words reconstruction after demolition of existing structures limited to the extent of the built up area of the demolished structure have been used with reference to development/ redevelopment of the entire open land and/ or built up area of premises which would also go to show that in the event, the interpretation as advocated by Mr. Salve is accepted, such detailed and specific references to the specific contingency of openness of land arising after and upon demolition or reconstruction done after demolition would become wholly meaningless.131. It is, thus, clear that the expression open lands is meant to connote lands other than lands available after demolition of existing structures. [See Lennon v. Gibson (1919) AC 709 , Craies on Statute Law, Seventh Edition, page 141 and G.P. Singhs Principles of Statutory Interpretation, Ninth edition, page 258].DCR 58(6), thus, confers an additional benefit in respect of cases falling within DCR 58(1)(a) allowing inter alia:(a) demolition which it could not do under DCR 58(1)(a);(b) it does not require any sharing for which benefit was also available under DCR 58(1)(a);(c) built up area remaining the same, the shape, size and nature of the existing structure could be changed which could not be done under DCR 58(1)(a);(d) The second part of Sub-regulation (6) permits aggregation on the same single mill plot, which was not available under DCR 58(1)(a), subject of course to the existing built up area remaining the same.133. The contention of BEAG is that the implementation of DCR 58 would lead to a disastrous result and in this behalf our attention was drawn to a sanctioned plan in respect of Mill No. 4 to show that the consequences thereof would be that the share of MCGM and MHADA would come to 662.61 sq. m. and 542.13 sq. m. respectively, although the plot area of Mill No. 4 is 58,458.36 sq. m. We do not find any merit in the said contention as keeping in view of our finding aforementioned, the built up area was required to be deducted therefrom.134. For computing the extent of the land required to be shared, the plinth area will have no relevance. So far as Mill No. 4 is concerned, having regard to the existing built up area, the share of MCGM and MHADA would be on a low side, but it is evident that so far as Mill No. 1 is concerned, whereas the plot area was only 47,730.28 sq. m., having regard to the built up area, the share of MCGM and MHADA would come to 4,058.67 sq. m. and 3,320.73 sq. m. respectively. These are indicative of the fact that the extent of open land to be shared by the owners with MCGM and MHADA would depend upon the built up area of the structure which existed on site. The share of MCGM and MHADA, therefore, would vary from case to case and, thus, we cannot determine the question keeping in view only the case of one mill and not the others.135. We do not furthermore agree with the approach of the High Court in interpreting the aforementioned provisions having regard to certain other factors, namely, deluge in Bombay in the year 2005 as also the requirements of the entire population of Bombay from environmental aspect. Such factors cannot be taken into consideration for interpretation of a statute. We cannot look to a statute with a coloured glass, we have to consider the provisions as the legislature thought. The same should be subject, of course, to the constitutional and other limitations.136. No specific provision has been made for industries which are closed but for one reason or the other had not been referred to BIFR. A mill may be closed although the company which owns it and having other businesses or other properties is not sick company in terms of SICA. From its other resources, it can modernize or shift the industry. But, there may be a case where the mill is the only property, if it lies closed and no action is taken for its revival, the same may defeat the purpose for which DCR 58 was made, or the company although as such is not sick but finds it difficult to arrange funds for revival of the closed mill. The doctrine of purposive interpretation in such a case has to be applied. The expression sick and/ or closed used in Sub-regulation (1) of DCR 58 must be read as disjunctive and not conjunctive.137. Furthermore, in this behalf the principles of common sense construction, as noticed hereinbefore, should be taken recourse to.137. Furthermore, in this behalf the principles of common sense construction, as noticed hereinbefore, should be taken recourse to.In Halsburys Laws of England (Fourth Edition) Volume 44(1) (Reissue), the law is stated in the following terms:1392. Commonsense Construction Rule. It is a rule of the common law, which may be referred to as the commonsense construction rule, that when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, the court should presume that the legislator intended common sense to be used in construing the enactment.1477. Nature of presumption against absurdity. It is presumed that Parliament intend that the court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a construction which produces an absurd result, since this is unlikely to have been intended by Parliament. Here absurd means contrary to sense and reason, so in this context the term absurd is used to include a result which is unworkable or impracticable, inconvenient, anomalous or illogical, futile or pointless, artificial or productive of a disproportionate counter- mischief.1480. Presumption against anomalous or illogical result. It is presumed that Parliament intends that the Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of an enactment corresponds to its legal meaning, should find against a construction that creates an anomaly or otherwise produces an irrational or illogical result. The presumption may be applicable where on one construction a benefit is not available in like cases, or a detriment is not imposed in like cases, or the decision would turn on an immaterial distinction or an anomaly would be created in legal doctrine. Where each of the constructions contended for involves some anomaly then, in so far as the court uses anomaly as a test, it has to balance the effect of each construction and determine which anomaly is greater. It may be possible to avoid the anomaly by the exercise of a discretion. It may be, however, that the anomaly is clearly intended, when effect must be given to the intention. The court will pay little attention to a proclaimed anomaly if it is purely hypothetical, and unlikely to arise in practice.138. If such an interpretation is not given, a very valuable asset would be rendered sterile. If it is to be construed that a scheme made by BIFR is the condition precedent for applicability of DCR 58 by reason whereof the benefit conferred thereunder would not be available in like cases for no apparent reasons whatsoever particularly when it was the intention of the State that all categories of the mills which require rehabilitation, revival or modernization should be brought within the purview of DCR 58.139. It is, thus, not possible to accept Mr. Salves submission that even a closed mill although not covered under DCR 58 may be utilized for purposed mentioned in Regulation 56. Indisputably, there may be closed mills which have not been referred to BIFR or otherwise not capable of being referred to. The spirit of making DCR 58 was to revival and/ or rehabilitation of the cotton textile mills. Revival of closed mill was also, thus, a component part of the scheme behind framing of DCR 58. It may be true that in terms of Sub-regulation (1) of DCR 58 recommendation of the BIFR is contemplated but recommendation of BIFR would be necessary where it is otherwise available. If it is insisted that the recommendation by BIFR was mandatory even for closed mill, much of the significance for using the words `and/or closed after the word `sick is lost. A closed mill would mean a mill in respect whereof closure has been effected in accordance with law. Such closure can be effected in accordance with law in terms of the provisions of the Industrial Disputes Act. Before effecting a closure under the Industrial Disputes Act, notice has to be given to the State and in certain cases its prior permission is also required to be obtained. Thus, all cases, which entail closure of an industry, would be within the knowledge of the State. The State through its machinery can furthermore verify the genuineness or otherwise of such closure. In such a case, even in terms of the provisions of the Industrial Disputes Act having regard to the purport and object for which the same had been enacted, the authorities thereunder as also for the State a duty is cast to restore back the industrial peace. [See State of Rajasthan and Another Vs. Mohammed Ayub Naz, .140. SICA is a special statute. It is an Act made by the Parliament.SICA was enacted for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India. It would prevail over other statutes including MRTP and the Regulations framed thereunder.DCR 58(6) is adjunct to the other provisions. Although on some occasions, DCR 58(2) may apply without DCR 58(6). However, there is no such machinery so far as sick mills are concerned, it is, therefore, difficult to comprehend that those mills which are sick but not referred to BIFR also can take advantage of Sub-regulation (6). How an industrial undertaking belonging to a company which is sick should be determined to be so as laid down under the provisions of SICA. Only in a case where a company is sick in terms of the 1985 Act, an industrial undertaking belonging to it may be subject matter of the provisions thereof. The State for that matter neither has any statutory power or competence to deal with sick undertakings. Furthermore, the extent to which such sick company requires protection to the extent of the sickness of the industrial undertaking cannot also be gone into by the State or for that matter by any other authority apart from BIFR.143. Sub-regulation (2) of DCR 58 deals with cases requiring modernization. For invoking the said provision, certain steps are required to be taken which are as under:(i) Application for Scheme of Modernization to Government (Competent Authority i.e. Corporation and Textile Department, Government of Maharashtra) as per DCR 58(2) read with 58(6)(a)(b) as the case may be.(ii) Scrutiny by the Department of Textiles.(iii) Approval to Scheme by Government (with direction to approach MCGM for further approval as per Regulation 58(2) read with 58(6)(a)(b).(iv) Application by Owner to Municipal Commissioner for a layout prepared for development or redevelopment of the entire open land and/ or built up areas of the premises of mill. With regard to the utilization of built up area (if reconstruction, aggregation is proposed then it has to be read with 58(6)(a)(b) as the case may be), the provisions of clause (a) of Sub-regulation 1 of these regulations shall apply and if the development of open lands and balance FSI exceeds 30% of the open land and balance FSI, the provision of clause (b) sub- regulation 1 of this regulation shall apply.As per Notes (ii) in case of more than one cotton textile mills owned by the same company, the exemption of 30%, as specified above, may be permitted to be consolidated. Permission for development or redevelopment granted as per 58(2) read with 58(6)(a)(b).(v) Ready for Implementation for Scheme of Modernization.(vi) As per 58(8)(a)(b) Funds accruing in ESCROW Account, monitored by Monitoring Committee as per DCR 58(9)(a).

### 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: only representative and approved trade union under the Bombay Industrial Relations Act for Greater Bombay. According to them, closure of the cotton mills affected 2,00,000 workers and because of the strike the mills defaulted in making payment of wages, provident funds dues, gratuity, etc. to the workers causing great hardship to them. It played an active role in the revival / rehabilitation of the NTC mills and other sick mills by representing the workers cause before BIFR. It also agrees with the reasons put forward by the appellants as regards the validity of DCR 58 of 2001. It highlights the policy/ objectives thereof in great details. It also states: (i) RMMS has entered into VRS Agreement with the management of several mills. (ii) Nearly 10,000 workers of the NTC mills and more than 25,000 workers of private mills, aggregating in all more than 35,000 workers stand to benefit by the VRS Schemes. (iii) As on date, the NTC mills have discharged their entire liabilities under the VRS Schemes by making payment to the extent of 398.76 crores payable to these workers. (iv) The Maharashtra State Textile Corporation has also cleared the outstanding dues of its workers to the extent of Rs. 22 crores. As regards the private mills, out of the total amount due to the workers under VRS Schemes amounting to 808.75 crores, approximately a sum of 631.05 crores has been paid. (v) However, approximately Rs. 373 crores remain outstanding to be paid to approximately 20,000 workers which payments are directly linked to the development of the lands by the mill owners. It further argues that if the judgment of the High Court is implemented, it would cause irretrievable injury and extreme prejudice to the workers. 279. Mr. Colin Gonsalves, learned Cousel appearing on behalf of GKSS, on the other hand, not only laid emphasis on the so-called defaults of the mill owners but had gone to the extent of urging that the workers dues have not been paid substantively. He further contended that revival scheme has not been given effect to and the amount required to be spent therefore had in fact not been spent. It has further been contended that no guidelines had at all been framed for the Monitoring Committee by the State for overseeing the disbursement of funds. According to it, in the case of Mafatlal center although the scheme was sanctioned in 2001, no payment has been made despite the fact that the company received a sum of Rs. 16 crores from the sale of the built up areas of Mafatlal center at Parel. The workers dues being to the extent of 93 crores, the same are in excess of the legal dues of the workers and only a paltry sum had been paid to them whereas the dues of the banks had been cleared. 280. In these appeals, we are not concerned with the said issues. We may, however, place on record that according to Mr. Sorabjee the statement of Mr. Colin Gonsalves that nothing had been paid to the workers is baseless and irresponsible. It was contended that the Union represented by Mr. Gonsalves impleaded itself in the writ petition filed by it before the High Court against the MCGM as regard non-disposal of layout plan, etc. wherein they categorically stated that it would have no objection to the development of their property subject to realization of the cheques given in favour of the workers. It is stated that the cheques had been fully realized and the workers have enjoyed the benefit of payment. 281. We have pointed out these factors only for the purpose of showing that this litigation was treated to be a platform for even championing the cause of the workers although neither the High Court nor this Court is concerned therewith. 282. In terms of the Regulations, the entire amount is to be deposited in the funds specially created therfor. It is the Committee appointed by the State alone which can spend the amount. The priority as regard disbursal of such amount has categorically been laid down in the regulation itself. If the fund created is not being expended for the purposes mentioned therein, a separate cause of action will arise therefore. It is, thus, not necessary for us to delve deep into the said contentions. Guidelines for the Committee are also not necessary to be laid down. In any event, we are not called upon nor is it necessary to make any attempt in that regard. However, if any occasion arises for any of the parties in this behalf, the aggrieved party indisputably would be at liberty to agitate the same before appropriate forums CONCLUSION 283. The upshot of our aforementioned discussions is: (i) The Public Interest Litigation was maintainable. (ii) DCR 58 is valid in law. DCR 58(1) applies also to closed mills but Sub-regulation (6) of DCR 58 does not apply to sick industries which have not been referred to BIFR. (iii) The clarification made by the State is neither ultra vires Section 37 of the MRTP Act nor is violative of the constitutional provisions. (iv) DCR 58, as inserted in 2001 and as clarified in 2003, is not contrary to the principles governing environmental aspects including the principles of sustainable and planned development vis--vis Article 21 of the Constitution of India. (v) Judicial review of DCR 58 was permissible in law. (vi) Sale of NTC mills was not contrary to the BIFR Scheme as also the orders passed by this Court. (vii) Although, delay and laches play an important role, as we have considered the merit of the matter, the writ petition filed by the Respondent Nos. 1 and 2 is not being dismissed on that ground alone. (viii) It is not necessary for us to go into the question as to whether workers dues have been paid and also as to whether the committee had been applying the fund in terms of DCR 58 or not. However, all such contentions shall remain open. ### Response: 1 ### Explanation: anomaly or otherwise produces an irrational or illogical result. The presumption may be applicable where on one construction a benefit is not available in like cases, or a detriment is not imposed in like cases, or the decision would turn on an immaterial distinction or an anomaly would be created in legal doctrine. Where each of the constructions contended for involves some anomaly then, in so far as the court uses anomaly as a test, it has to balance the effect of each construction and determine which anomaly is greater. It may be possible to avoid the anomaly by the exercise of a discretion. It may be, however, that the anomaly is clearly intended, when effect must be given to the intention. The court will pay little attention to a proclaimed anomaly if it is purely hypothetical, and unlikely to arise in practice.138. If such an interpretation is not given, a very valuable asset would be rendered sterile. If it is to be construed that a scheme made by BIFR is the condition precedent for applicability of DCR 58 by reason whereof the benefit conferred thereunder would not be available in like cases for no apparent reasons whatsoever particularly when it was the intention of the State that all categories of the mills which require rehabilitation, revival or modernization should be brought within the purview of DCR 58.139. It is, thus, not possible to accept Mr. Salves submission that even a closed mill although not covered under DCR 58 may be utilized for purposed mentioned in Regulation 56. Indisputably, there may be closed mills which have not been referred to BIFR or otherwise not capable of being referred to. The spirit of making DCR 58 was to revival and/ or rehabilitation of the cotton textile mills. Revival of closed mill was also, thus, a component part of the scheme behind framing of DCR 58. It may be true that in terms of Sub-regulation (1) of DCR 58 recommendation of the BIFR is contemplated but recommendation of BIFR would be necessary where it is otherwise available. If it is insisted that the recommendation by BIFR was mandatory even for closed mill, much of the significance for using the words `and/or closed after the word `sick is lost. A closed mill would mean a mill in respect whereof closure has been effected in accordance with law. Such closure can be effected in accordance with law in terms of the provisions of the Industrial Disputes Act. Before effecting a closure under the Industrial Disputes Act, notice has to be given to the State and in certain cases its prior permission is also required to be obtained. Thus, all cases, which entail closure of an industry, would be within the knowledge of the State. The State through its machinery can furthermore verify the genuineness or otherwise of such closure. In such a case, even in terms of the provisions of the Industrial Disputes Act having regard to the purport and object for which the same had been enacted, the authorities thereunder as also for the State a duty is cast to restore back the industrial peace. [See State of Rajasthan and Another Vs. Mohammed Ayub Naz, .140. SICA is a special statute. It is an Act made by the Parliament.SICA was enacted for giving effect to the policy of the State towards securing the principles specified in clauses (b) and (c) of Article 39 of the Constitution of India. It would prevail over other statutes including MRTP and the Regulations framed thereunder.DCR 58(6) is adjunct to the other provisions. Although on some occasions, DCR 58(2) may apply without DCR 58(6). However, there is no such machinery so far as sick mills are concerned, it is, therefore, difficult to comprehend that those mills which are sick but not referred to BIFR also can take advantage of Sub-regulation (6). How an industrial undertaking belonging to a company which is sick should be determined to be so as laid down under the provisions of SICA. Only in a case where a company is sick in terms of the 1985 Act, an industrial undertaking belonging to it may be subject matter of the provisions thereof. The State for that matter neither has any statutory power or competence to deal with sick undertakings. Furthermore, the extent to which such sick company requires protection to the extent of the sickness of the industrial undertaking cannot also be gone into by the State or for that matter by any other authority apart from BIFR.143. Sub-regulation (2) of DCR 58 deals with cases requiring modernization. For invoking the said provision, certain steps are required to be taken which are as under:(i) Application for Scheme of Modernization to Government (Competent Authority i.e. Corporation and Textile Department, Government of Maharashtra) as per DCR 58(2) read with 58(6)(a)(b) as the case may be.(ii) Scrutiny by the Department of Textiles.(iii) Approval to Scheme by Government (with direction to approach MCGM for further approval as per Regulation 58(2) read with 58(6)(a)(b).(iv) Application by Owner to Municipal Commissioner for a layout prepared for development or redevelopment of the entire open land and/ or built up areas of the premises of mill. With regard to the utilization of built up area (if reconstruction, aggregation is proposed then it has to be read with 58(6)(a)(b) as the case may be), the provisions of clause (a) of Sub-regulation 1 of these regulations shall apply and if the development of open lands and balance FSI exceeds 30% of the open land and balance FSI, the provision of clause (b) sub- regulation 1 of this regulation shall apply.As per Notes (ii) in case of more than one cotton textile mills owned by the same company, the exemption of 30%, as specified above, may be permitted to be consolidated. Permission for development or redevelopment granted as per 58(2) read with 58(6)(a)(b).(v) Ready for Implementation for Scheme of Modernization.(vi) As per 58(8)(a)(b) Funds accruing in ESCROW Account, monitored by Monitoring Committee as per DCR 58(9)(a).

M/S. Kalyanji Vithaldas & Sons Vs. The State Of M.P. & Ors

of issue. For this proposition, there would not be any controversy. The question is : whether on expiry of 31st January of the year, the previous contractor is absolved of his liability for non-execution of the renewal date ? It is seen that originally, the contract was for three years. Therefore, he is entitled for renewal unless it was either determined earlier and offer of renewal was rejected by the Government. Admittedly, the appellant had given his offer for renewal before the expiry of the period and the Government also had accepted the offer before 31st January, 1969. Obviously, it would take time for communication thereof. It being a continuing contract which the appellant otherwise would have for three years, there is no hiatus in continuity unless and step was taken by the Government in the interregnum to have his lease terminated in terms of the contract. In this case, the contract has not been terminated. Resultantly, the acceptance of the offer communicated to the appellant by Government having been made within time, namely, on January 31, 1969. what remained to be done was only execution of the renewal lease deed for a further period of one year in terms of the contract. The appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant but as regards the address furnished by the appellant and sent to the Government, there was no defect. There may be some typographical error in the name of the appellant-company. The appellant appears to have taken undue advantage of it and sought to resile from the offer accepted by the Government. Having allowed the contract to lapse resulting in loss caused to the State due to non-execution of the contract, the resultant loss has to be recovered from the appellant. 6. Shri S.V. Despande, learned counsel, has placed reliance on the judgment of the same Bench in another case in Shiv Saran Lal vs. State of M.P. & Ors. [AIR 1980 M.P. 93]. Therein, learned Judges have held that since the communication of acceptance was not made before the expiry of January 31 of the succeeding year, the contractor was not liable for the payment thereof. On the principle of the communication, as stated earlier, there is no quarrel but the learned Judges have not considered the further aspect, viz., whether in a case of continuing contract, is he absolved of the liability ? In the view as we have stated earlier, the same Branch appears to have taken inconsistent view without reference to the judgment under appeal. Therefore, the later view expressed by the High Court on the liability is not correct in law. 7. The question then is : whether the arrears due from the lessee-contractor would be recovered as arrears of land revenue ? Section 155 of the Land Revenue Code and Section 3 and 4(2) of the Revenue Recovery Act of 1890 reads as under : "155. The following monies, may be recovered, as far as may be under the provisions of this chapter in the same manner as arrears of land revenue ;(a)XXXXX XXXX XXXXX(b) all monies falling due to the State Government under any grant, least or contract which provides that they shall be recoverable in the same manner as an arrears of land revenue." Section 3 of the Revenue Recovery Act. "3. Recovery of public demands by enforcement of process in other districts than those in which they become payable (1) where an arrear of land revenue, or a sum recoverable as an arrear of land- revenue is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of the other district a certificate in the form as nearly as may be of the Schedule, stating -(a) the name of the defaulter and such other particulars as may be necessary for his identification, and(b) the amount payable by him and the account on which it is due .(2) The certificate shall be signed by the Collector making it (or by any officer whom such Collector may, by order in writing, delegate this duty) and save, as otherwise provided by this act, shall be conclusive proof of the matters therein stated.(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land-revenue which had accrued in his own district." Section 4(1). "4. Remedy available to person denying liability to pay amount recovered under last foregoing section (1) when proceedings are taken against a person under the last foregoing section for the recovery of an amount stated in a certificate that person may if he denies his liability to pay amount or any part thereof and pays the same under part thereof and pays the same under protest made in writing at the time of protest made in writing at the same time of protest made in writing at the time of paying and signed by him or his agent, institute a suit for the repayment of the amount or the part thereof so paid." 8. A reading of these provisions would clearly indicate that the recovery of public demands by enforcement of process is recoverable as arrears of land revenue, since all moneys fall due to the State Government, under any grant, lease or contract shall be recoverable in the same manner as arrears of land revenue. Therefore, the Government is clearly empowered to recover the arrears of the dues as land revenue from the appellant-contractor towards loss caused to the Government in not collecting the Tendu leaves the contract.

0[ds]5. It is seen that the appellant had a contract for three years ending on December 31, 1970. He worked out the contract in the year 1968 ending on January 31, 1969. Under Clause (1) of the proviso, unless earlier determined under the terms of the agreement, there will be yearly renewal of agreement by 31st January each year by issue of an order by Government in writing provided Government is satisfied that purchaser had fulfilled the conditions enumerated subsequently. It is true, as contended by Shri S.V. Deshpande, that the word issue implies service of notice. Unless the contractor receives acceptance by the Government he will not be in a position to know whether or not his offer has been accepted by the Government. Therefore, the date of the receipt would be the date of issue. For this proposition, there would not be anyis seen that originally, the contract was for three years. Therefore, he is entitled for renewal unless it was either determined earlier and offer of renewal was rejected by the Government. Admittedly, the appellant had given his offer for renewal before the expiry of the period and the Government also had accepted the offer before 31st January, 1969. Obviously, it would take time for communication thereof. It being a continuing contract which the appellant otherwise would have for three years, there is no hiatus in continuity unless and step was taken by the Government in the interregnum to have his lease terminated in terms of the contract. In this case, the contract has not been terminated. Resultantly, the acceptance of the offer communicated to the appellant by Government having been made within time, namely, on January 31, 1969. what remained to be done was only execution of the renewal lease deed for a further period of one year in terms of the contract. The appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant but as regards the address furnished by the appellant and sent to the Government, there was no defect. There may be some typographical error in the name of the appellant-company. The appellant appears to have taken undue advantage of it and sought to resile from the offer accepted by the Government. Having allowed the contract to lapse resulting in loss caused to the State due to non-execution of the contract, the resultant loss has to be recovered from thethe view as we have stated earlier, the same Branch appears to have taken inconsistent view without reference to the judgment under appeal. Therefore, the later view expressed by the High Court on the liability is not correct in law.A reading of these provisions would clearly indicate that the recovery of public demands by enforcement of process is recoverable as arrears of land revenue, since all moneys fall due to the State Government, under any grant, lease or contract shall be recoverable in the same manner as arrears of land revenue. Therefore, the Government is clearly empowered to recover the arrears of the dues as land revenue from the appellant-contractor towards loss caused to the Government in not collecting the Tendu leaves the contract.

### 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: of issue. For this proposition, there would not be any controversy. The question is : whether on expiry of 31st January of the year, the previous contractor is absolved of his liability for non-execution of the renewal date ? It is seen that originally, the contract was for three years. Therefore, he is entitled for renewal unless it was either determined earlier and offer of renewal was rejected by the Government. Admittedly, the appellant had given his offer for renewal before the expiry of the period and the Government also had accepted the offer before 31st January, 1969. Obviously, it would take time for communication thereof. It being a continuing contract which the appellant otherwise would have for three years, there is no hiatus in continuity unless and step was taken by the Government in the interregnum to have his lease terminated in terms of the contract. In this case, the contract has not been terminated. Resultantly, the acceptance of the offer communicated to the appellant by Government having been made within time, namely, on January 31, 1969. what remained to be done was only execution of the renewal lease deed for a further period of one year in terms of the contract. The appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant but as regards the address furnished by the appellant and sent to the Government, there was no defect. There may be some typographical error in the name of the appellant-company. The appellant appears to have taken undue advantage of it and sought to resile from the offer accepted by the Government. Having allowed the contract to lapse resulting in loss caused to the State due to non-execution of the contract, the resultant loss has to be recovered from the appellant. 6. Shri S.V. Despande, learned counsel, has placed reliance on the judgment of the same Bench in another case in Shiv Saran Lal vs. State of M.P. & Ors. [AIR 1980 M.P. 93]. Therein, learned Judges have held that since the communication of acceptance was not made before the expiry of January 31 of the succeeding year, the contractor was not liable for the payment thereof. On the principle of the communication, as stated earlier, there is no quarrel but the learned Judges have not considered the further aspect, viz., whether in a case of continuing contract, is he absolved of the liability ? In the view as we have stated earlier, the same Branch appears to have taken inconsistent view without reference to the judgment under appeal. Therefore, the later view expressed by the High Court on the liability is not correct in law. 7. The question then is : whether the arrears due from the lessee-contractor would be recovered as arrears of land revenue ? Section 155 of the Land Revenue Code and Section 3 and 4(2) of the Revenue Recovery Act of 1890 reads as under : "155. The following monies, may be recovered, as far as may be under the provisions of this chapter in the same manner as arrears of land revenue ;(a)XXXXX XXXX XXXXX(b) all monies falling due to the State Government under any grant, least or contract which provides that they shall be recoverable in the same manner as an arrears of land revenue." Section 3 of the Revenue Recovery Act. "3. Recovery of public demands by enforcement of process in other districts than those in which they become payable (1) where an arrear of land revenue, or a sum recoverable as an arrear of land- revenue is payable to a Collector by a defaulter being or having property in a district other than that in which the arrear accrued or the sum is payable, the Collector may send to the Collector of the other district a certificate in the form as nearly as may be of the Schedule, stating -(a) the name of the defaulter and such other particulars as may be necessary for his identification, and(b) the amount payable by him and the account on which it is due .(2) The certificate shall be signed by the Collector making it (or by any officer whom such Collector may, by order in writing, delegate this duty) and save, as otherwise provided by this act, shall be conclusive proof of the matters therein stated.(3) The Collector of the other district shall, on receiving the certificate, proceed to recover the amount stated therein as if it were an arrear of land-revenue which had accrued in his own district." Section 4(1). "4. Remedy available to person denying liability to pay amount recovered under last foregoing section (1) when proceedings are taken against a person under the last foregoing section for the recovery of an amount stated in a certificate that person may if he denies his liability to pay amount or any part thereof and pays the same under part thereof and pays the same under protest made in writing at the time of protest made in writing at the same time of protest made in writing at the time of paying and signed by him or his agent, institute a suit for the repayment of the amount or the part thereof so paid." 8. A reading of these provisions would clearly indicate that the recovery of public demands by enforcement of process is recoverable as arrears of land revenue, since all moneys fall due to the State Government, under any grant, lease or contract shall be recoverable in the same manner as arrears of land revenue. Therefore, the Government is clearly empowered to recover the arrears of the dues as land revenue from the appellant-contractor towards loss caused to the Government in not collecting the Tendu leaves the contract. ### Response: 0 ### Explanation: 5. It is seen that the appellant had a contract for three years ending on December 31, 1970. He worked out the contract in the year 1968 ending on January 31, 1969. Under Clause (1) of the proviso, unless earlier determined under the terms of the agreement, there will be yearly renewal of agreement by 31st January each year by issue of an order by Government in writing provided Government is satisfied that purchaser had fulfilled the conditions enumerated subsequently. It is true, as contended by Shri S.V. Deshpande, that the word issue implies service of notice. Unless the contractor receives acceptance by the Government he will not be in a position to know whether or not his offer has been accepted by the Government. Therefore, the date of the receipt would be the date of issue. For this proposition, there would not be anyis seen that originally, the contract was for three years. Therefore, he is entitled for renewal unless it was either determined earlier and offer of renewal was rejected by the Government. Admittedly, the appellant had given his offer for renewal before the expiry of the period and the Government also had accepted the offer before 31st January, 1969. Obviously, it would take time for communication thereof. It being a continuing contract which the appellant otherwise would have for three years, there is no hiatus in continuity unless and step was taken by the Government in the interregnum to have his lease terminated in terms of the contract. In this case, the contract has not been terminated. Resultantly, the acceptance of the offer communicated to the appellant by Government having been made within time, namely, on January 31, 1969. what remained to be done was only execution of the renewal lease deed for a further period of one year in terms of the contract. The appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant had withdrawn his offer only after the acceptance was communicated to him on February 7, 1969. No doubt, there was a defect in communication of the order to the appellant but as regards the address furnished by the appellant and sent to the Government, there was no defect. There may be some typographical error in the name of the appellant-company. The appellant appears to have taken undue advantage of it and sought to resile from the offer accepted by the Government. Having allowed the contract to lapse resulting in loss caused to the State due to non-execution of the contract, the resultant loss has to be recovered from thethe view as we have stated earlier, the same Branch appears to have taken inconsistent view without reference to the judgment under appeal. Therefore, the later view expressed by the High Court on the liability is not correct in law.A reading of these provisions would clearly indicate that the recovery of public demands by enforcement of process is recoverable as arrears of land revenue, since all moneys fall due to the State Government, under any grant, lease or contract shall be recoverable in the same manner as arrears of land revenue. Therefore, the Government is clearly empowered to recover the arrears of the dues as land revenue from the appellant-contractor towards loss caused to the Government in not collecting the Tendu leaves the contract.

KESHAV AND OTHERS Vs. GIAN CHAND AND ANOTHER

years after their application for mutation was rejected on 13th May 1989. 9. The concurrent findings of the lower courts delve into the context and factual aspects surrounding the primary evidence viz., gift deed, to conclude that the plaintiffs case lacks base for a bona fide claim for decree of declaration. Appreciation of evidence is an exercise based on facts and circumstances where the preponderance of probability can take varying form and configurations. What facts and circumstances have to be established to prove the execution of a document depends on the pleas put forward. Ordinarily, no one is expected to sign or execute a document without knowing its contents, but if it is pleaded that the party executing the document did not know the contents thereof then it may, in certain circumstances, be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who executed the document had the knowledge of its contents Rao Saheb v. Rangnath Gopalrao Kawathekar (Dead By LRs) and Others, (1972) 4 SCC 181 . Considering that the very origin of the gift deed was disputed by the executant during her lifetime, the lower courts were right in weighing the evidence of the gift deed on the touchstone of its validity first, rather than its form and content. The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue. The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs. When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Indian Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof. Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice Krishna Mohan Kul alias Nani Charan Kul and Anr. v. Pratima Maity and Ors., (2004) 9 SCC 468 . 10. The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal [Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and Others, AIR 1963 SC 1279 ; and Bellachi (D) by LRs. v. Pakeeran, (2009) 12 SCC 95] . In the present case, the plea as to invalidity of the gift deed is not to be decided on general presumption and assertion. Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document. These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion [See Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676; Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545] . 11. We have elaborately referred to the reasoning given by the trial court, which the first appellate court had independently examined and affirmed. The findings were recorded after in-depth consideration of the factual matrix, including the statement of Hardei, an illiterate and aged woman, who during her lifetime in 1989, had staunchly refuted having executed any gift deed transferring the property to the plaintiffs. Hardei was residing with Keshav, who was looking after her and providing for all her needs. Further, the plaintiffs did not take any steps to get the mutation of the land records for about four years from 1st January 1986 till 1989. The rejection by the revenue authority in 1989 remained unchallenged till Hardei died in 1991. The views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs.

1[ds]8. Devia (PW-4), the witness to the gift deed at the time of its execution on 23rd December 1985, Ratan Chand (PW-3), who had signed the deed before the Sub-Registrar, Salooni, at the time of registration on 1st January 1986, as well as Gian Chand (PW-1), have deposed as to the execution of this gift deed. Yet, there are several circumstances and supporting facts relied by the trial court and first appellate court on absence of voluntariness and animus and thus, the gift deed was held to be an invalid and spurious document.9. The concurrent findings of the lower courts delve into the context and factual aspects surrounding the primary evidence viz., gift deed, to conclude that the plaintiffs case lacks base for a bona fide claim for decree of declaration. Appreciation of evidence is an exercise based on facts and circumstances where the preponderance of probability can take varying form and configurations. What facts and circumstances have to be established to prove the execution of a document depends on the pleas put forward. Ordinarily, no one is expected to sign or execute a document without knowing its contents, but if it is pleaded that the party executing the document did not know the contents thereof then it may, in certain circumstances, be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who executed the document had the knowledge of its contents Rao Saheb v. Rangnath Gopalrao Kawathekar (Dead By LRs) and Others, (1972) 4 SCC 181 . Considering that the very origin of the gift deed was disputed by the executant during her lifetime, the lower courts were right in weighing the evidence of the gift deed on the touchstone of its validity first, rather than its form and content. The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue. The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs. When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Indian Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof. Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice Krishna Mohan Kul alias Nani Charan Kul and Anr. v. Pratima Maity and Ors., (2004) 9 SCC 468 .10. The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal [Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and Others, AIR 1963 SC 1279 ; and Bellachi (D) by LRs. v. Pakeeran, (2009) 12 SCC 95] . In the present case, the plea as to invalidity of the gift deed is not to be decided on general presumption and assertion. Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document. These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion [See Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676; Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545] .11. We have elaborately referred to the reasoning given by the trial court, which the first appellate court had independently examined and affirmed. The findings were recorded after in-depth consideration of the factual matrix, including the statement of Hardei, an illiterate and aged woman, who during her lifetime in 1989, had staunchly refuted having executed any gift deed transferring the property to the plaintiffs. Hardei was residing with Keshav, who was looking after her and providing for all her needs. Further, the plaintiffs did not take any steps to get the mutation of the land records for about four years from 1st January 1986 till 1989. The rejection by the revenue authority in 1989 remained unchallenged till Hardei died in 1991. The views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs.

### 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: years after their application for mutation was rejected on 13th May 1989. 9. The concurrent findings of the lower courts delve into the context and factual aspects surrounding the primary evidence viz., gift deed, to conclude that the plaintiffs case lacks base for a bona fide claim for decree of declaration. Appreciation of evidence is an exercise based on facts and circumstances where the preponderance of probability can take varying form and configurations. What facts and circumstances have to be established to prove the execution of a document depends on the pleas put forward. Ordinarily, no one is expected to sign or execute a document without knowing its contents, but if it is pleaded that the party executing the document did not know the contents thereof then it may, in certain circumstances, be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who executed the document had the knowledge of its contents Rao Saheb v. Rangnath Gopalrao Kawathekar (Dead By LRs) and Others, (1972) 4 SCC 181 . Considering that the very origin of the gift deed was disputed by the executant during her lifetime, the lower courts were right in weighing the evidence of the gift deed on the touchstone of its validity first, rather than its form and content. The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue. The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs. When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Indian Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof. Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice Krishna Mohan Kul alias Nani Charan Kul and Anr. v. Pratima Maity and Ors., (2004) 9 SCC 468 . 10. The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal [Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and Others, AIR 1963 SC 1279 ; and Bellachi (D) by LRs. v. Pakeeran, (2009) 12 SCC 95] . In the present case, the plea as to invalidity of the gift deed is not to be decided on general presumption and assertion. Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document. These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion [See Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676; Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545] . 11. We have elaborately referred to the reasoning given by the trial court, which the first appellate court had independently examined and affirmed. The findings were recorded after in-depth consideration of the factual matrix, including the statement of Hardei, an illiterate and aged woman, who during her lifetime in 1989, had staunchly refuted having executed any gift deed transferring the property to the plaintiffs. Hardei was residing with Keshav, who was looking after her and providing for all her needs. Further, the plaintiffs did not take any steps to get the mutation of the land records for about four years from 1st January 1986 till 1989. The rejection by the revenue authority in 1989 remained unchallenged till Hardei died in 1991. The views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs. ### Response: 1 ### Explanation: animus and thus, the gift deed was held to be an invalid and spurious document.9. The concurrent findings of the lower courts delve into the context and factual aspects surrounding the primary evidence viz., gift deed, to conclude that the plaintiffs case lacks base for a bona fide claim for decree of declaration. Appreciation of evidence is an exercise based on facts and circumstances where the preponderance of probability can take varying form and configurations. What facts and circumstances have to be established to prove the execution of a document depends on the pleas put forward. Ordinarily, no one is expected to sign or execute a document without knowing its contents, but if it is pleaded that the party executing the document did not know the contents thereof then it may, in certain circumstances, be necessary for the party seeking to prove the document to place material before the court to satisfy it that the party who executed the document had the knowledge of its contents Rao Saheb v. Rangnath Gopalrao Kawathekar (Dead By LRs) and Others, (1972) 4 SCC 181 . Considering that the very origin of the gift deed was disputed by the executant during her lifetime, the lower courts were right in weighing the evidence of the gift deed on the touchstone of its validity first, rather than its form and content. The fact in issue in the present case is the voluntariness and animus necessary for the execution of a valid gift deed, which is to be examined on the basis of evidence led by the parties who could depose for the truth of this fact in issue. Decision and determination of the fact in issue is by examination of the oral evidence of those persons who can vouchsafe for the truth of the facts in issue. The impugned judgment in the second appeal by the High Court, unfortunately, chose to ignore and not deal with the fact in issue in the background of the case, but was completely influenced by the evidence led to support execution and registration of the document, and not whether execution was voluntary and in exercise of unfettered will to effect gratuitous transfer of land in favour of the plaintiffs. When a person obtains any benefit from another, the court would call upon the person who wishes to maintain the right to gift to discharge the burden of proving that he exerted no influence for the purpose of obtaining the document. Corollary to this principle finds recognition in sub-section (3) to Section 16 of the Indian Contract Act, 1872 which relates to pardanashin ladies. The courts can apply this principle to old, illiterate, ailing or infirm persons who may be unable to comprehend the nature of document or contents thereof. Equally, one who bargains in the matter of advantage with a person who places confidence in him is bound to show that a proper and reasonable use has been made of that confidence. The burden of establishing perfect fairness, adequacy and equity is cast upon the person in whom the confidence has been reposed. Therefore, in cases of fiduciary relationships when validity of the transaction is in question it is relevant to see whether the person conferring the benefit on the other had competent and independent advice Krishna Mohan Kul alias Nani Charan Kul and Anr. v. Pratima Maity and Ors., (2004) 9 SCC 468 .10. The question whether a person was in a position to dominate the will of the other and procure a certain deed by undue influence is a question of fact, and a finding thereon is a finding of fact, and if arrived at fairly in accordance with the procedure prescribed, it is not liable to be reopened in second appeal [Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd., Karnal and Others, AIR 1963 SC 1279 ; and Bellachi (D) by LRs. v. Pakeeran, (2009) 12 SCC 95] . In the present case, the plea as to invalidity of the gift deed is not to be decided on general presumption and assertion. Concurrent findings of facts arrived at in the present case were based upon a holistic examination of the entire evidence relating to execution and validity of the gift deed. The lower courts did not adopt a legalistic approach but took into account not one but several factual facets to accept the version given by Keshav that the gift deed was not a valid document. These concurrent findings are not perverse but rather good findings based upon cogent and relevant material and evidence on record. These findings of the facts can be interfered in the second appeal only if they are perverse or some gross illegalities have been committed in arriving at such findings. To reverse the findings is not only to assess errors but also deal with the reasons given by the court below and record findings and grounds for upsetting the conclusion [See Nazir Mohamed v. J. Kamala and Others, 2020 SCC OnLine SC 676; Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545] .11. We have elaborately referred to the reasoning given by the trial court, which the first appellate court had independently examined and affirmed. The findings were recorded after in-depth consideration of the factual matrix, including the statement of Hardei, an illiterate and aged woman, who during her lifetime in 1989, had staunchly refuted having executed any gift deed transferring the property to the plaintiffs. Hardei was residing with Keshav, who was looking after her and providing for all her needs. Further, the plaintiffs did not take any steps to get the mutation of the land records for about four years from 1st January 1986 till 1989. The rejection by the revenue authority in 1989 remained unchallenged till Hardei died in 1991. The views and findings recorded by the lower courts are well reasoned and have taken into account several factors that repel and contradict the claim of a valid execution of the gift deed by Hardei favouring the plaintiffs.

Urmilla Pandey and Others Vs. Khalil Ahmad and Others

without furnishing any security. The CMP is disposed of." *Despite the above-quoted order of this Court, the owner of the vehicle did not deposit any amount before the Tribunal. The appellant in IA No. 2 of 1990 has stated that the owner has pleaded bankruptcy. The matter was also taken up by the Lok Adalat on 19-11-1989 when it was held in the premises of this Court. Unfortunately, no relief was granted to the appellant even by the Lok Adalat6. This Court on 12-11-1990 issued notice to the New India Assurance Company Ltd. calling upon the company to show cause why the Company should not be made to pay the award-money. On 6-9-1993, this Court passed the following order"The respondents to take notice as to why the compensation awarded by the courts below be not enhanced. The learned Counsel for the Insurance Company seeks a short adjournment. To be listed on 24-9-1993, indicating that the matter may be finally disposed of on that date." *7. Meanwhile, learned counsel for the appellants placed before this court an insurance cover note No. A-8251 dated 30-12-1969 which shows that he vehicle involved in the accident was insured with the Premier Insurance Company Limited/and the Canara Motor and General Insurance Company. This Court on 1-10-1993 passed the following order"Learned counsel for the petitioner has brought before us an insurance cover dated 30-12-1969 from which it is obvious that the vehicle involved in the accident was insured with the Premier Insurance Co. Ltd. It is not disputed that the said company finally merged with the New India Assurance Company. A copy of this cover note has been handed over to the learned counsel for the New India Assurance Company. He seeks short adjournment to seek instructions and also to produce further documents in this respect, if available, in the records of the Company. The matter is adjourned to 15-10-1993." * The learned counsel or the New India Assurance Company has stated before us that the Company is not in a position to trace the insurance cover or any connected documents from its record 8. The insurance cover note No. A-8351 dated 30-12-1969 shows the names of the owners of car UPC 8527 as M/s Chandra Financiers and Ram Kishan. In the cover the authorised insurer are shown to be the Premier Insurance Company limited and the Canara Motor and General Insurance Company Limited. It is no doubt correct that the cover note placed before us almost 25 years after the accident may not by itself be sufficient to make the insurance company liable to pay the award-money but there is contemporaneous evidence on the record to show that the cover note is genuine. Purshottam filed an application (96-C) before the Tribunal on 20-4-1979 wherein the stated that the car - purchased by his father under the hire-purchase agreement - was insured with "Canara Motor and General Insurance Company Limited". The said application was, however, rejected by the Tribunal on the ground that no affidavit in support of the said application was filed. The Tribunal should have called upon the insurance company to produce the necessary documents. We are of the view that the Tribunal failed in its duty to judiciously investigate and adjudicate the claim filed by the appellants9. It is not doubt correct that initially the owner had produced certificate of insurance (KN-541) issued by the Northern India Insurance Company. In the said certificate, the names of two person to whom the financier had earlier given the vehicle were mentioned. The tribunal rejected the certificate on the short ground that unless the certificate of insurance is transferred in favour of Ram Kishan, before the accident took place, no contract between Ram Kishan and the insurance company could have come into existence. It is not disputed that the car purchased by Ram Kishan was a second-hand car. The insurance cover produced before us clearly mentions that it was a second-hand car. Originally as a new car it was given to some other person who had got it insured with the Northern India Insurance Company. When the financier transferred the vehicle in the name of Ram Kishan he must have given the original insurance certificate along with the vehicle to Ram Kishan. That is how initially in the proceedings before the Tribunal the insurance certificate (KN-541) was produced. Later on, Purshottam moved an application before the Tribunal bringing it to the notice of the Tribunal that his father Ram Kishan had got the vehicle insured with the "Canara Motor and General Insurance Company Limited". It seems that instead of having the original insurance cover transferred in his name. Ram Kishan got the car insured afresh with the Premier Insurance Company Limited and the Canara Motor and General Insurance Company Limited. It was a comprehensive cover. It is not disputed that the Premier Insurance Company Limited finally merged with the New India Assurance Company10. We are satisfied that the car with Registration No. UPC 8527 was insured with the Premier Insurance Company Limited and Canara Motor and General Insurance Company Limited. The New India Assurance Company, respondent in the appeal herein, being the successor of the said companies is liable to pay the award-money as an insurer11. The Tribunal has grossly erred in computing the compensation amount. The Tribunal was not justified in assuming the life expectancy to be 58. It could not be less than 65 even at that point of time. The Tribunal also fell into error in making 33% deduction for the lump sum payment. As a matter of fact, no payment till date has been received by the unfortunate family. The amount of Rs. 40, 600 awarded by the Tribunal is quite low. Without going into various head under which the appellants could be compensated, we are of the view, that in order to do complete justice between the parties, the appellants be awarded Rs. 1, 20, 000 (rounding off the figure of Rs. 1, 17, 747.70 paise as claimed by the appellants).

1[ds]8. The insurance cover note No.69 shows the names of the owners of car UPC 8527 as M/s Chandra Financiers and Ram Kishan. In the cover the authorised insurer are shown to be the Premier Insurance Company limited and the Canara Motor and General Insurance Company Limited. It is no doubt correct that the cover note placed before us almost 25 years after the accident may not by itself be sufficient to make the insurance company liable to pay thebut there is contemporaneous evidence on the record to show that the cover note is genuine. Purshottam filed an applicationbefore the Tribunal onwherein the stated that the carpurchased by his father under thet was insured with"Canara Motor and General Insurance Company Limited". The said application was, however, rejected by the Tribunal on the ground that no affidavit in support of the said application was filed. The Tribunal should have called upon the insurance company to produce the necessary documents. We are of the view that the Tribunal failed in its duty to judiciously investigate and adjudicate the claim filed by the appellants9. It is not doubt correct that initially the owner had produced certificate of insuranceissued by the Northern India Insurance Company. In the said certificate, the names of two person to whom the financier had earlier given the vehicle were mentioned. The tribunal rejected the certificate on the short ground that unless the certificate of insurance is transferred in favour of Ram Kishan, before the accident took place, no contract between Ram Kishan and the insurance company could have come into existence. It is not disputed that the car purchased by Ram Kishan was acar. The insurance cover produced before us clearly mentions that it was acar. Originally as a new car it was given to some other person who had got it insured with the Northern India Insurance Company. When the financier transferred the vehicle in the name of Ram Kishan he must have given the original insurance certificate along with the vehicle to Ram Kishan. That is how initially in the proceedings before the Tribunal the insurance certificatewas produced. Later on, Purshottam moved an application before the Tribunal bringing it to the notice of the Tribunal that his father Ram Kishan had got the vehicle insured with the "Canara Motor and General Insurance Company Limited". It seems that instead of having the original insurance cover transferred in his name. Ram Kishan got the car insured afresh with the Premier Insurance Company Limited and the Canara Motor and General Insurance Company Limited. It was a comprehensive cover. It is not disputed that the Premier Insurance Company Limited finally merged with the New India Assurance Company10. We are satisfied that the car with Registration No. UPC 8527 was insured with the Premier Insurance Company Limited and Canara Motor and General Insurance Company Limited. The New India Assurance Company, respondent in the appeal herein, being the successor of the said companies is liable to pay theas an insurer11. The Tribunal has grossly erred in computing the compensation amount. The Tribunal was not justified in assuming the life expectancy to be 58. It could not be less than 65 even at that point of time. The Tribunal also fell into error in making 33% deduction for the lump sum payment. As a matter of fact, no payment till date has been received by the unfortunate family. The amount of Rs. 40, 600 awarded by the Tribunal is quite low. Without going into various head under which the appellants could be compensated, we are of the view, that in order to do complete justice between the parties, the appellants be awarded Rs. 1, 20, 000 (rounding off the figure of Rs. 1, 17, 747.70 paise as claimed by the appellants).

### 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: without furnishing any security. The CMP is disposed of." *Despite the above-quoted order of this Court, the owner of the vehicle did not deposit any amount before the Tribunal. The appellant in IA No. 2 of 1990 has stated that the owner has pleaded bankruptcy. The matter was also taken up by the Lok Adalat on 19-11-1989 when it was held in the premises of this Court. Unfortunately, no relief was granted to the appellant even by the Lok Adalat6. This Court on 12-11-1990 issued notice to the New India Assurance Company Ltd. calling upon the company to show cause why the Company should not be made to pay the award-money. On 6-9-1993, this Court passed the following order"The respondents to take notice as to why the compensation awarded by the courts below be not enhanced. The learned Counsel for the Insurance Company seeks a short adjournment. To be listed on 24-9-1993, indicating that the matter may be finally disposed of on that date." *7. Meanwhile, learned counsel for the appellants placed before this court an insurance cover note No. A-8251 dated 30-12-1969 which shows that he vehicle involved in the accident was insured with the Premier Insurance Company Limited/and the Canara Motor and General Insurance Company. This Court on 1-10-1993 passed the following order"Learned counsel for the petitioner has brought before us an insurance cover dated 30-12-1969 from which it is obvious that the vehicle involved in the accident was insured with the Premier Insurance Co. Ltd. It is not disputed that the said company finally merged with the New India Assurance Company. A copy of this cover note has been handed over to the learned counsel for the New India Assurance Company. He seeks short adjournment to seek instructions and also to produce further documents in this respect, if available, in the records of the Company. The matter is adjourned to 15-10-1993." * The learned counsel or the New India Assurance Company has stated before us that the Company is not in a position to trace the insurance cover or any connected documents from its record 8. The insurance cover note No. A-8351 dated 30-12-1969 shows the names of the owners of car UPC 8527 as M/s Chandra Financiers and Ram Kishan. In the cover the authorised insurer are shown to be the Premier Insurance Company limited and the Canara Motor and General Insurance Company Limited. It is no doubt correct that the cover note placed before us almost 25 years after the accident may not by itself be sufficient to make the insurance company liable to pay the award-money but there is contemporaneous evidence on the record to show that the cover note is genuine. Purshottam filed an application (96-C) before the Tribunal on 20-4-1979 wherein the stated that the car - purchased by his father under the hire-purchase agreement - was insured with "Canara Motor and General Insurance Company Limited". The said application was, however, rejected by the Tribunal on the ground that no affidavit in support of the said application was filed. The Tribunal should have called upon the insurance company to produce the necessary documents. We are of the view that the Tribunal failed in its duty to judiciously investigate and adjudicate the claim filed by the appellants9. It is not doubt correct that initially the owner had produced certificate of insurance (KN-541) issued by the Northern India Insurance Company. In the said certificate, the names of two person to whom the financier had earlier given the vehicle were mentioned. The tribunal rejected the certificate on the short ground that unless the certificate of insurance is transferred in favour of Ram Kishan, before the accident took place, no contract between Ram Kishan and the insurance company could have come into existence. It is not disputed that the car purchased by Ram Kishan was a second-hand car. The insurance cover produced before us clearly mentions that it was a second-hand car. Originally as a new car it was given to some other person who had got it insured with the Northern India Insurance Company. When the financier transferred the vehicle in the name of Ram Kishan he must have given the original insurance certificate along with the vehicle to Ram Kishan. That is how initially in the proceedings before the Tribunal the insurance certificate (KN-541) was produced. Later on, Purshottam moved an application before the Tribunal bringing it to the notice of the Tribunal that his father Ram Kishan had got the vehicle insured with the "Canara Motor and General Insurance Company Limited". It seems that instead of having the original insurance cover transferred in his name. Ram Kishan got the car insured afresh with the Premier Insurance Company Limited and the Canara Motor and General Insurance Company Limited. It was a comprehensive cover. It is not disputed that the Premier Insurance Company Limited finally merged with the New India Assurance Company10. We are satisfied that the car with Registration No. UPC 8527 was insured with the Premier Insurance Company Limited and Canara Motor and General Insurance Company Limited. The New India Assurance Company, respondent in the appeal herein, being the successor of the said companies is liable to pay the award-money as an insurer11. The Tribunal has grossly erred in computing the compensation amount. The Tribunal was not justified in assuming the life expectancy to be 58. It could not be less than 65 even at that point of time. The Tribunal also fell into error in making 33% deduction for the lump sum payment. As a matter of fact, no payment till date has been received by the unfortunate family. The amount of Rs. 40, 600 awarded by the Tribunal is quite low. Without going into various head under which the appellants could be compensated, we are of the view, that in order to do complete justice between the parties, the appellants be awarded Rs. 1, 20, 000 (rounding off the figure of Rs. 1, 17, 747.70 paise as claimed by the appellants). ### Response: 1 ### Explanation: 8. The insurance cover note No.69 shows the names of the owners of car UPC 8527 as M/s Chandra Financiers and Ram Kishan. In the cover the authorised insurer are shown to be the Premier Insurance Company limited and the Canara Motor and General Insurance Company Limited. It is no doubt correct that the cover note placed before us almost 25 years after the accident may not by itself be sufficient to make the insurance company liable to pay thebut there is contemporaneous evidence on the record to show that the cover note is genuine. Purshottam filed an applicationbefore the Tribunal onwherein the stated that the carpurchased by his father under thet was insured with"Canara Motor and General Insurance Company Limited". The said application was, however, rejected by the Tribunal on the ground that no affidavit in support of the said application was filed. The Tribunal should have called upon the insurance company to produce the necessary documents. We are of the view that the Tribunal failed in its duty to judiciously investigate and adjudicate the claim filed by the appellants9. It is not doubt correct that initially the owner had produced certificate of insuranceissued by the Northern India Insurance Company. In the said certificate, the names of two person to whom the financier had earlier given the vehicle were mentioned. The tribunal rejected the certificate on the short ground that unless the certificate of insurance is transferred in favour of Ram Kishan, before the accident took place, no contract between Ram Kishan and the insurance company could have come into existence. It is not disputed that the car purchased by Ram Kishan was acar. The insurance cover produced before us clearly mentions that it was acar. Originally as a new car it was given to some other person who had got it insured with the Northern India Insurance Company. When the financier transferred the vehicle in the name of Ram Kishan he must have given the original insurance certificate along with the vehicle to Ram Kishan. That is how initially in the proceedings before the Tribunal the insurance certificatewas produced. Later on, Purshottam moved an application before the Tribunal bringing it to the notice of the Tribunal that his father Ram Kishan had got the vehicle insured with the "Canara Motor and General Insurance Company Limited". It seems that instead of having the original insurance cover transferred in his name. Ram Kishan got the car insured afresh with the Premier Insurance Company Limited and the Canara Motor and General Insurance Company Limited. It was a comprehensive cover. It is not disputed that the Premier Insurance Company Limited finally merged with the New India Assurance Company10. We are satisfied that the car with Registration No. UPC 8527 was insured with the Premier Insurance Company Limited and Canara Motor and General Insurance Company Limited. The New India Assurance Company, respondent in the appeal herein, being the successor of the said companies is liable to pay theas an insurer11. The Tribunal has grossly erred in computing the compensation amount. The Tribunal was not justified in assuming the life expectancy to be 58. It could not be less than 65 even at that point of time. The Tribunal also fell into error in making 33% deduction for the lump sum payment. As a matter of fact, no payment till date has been received by the unfortunate family. The amount of Rs. 40, 600 awarded by the Tribunal is quite low. Without going into various head under which the appellants could be compensated, we are of the view, that in order to do complete justice between the parties, the appellants be awarded Rs. 1, 20, 000 (rounding off the figure of Rs. 1, 17, 747.70 paise as claimed by the appellants).

Madras Co-Operative Central Land Mortgage Bank Ltd Vs. Commissioner Of Income-Tax, Madras

of Section 10, other than clauses (iii), (vi), (vi-a), (vi-b), (vii), (viii), (xi), (xii), (xiii) and (xiv) thereof, the same proportion as the gross receipts from interest on securities (inclusive of tax deducted at source) chargeable to tax under this Section bears to the gross receipts from all sources which are included in the profit and loss account of the company shall be deemed to be the sum reasonably expended by it for the purpose of realising such interest: and the amount for which allowance is admissible under sub-section (2) of Section 10 shall be reduced correspondingly: and (b) money borrowed shall include moneys received by way of deposits; and that amount which hears to the amount of interest payable on moneys borrowed the same proportion as the gross receipts from interest on securities (inclusive of tax deducted at source) chargeable to tax under this section bears to the gross receipts from all sources which are included m the profit and loss accounts of the company, shall be deemed to be interest payable on money borrowed for the purpose of investment in the securities by the assessee, and the amount of such interest for which allowance is due under sub-section (2) of Section 10 shall be reduced correspondingly." Broadly stated, under Clause (a) the sum reasonably spent is computed as that proportion of the aggregate of the expenses admissible under the various clauses of sub-s. (2) of Section 10 mentioned therein which the gross receipts from interest on securities bear to the gross receipts from all sources included in the profit and loss account of the banking company. Similarly under Clause (b) interest payable on money borrowed for the purpose of investment in Government securities is that proportion of the total interest paid on borrowings which gross receipts from securities bear to gross receipts from all sources. 8. Income of the Society from its trading activity being exempted from tax, its income from Government securities had, it was common ground, to be apportioned between income earned from investment for trading purposes and for non-trading purposes. The Income-tax Officer applied the first proviso read with the Explanation to Section 8 of the Income-tax Act. The Income-tax Appellate Tribunal held that in terms, the Explanation to Section 8 did not apply because the Society was not a banking company, but the principle of the Explanation furnished, after the Departmental Instructions had been withdrawn, a reasonable basis for apportionment. In the view of the Tribunal, the principle embodied in the Explanation was an "improvement on the instructions," since it co-related the income chargeable under the head with the expenditure and also provided for proportionate allocation of overhead charges. The High Court held that the benefit of the departmental notification was not available to the Society in the year of assessment because it must be deemed to be withdrawn and the Explanation to Section 8 did not in terms apply to the Society. 9. It was common ground between the parties in this Court and the High Court that Explanation to Section 8 has no application to a co-operative society which does not carry on the business of a banking company. There is also no dispute that the departmental notification relied upon by the Company withdrawn before the relevant assessment year. There is, therefore, no statutory rule, and nor there are departmental instructions, governing the apportionment of income from Government securities between business and non-business sources of income.It was never urged, and it cannot be urged, that in the absence of a specific rule for apportionment, the entire, income from Government securities should be brought to tax. Any attempt to bring the entire income from Government securities would infringe Section 14 (3) of the Act. A rule of apportionment consistent with commercial accounting must be evolved for determining the income from Government securities attributable to business activity of the Society.The rule contained in Clause (a) of the Explanation to Section 8 has specially been evolved for determining the appropriate outgoings for the purpose of realizing interest from securities held by a Banking Company in computing income chargeable to tax: it seeks to exempt on the footing that it is deemed to be the sum reasonably expended for the purpose of realizing interest, a part thereof which is equal to the proportion which the gross receipts from interest on securities chargeable to tax bear to the gross receipts from all sources. The rule is an artificial rule for allocating business expenditure between different sources of income of Banking Companies. It is not a rule for apportionment for the purpose of taxation of composite income which is partly taxable and partly not. Clause (b) provides for allocation of outgoings in respect of "money borrowed" which expression includes money deposited with the Bank. Interest payable on borrowings is directed to be allocated in the proportion in which income is received from investments from securities and from other sources. This clause also deals with the proportion in which the outgoings are allocable. The problem arising under Section 14 (3) is of apportionment of income under heads taxable and non-taxable; it is not a problem relating to allocation of outgoings to determine taxable income. 10. In our judgment, a rule of apportionment which dismembers income in proportion to the business and non-business components of the single source from which it arises would be more consistent with principles of commercial accounting. The proportion of income from securities which is exempt from taxation under Section 14 (3) of the Act will be that proportion which the capital of the Society used for the purpose of the business bears to the total working capital. 11. It is admitted that Rs. 13,587 is the gross income from securities which is, according to that rule, liable to tax. No question was raised m the High Court about any deduction to be made in respect of expenses for collection of that amount, and admissibility of deduction on that score does not fall to be considered.

1[ds]It may be recalled that the Society had claimed before the Departmental authorities and the Tribunal that according to the instructions issued by the Central Government under S. 60 of the Income-tax Act only Rs. 13,578/- out of the income from Government securities were chargeable to tax. The Income-tax Officer and the Tribunal held that Rs. 59,498 were chargeable to tax. The decision in Cocanada Radhaswami Banks case 1965-57 ITR 306 = (AIR 1966 SC 47 ) relates to the right of a Bank to carry forward the net loss incurred by a Banking Company and to set it off in subsequent years against income from securities held as part of its trading assets. It is not a decision under S. 14 (3) of the Act. Again it is not open to the Society in this reference to contend that the amount of Rs. 13,578 itself is not taxable. Such a question was never raised before the Tribunal and cannot be permitted to be raised in this CourtBroadly stated, under Clause (a) the sum reasonably spent is computed as that proportion of the aggregate of the expenses admissible under the various clauses of sub-s. (2) of Section 10 mentioned therein which the gross receipts from interest on securities bear to the gross receipts from all sources included in the profit and loss account of the banking company. Similarly under Clause (b) interest payable on money borrowed for the purpose of investment in Government securities is that proportion of the total interest paid on borrowings which gross receipts from securities bear to gross receipts from all sourcesThere is also no dispute that the departmental notification relied upon by the Company withdrawn before the relevant assessment year. There is, therefore, no statutory rule, and nor there are departmental instructions, governing the apportionment of income from Government securities between business and non-business sources of income.It was never urged, and it cannot be urged, that in the absence of a specific rule for apportionment, the entire, income from Government securities should be brought to tax. Any attempt to bring the entire income from Government securities would infringe Section 14 (3) of the Act. A rule of apportionment consistent with commercial accounting must be evolved for determining the income from Government securities attributable to business activity of the Society.The rule contained in Clause (a) of the Explanation to Section 8 has specially been evolved for determining the appropriate outgoings for the purpose of realizing interest from securities held by a Banking Company in computing income chargeable to tax: it seeks to exempt on the footing that it is deemed to be the sum reasonably expended for the purpose of realizing interest, a part thereof which is equal to the proportion which the gross receipts from interest on securities chargeable to tax bear to the gross receipts from all sources. The rule is an artificial rule for allocating business expenditure between different sources of income of Banking Companies. It is not a rule for apportionment for the purpose of taxation of composite income which is partly taxable and partly not. Clause (b) provides for allocation of outgoings in respect of "money borrowed" which expression includes money deposited with the Bank. Interest payable on borrowings is directed to be allocated in the proportion in which income is received from investments from securities and from other sources. This clause also deals with the proportion in which the outgoings are allocable. The problem arising under Section 14 (3) is of apportionment of income under heads taxable and non-taxable; it is not a problem relating to allocation of outgoings to determine taxable income10. In our judgment, a rule of apportionment which dismembers income in proportion to the business and non-business components of the single source from which it arises would be more consistent with principles of commercial accounting. The proportion of income from securities which is exempt from taxation under Section 14 (3) of the Act will be that proportion which the capital of the Society used for the purpose of the business bears to the total working capital11. It is admitted that Rs. 13,587 is the gross income from securities which is, according to that rule, liable to tax. No question was raised m the High Court about any deduction to be made in respect of expenses for collection of that amount, and admissibility of deduction on that score does not fall to be considered.

### 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: of Section 10, other than clauses (iii), (vi), (vi-a), (vi-b), (vii), (viii), (xi), (xii), (xiii) and (xiv) thereof, the same proportion as the gross receipts from interest on securities (inclusive of tax deducted at source) chargeable to tax under this Section bears to the gross receipts from all sources which are included in the profit and loss account of the company shall be deemed to be the sum reasonably expended by it for the purpose of realising such interest: and the amount for which allowance is admissible under sub-section (2) of Section 10 shall be reduced correspondingly: and (b) money borrowed shall include moneys received by way of deposits; and that amount which hears to the amount of interest payable on moneys borrowed the same proportion as the gross receipts from interest on securities (inclusive of tax deducted at source) chargeable to tax under this section bears to the gross receipts from all sources which are included m the profit and loss accounts of the company, shall be deemed to be interest payable on money borrowed for the purpose of investment in the securities by the assessee, and the amount of such interest for which allowance is due under sub-section (2) of Section 10 shall be reduced correspondingly." Broadly stated, under Clause (a) the sum reasonably spent is computed as that proportion of the aggregate of the expenses admissible under the various clauses of sub-s. (2) of Section 10 mentioned therein which the gross receipts from interest on securities bear to the gross receipts from all sources included in the profit and loss account of the banking company. Similarly under Clause (b) interest payable on money borrowed for the purpose of investment in Government securities is that proportion of the total interest paid on borrowings which gross receipts from securities bear to gross receipts from all sources. 8. Income of the Society from its trading activity being exempted from tax, its income from Government securities had, it was common ground, to be apportioned between income earned from investment for trading purposes and for non-trading purposes. The Income-tax Officer applied the first proviso read with the Explanation to Section 8 of the Income-tax Act. The Income-tax Appellate Tribunal held that in terms, the Explanation to Section 8 did not apply because the Society was not a banking company, but the principle of the Explanation furnished, after the Departmental Instructions had been withdrawn, a reasonable basis for apportionment. In the view of the Tribunal, the principle embodied in the Explanation was an "improvement on the instructions," since it co-related the income chargeable under the head with the expenditure and also provided for proportionate allocation of overhead charges. The High Court held that the benefit of the departmental notification was not available to the Society in the year of assessment because it must be deemed to be withdrawn and the Explanation to Section 8 did not in terms apply to the Society. 9. It was common ground between the parties in this Court and the High Court that Explanation to Section 8 has no application to a co-operative society which does not carry on the business of a banking company. There is also no dispute that the departmental notification relied upon by the Company withdrawn before the relevant assessment year. There is, therefore, no statutory rule, and nor there are departmental instructions, governing the apportionment of income from Government securities between business and non-business sources of income.It was never urged, and it cannot be urged, that in the absence of a specific rule for apportionment, the entire, income from Government securities should be brought to tax. Any attempt to bring the entire income from Government securities would infringe Section 14 (3) of the Act. A rule of apportionment consistent with commercial accounting must be evolved for determining the income from Government securities attributable to business activity of the Society.The rule contained in Clause (a) of the Explanation to Section 8 has specially been evolved for determining the appropriate outgoings for the purpose of realizing interest from securities held by a Banking Company in computing income chargeable to tax: it seeks to exempt on the footing that it is deemed to be the sum reasonably expended for the purpose of realizing interest, a part thereof which is equal to the proportion which the gross receipts from interest on securities chargeable to tax bear to the gross receipts from all sources. The rule is an artificial rule for allocating business expenditure between different sources of income of Banking Companies. It is not a rule for apportionment for the purpose of taxation of composite income which is partly taxable and partly not. Clause (b) provides for allocation of outgoings in respect of "money borrowed" which expression includes money deposited with the Bank. Interest payable on borrowings is directed to be allocated in the proportion in which income is received from investments from securities and from other sources. This clause also deals with the proportion in which the outgoings are allocable. The problem arising under Section 14 (3) is of apportionment of income under heads taxable and non-taxable; it is not a problem relating to allocation of outgoings to determine taxable income. 10. In our judgment, a rule of apportionment which dismembers income in proportion to the business and non-business components of the single source from which it arises would be more consistent with principles of commercial accounting. The proportion of income from securities which is exempt from taxation under Section 14 (3) of the Act will be that proportion which the capital of the Society used for the purpose of the business bears to the total working capital. 11. It is admitted that Rs. 13,587 is the gross income from securities which is, according to that rule, liable to tax. No question was raised m the High Court about any deduction to be made in respect of expenses for collection of that amount, and admissibility of deduction on that score does not fall to be considered. ### Response: 1 ### Explanation: It may be recalled that the Society had claimed before the Departmental authorities and the Tribunal that according to the instructions issued by the Central Government under S. 60 of the Income-tax Act only Rs. 13,578/- out of the income from Government securities were chargeable to tax. The Income-tax Officer and the Tribunal held that Rs. 59,498 were chargeable to tax. The decision in Cocanada Radhaswami Banks case 1965-57 ITR 306 = (AIR 1966 SC 47 ) relates to the right of a Bank to carry forward the net loss incurred by a Banking Company and to set it off in subsequent years against income from securities held as part of its trading assets. It is not a decision under S. 14 (3) of the Act. Again it is not open to the Society in this reference to contend that the amount of Rs. 13,578 itself is not taxable. Such a question was never raised before the Tribunal and cannot be permitted to be raised in this CourtBroadly stated, under Clause (a) the sum reasonably spent is computed as that proportion of the aggregate of the expenses admissible under the various clauses of sub-s. (2) of Section 10 mentioned therein which the gross receipts from interest on securities bear to the gross receipts from all sources included in the profit and loss account of the banking company. Similarly under Clause (b) interest payable on money borrowed for the purpose of investment in Government securities is that proportion of the total interest paid on borrowings which gross receipts from securities bear to gross receipts from all sourcesThere is also no dispute that the departmental notification relied upon by the Company withdrawn before the relevant assessment year. There is, therefore, no statutory rule, and nor there are departmental instructions, governing the apportionment of income from Government securities between business and non-business sources of income.It was never urged, and it cannot be urged, that in the absence of a specific rule for apportionment, the entire, income from Government securities should be brought to tax. Any attempt to bring the entire income from Government securities would infringe Section 14 (3) of the Act. A rule of apportionment consistent with commercial accounting must be evolved for determining the income from Government securities attributable to business activity of the Society.The rule contained in Clause (a) of the Explanation to Section 8 has specially been evolved for determining the appropriate outgoings for the purpose of realizing interest from securities held by a Banking Company in computing income chargeable to tax: it seeks to exempt on the footing that it is deemed to be the sum reasonably expended for the purpose of realizing interest, a part thereof which is equal to the proportion which the gross receipts from interest on securities chargeable to tax bear to the gross receipts from all sources. The rule is an artificial rule for allocating business expenditure between different sources of income of Banking Companies. It is not a rule for apportionment for the purpose of taxation of composite income which is partly taxable and partly not. Clause (b) provides for allocation of outgoings in respect of "money borrowed" which expression includes money deposited with the Bank. Interest payable on borrowings is directed to be allocated in the proportion in which income is received from investments from securities and from other sources. This clause also deals with the proportion in which the outgoings are allocable. The problem arising under Section 14 (3) is of apportionment of income under heads taxable and non-taxable; it is not a problem relating to allocation of outgoings to determine taxable income10. In our judgment, a rule of apportionment which dismembers income in proportion to the business and non-business components of the single source from which it arises would be more consistent with principles of commercial accounting. The proportion of income from securities which is exempt from taxation under Section 14 (3) of the Act will be that proportion which the capital of the Society used for the purpose of the business bears to the total working capital11. It is admitted that Rs. 13,587 is the gross income from securities which is, according to that rule, liable to tax. No question was raised m the High Court about any deduction to be made in respect of expenses for collection of that amount, and admissibility of deduction on that score does not fall to be considered.

M/S. Sant Ram & Company Vs. The State Of Rajasthan & Ors

the arbitrator by name Sri K.L. Sethia. Pending arbitration, the respondent sought to adjust the amounts due to the appellant in another contract. Thereon the appellant filed an application in the district Court under Order XXXIX Rule 1, Code of Civil Procedure, 1908 read with Section 41(b) of the Arbitration and the Second Schedule to the Arbitration Act, 1940 for ad interim injunction restraining the respondent from adjusting the same. The District Judge by his order held that such an application is not maintainable without the intervention of the Court; therefore, Section 41(b) and the Second Schedule have no application. The same came to be upheld by the learned Chief Justice in the impugned order. Thus this appeal by special leave. 3. Shri A.B. Rohtagi, learned senior counsel for the appellant, contends that for entertaining and application under Section 41(b) read with the Second Schedule, it is not a condition that the arbitration proceedings should be pending through the intervention of the Court. Independently thereof, when arbitration proceedings were pending between the parties in respect of the claim or counter-claim and when the respondent sough to adjust the same with the amounts due from other contracts, the Court would, in the circumstances, intervene and restrain the respondents from adjusting the same as a counter-claim. Otherwise, the arbitration proceeding would be nullified. He placed strong reliance on the judgment of a two Judge Bench of this Court in Union of India v. Raman Iron Foundry, 1974(3) SCR 556. The question is no longer res integra. A Bench of three judges of this Court in Kamaluddin Ansari & Co. v. Union of India, 1983(3) SCR 607 has considered the scope of Section 41(b) and the Second Schedule and had held thus : "The first question that falls for consideration in this appeal is about the exact scope and ambit of Section 41 in order to appreciate the contention raised on behalf of the appellant :" "41. Procedure and powers of Court :- Subject to the provisions of this Act and of rules made thereunder -(a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court and to all appeals, under this Act, and(b) the Court shall have, for the purpose of , and in relation to, arbitration proceeding, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court :- Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters." In view of cl.(b) of s.41 the Court has been given power of passing orders in respect of any of the matters set out in second Schedule for the purpose of and in relation to any proceedings before the Court. The Second Schedule of the Arbitration Act inter alia includes `interim injunction and the `appointment of receiver." 4. In that case an application under Section 33 of the Arbitration Act had come to be filed and then an application for ad interim injunction was filed. It will, therefore, be clear that to avail the remedy under the provisions of the Code of Civil Procedure, when an application for injunction under Section 41(b) read with Schedule is filed, the Court shall have, pending proceedings for the purpose of an in relation to the arbitration proceedings availed through the process of the Court, the same power of making orders in respect of any matters set out in the Second Schedule as it has for the purpose of and in relation to any proceeding before the Court. The initiation of pendency of any proceedings in the Court in relation to the arbitration proceedings would, therefore, be a precondition for the exercise of the power by the Civil Court under the Second Schedule of the Act. 5. On merits, this Court had held in the similar circumstances that such an injunction cannot be granted as it amounts to granting a relief which is not warranted under Section 41(b) read with the Schedule of the Act. This Court had recorded a finding as under : "We are clearly of the view that an injunction order restraining respondents from withholding the amount due under other pending bills to the contractor virtually amounts to a direction to pay amount to the contractor- appellants. Such an order was clearly beyond the purview of cl.(b) of s.41 of the Arbitration Act. The Union of India has no objection to the grant of an injunction restraining it from recovering or appropriating the amount lying with it in respect of other claims of the contractor towards its claim for damages. But certainly cl. 18 of the standard contract confers ample power upon the Union of India to withhold the amount and no injunction order could be passed restraining the Union of India from withholding the amount." 6. The Division Bench decision on which the reliance was placed, has reiterated that principle, namely, that "such an injunction can only be for the purpose of an in relation to the arbitration proceedings. The court could not make an injunction order which, though ostensibly in the form of an order of interim injunction, in substance, amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts." In fact, the ratio therein which the learned counsel tried to propound, was not approved and the said decision was expressly overruled in Kamaluddins case (supra).7. It is seen that under Clause (50) of the contract, the appellant has expressly agreed for adjustment of the amount pending with the respondent in respect of the claim under the dispute or any other contract with the Department. Under these circumstances, neither on merits nor on principle of law, we find any illegality in the order passed by the High Court warranting interference.

0[ds]The question is no longer reswill, therefore, be clear that to avail the remedy under the provisions of theCode of Civil Procedure, when an application for injunction under Section 41(b) read with Schedule is filed, the Court shall have, pending proceedings for the purpose of an in relation to the arbitration proceedings availed through the process of the Court, the same power of making orders in respect of any matters set out in the Second Schedule as it has for the purpose of and in relation to any proceeding before the Court. The initiation of pendency of any proceedings in the Court in relation to the arbitration proceedings would, therefore, be a precondition for the exercise of the power by the Civil Court under the Second Schedule of the Act.The Division Bench decision on which the reliance was placed, has reiterated that principle, namely, that "such an injunction can only be for the purpose of an in relation to the arbitration proceedings. The court could not make an injunction order which, though ostensibly in the form of an order of interim injunction, in substance, amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts." In fact, the ratio therein which the learned counsel tried to propound, was not approved and the said decision was expressly overruled in Kamaluddins case (supra).7. It is seen that under Clause (50) of the contract, the appellant has expressly agreed for adjustment of the amount pending with the respondent in respect of the claim under the dispute or any other contract with the Department. Under these circumstances, neither on merits nor on principle of law, we find any illegality in the order passed by the High Court warranting interference.

### Instruction: Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document. ### Input: the arbitrator by name Sri K.L. Sethia. Pending arbitration, the respondent sought to adjust the amounts due to the appellant in another contract. Thereon the appellant filed an application in the district Court under Order XXXIX Rule 1, Code of Civil Procedure, 1908 read with Section 41(b) of the Arbitration and the Second Schedule to the Arbitration Act, 1940 for ad interim injunction restraining the respondent from adjusting the same. The District Judge by his order held that such an application is not maintainable without the intervention of the Court; therefore, Section 41(b) and the Second Schedule have no application. The same came to be upheld by the learned Chief Justice in the impugned order. Thus this appeal by special leave. 3. Shri A.B. Rohtagi, learned senior counsel for the appellant, contends that for entertaining and application under Section 41(b) read with the Second Schedule, it is not a condition that the arbitration proceedings should be pending through the intervention of the Court. Independently thereof, when arbitration proceedings were pending between the parties in respect of the claim or counter-claim and when the respondent sough to adjust the same with the amounts due from other contracts, the Court would, in the circumstances, intervene and restrain the respondents from adjusting the same as a counter-claim. Otherwise, the arbitration proceeding would be nullified. He placed strong reliance on the judgment of a two Judge Bench of this Court in Union of India v. Raman Iron Foundry, 1974(3) SCR 556. The question is no longer res integra. A Bench of three judges of this Court in Kamaluddin Ansari & Co. v. Union of India, 1983(3) SCR 607 has considered the scope of Section 41(b) and the Second Schedule and had held thus : "The first question that falls for consideration in this appeal is about the exact scope and ambit of Section 41 in order to appreciate the contention raised on behalf of the appellant :" "41. Procedure and powers of Court :- Subject to the provisions of this Act and of rules made thereunder -(a) the provisions of the Code of Civil Procedure, 1908 shall apply to all proceedings before the Court and to all appeals, under this Act, and(b) the Court shall have, for the purpose of , and in relation to, arbitration proceeding, the same power of making orders in respect of any of the matters set out in the Second Schedule as it has for the purpose of, and in relation to, any proceedings before the Court :- Provided that nothing in clause (b) shall be taken to prejudice any power which may be vested in an arbitrator or umpire for making orders with respect to any of such matters." In view of cl.(b) of s.41 the Court has been given power of passing orders in respect of any of the matters set out in second Schedule for the purpose of and in relation to any proceedings before the Court. The Second Schedule of the Arbitration Act inter alia includes `interim injunction and the `appointment of receiver." 4. In that case an application under Section 33 of the Arbitration Act had come to be filed and then an application for ad interim injunction was filed. It will, therefore, be clear that to avail the remedy under the provisions of the Code of Civil Procedure, when an application for injunction under Section 41(b) read with Schedule is filed, the Court shall have, pending proceedings for the purpose of an in relation to the arbitration proceedings availed through the process of the Court, the same power of making orders in respect of any matters set out in the Second Schedule as it has for the purpose of and in relation to any proceeding before the Court. The initiation of pendency of any proceedings in the Court in relation to the arbitration proceedings would, therefore, be a precondition for the exercise of the power by the Civil Court under the Second Schedule of the Act. 5. On merits, this Court had held in the similar circumstances that such an injunction cannot be granted as it amounts to granting a relief which is not warranted under Section 41(b) read with the Schedule of the Act. This Court had recorded a finding as under : "We are clearly of the view that an injunction order restraining respondents from withholding the amount due under other pending bills to the contractor virtually amounts to a direction to pay amount to the contractor- appellants. Such an order was clearly beyond the purview of cl.(b) of s.41 of the Arbitration Act. The Union of India has no objection to the grant of an injunction restraining it from recovering or appropriating the amount lying with it in respect of other claims of the contractor towards its claim for damages. But certainly cl. 18 of the standard contract confers ample power upon the Union of India to withhold the amount and no injunction order could be passed restraining the Union of India from withholding the amount." 6. The Division Bench decision on which the reliance was placed, has reiterated that principle, namely, that "such an injunction can only be for the purpose of an in relation to the arbitration proceedings. The court could not make an injunction order which, though ostensibly in the form of an order of interim injunction, in substance, amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts." In fact, the ratio therein which the learned counsel tried to propound, was not approved and the said decision was expressly overruled in Kamaluddins case (supra).7. It is seen that under Clause (50) of the contract, the appellant has expressly agreed for adjustment of the amount pending with the respondent in respect of the claim under the dispute or any other contract with the Department. Under these circumstances, neither on merits nor on principle of law, we find any illegality in the order passed by the High Court warranting interference. ### Response: 0 ### Explanation: The question is no longer reswill, therefore, be clear that to avail the remedy under the provisions of theCode of Civil Procedure, when an application for injunction under Section 41(b) read with Schedule is filed, the Court shall have, pending proceedings for the purpose of an in relation to the arbitration proceedings availed through the process of the Court, the same power of making orders in respect of any matters set out in the Second Schedule as it has for the purpose of and in relation to any proceeding before the Court. The initiation of pendency of any proceedings in the Court in relation to the arbitration proceedings would, therefore, be a precondition for the exercise of the power by the Civil Court under the Second Schedule of the Act.The Division Bench decision on which the reliance was placed, has reiterated that principle, namely, that "such an injunction can only be for the purpose of an in relation to the arbitration proceedings. The court could not make an injunction order which, though ostensibly in the form of an order of interim injunction, in substance, amounted to a direction to the appellant to pay the amounts due to the respondent under other contracts." In fact, the ratio therein which the learned counsel tried to propound, was not approved and the said decision was expressly overruled in Kamaluddins case (supra).7. It is seen that under Clause (50) of the contract, the appellant has expressly agreed for adjustment of the amount pending with the respondent in respect of the claim under the dispute or any other contract with the Department. Under these circumstances, neither on merits nor on principle of law, we find any illegality in the order passed by the High Court warranting interference.

Udai Bhan Gupta Vs. Hari Shankar Bansal and Others

1. Respondent commenced an action in ejectment on diverse grounds available under the U.P. Rent Act against the appellant. The action ended in a decree in favour of the appellant. Appellant moved a revision application before the High Court of Judicature at Allahabad under Section 25 of the Provincial Small Cause Courts Act read with Section 115 of the Code of Civil Procedure. At the hearing of the revision petition, a preliminary objection was taken on behalf of the respondents that the revision petition was barred by limitation. Reliance was placed on the amendment to Section 25 of the Provincial Small Cause Courts Act as amended by U.P. Act No. 70 of 1966 in its application to the State of U.P. It reads as under :The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the days of such decree or order, call for the case and pass such order with respect thereto as he thinks fit.By the U.P. Civil Laws Amendment Act 37 of 1972, a proviso was engrafted to the Section 25 extracted hereinabove. It reads as under :Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes, the power or revision under this section shall vest in the High Court.The learned Judge held that the limitation for preferring revision petition to the High Court would be 30 days irrespective of the fact that the revision petition would lie to the High Court and not to the District Judge as set out in the main body of the section. Having reached that conclusion, the learned Judge dismissed the revision petition as barred by limitation. Hence this appeal by special leave.2. Section 25 of the Provincial Small Cause Courts Act did not provide for a period of limitation for filing a revision petition to the High Court. Therefore, the limitation for filing a revision petition to the High Court against any order of the Small Cause Court would be governed by Section 131 of the Limitation Act of 1963 which provides a period of 90 days commencing from the date of the decree or order sought to be revised. If Article 131 were to apply, the revision petition filed by the present appellant would be in time. The High Court was of the opinion that the amendment made to Section 25 in its application to the State of U.P. provided for a revision to the District Judge which in itself provided a sorter period of limitation and that shorter period of limitation would equally govern the limitation even if the revision petition were to be filed in the High Court. What the High Court overlooked was that no revision petition would lie to the District Judge against the decision of a Small Cause Court under Section 25. Therefore, when Section 25 was amended in its application to the State of U.P. by conferring the power of revision on the District Judge against the decision of Small Cause Court, simultaneously it became necessary to provide a period of limitation became Article 131 would not cater to such a situation. The Legislature taking note of the fact that ordinarily limitation of 30 days is prescribed for an appeal from the Court of Munsif to the District Court and that same period should be made available for a revision against the order of Court of Small Causes to the District Judge. But when a proviso was subsequently added to Section 25 to clarify the position that where the power of Court of Small Causes is conferred on a District Judge or Additional District Judge, revision petition would lie to the High Court. The Legislature was aware that the period of limitation for such a revision would be governed by Article 131 and no separate specific period of limitation need be prescribed. We are therefore, not impressed by the view taken by the High Court, but we leave the point to be considered on an appropriate occasion.3. Assuming thought we have our grave doubts that the High Court was right in holding that a period of limitation for filing revision petition before the High Court was 30 days as provided in Section 25 which catered to the situation where the revision petition would lie to the District Judge, in such a confusing situation about the legal position it should have called upon the appellant to seek condonation of delay, if there be any. It was all the more necessary because whenever an appeal or a revision petition is filed in the Registry of the High Court, the defects have to be pointed out and if the revision petition filed by the appellant was barred by limitation, the Registry ought to have pointed out the defect which would have prompted the appellant to seek condonation of delay. No such objection appears to be taken by the Registry, and the High Court at the time of hearing of the revision petition straightway proceeded to entertain the preliminary objection and disposed of the vexed question in a manner which leaves much to be desired.

1[ds]The High Court was of the opinion that the amendment made to Section 25 in its application to the State of U.P. provided for a revision to the District Judge which in itself provided a sorter period of limitation and that shorter period of limitation would equally govern the limitation even if the revision petition were to be filed in the High Court. What the High Court overlooked was that no revision petition would lie to the District Judge against the decision of a Small Cause Court under Section 25. Therefore, when Section 25 was amended in its application to the State of U.P. by conferring the power of revision on the District Judge against the decision of Small Cause Court, simultaneously it became necessary to provide a period of limitation became Article 131 would not cater to such a situation. The Legislature taking note of the fact that ordinarily limitation of 30 days is prescribed for an appeal from the Court of Munsif to the District Court and that same period should be made available for a revision against the order of Court of Small Causes to the District Judge. But when a proviso was subsequently added to Section 25 to clarify the position that where the power of Court of Small Causes is conferred on a District Judge or Additional District Judge, revision petition would lie to the High Court. The Legislature was aware that the period of limitation for such a revision would be governed by Article 131 and no separate specific period of limitation need be prescribed. We are therefore, not impressed by the view taken by the High Court, but we leave the point to be considered on an appropriate occasion.3. Assuming thought we have our grave doubts that the High Court was right in holding that a period of limitation for filing revision petition before the High Court was 30 days as provided in Section 25 which catered to the situation where the revision petition would lie to the District Judge, in such a confusing situation about the legal position it should have called upon the appellant to seek condonation of delay, if there be any. It was all the more necessary because whenever an appeal or a revision petition is filed in the Registry of the High Court, the defects have to be pointed out and if the revision petition filed by the appellant was barred by limitation, the Registry ought to have pointed out the defect which would have prompted the appellant to seek condonation of delay. No such objection appears to be taken by the Registry, and the High Court at the time of hearing of the revision petition straightway proceeded to entertain the preliminary objection and disposed of the vexed question in a manner which leaves much to be desired.

### 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: 1. Respondent commenced an action in ejectment on diverse grounds available under the U.P. Rent Act against the appellant. The action ended in a decree in favour of the appellant. Appellant moved a revision application before the High Court of Judicature at Allahabad under Section 25 of the Provincial Small Cause Courts Act read with Section 115 of the Code of Civil Procedure. At the hearing of the revision petition, a preliminary objection was taken on behalf of the respondents that the revision petition was barred by limitation. Reliance was placed on the amendment to Section 25 of the Provincial Small Cause Courts Act as amended by U.P. Act No. 70 of 1966 in its application to the State of U.P. It reads as under :The District Judge, for the purpose of satisfying himself that a decree or order made in any case decided by a Court of Small Causes was according to law, may of his own motion, or on the application of an aggrieved party made within thirty days from the days of such decree or order, call for the case and pass such order with respect thereto as he thinks fit.By the U.P. Civil Laws Amendment Act 37 of 1972, a proviso was engrafted to the Section 25 extracted hereinabove. It reads as under :Provided that in relation to any case decided by a District Judge or Additional District Judge exercising the jurisdiction of a Judge of Small Causes, the power or revision under this section shall vest in the High Court.The learned Judge held that the limitation for preferring revision petition to the High Court would be 30 days irrespective of the fact that the revision petition would lie to the High Court and not to the District Judge as set out in the main body of the section. Having reached that conclusion, the learned Judge dismissed the revision petition as barred by limitation. Hence this appeal by special leave.2. Section 25 of the Provincial Small Cause Courts Act did not provide for a period of limitation for filing a revision petition to the High Court. Therefore, the limitation for filing a revision petition to the High Court against any order of the Small Cause Court would be governed by Section 131 of the Limitation Act of 1963 which provides a period of 90 days commencing from the date of the decree or order sought to be revised. If Article 131 were to apply, the revision petition filed by the present appellant would be in time. The High Court was of the opinion that the amendment made to Section 25 in its application to the State of U.P. provided for a revision to the District Judge which in itself provided a sorter period of limitation and that shorter period of limitation would equally govern the limitation even if the revision petition were to be filed in the High Court. What the High Court overlooked was that no revision petition would lie to the District Judge against the decision of a Small Cause Court under Section 25. Therefore, when Section 25 was amended in its application to the State of U.P. by conferring the power of revision on the District Judge against the decision of Small Cause Court, simultaneously it became necessary to provide a period of limitation became Article 131 would not cater to such a situation. The Legislature taking note of the fact that ordinarily limitation of 30 days is prescribed for an appeal from the Court of Munsif to the District Court and that same period should be made available for a revision against the order of Court of Small Causes to the District Judge. But when a proviso was subsequently added to Section 25 to clarify the position that where the power of Court of Small Causes is conferred on a District Judge or Additional District Judge, revision petition would lie to the High Court. The Legislature was aware that the period of limitation for such a revision would be governed by Article 131 and no separate specific period of limitation need be prescribed. We are therefore, not impressed by the view taken by the High Court, but we leave the point to be considered on an appropriate occasion.3. Assuming thought we have our grave doubts that the High Court was right in holding that a period of limitation for filing revision petition before the High Court was 30 days as provided in Section 25 which catered to the situation where the revision petition would lie to the District Judge, in such a confusing situation about the legal position it should have called upon the appellant to seek condonation of delay, if there be any. It was all the more necessary because whenever an appeal or a revision petition is filed in the Registry of the High Court, the defects have to be pointed out and if the revision petition filed by the appellant was barred by limitation, the Registry ought to have pointed out the defect which would have prompted the appellant to seek condonation of delay. No such objection appears to be taken by the Registry, and the High Court at the time of hearing of the revision petition straightway proceeded to entertain the preliminary objection and disposed of the vexed question in a manner which leaves much to be desired. ### Response: 1 ### Explanation: The High Court was of the opinion that the amendment made to Section 25 in its application to the State of U.P. provided for a revision to the District Judge which in itself provided a sorter period of limitation and that shorter period of limitation would equally govern the limitation even if the revision petition were to be filed in the High Court. What the High Court overlooked was that no revision petition would lie to the District Judge against the decision of a Small Cause Court under Section 25. Therefore, when Section 25 was amended in its application to the State of U.P. by conferring the power of revision on the District Judge against the decision of Small Cause Court, simultaneously it became necessary to provide a period of limitation became Article 131 would not cater to such a situation. The Legislature taking note of the fact that ordinarily limitation of 30 days is prescribed for an appeal from the Court of Munsif to the District Court and that same period should be made available for a revision against the order of Court of Small Causes to the District Judge. But when a proviso was subsequently added to Section 25 to clarify the position that where the power of Court of Small Causes is conferred on a District Judge or Additional District Judge, revision petition would lie to the High Court. The Legislature was aware that the period of limitation for such a revision would be governed by Article 131 and no separate specific period of limitation need be prescribed. We are therefore, not impressed by the view taken by the High Court, but we leave the point to be considered on an appropriate occasion.3. Assuming thought we have our grave doubts that the High Court was right in holding that a period of limitation for filing revision petition before the High Court was 30 days as provided in Section 25 which catered to the situation where the revision petition would lie to the District Judge, in such a confusing situation about the legal position it should have called upon the appellant to seek condonation of delay, if there be any. It was all the more necessary because whenever an appeal or a revision petition is filed in the Registry of the High Court, the defects have to be pointed out and if the revision petition filed by the appellant was barred by limitation, the Registry ought to have pointed out the defect which would have prompted the appellant to seek condonation of delay. No such objection appears to be taken by the Registry, and the High Court at the time of hearing of the revision petition straightway proceeded to entertain the preliminary objection and disposed of the vexed question in a manner which leaves much to be desired.

D.B. Negandhi Vs. Registrar of Companies

1. Leave granted.2. This appeal is directed against order dated 16.01.2015, passed by the High Court of Karnataka in Criminal Petition No. 5890 of 2010 whereby the petition filed under Section 482 of Criminal Procedure Code (CrPC) was dismissed. 3. Brief facts of the case are that a criminal complaint was filed by the Registrar of Companies against the Directors of M/s. Cauveri Software Engineering Systems Ltd, a Company incorporated on 08.01.1991, for failure to lay before the Company in Annual General Meeting held on 28.02.2005 the balance sheet and profit and loss account for the period required under sub-sections (1) and (3) of Section 210 of the Companies Act, 1956 (for short `the Act). The appellant was stated to be one of the Directors of the Company. The said proceedings (C.C. No. 108 of 2006), pending before the Special Court (Economic Offences), Bangalore, were challenged in 482 petition before the High Court on the ground that though the appellant was inducted as Director of the Company in 1991, but owing to his ill-health he resigned from the post of Director with effect from 31.05.1997.4. Learned counsel for the appellant pointed out that the resignation of the appellant was accepted on 16.06.1997 in the meeting of Board of Directors of the Company, and the Registrar of Companies was informed of the same by filing Form No. 32 in terms of Section 303(2) of the Act. Learned counsel further pointed out that the appellant, an advocate, is more than eighty years of age and suffering from various serious ailments. It is submitted that it is nothing but harassment of the accused, who had not been the director of the Company since 1997, with regard to alleged meeting held in 2005. It is lastly pointed out that the other five similar complaints as against the appellant, which are in respect of the meetings held on the dates subsequent to 1997, have already been quashed by the High Court. 5. The perusal of the record shows that copy of the letter dated 16.06.1997 (Annexure P-2) regarding information of acceptance of resignation in the meeting of the Board of Directors of the Company, and the letter addressed to Registrar of Companies on that date along with Form 32 (Annexure P-3) are on the record, and no counter affidavit has been filed to dispute the same.6. We have also perused copies of order passed by the High Court on 06.11.2014 (in Criminal Petition Nos. 5893 of 2010, 5894 of 2010, 5896 of 2010 and 5897 of 2010) and order dated 07.11.2014 in Criminal Petition No. 5895 of 2010 whereby the similar proceedings are quashed by the High Court in respect of the appellant, and the said orders have already attained finality.

1[ds]5. The perusal of the record shows that copy of the letter dated 16.06.1997 (Annexureregarding information of acceptance of resignation in the meeting of the Board of Directors of the Company, and the letter addressed to Registrar of Companies on that date along with Form 32 (Annexureare on the record, and no counter affidavit has been filed to dispute the same.6. We have also perused copies of order passed by the High Court on 06.11.2014 (in Criminal Petition Nos. 5893 of 2010, 5894 of 2010, 5896 of 2010 and 5897 of 2010) and order dated 07.11.2014 in Criminal Petition No. 5895 of 2010 whereby the similar proceedings are quashed by the High Court in respect of the appellant, and the said orders have already attained finality.

### 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: 1. Leave granted.2. This appeal is directed against order dated 16.01.2015, passed by the High Court of Karnataka in Criminal Petition No. 5890 of 2010 whereby the petition filed under Section 482 of Criminal Procedure Code (CrPC) was dismissed. 3. Brief facts of the case are that a criminal complaint was filed by the Registrar of Companies against the Directors of M/s. Cauveri Software Engineering Systems Ltd, a Company incorporated on 08.01.1991, for failure to lay before the Company in Annual General Meeting held on 28.02.2005 the balance sheet and profit and loss account for the period required under sub-sections (1) and (3) of Section 210 of the Companies Act, 1956 (for short `the Act). The appellant was stated to be one of the Directors of the Company. The said proceedings (C.C. No. 108 of 2006), pending before the Special Court (Economic Offences), Bangalore, were challenged in 482 petition before the High Court on the ground that though the appellant was inducted as Director of the Company in 1991, but owing to his ill-health he resigned from the post of Director with effect from 31.05.1997.4. Learned counsel for the appellant pointed out that the resignation of the appellant was accepted on 16.06.1997 in the meeting of Board of Directors of the Company, and the Registrar of Companies was informed of the same by filing Form No. 32 in terms of Section 303(2) of the Act. Learned counsel further pointed out that the appellant, an advocate, is more than eighty years of age and suffering from various serious ailments. It is submitted that it is nothing but harassment of the accused, who had not been the director of the Company since 1997, with regard to alleged meeting held in 2005. It is lastly pointed out that the other five similar complaints as against the appellant, which are in respect of the meetings held on the dates subsequent to 1997, have already been quashed by the High Court. 5. The perusal of the record shows that copy of the letter dated 16.06.1997 (Annexure P-2) regarding information of acceptance of resignation in the meeting of the Board of Directors of the Company, and the letter addressed to Registrar of Companies on that date along with Form 32 (Annexure P-3) are on the record, and no counter affidavit has been filed to dispute the same.6. We have also perused copies of order passed by the High Court on 06.11.2014 (in Criminal Petition Nos. 5893 of 2010, 5894 of 2010, 5896 of 2010 and 5897 of 2010) and order dated 07.11.2014 in Criminal Petition No. 5895 of 2010 whereby the similar proceedings are quashed by the High Court in respect of the appellant, and the said orders have already attained finality. ### Response: 1 ### Explanation: 5. The perusal of the record shows that copy of the letter dated 16.06.1997 (Annexureregarding information of acceptance of resignation in the meeting of the Board of Directors of the Company, and the letter addressed to Registrar of Companies on that date along with Form 32 (Annexureare on the record, and no counter affidavit has been filed to dispute the same.6. We have also perused copies of order passed by the High Court on 06.11.2014 (in Criminal Petition Nos. 5893 of 2010, 5894 of 2010, 5896 of 2010 and 5897 of 2010) and order dated 07.11.2014 in Criminal Petition No. 5895 of 2010 whereby the similar proceedings are quashed by the High Court in respect of the appellant, and the said orders have already attained finality.

Hasan Nurani Malak Vs. S.M. Ismail, Assistant Charity Commissioner, Nagpur & Others

public trusts irrespective of whether his finding is in the affirmative or in the negative. For the entry he has to make is the entry "in accordance with his finding" whatever that finding is.8. As regards the second contention urged before it, the High Court observed that if it was obligatory on the Registrar to cause an entry to be made in the register even if the finding was negative, the fact that he had not made such an entry would not deprive the appellant of his right and in, that event it would have held that the proceeding before the Registrar was still pending and respondents 2 to 5 would in that case have to have recourse to the M.P. Act. Rut the High Court on the ground that there was no obligation on the Registrar to make the entry rejected this contention. Let us see whether there was justification in the contention that the inquiry is still pending and that respondents 2 to 5 have to proceed under that Act and not under S. 19 of the Bombay Act.9. Mr. Desai for the appellant relied on sub-s (3) of S. 86 and urged that all the three sub-cls. (a), (b) and (c) apply to the present case. He urged that the inquiry before the Registrar was a thing duly done under the M. P. Act and was, therefore, saved, that the Registrars finding had become final on the expiry of six months from the date of that finding and its finality vested a right in the appellant which is saved by the sub-section and lastly that the legal proceeding, that is the enquiry, was still pending and in spite of the cessation of the M. P. Act was saved. He contended that a fresh inquiry, therefore, could not be held as the proceeding before the Registrar was still pending and the competent authority to proceed with it was the Registrar and not the Assistant Charity Commissioner. The Assistant Charity Commissioner was, therefore, precluded from holding the impugned inquiry. Mr. Chatterjee, on the other hand, argued that no right can be said to have accrued to the appellant as no finality attached to the Registrars finding an entry of that finding not having been made by the Registrar. There was also no question of any legal proceeding being saved as the proceeding saved is the one in respect of a right, title or interest vested in a party. Therefore, sub-cls. (b) and (c) according to him would not in any case apply. As regards sub-cl. (a) he argued that the inquiry before the Registrar was over so soon as he gave his finding and, therefore, that inquiry also cannot be to have been saved.10. The words "anything duly done" in sub-cl. (a) are very often used by the legislature in saving clauses such as we have in S. 86 (3). Section 6 of the General Clauses Act, 1897 also provides that unless a different intention appears the repeal of an Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the thing done before a particular date from which the repeal of such a pre-existing law takes effect. In universal Imports Agency v. Chief Controller of Imports and Exports l961-1 SCR 305=(AIR 1961 SC 41 ), construing the words "things done" used in Para. 6 of the French Establishments (Application of Laws) Order, 1954 this Court held that on a proper interpretation the expression "things done" was comprehensive enough to take in not only the things done but also the effect of the legal consequences flowing therefrom. The inquiry held-by the Registrar under the M. P. Act was indisputably "a thing duly done" under that Act. The inquiry and its result having been saved by S. 86 (3) (a) they continue to be governed by the M. P. Act in spite of its ceasing to apply in Vidarbha. As we have already it was obligatory on the Registrar to have made an entry of his finding in the register of public trusts maintained by him under that Act though the finding was that the trust was not public truest. If any one was aggrieved by that finding he could have made the Registrar to cause an entry, to be made and thereafter file a suit to set aside the finding and have the entry corrected. Respondents 2 to 5 would be such persons as they claim to be interested in the trust and are, therefore, persons aggrieved by that finding and interested in challenging it. The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under S. 7 of that Act. That being the position, the inquiry is saved by sub-cl. (a) of S. 86 (3) and it is still pending and is governed by the M. P. Act. In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act is still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it. In this view it is not necessary ho consider Mr. Desais contention that Cls. (b) and (c) also apply to the present case. Mr. Chatterjee however, drew our attention to a decision of the High Court of Bombay in Ramalal v. Charity Commissioner, (1960) 63 Bom LR 418. That decision cannot assist the respondents as the effect of a saving clause such as we have in S.86 (3) or in the Bombay General Clauses Act was not considered there and the question of the proceeding being a pending one was neither raised nor considered. For the reasons aforesaid it is not possible to sustain the order passed by the High Court dismissing the petition.

1[ds]7. As aforesaid the preamble of the M. P. Act shows that the Act was enacted to regulate and to make better provision for the administration of public, religious and charitable trusts in the then State of Madhya Pradesh. With that end in view Section 5 of that Act provides for an inquiry to he held by the Registrar for ascertaining among other things Whether a trust under inquiry is a public trust or not. A public notice of such an inquiry was provided for under Section-5 (2) in order to enable persons interested- in such trust to participate therein. Sections 6 and 7 enjoin upon the Registrar to record his finding. Such a finding may either be that the trust is a public trust or it is not. Section 7 (1) enjoins upon him to cause entries to be made in the register "in accordance with the findings recorded by him under Section 6"and he is to publish the entries when made in the register. The register prescribed no doubt is a register of public trusts. It the finding of the Registrar is that a particular trust is not a public trust, does he not have to make an entry of his finding in the register or has he to make an entry in that register only when his finding is a positive one that the trust is a pubic trust?It will be noticed that there is nothing in Section 7 (1) to show that he is required to make an entry only if the finding, is in the affirmative. On the other hand sub-s (1) of Section 7 expressly provides that he shall cause entries to be made in accordance with the findings recorded by him under Section 6. Section 6 shows that he has to record his findings and the reasons therefor whatever the findings are, whether in the affirmative or in the negative. Since entries under Section 7 (1) are to be made in accordance with such findings, either positive or negative, it follows that entries have to be made irrespective of whether the trust is found to be a public trust or not. To say that he is required to make an entry of a finding only if the finding is that the trust is a public trust would be contrary to the express language of Sections 6 and 7 and would unnecessarily curtail the language and the scope of the two sections. This construction is also supported by Section 8. Under that section, though it is the entry made under S. 7 which has been given finality a right of suit is conferred on both the working trustee and all persons having interest in the trust or any property belonging to it and who is aggrieved by any finding. The section no doubt provides that such a suit has to be filed within six months from the date of the publication of the entry. But that provision is clearly one fixing limitation. That does not mean that the suit is to set aside the entry. The section in so many terms states that such a suit would be to set aside the finding given by the Registrar and where such a finding is set aside the Registrar has to correct the entry made in the register in accordance with his findings. The cause of action for such a suit thus is the finding and not the entry which is merely consequential. It is therefore not right to say that a suit cannot be filed unless the Registrar has made the entry. The legislature, besides, could not have left the right to file a suit on the mercy of the Registrar who may or may not make the entry. It is equally not correct to say that the Registrar has not to make an entry if his finding is in the negative. Suppose the Registrar in a given case gives his finding that the trust in question is not a public trust and does not make an entry on the ground that the register maintained by him is the register of public trusts and not of trusts which are not public trusts. What is a person interested in the trust or its properties to do if he is aggrieved by that finding? Does it mean that he has no remedy by way of a suit? That surely cannot be the meaning to be given to Sections 7 and 8. If the making of the entry is the condition precedent for such a suit such a person would have no remedy of a suit under Section 8. It is precisely to avoid such a result that the section provides in explicit language that any person, aggrieved by the finding and not the entry, has a right to file a suit and to have such a finding set aside, whether the finding is positive or negative. There is nothing in S. 8 which restricts the right of a suit in cases where the finding is in the affirmative. If that was so giving a right to sue to a person interested in the trust would be superfluous as he would never be aggrieved by a finding that the trust is a public trust. The High Court was, therefore, in error when it held that the Registrar was not obliged to make the entry as his finding was in the negative. In our view, reading Ss. 5,6,7 and 8 of the M. P. Act it is clear that the Registrar is enjoined upon to make an entry in the register of public trusts irrespective of whether his finding is in the affirmative or in the negative. For the entry he has to make is the entry "in accordance with his finding" whatever that finding is.8. As regards the second contention urged before it, the High Court observed that if it was obligatory on the Registrar to cause an entry to be made in the register even if the finding was negative, the fact that he had not made such an entry would not deprive the appellant of his right and in, that event it would have held that the proceeding before the Registrar was still pending and respondents 2 to 5 would in that case have to have recourse to the M.P. Act. Rut the High Court on the ground that there was no obligation on the Registrar to make the entry rejected this contention. Let us see whether there was justification in the contention that the inquiry is still pending and that respondents 2 to 5 have to proceed under that Act and not under S. 19 of the Bombayinquiry held-by the Registrar under the M. P. Act was indisputably "a thing duly done" under that Act. The inquiry and its result having been saved by S. 86 (3) (a) they continue to be governed by the M. P. Act in spite of its ceasing to apply in Vidarbha. As we have already it was obligatory on the Registrar to have made an entry of his finding in the register of public trusts maintained by him under that Act though the finding was that the trust was not public truest. If any one was aggrieved by that finding he could have made the Registrar to cause an entry, to be made and thereafter file a suit to set aside the finding and have the entry corrected. Respondents 2 to 5 would be such persons as they claim to be interested in the trust and are, therefore, persons aggrieved by that finding and interested in challenging it. The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under S. 7 of that Act. That being the position, the inquiry is saved by sub-cl. (a) of S. 86 (3) and it is still pending and is governed by the M. P. Act. In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act is still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it. In this view it is not necessary ho consider Mr. Desais contention that Cls. (b) and (c) also apply to the present case.It is clear from the provisions of Section 8 that though the entries made by the Registrar are final and conclusive that finality is subject to the decision of the court in a suit challenging the findings of the Registrar. The cause of action for such a suit is thus the finding of the Registrar and not the entry. It is manifest that Section 7 requires the making of the entry and its notification in order that the findings given by the Registrar are recorded and are given publicity so that an aggrieved party whether he is a working trustee or a person interested in the trust may file a suit within the prescribed time. Under Section 35 of the Act the State Government framed rules prescribing inter alia for the maintenance of certain registers. Under the Act and the said Rules the Registrar had to maintain four registers. viz.. (1) a register of public trusts, (2) a register of the properties of public trusts, (3) a register relating to immovable properties belonging to the trusts and (4) a register of decisions of courts relating to public trusts. These being the only registers prescribed either under the Act or the said rules there was no obligation on the Registrar to maintain any other register or book.The words "anything duly done" in(a) are very often used by the legislature in saving clauses such as we have in S. 86 (3). Section 6 of the General Clauses Act, 1897 also provides that unless a different intention appears the repeal of an Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that thelaw continues to govern the thing done before a particular date from which the repeal of such alaw takes effect. In universal Imports Agency v. Chief Controller of Imports and ExportsSCR 305=(AIR 1961 SC 41 ), construing the words "things done" used in Para. 6 of the French Establishments (Application of Laws) Order, 1954 this Court held that on a proper interpretation the expression "things done" was comprehensive enough to take in not only the things done but also the effect of the legal consequences flowing therefrom. They the Registrar under the M. P. Act was indisputably "a thing duly done" under that Act. The inquiry and its result having been saved by S. 86 (3) (a) they continue to be governed by the M. P. Act in spite of its ceasing to apply in Vidarbha. As we have already it was obligatory on the Registrar to have made an entry of his finding in the register of public trusts maintained by him under that Act though the finding was that the trust was not public truest. If any one was aggrieved by that finding he could have made the Registrar to cause an entry, to be made and thereafter file a suit to set aside the finding and have the entry corrected. Respondents 2 to 5 would be such persons as they claim to be interested in the trust and are, therefore, persons aggrieved by that finding and interested in challenging it. The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under S. 7 of that Act. That being the position, the inquiry is saved by(a) of S. 86 (3) and it is still pending and is governed by the M. P. Act. In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act is still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it. In this view it is not necessary ho consider Mr. Desais contention that Cls. (b) and (c) also apply to the present case.e however, drew our attention to a decision of the High Court of Bombay in Ramalal v. Charity Commissioner, (1960) 63 Bom LR 418.That decision cannot assist the respondents as the effect of a saving clause such as we have in S.86 (3) or in the Bombay General Clauses Act was not considered there and the question of the proceeding being a pending one was neither raised nor considered. For the reasons aforesaid it is not possible to sustain the order passed by the High Court dismissing the petition.

### 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: public trusts irrespective of whether his finding is in the affirmative or in the negative. For the entry he has to make is the entry "in accordance with his finding" whatever that finding is.8. As regards the second contention urged before it, the High Court observed that if it was obligatory on the Registrar to cause an entry to be made in the register even if the finding was negative, the fact that he had not made such an entry would not deprive the appellant of his right and in, that event it would have held that the proceeding before the Registrar was still pending and respondents 2 to 5 would in that case have to have recourse to the M.P. Act. Rut the High Court on the ground that there was no obligation on the Registrar to make the entry rejected this contention. Let us see whether there was justification in the contention that the inquiry is still pending and that respondents 2 to 5 have to proceed under that Act and not under S. 19 of the Bombay Act.9. Mr. Desai for the appellant relied on sub-s (3) of S. 86 and urged that all the three sub-cls. (a), (b) and (c) apply to the present case. He urged that the inquiry before the Registrar was a thing duly done under the M. P. Act and was, therefore, saved, that the Registrars finding had become final on the expiry of six months from the date of that finding and its finality vested a right in the appellant which is saved by the sub-section and lastly that the legal proceeding, that is the enquiry, was still pending and in spite of the cessation of the M. P. Act was saved. He contended that a fresh inquiry, therefore, could not be held as the proceeding before the Registrar was still pending and the competent authority to proceed with it was the Registrar and not the Assistant Charity Commissioner. The Assistant Charity Commissioner was, therefore, precluded from holding the impugned inquiry. Mr. Chatterjee, on the other hand, argued that no right can be said to have accrued to the appellant as no finality attached to the Registrars finding an entry of that finding not having been made by the Registrar. There was also no question of any legal proceeding being saved as the proceeding saved is the one in respect of a right, title or interest vested in a party. Therefore, sub-cls. (b) and (c) according to him would not in any case apply. As regards sub-cl. (a) he argued that the inquiry before the Registrar was over so soon as he gave his finding and, therefore, that inquiry also cannot be to have been saved.10. The words "anything duly done" in sub-cl. (a) are very often used by the legislature in saving clauses such as we have in S. 86 (3). Section 6 of the General Clauses Act, 1897 also provides that unless a different intention appears the repeal of an Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that the pre-existing law continues to govern the thing done before a particular date from which the repeal of such a pre-existing law takes effect. In universal Imports Agency v. Chief Controller of Imports and Exports l961-1 SCR 305=(AIR 1961 SC 41 ), construing the words "things done" used in Para. 6 of the French Establishments (Application of Laws) Order, 1954 this Court held that on a proper interpretation the expression "things done" was comprehensive enough to take in not only the things done but also the effect of the legal consequences flowing therefrom. The inquiry held-by the Registrar under the M. P. Act was indisputably "a thing duly done" under that Act. The inquiry and its result having been saved by S. 86 (3) (a) they continue to be governed by the M. P. Act in spite of its ceasing to apply in Vidarbha. As we have already it was obligatory on the Registrar to have made an entry of his finding in the register of public trusts maintained by him under that Act though the finding was that the trust was not public truest. If any one was aggrieved by that finding he could have made the Registrar to cause an entry, to be made and thereafter file a suit to set aside the finding and have the entry corrected. Respondents 2 to 5 would be such persons as they claim to be interested in the trust and are, therefore, persons aggrieved by that finding and interested in challenging it. The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under S. 7 of that Act. That being the position, the inquiry is saved by sub-cl. (a) of S. 86 (3) and it is still pending and is governed by the M. P. Act. In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act is still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it. In this view it is not necessary ho consider Mr. Desais contention that Cls. (b) and (c) also apply to the present case. Mr. Chatterjee however, drew our attention to a decision of the High Court of Bombay in Ramalal v. Charity Commissioner, (1960) 63 Bom LR 418. That decision cannot assist the respondents as the effect of a saving clause such as we have in S.86 (3) or in the Bombay General Clauses Act was not considered there and the question of the proceeding being a pending one was neither raised nor considered. For the reasons aforesaid it is not possible to sustain the order passed by the High Court dismissing the petition. ### Response: 1 ### Explanation: its result having been saved by S. 86 (3) (a) they continue to be governed by the M. P. Act in spite of its ceasing to apply in Vidarbha. As we have already it was obligatory on the Registrar to have made an entry of his finding in the register of public trusts maintained by him under that Act though the finding was that the trust was not public truest. If any one was aggrieved by that finding he could have made the Registrar to cause an entry, to be made and thereafter file a suit to set aside the finding and have the entry corrected. Respondents 2 to 5 would be such persons as they claim to be interested in the trust and are, therefore, persons aggrieved by that finding and interested in challenging it. The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under S. 7 of that Act. That being the position, the inquiry is saved by sub-cl. (a) of S. 86 (3) and it is still pending and is governed by the M. P. Act. In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act is still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it. In this view it is not necessary ho consider Mr. Desais contention that Cls. (b) and (c) also apply to the present case.It is clear from the provisions of Section 8 that though the entries made by the Registrar are final and conclusive that finality is subject to the decision of the court in a suit challenging the findings of the Registrar. The cause of action for such a suit is thus the finding of the Registrar and not the entry. It is manifest that Section 7 requires the making of the entry and its notification in order that the findings given by the Registrar are recorded and are given publicity so that an aggrieved party whether he is a working trustee or a person interested in the trust may file a suit within the prescribed time. Under Section 35 of the Act the State Government framed rules prescribing inter alia for the maintenance of certain registers. Under the Act and the said Rules the Registrar had to maintain four registers. viz.. (1) a register of public trusts, (2) a register of the properties of public trusts, (3) a register relating to immovable properties belonging to the trusts and (4) a register of decisions of courts relating to public trusts. These being the only registers prescribed either under the Act or the said rules there was no obligation on the Registrar to maintain any other register or book.The words "anything duly done" in(a) are very often used by the legislature in saving clauses such as we have in S. 86 (3). Section 6 of the General Clauses Act, 1897 also provides that unless a different intention appears the repeal of an Act would not affect anything duly done or suffered thereunder. The object of such a saving clause is to save what has been previously done under the statute repealed. The result of such a saving clause is that thelaw continues to govern the thing done before a particular date from which the repeal of such alaw takes effect. In universal Imports Agency v. Chief Controller of Imports and ExportsSCR 305=(AIR 1961 SC 41 ), construing the words "things done" used in Para. 6 of the French Establishments (Application of Laws) Order, 1954 this Court held that on a proper interpretation the expression "things done" was comprehensive enough to take in not only the things done but also the effect of the legal consequences flowing therefrom. They the Registrar under the M. P. Act was indisputably "a thing duly done" under that Act. The inquiry and its result having been saved by S. 86 (3) (a) they continue to be governed by the M. P. Act in spite of its ceasing to apply in Vidarbha. As we have already it was obligatory on the Registrar to have made an entry of his finding in the register of public trusts maintained by him under that Act though the finding was that the trust was not public truest. If any one was aggrieved by that finding he could have made the Registrar to cause an entry, to be made and thereafter file a suit to set aside the finding and have the entry corrected. Respondents 2 to 5 would be such persons as they claim to be interested in the trust and are, therefore, persons aggrieved by that finding and interested in challenging it. The contention that that inquiry was completed is not correct because the Registrar had yet to make the entry of his finding which he was bound to make under S. 7 of that Act. That being the position, the inquiry is saved by(a) of S. 86 (3) and it is still pending and is governed by the M. P. Act. In the result a fresh inquiry under the Bombay Act while the proceeding under the M. P. Act is still pending was not competent and the Assistant Charity Commissioner was precluded from entertaining it. In this view it is not necessary ho consider Mr. Desais contention that Cls. (b) and (c) also apply to the present case.e however, drew our attention to a decision of the High Court of Bombay in Ramalal v. Charity Commissioner, (1960) 63 Bom LR 418.That decision cannot assist the respondents as the effect of a saving clause such as we have in S.86 (3) or in the Bombay General Clauses Act was not considered there and the question of the proceeding being a pending one was neither raised nor considered. For the reasons aforesaid it is not possible to sustain the order passed by the High Court dismissing the petition.

SIVASANKAR V.K Vs. V. K. SIVAN AND OTHERS

MOHAN M. SHANTANAGOUDAR, J.1. These appeals are presented by the unsuccessful Defendant No. 3 against the concurrent findings given by the Court of Subordinate Judge, Kozikode in O.S. No. 203 of 1996 and the High Court of Kerala in A.S. No. 1044 of 1998. It is relevant to note that the other defendants have accepted the judgment of the Trial Court, which decreed the suit for partition of the suit property, granting 1/3rd share to the plaintiff, and consequently did not file any appeal against the judgment. It was only Defendant No. 3 who questioned the judgment of the Trial Court, and failed in the appeal. A review petition filed by him was also dismissed.2. The main issue involved in these appeals is the interpretation of the terms of a Will (Exhibit B-1) executed by the late Komappan in the year 1940 regarding the bequest of the suit property, i.e., Item Nos. 1 and 2 of ‘Schedule A? of the Will. Both the Trial Court and the High Court have on interpretation of the Will and considering the other material on record concluded that the plaintiff is entitled to 1/3rd share in the suit property according to the terms of the Will.3. On reading the Will in question, we find that specific bequests have been made (except ‘Schedule A?) by Komappan in favour of his sons, Choikutty and Peravakutty and his daughter Perachikutty, as well as in favour of Komappan (Junior), son of the late Peravan, the pre-deceased son of the testator, and in favour of Smt. Thirumala, wife of Peravan. However, the testator had not bequeathed the property falling under ‘Schedule A? in favour of the aforementioned persons. On the other hand, the testator intended to keep the said property described in ‘Schedule A? in common, reserving with his wife the right to take income therefrom and with all the legatees, the right to reside in the house situated therein. It can be borne out from reading the entire Will that after their lifetime the surviving male children of said Choikutty, Peravakutty and Komappan (Junior), were to manage and administer and get the property. The material question which the court would have to decide in this matter is, whether taking into account the document in question and all the relevant facts into consideration it could be said that the donor intended to confer the right over the property in favour of the legal representatives of the aforementioned three persons to the extent of 1/3rd each. It is needless to observe that it is within the power of the testator to decide whether he wants the property to be held by the male members of the three branches, has to be inferred from the language of the Will and attending circumstances. In the instance case, it is abundantly clear from all the attending circumstances, and the reading of the entire will, that the testator wished that ‘Schedule A? properties are to be enjoyed by the male children of the aforementioned three persons to the extent of 1/3rd each.

1[ds]3. On reading the Will in question, we find that specific bequests have been made (except ‘Schedule A?) by Komappan in favour of his sons, Choikutty and Peravakutty and his daughter Perachikutty, as well as in favour of Komappan (Junior), son of the late Peravan, the pre-deceased son of the testator, and in favour of Smt. Thirumala, wife of Peravan. However, the testator had not bequeathed the property falling under ‘Schedule A? in favour of the aforementioned persons. On the other hand, the testator intended to keep the said property described in ‘Schedule A? in common, reserving with his wife the right to take income therefrom and with all the legatees, the right to reside in the house situated therein. It can be borne out from reading the entire Will that after their lifetime the surviving male children of said Choikutty, Peravakutty and Komappan (Junior), were to manage and administer and get the property. The material question which the court would have to decide in this matter is, whether taking into account the document in question and all the relevant facts into consideration it could be said that the donor intended to confer the right over the property in favour of the legal representatives of the aforementioned three persons to the extent of 1/3rd each. It is needless to observe that it is within the power of the testator to decide whether he wants the property to be held by the male members of the three branches, has to be inferred from the language of the Will and attending circumstances. In the instance case, it is abundantly clear from all the attending circumstances, and the reading of the entire will, that the testator wished that ‘Schedule A? properties are to be enjoyed by the male children of the aforementioned three persons to the extent of 1/3rd each.

### 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: MOHAN M. SHANTANAGOUDAR, J.1. These appeals are presented by the unsuccessful Defendant No. 3 against the concurrent findings given by the Court of Subordinate Judge, Kozikode in O.S. No. 203 of 1996 and the High Court of Kerala in A.S. No. 1044 of 1998. It is relevant to note that the other defendants have accepted the judgment of the Trial Court, which decreed the suit for partition of the suit property, granting 1/3rd share to the plaintiff, and consequently did not file any appeal against the judgment. It was only Defendant No. 3 who questioned the judgment of the Trial Court, and failed in the appeal. A review petition filed by him was also dismissed.2. The main issue involved in these appeals is the interpretation of the terms of a Will (Exhibit B-1) executed by the late Komappan in the year 1940 regarding the bequest of the suit property, i.e., Item Nos. 1 and 2 of ‘Schedule A? of the Will. Both the Trial Court and the High Court have on interpretation of the Will and considering the other material on record concluded that the plaintiff is entitled to 1/3rd share in the suit property according to the terms of the Will.3. On reading the Will in question, we find that specific bequests have been made (except ‘Schedule A?) by Komappan in favour of his sons, Choikutty and Peravakutty and his daughter Perachikutty, as well as in favour of Komappan (Junior), son of the late Peravan, the pre-deceased son of the testator, and in favour of Smt. Thirumala, wife of Peravan. However, the testator had not bequeathed the property falling under ‘Schedule A? in favour of the aforementioned persons. On the other hand, the testator intended to keep the said property described in ‘Schedule A? in common, reserving with his wife the right to take income therefrom and with all the legatees, the right to reside in the house situated therein. It can be borne out from reading the entire Will that after their lifetime the surviving male children of said Choikutty, Peravakutty and Komappan (Junior), were to manage and administer and get the property. The material question which the court would have to decide in this matter is, whether taking into account the document in question and all the relevant facts into consideration it could be said that the donor intended to confer the right over the property in favour of the legal representatives of the aforementioned three persons to the extent of 1/3rd each. It is needless to observe that it is within the power of the testator to decide whether he wants the property to be held by the male members of the three branches, has to be inferred from the language of the Will and attending circumstances. In the instance case, it is abundantly clear from all the attending circumstances, and the reading of the entire will, that the testator wished that ‘Schedule A? properties are to be enjoyed by the male children of the aforementioned three persons to the extent of 1/3rd each. ### Response: 1 ### Explanation: 3. On reading the Will in question, we find that specific bequests have been made (except ‘Schedule A?) by Komappan in favour of his sons, Choikutty and Peravakutty and his daughter Perachikutty, as well as in favour of Komappan (Junior), son of the late Peravan, the pre-deceased son of the testator, and in favour of Smt. Thirumala, wife of Peravan. However, the testator had not bequeathed the property falling under ‘Schedule A? in favour of the aforementioned persons. On the other hand, the testator intended to keep the said property described in ‘Schedule A? in common, reserving with his wife the right to take income therefrom and with all the legatees, the right to reside in the house situated therein. It can be borne out from reading the entire Will that after their lifetime the surviving male children of said Choikutty, Peravakutty and Komappan (Junior), were to manage and administer and get the property. The material question which the court would have to decide in this matter is, whether taking into account the document in question and all the relevant facts into consideration it could be said that the donor intended to confer the right over the property in favour of the legal representatives of the aforementioned three persons to the extent of 1/3rd each. It is needless to observe that it is within the power of the testator to decide whether he wants the property to be held by the male members of the three branches, has to be inferred from the language of the Will and attending circumstances. In the instance case, it is abundantly clear from all the attending circumstances, and the reading of the entire will, that the testator wished that ‘Schedule A? properties are to be enjoyed by the male children of the aforementioned three persons to the extent of 1/3rd each.

Basf India Limited & Another Vs. M. Gurusamy & Another

cumulative effect of these aspects the Commissioner held that there was no need for the establishment to have reimbursed the Managers towards the expenses for engaging these drivers had they not been engaged for the benefit of the establishment. The finding thus concluded by the Commissioner that these facts would prove that the concerned drivers are paid wages directly or indirectly by the establishment for the work carried out by them in or in connection with the establishment and therefore they are nothing but employees as defined under Section 2(f) of the Act of 1952 cannot be faulted. 10.As noted above, the learned senior Counsel appearing for the Company strenuously contended that the Company has no control over these drivers and if the control over these drivers is not established, such drivers cannot be held to be employees within the meaning of Section 2(f) of the Act of 1952. In so far as this aspect is concerned we may observe that though in the reply filed by the Company on 18th June 1992 the plea was set up that the drivers were under exclusive supervision and control of the respective Managers in their individual capacity, no evidence was produced by the Company in support of this plea. It was for the Company to lead proper evidence in support of their case that such drivers were not under the control of the Company. The learned Senior Counsel submitted that the Company could not have led negative evidence. The contention is hardly acceptable. The Managers who had appointed these drivers were the employees of the Company and their evidence could have been led by the Company to demonstrate and indicate the nature of the control over the drivers. For want of any evidence in support of their case that the Company does not have any control over the concerned drivers and that the drivers were under exclusive supervision and control of the respective Managers, the contention of the learned Senior Counsel that the respective Managers had control over the concerned drivers and that the Company had no control over such drivers cannot be accepted. 11.In Ghulam Destagir (supra) the workman failed to establish that the Bank had the control and direction over him and that there was a nexus between him and the Bank and in this backdrop the Apex Court held that the award passed by the Industrial Tribunal was unsupportable. The Apex Court further observed thus: 4. We wish to make two comments. It is quite conceivable that the facts in the case of employment of other drivers may be different. If other materials are available regarding the terms and conditions of service regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved. 12. The learned Single Judge therefore cannot be said to have erred in not applying Ghulam Dastagir to the instant case. Incidentally we may observe that the three Judge Bench of the Supreme Court in Silver jubilee Tailoring House (supra) (this case has been referred by the learned Single Judge and relied upon) it was held that in order to decide relationship of employer and the employee the test of right to control cannot be treated as an exclusive test and that it is not necessary that the servant should be under exclusive control of one master. In paragraphs 27, 28 and 29 of the report, the Apex Court held thus: 27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test. 28. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that no magic formula can be propounded, which factors should in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. (See Atiyah, Ps. Vicarious Liability in the Law of Torts pp. 37-38). 29. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is not no more than a factor, although an important one. (See Argent v. Minister of Social Security and Another, (1968) 1 WLR 1749 at 1759). 13. In our considered view the legal position laid down by Apex Court in Silver Jubilee Tailoring House as noticed above is not deviated in the two Bench decision of the Supreme Court in Ghulam Dastagir. This legal position does not get changed in Employers in relation to the Management of Reserve Bank of India vs. Their Workmen (supra) and State Bank of India vs. State Bank of India Canteen Employees Union (Bengal Circle) (supra). 14. Thus we find no infirmity in the order of the learned Single Judge warranting interference in Appellate jurisdiction.

0[ds]4. We wish to make two comments. It is quite conceivable that the facts in the case of employment of other drivers may be different. If other materials are available regarding the terms and conditions of service regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved12. The learned Single Judge therefore cannot be said to have erred in not applying Ghulam Dastagir to the instant case. Incidentally we may observe that the three Judge Bench of the Supreme Court in Silver jubilee Tailoring House (supra) (this case has been referred by the learned Single Judge and relied upon) it was held that in order to decide relationship of employer and the employee the test of right to control cannot be treated as an exclusive test and that it is not necessary that the servant should be under exclusive control of one master. In paragraphs 27, 28 and 29 of the report, the Apex Court held thus:27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test29. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is not no more than a factor, although an important one. (See Argent v. Minister of Social Security and Another, (1968) 1 WLR 1749 at 1759)13. In our considered view the legal position laid down by Apex Court in Silver Jubilee Tailoring House as noticed above is not deviated in the two Bench decision of the Supreme Court in Ghulam Dastagir. This legal position does not get changed in Employers in relation to the Management of Reserve Bank of India vs. Their Workmen (supra) and State Bank of India vs. State Bank of India Canteen Employees Union (Bengal Circle) (supra)14. Thus we find no infirmity in the order of the learned Single Judge warranting interference in Appellate jurisdiction.

### 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: cumulative effect of these aspects the Commissioner held that there was no need for the establishment to have reimbursed the Managers towards the expenses for engaging these drivers had they not been engaged for the benefit of the establishment. The finding thus concluded by the Commissioner that these facts would prove that the concerned drivers are paid wages directly or indirectly by the establishment for the work carried out by them in or in connection with the establishment and therefore they are nothing but employees as defined under Section 2(f) of the Act of 1952 cannot be faulted. 10.As noted above, the learned senior Counsel appearing for the Company strenuously contended that the Company has no control over these drivers and if the control over these drivers is not established, such drivers cannot be held to be employees within the meaning of Section 2(f) of the Act of 1952. In so far as this aspect is concerned we may observe that though in the reply filed by the Company on 18th June 1992 the plea was set up that the drivers were under exclusive supervision and control of the respective Managers in their individual capacity, no evidence was produced by the Company in support of this plea. It was for the Company to lead proper evidence in support of their case that such drivers were not under the control of the Company. The learned Senior Counsel submitted that the Company could not have led negative evidence. The contention is hardly acceptable. The Managers who had appointed these drivers were the employees of the Company and their evidence could have been led by the Company to demonstrate and indicate the nature of the control over the drivers. For want of any evidence in support of their case that the Company does not have any control over the concerned drivers and that the drivers were under exclusive supervision and control of the respective Managers, the contention of the learned Senior Counsel that the respective Managers had control over the concerned drivers and that the Company had no control over such drivers cannot be accepted. 11.In Ghulam Destagir (supra) the workman failed to establish that the Bank had the control and direction over him and that there was a nexus between him and the Bank and in this backdrop the Apex Court held that the award passed by the Industrial Tribunal was unsupportable. The Apex Court further observed thus: 4. We wish to make two comments. It is quite conceivable that the facts in the case of employment of other drivers may be different. If other materials are available regarding the terms and conditions of service regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved. 12. The learned Single Judge therefore cannot be said to have erred in not applying Ghulam Dastagir to the instant case. Incidentally we may observe that the three Judge Bench of the Supreme Court in Silver jubilee Tailoring House (supra) (this case has been referred by the learned Single Judge and relied upon) it was held that in order to decide relationship of employer and the employee the test of right to control cannot be treated as an exclusive test and that it is not necessary that the servant should be under exclusive control of one master. In paragraphs 27, 28 and 29 of the report, the Apex Court held thus: 27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test. 28. It is exceedingly doubtful today whether the search for a formula in the nature of a single test to tell a contract of service from a contract for service will serve any useful purpose. The most that profitably can be done is to examine all the factors that have been referred to in the cases on the topic. Clearly, not all of these factors would be relevant in all these cases or have the same weight in all cases. It is equally clear that no magic formula can be propounded, which factors should in any case be treated as determining ones. The plain fact is that in a large number of cases, the Court can only perform a balancing operation weighing up the factors which point in one direction and balancing them against those pointing in the opposite direction. (See Atiyah, Ps. Vicarious Liability in the Law of Torts pp. 37-38). 29. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is not no more than a factor, although an important one. (See Argent v. Minister of Social Security and Another, (1968) 1 WLR 1749 at 1759). 13. In our considered view the legal position laid down by Apex Court in Silver Jubilee Tailoring House as noticed above is not deviated in the two Bench decision of the Supreme Court in Ghulam Dastagir. This legal position does not get changed in Employers in relation to the Management of Reserve Bank of India vs. Their Workmen (supra) and State Bank of India vs. State Bank of India Canteen Employees Union (Bengal Circle) (supra). 14. Thus we find no infirmity in the order of the learned Single Judge warranting interference in Appellate jurisdiction. ### Response: 0 ### Explanation: 4. We wish to make two comments. It is quite conceivable that the facts in the case of employment of other drivers may be different. If other materials are available regarding the terms and conditions of service regarding the direction and control of the drivers and regarding other indicia of employment, the conclusion may be different. We cannot, therefore, dogmatize generally as to the nature of employment of other drivers under this bank or other industry even where features of allowance may be present. We mention this, because, as Lord Macmillan pointed out in the case we have already referred to, facts vary from case to case and conclusions are reached on the basis of the facts and evidence of each case. There is no invariable proposition where fluid facts are involved12. The learned Single Judge therefore cannot be said to have erred in not applying Ghulam Dastagir to the instant case. Incidentally we may observe that the three Judge Bench of the Supreme Court in Silver jubilee Tailoring House (supra) (this case has been referred by the learned Single Judge and relied upon) it was held that in order to decide relationship of employer and the employee the test of right to control cannot be treated as an exclusive test and that it is not necessary that the servant should be under exclusive control of one master. In paragraphs 27, 28 and 29 of the report, the Apex Court held thus:27. It is, therefore, not surprising that in recent years the control test as traditionally formulated has not been treated as an exclusive test29. During the last two decades the emphasis in the field has shifted and no longer rests so strongly upon the question of control. Control is obviously an important factor and in many cases it may still be the decisive factor. But it is wrong to say that in every case it is decisive. It is not no more than a factor, although an important one. (See Argent v. Minister of Social Security and Another, (1968) 1 WLR 1749 at 1759)13. In our considered view the legal position laid down by Apex Court in Silver Jubilee Tailoring House as noticed above is not deviated in the two Bench decision of the Supreme Court in Ghulam Dastagir. This legal position does not get changed in Employers in relation to the Management of Reserve Bank of India vs. Their Workmen (supra) and State Bank of India vs. State Bank of India Canteen Employees Union (Bengal Circle) (supra)14. Thus we find no infirmity in the order of the learned Single Judge warranting interference in Appellate jurisdiction.

DR.D.J.DE SOUZA Vs. MANAGING DIRECTOR CPC DIAGOSTICS PVT.LTD

Hemant Gupta J. 1. Leave granted. 2. The challenge in the present appeals is to a judgment and order passed by the National Consumer Disputes Redressal Commission NCDRC on 14.12.2017 and also an order in Review Petition passed on 04.10.2018. 3. The appellant placed an order for purchase of TurboChem 100 Unit in response to quotation submitted by the respondent in the second week of August 2015. The appellant remitted a sum of Rs. 3, 50, 000/- towards 50 per cent cost of the instrument. The pre-installation requisite contemplated the following conditions: "1. Pre-installation Customer has to Requisite provide the following: Efficiently air-conditioned room 1 KVA online UPS for running of the equipment. Broadband connection for ?i-track?(Remote diagnostics Tool) The equipment will be provided with ?i-track? Remote, facility at the time of installation.? 4. The equipment was delivered on 30.09.2015. The service engineer pointed out that 1000 mv/650 Watt UPS of APC Company was not suitable and the appellant was advised to purchase 1KVA Online UPS for usage during power failure. The stand of the appellant is that he has got a confirmation from M/s. Awareness Technologies USA, the manufacturer of the equipment that UPS which the appellant had is suitable but the respondent insisted on installation of 1KVA Online UPS. The appellant also raised a grievance that there is no on-board laundry facility present on the instrument, therefore, such instrument is of no use to him. Therefore, the appellant sought payment of Rs. 3, 50, 000/- along with 9 per cent interest as well as damages of Rs. 50, 000/-.5. The District Consumer Disputes Redressal Forum, South Goa at Margao District Forum dismissed the complaint inter alia on the ground that the appellant has not placed copy of the order in support of his plea that on-board laundry was a part of the equipment. Since, there was no commitment on the part of the respondent to supply on-board laundry facility, the complaint was dismissed. Aggrieved against the order passed by the District Forum, the appellant filed an appeal before the Goa State Consumer Disputes Redressal Commission State Commission. The said appeal was dismissed on 08.07.2016 when his argument that the respondent has indulged in restrictive unfair trade practice, was not accepted. It was argued that the appellant had one 1KVA UPS purchased on 19.10.2015 but the respondent insisted on installation of Online UPS. The appellant referred to his correspondence with the manufacturer in USA that UPS purchased by the appellant is good provided that the instrument is the only item hooked up to the UPS.6. The State Commission found that the appellant placed an order when the respondent communicated their best offer for Turbochem 100 fully Automated Random-Access Biochemistry Analyser and also enclosed brochure for reference. It is thereafter, the 50 per cent of the price was paid. In the brochure there is mention of on-board cooling facility as one of the features but there is no feature of on-board laundry facility. There is a specific mention of requirement of 1 KVA Online UPS for running of the equipment. In view of said facts, the learned State Commission dismissed the appeal. The further challenge by way of a Revision before the NCDRC remained unsuccessful. The NCDRC found that there is no commitment from the respondent about the supply of instrument with on-board laundry facility and that the appellant has failed to establish that there was any malfunctioning or manufacturing defect in the instrument.7. It was also mentioned that the performance of the instrument depends upon the continuous uninterrupted electricity supply which could be made available through Online UPS. It was advisable to install best quality Online UPS keeping in view the fluctuation in electricity supply in the country. 8. Before this Court, the appellant argued that the manufacturer of the instrument in USA vide an email as Annexure P-10, has communicated that the UPS purchased by the appellant will be good, provided the TurboChem 100 is the only item hooked up to the UPS. Therefore, the insistence of the respondent for installation of 1KVA Online UPS is arbitrary and is restrictive trade practice. 9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice.

0[ds]9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice.

### 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: Hemant Gupta J. 1. Leave granted. 2. The challenge in the present appeals is to a judgment and order passed by the National Consumer Disputes Redressal Commission NCDRC on 14.12.2017 and also an order in Review Petition passed on 04.10.2018. 3. The appellant placed an order for purchase of TurboChem 100 Unit in response to quotation submitted by the respondent in the second week of August 2015. The appellant remitted a sum of Rs. 3, 50, 000/- towards 50 per cent cost of the instrument. The pre-installation requisite contemplated the following conditions: "1. Pre-installation Customer has to Requisite provide the following: Efficiently air-conditioned room 1 KVA online UPS for running of the equipment. Broadband connection for ?i-track?(Remote diagnostics Tool) The equipment will be provided with ?i-track? Remote, facility at the time of installation.? 4. The equipment was delivered on 30.09.2015. The service engineer pointed out that 1000 mv/650 Watt UPS of APC Company was not suitable and the appellant was advised to purchase 1KVA Online UPS for usage during power failure. The stand of the appellant is that he has got a confirmation from M/s. Awareness Technologies USA, the manufacturer of the equipment that UPS which the appellant had is suitable but the respondent insisted on installation of 1KVA Online UPS. The appellant also raised a grievance that there is no on-board laundry facility present on the instrument, therefore, such instrument is of no use to him. Therefore, the appellant sought payment of Rs. 3, 50, 000/- along with 9 per cent interest as well as damages of Rs. 50, 000/-.5. The District Consumer Disputes Redressal Forum, South Goa at Margao District Forum dismissed the complaint inter alia on the ground that the appellant has not placed copy of the order in support of his plea that on-board laundry was a part of the equipment. Since, there was no commitment on the part of the respondent to supply on-board laundry facility, the complaint was dismissed. Aggrieved against the order passed by the District Forum, the appellant filed an appeal before the Goa State Consumer Disputes Redressal Commission State Commission. The said appeal was dismissed on 08.07.2016 when his argument that the respondent has indulged in restrictive unfair trade practice, was not accepted. It was argued that the appellant had one 1KVA UPS purchased on 19.10.2015 but the respondent insisted on installation of Online UPS. The appellant referred to his correspondence with the manufacturer in USA that UPS purchased by the appellant is good provided that the instrument is the only item hooked up to the UPS.6. The State Commission found that the appellant placed an order when the respondent communicated their best offer for Turbochem 100 fully Automated Random-Access Biochemistry Analyser and also enclosed brochure for reference. It is thereafter, the 50 per cent of the price was paid. In the brochure there is mention of on-board cooling facility as one of the features but there is no feature of on-board laundry facility. There is a specific mention of requirement of 1 KVA Online UPS for running of the equipment. In view of said facts, the learned State Commission dismissed the appeal. The further challenge by way of a Revision before the NCDRC remained unsuccessful. The NCDRC found that there is no commitment from the respondent about the supply of instrument with on-board laundry facility and that the appellant has failed to establish that there was any malfunctioning or manufacturing defect in the instrument.7. It was also mentioned that the performance of the instrument depends upon the continuous uninterrupted electricity supply which could be made available through Online UPS. It was advisable to install best quality Online UPS keeping in view the fluctuation in electricity supply in the country. 8. Before this Court, the appellant argued that the manufacturer of the instrument in USA vide an email as Annexure P-10, has communicated that the UPS purchased by the appellant will be good, provided the TurboChem 100 is the only item hooked up to the UPS. Therefore, the insistence of the respondent for installation of 1KVA Online UPS is arbitrary and is restrictive trade practice. 9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice. ### Response: 0 ### Explanation: 9. We have heard the appellant and find no merit in the present appeals. The pre-installation requisite as reproduced above clearly stipulates that the appellant has to provide: (i) Efficiently air-conditioned room (ii) 1KVA Online UPS for running of the equipment (iii) Broadband connection for ?i-track? (Remote Diagnostics Tool). The equipment will be provided with ?i-track? remote facility at the time of installation.10. In the brochure supplied to the appellant, there is no commitment of supply of instrument with on-board laundry facility. Thus, the appellant could not insist on on-board laundry facility which was never committed to be delivered to the appellant along with the instrument nor there could be any installation of the equipment without installation of 1KVA Online UPS as part of pre-installation requirements. The email from the manufacturer will not override the pre-conditions of installation which are in view of electricity supply conditions in the country. All the authorities under the Consumer Protection Act, 1986 4 have found that there is no deficiency in service or restrictive trade practice.

Mahanadi Coalfields Ltd. Vs. Dhansar Engineering Company Pvt.Ltd.&Anr

of the contract (extended) period.23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to the respondents.24. The respondents, would then contend that, the appellants without giving any opportunity to the respondents unilaterally imposed penalty and despite the noting of the General Manager that there was no loss of production to the appellants. Similarly, a doubt was expressed by the Project Officer regarding giving extra work to the respondents at the fag end of the contract period. The respondents have relied on the decision of this Court in Maula Bux vs. Union of India (1969) 2 SCC 554 ), in which it has been held that “where a sum is named in the contract in the nature of a penalty, where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by it.” It is, however, indisputable that financial loss was suffered by the appellants on account of assigning the unfinished work to a third agency (contractor) at a higher rate. In that, the contract rate for the same work to be done by the respondents would have been at Rs. 17/- per cubic meter, which the appellants were required to get it executed at the rate of Rs. 31.50 per cubic meter through a third agency. The fact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents is vitiated; as also the decisions relied in support of that contention in the case of Gorkha Security Services vs. Government (NCT of Delhi) & Ors. (2014) 9 SCC 105 )and Kumari Shrilekha Vidyarthi & Ors vs. State of U.P. (1991) 1 SCC 212 )25. Similarly, it is not necessary for us to burden this judgment with the decisions relied on by the respondents, to contend that existence of alternative remedy is no bar to entertain a Writ Petition under Article 226 of the Constitution of India, as held in the cases of Popcorn Enterainment vs. City Development Corporation (2007) 9 SCC 593 ), Harbanslal Sahnia & Anr. vs. Indian Oil Corporation Ltd. & Ors. (2003) 2 SCC 107 ), Union of India & Ors. vs. Tantia Construction Pvt. Ltd. (2011)5 SCC 697) , M.P. State Agro Industries Development Corpn. & Anr. Vs. Jahan Khan (2007) 10 SCC 88 )and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 ). For, we have already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left open.

1[ds]23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to thefact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents ishave already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left

### 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: of the contract (extended) period.23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to the respondents.24. The respondents, would then contend that, the appellants without giving any opportunity to the respondents unilaterally imposed penalty and despite the noting of the General Manager that there was no loss of production to the appellants. Similarly, a doubt was expressed by the Project Officer regarding giving extra work to the respondents at the fag end of the contract period. The respondents have relied on the decision of this Court in Maula Bux vs. Union of India (1969) 2 SCC 554 ), in which it has been held that “where a sum is named in the contract in the nature of a penalty, where loss in terms of money can be determined, the party claiming compensation must prove the loss suffered by it.” It is, however, indisputable that financial loss was suffered by the appellants on account of assigning the unfinished work to a third agency (contractor) at a higher rate. In that, the contract rate for the same work to be done by the respondents would have been at Rs. 17/- per cubic meter, which the appellants were required to get it executed at the rate of Rs. 31.50 per cubic meter through a third agency. The fact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents is vitiated; as also the decisions relied in support of that contention in the case of Gorkha Security Services vs. Government (NCT of Delhi) & Ors. (2014) 9 SCC 105 )and Kumari Shrilekha Vidyarthi & Ors vs. State of U.P. (1991) 1 SCC 212 )25. Similarly, it is not necessary for us to burden this judgment with the decisions relied on by the respondents, to contend that existence of alternative remedy is no bar to entertain a Writ Petition under Article 226 of the Constitution of India, as held in the cases of Popcorn Enterainment vs. City Development Corporation (2007) 9 SCC 593 ), Harbanslal Sahnia & Anr. vs. Indian Oil Corporation Ltd. & Ors. (2003) 2 SCC 107 ), Union of India & Ors. vs. Tantia Construction Pvt. Ltd. (2011)5 SCC 697) , M.P. State Agro Industries Development Corpn. & Anr. Vs. Jahan Khan (2007) 10 SCC 88 )and Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 ). For, we have already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left open. ### Response: 1 ### Explanation: 23. In our opinion, clause 5 did not prohibit the principal (appellants) to allot upto extra 30% quantity of work, for want of 45 clear days of subsisting contract period. Whereas, that option could be exercised by the appellants at any time until the contract period was subsisting, which in this case was until 15th July 2004. In the present case, such notice regarding increase of work upto 30% permissible under clause 5 of the agreement, was given on 11th June 2004. On this finding, it must follow that the respondents committed breach of their contractual obligation, in not completing the balance work out of 130% of work (i.e. 130 - 108.47%). To that extent the respondents became liable to compensate the appellants including by way of penalty and in particular towards the financial loss caused to the appellants due to assigning the unfinished work to a third agency (contractor) at a higher rate. The amount demanded by the appellants includes the difference of contractual rate and the actual loss suffered by the appellants for completing the unfinished work through a third agency (contractor) at a higher rate, as is noticed from the communication dated 8th December 2004 sent to thefact that no loss of production was suffered by the appellants cannot relieve the respondents of that liability. It is a different matter that the respondents were not put to notice before the final decision was taken by the appellants to recover the financial loss along with penalty. The respondents could have approached the appellants for reconsideration of their demand towards penalty, in terms of Clause 30.3 of the contract; and persuade the appellants to waive the penalty amount to be recovered from them. The respondents, however, chose to straightway approach the High Court by way of Writ Petition. Notably, the High Court has not set aside the penalty amount as such, but the entire demand being impermissible. Since we have reversed the findings and conclusion of the High Court and even if this appeal succeeds, the respondents can be granted an opportunity to make a representation to the Appellants - company, who in turn can deal with the same in accordance with law. If the appellants accept the claim of the respondents about the unjustness of penalty or quantum thereof, they would be free to withdraw or modify their claim for recovery of penalty amount, if so advised. In the event, the appellants reject the representation, they will be free to recover the amount as demanded towards penalty along with interest accrued thereon, as may be permissible in law. However, that would not absolve the respondents from the financial liability arising due to difference of rate of contract and the actual cost incurred by the appellants to complete the unfinished work out of 130% of the contract quantity, through a third agency at a higher rate. That can be recovered by the appellants from the respondents along with interest accrued thereon at such rate, as may be permissible in law, even if the representation made by the respondents for recall or modification of the penalty amount is pending consideration. Considering the above, it is not necessary for us to burden this judgment with the contention of the respondents that the penalty imposed without any notice or hearing to the respondents ishave already examined the merits of the controversy and more so granted liberty to the respondents to make representation to the appellants on the question of justness of the demand towards penalty or the quantum thereof. It will be open to the respondents to pursue remedy in that behalf, as may be permissible in law. We are not expressing any opinion one way or the other on the issue of penalty amount. All questions in that behalf are left

Aditya Prakash Entertainment Private Limited Vs. Magikwand Media Private Limited

of the companys balance sheet beneath share capital and reserves, but unlike share capital, it does represent indebtedness by the company, and holders of loan capital have the remedies of creditors to recover what the company owes them." (Page 164.)12. Consequently, when the date for the redemption of redeemable preference shares has passed, their holders cannot sue the company for the repayment of their capital as creditors though they may petition for the winding up of the company as shareholders."13. On a consideration of the provisions of the Companies Act, 1956, as also similar provisions in the English company law we cannot persuade ourselves to accept the contentions of the assessee and hold that when a company issues redeemable preference shares it is in fact obtaining a loan as it could by issuing debentures. There is a fundamental difference between the capital made available to a company by issue of a share and money obtained by a company under a loan or a debenture. Respective incidences and consequences of issuing a share and borrowing money on loan or on a debenture are different and distinctive. A debenture-holder as a creditor has a right to sue the company, whereas a shareholder has no such right. Apart from that the scheme of the Companies Act and in particular the forms and contents of its balance-sheets are extremely rigid and, in our view, by reason of the specific compartments in such accounts it is not possible to convert an item of capital into an item of loan as has been suggested on behalf of the assessee.(emphasis supplied)11. The Division Bench of Delhi High Court in National Cooperative Development Corporation (supra), while considering appeal filed under Section 260(A) of the Income Tax of Delhi, 1981, approved finding of the Gujarat High Court. If a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction.Paragraph 10 reads as under :10. We may also refer to a judgment of the Gujarat High Court in Anarkali Sarabhai v. CIT Gujarat [1982] 138 ITR 437. That case arose under the Income Tax Act and the question was whether the assessee was liable to pay capital gains tax on receipt of an amount equal to the face value of the preference shares when the company redeem them. The assessee received from the company an amount which exceeded the amount which he had paid for these shares. In deciding this question the Gujarat High Court had to examine the nature of redeemable preference shares issued by a company. The Court referred to Palmers Company Law (page 356, paragraph 1, 22nd Edition) wherein it was observed that "from the financial point of view, redeemable preference shares are a hybrid form of shares and debentures, incorporating features of both, and ITA Nos.512/2011, 513/2011, 810/2011, being closer to the latter than other preference shares, but from the legal point of view they are shares and are treated as such". The Court further noted the view of the learned author in Penningtons Company Law, 4 th Edition, page 195 that if redemption of the petitioners shares would make a company insolvent, it may not be allowed to redeem those shares because repayment of preference capital would be a fraud upon the companys creditors. According to the Gujarat High Court this view of the author clearly indicated that the holder of preference shares is not in the same position as that of a creditor. The learned author had also expressed the view in the aforesaid treatise, as noticed by the Gujarat High Court, that if a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction. This view of the author, according to the Gujarat High Court also negatives the contention that once the company decides to redeem its preference shares, the holder thereof would be in the position of a creditor.(emphasis supplied)12. So far as the judgment in Anarkali Sarabhai (supra) relied upon by Shri Arsiwala, in my view, the judgment actually aids petitioner. The Apex Court has noted that under Section 80 of the Companies Act, 1956, preference shares must not be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption. When a preference share is redeemed by a company, what a shareholder does in effect is to sell the share to the company. Such a transaction is nothing but sale of the preference shares by the shareholders to the company. The Apex Court also held that if redemption of preference shares did not amount to sale, it would not have been necessary to specifically provide that the restriction imposed upon a company in respect of buying its own shares will not apply to redemption of shares issued under Section 80.13. Petitioner has approached this Court on the basis that the company is not doing any business and the networth of the company is going down year after year. Petitioner has approached this Court as creditor of the company as could be seen from paragraph 31 of the petition where it says The Petitioner states that the present Petition seeking winding up of the Respondent Company is being filed by it in the capacity of a creditor and not as a shareholder.... As already held that petitioner cannot be a creditor and it is rather clear that redemption cannot be made except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption, in my view, the petition is not maintainable.

0[ds]11. Share capital, then, is the amount contributed by the shareholders to the companys resources. The money with which the contribution is made becomes the companys property forthwith, but the company does not become the shareholders debtor for its repayment. The shareholder has a number of contractual and statutory rights against the company, among which are a right to share in its assets when it is wound up, and a right to receive dividends out of its profits when duly declared in accordance with the articles and it is primarily these two rights which give his shares a value, and make them saleable." (Pagescapital or share capital, the expression loan capital is not a legal term of art, but a commercial expression used to indicate the total amount borrowed by a company otherwise than by short and medium term borrowing. Loan capital will be represented by mortgages, debentures and loan stock, and the law relating to these securities, which is vastly different from that relating to share capital, will be dealt with in Chapter 12. Loan capital appears on the liabilities side of the companys balance sheet beneath share capital and reserves, but unlike share capital, it does represent indebtedness by the company, and holders of loan capital have the remedies of creditors to recover what the company owes them." (Page 164.)12. Consequently, when the date for the redemption of redeemable preference shares has passed, their holders cannot sue the company for the repayment of their capital as creditors though they may petition for the winding up of the company as shareholders."13. On a consideration of the provisions of the Companies Act, 1956, as also similar provisions in the English company law we cannot persuade ourselves to accept the contentions of the assessee and hold that when a company issues redeemable preference shares it is in fact obtaining a loan as it could by issuing debentures. There is a fundamental difference between the capital made available to a company by issue of a share and money obtained by a company under a loan or a debenture. Respective incidences and consequences of issuing a share and borrowing money on loan or on a debenture are different and distinctive. Aas a creditor has a right to sue the company, whereas a shareholder has no such right. Apart from that the scheme of the Companies Act and in particular the forms and contents of itsare extremely rigid and, in our view, by reason of the specific compartments in such accounts it is not possible to convert an item of capital into an item of loan as has been suggested on behalf of the assessee.(emphasis supplied)11. The Division Bench of Delhi High Court in National Cooperative Development Corporation (supra), while considering appeal filed under Section 260(A) of the Income Tax of Delhi, 1981, approved finding of the Gujarat High Court. If a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction.Paragraph 10 reads as under :10. We may also refer to a judgment of the Gujarat High Court in Anarkali Sarabhai v. CIT Gujarat [1982] 138 ITR 437. That case arose under the Income Tax Act and the question was whether the assessee was liable to pay capital gains tax on receipt of an amount equal to the face value of the preference shares when the company redeem them. The assessee received from the company an amount which exceeded the amount which he had paid for these shares. In deciding this question the Gujarat High Court had to examine the nature of redeemable preference shares issued by a company. The Court referred to Palmers Company Law (page 356, paragraph 1, 22nd Edition) wherein it was observed that "from the financial point of view, redeemable preference shares are a hybrid form of shares and debentures, incorporating features of both, and ITA Nos.512/2011, 513/2011, 810/2011, being closer to the latter than other preference shares, but from the legal point of view they are shares and are treated as such". The Court further noted the view of the learned author in Penningtons Company Law, 4 th Edition, page 195 that if redemption of the petitioners shares would make a company insolvent, it may not be allowed to redeem those shares because repayment of preference capital would be a fraud upon the companys creditors. According to the Gujarat High Court this view of the author clearly indicated that the holder of preference shares is not in the same position as that of a creditor. The learned author had also expressed the view in the aforesaid treatise, as noticed by the Gujarat High Court, that if a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction. This view of the author, according to the Gujarat High Court also negatives the contention that once the company decides to redeem its preference shares, the holder thereof would be in the position of a creditor.(emphasis supplied)12. So far as the judgment in Anarkali Sarabhai (supra) relied upon by Shri Arsiwala, in my view, the judgment actually aids petitioner. The Apex Court has noted that under Section 80 of the Companies Act, 1956, preference shares must not be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption. When a preference share is redeemed by a company, what a shareholder does in effect is to sell the share to the company. Such a transaction is nothing but sale of the preference shares by the shareholders to the company. The Apex Court also held that if redemption of preference shares did not amount to sale, it would not have been necessary to specifically provide that the restriction imposed upon a company in respect of buying its own shares will not apply to redemption of shares issued under Section 80.13. Petitioner has approached this Court on the basis that the company is not doing any business and the networth of the company is going down year after year. Petitioner has approached this Court as creditor of the company as could be seen from paragraph 31 of the petition where it saysPetitioner states that the present Petition seeking winding up of the Respondent Company is being filed by it in the capacity of a creditor and not as a shareholder.... As already held that petitioner cannot be a creditor and it is rather clear that redemption cannot be made except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption, in my view, the petition is not maintainable.

### Instruction: Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction. ### Input: of the companys balance sheet beneath share capital and reserves, but unlike share capital, it does represent indebtedness by the company, and holders of loan capital have the remedies of creditors to recover what the company owes them." (Page 164.)12. Consequently, when the date for the redemption of redeemable preference shares has passed, their holders cannot sue the company for the repayment of their capital as creditors though they may petition for the winding up of the company as shareholders."13. On a consideration of the provisions of the Companies Act, 1956, as also similar provisions in the English company law we cannot persuade ourselves to accept the contentions of the assessee and hold that when a company issues redeemable preference shares it is in fact obtaining a loan as it could by issuing debentures. There is a fundamental difference between the capital made available to a company by issue of a share and money obtained by a company under a loan or a debenture. Respective incidences and consequences of issuing a share and borrowing money on loan or on a debenture are different and distinctive. A debenture-holder as a creditor has a right to sue the company, whereas a shareholder has no such right. Apart from that the scheme of the Companies Act and in particular the forms and contents of its balance-sheets are extremely rigid and, in our view, by reason of the specific compartments in such accounts it is not possible to convert an item of capital into an item of loan as has been suggested on behalf of the assessee.(emphasis supplied)11. The Division Bench of Delhi High Court in National Cooperative Development Corporation (supra), while considering appeal filed under Section 260(A) of the Income Tax of Delhi, 1981, approved finding of the Gujarat High Court. If a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction.Paragraph 10 reads as under :10. We may also refer to a judgment of the Gujarat High Court in Anarkali Sarabhai v. CIT Gujarat [1982] 138 ITR 437. That case arose under the Income Tax Act and the question was whether the assessee was liable to pay capital gains tax on receipt of an amount equal to the face value of the preference shares when the company redeem them. The assessee received from the company an amount which exceeded the amount which he had paid for these shares. In deciding this question the Gujarat High Court had to examine the nature of redeemable preference shares issued by a company. The Court referred to Palmers Company Law (page 356, paragraph 1, 22nd Edition) wherein it was observed that "from the financial point of view, redeemable preference shares are a hybrid form of shares and debentures, incorporating features of both, and ITA Nos.512/2011, 513/2011, 810/2011, being closer to the latter than other preference shares, but from the legal point of view they are shares and are treated as such". The Court further noted the view of the learned author in Penningtons Company Law, 4 th Edition, page 195 that if redemption of the petitioners shares would make a company insolvent, it may not be allowed to redeem those shares because repayment of preference capital would be a fraud upon the companys creditors. According to the Gujarat High Court this view of the author clearly indicated that the holder of preference shares is not in the same position as that of a creditor. The learned author had also expressed the view in the aforesaid treatise, as noticed by the Gujarat High Court, that if a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction. This view of the author, according to the Gujarat High Court also negatives the contention that once the company decides to redeem its preference shares, the holder thereof would be in the position of a creditor.(emphasis supplied)12. So far as the judgment in Anarkali Sarabhai (supra) relied upon by Shri Arsiwala, in my view, the judgment actually aids petitioner. The Apex Court has noted that under Section 80 of the Companies Act, 1956, preference shares must not be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption. When a preference share is redeemed by a company, what a shareholder does in effect is to sell the share to the company. Such a transaction is nothing but sale of the preference shares by the shareholders to the company. The Apex Court also held that if redemption of preference shares did not amount to sale, it would not have been necessary to specifically provide that the restriction imposed upon a company in respect of buying its own shares will not apply to redemption of shares issued under Section 80.13. Petitioner has approached this Court on the basis that the company is not doing any business and the networth of the company is going down year after year. Petitioner has approached this Court as creditor of the company as could be seen from paragraph 31 of the petition where it says The Petitioner states that the present Petition seeking winding up of the Respondent Company is being filed by it in the capacity of a creditor and not as a shareholder.... As already held that petitioner cannot be a creditor and it is rather clear that redemption cannot be made except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption, in my view, the petition is not maintainable. ### Response: 0 ### Explanation: on the liabilities side of the companys balance sheet beneath share capital and reserves, but unlike share capital, it does represent indebtedness by the company, and holders of loan capital have the remedies of creditors to recover what the company owes them." (Page 164.)12. Consequently, when the date for the redemption of redeemable preference shares has passed, their holders cannot sue the company for the repayment of their capital as creditors though they may petition for the winding up of the company as shareholders."13. On a consideration of the provisions of the Companies Act, 1956, as also similar provisions in the English company law we cannot persuade ourselves to accept the contentions of the assessee and hold that when a company issues redeemable preference shares it is in fact obtaining a loan as it could by issuing debentures. There is a fundamental difference between the capital made available to a company by issue of a share and money obtained by a company under a loan or a debenture. Respective incidences and consequences of issuing a share and borrowing money on loan or on a debenture are different and distinctive. Aas a creditor has a right to sue the company, whereas a shareholder has no such right. Apart from that the scheme of the Companies Act and in particular the forms and contents of itsare extremely rigid and, in our view, by reason of the specific compartments in such accounts it is not possible to convert an item of capital into an item of loan as has been suggested on behalf of the assessee.(emphasis supplied)11. The Division Bench of Delhi High Court in National Cooperative Development Corporation (supra), while considering appeal filed under Section 260(A) of the Income Tax of Delhi, 1981, approved finding of the Gujarat High Court. If a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction.Paragraph 10 reads as under :10. We may also refer to a judgment of the Gujarat High Court in Anarkali Sarabhai v. CIT Gujarat [1982] 138 ITR 437. That case arose under the Income Tax Act and the question was whether the assessee was liable to pay capital gains tax on receipt of an amount equal to the face value of the preference shares when the company redeem them. The assessee received from the company an amount which exceeded the amount which he had paid for these shares. In deciding this question the Gujarat High Court had to examine the nature of redeemable preference shares issued by a company. The Court referred to Palmers Company Law (page 356, paragraph 1, 22nd Edition) wherein it was observed that "from the financial point of view, redeemable preference shares are a hybrid form of shares and debentures, incorporating features of both, and ITA Nos.512/2011, 513/2011, 810/2011, being closer to the latter than other preference shares, but from the legal point of view they are shares and are treated as such". The Court further noted the view of the learned author in Penningtons Company Law, 4 th Edition, page 195 that if redemption of the petitioners shares would make a company insolvent, it may not be allowed to redeem those shares because repayment of preference capital would be a fraud upon the companys creditors. According to the Gujarat High Court this view of the author clearly indicated that the holder of preference shares is not in the same position as that of a creditor. The learned author had also expressed the view in the aforesaid treatise, as noticed by the Gujarat High Court, that if a company defaults in redeeming the preference shares by the date fixed for redemption, the holder thereof cannot compel it to do so by suing in debt for the return of his capital or by filing for a mandatory injunction. This view of the author, according to the Gujarat High Court also negatives the contention that once the company decides to redeem its preference shares, the holder thereof would be in the position of a creditor.(emphasis supplied)12. So far as the judgment in Anarkali Sarabhai (supra) relied upon by Shri Arsiwala, in my view, the judgment actually aids petitioner. The Apex Court has noted that under Section 80 of the Companies Act, 1956, preference shares must not be redeemed except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption. When a preference share is redeemed by a company, what a shareholder does in effect is to sell the share to the company. Such a transaction is nothing but sale of the preference shares by the shareholders to the company. The Apex Court also held that if redemption of preference shares did not amount to sale, it would not have been necessary to specifically provide that the restriction imposed upon a company in respect of buying its own shares will not apply to redemption of shares issued under Section 80.13. Petitioner has approached this Court on the basis that the company is not doing any business and the networth of the company is going down year after year. Petitioner has approached this Court as creditor of the company as could be seen from paragraph 31 of the petition where it saysPetitioner states that the present Petition seeking winding up of the Respondent Company is being filed by it in the capacity of a creditor and not as a shareholder.... As already held that petitioner cannot be a creditor and it is rather clear that redemption cannot be made except out of profits of the company which would otherwise be available for dividend or out of the proceeds of a fresh issue of shares made for the purposes of the redemption, in my view, the petition is not maintainable.

Firm Panjumal Daulatram Vs. Sakhi Gopal

KRISHNA IYER, J.1. A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non-residential purposes resulted in dismissal by the trial Judge. But in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction. The tenant challenged the appellate decree before the High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave.2. A short point has been raised which deserves only a short answer. Since we agree with the High Court which in turn has agreed with the first appellate court, our judgment can afford to be brief.A statement of necessary facts may now be given. The landlord had let out the premises, which is a storeyed building, to be tenant as per Ex. P-1 of 1955. The significant clause in the lease deed runs thus:"1 XXX2 . I take your house for my own use i.e. for opening a cloth shop and for residential purposes and I will not sublet your house to anybody.XXX XXX XXX XXX."3. The tenant has thus put the building to business and residential purposes. The landlord, who is an M. Sc., claimed the building back on the score that he wanted to run a medical store on the ground floor a non-residential purpose---and stay on the first floor with his wife--a residential purpose. Thus the acommodation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above. The final court of fact has held that the landlord needs the building for his chemists shop and for his residential use. The High Court in Second Appeal has upheld this finding and added that "the finding as to his bonafide requirement was rightly not challenged before me ...... The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing."This statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned in the memorandum of appeal to this Court. It must therefore be taken that the bonafide need of the landlord is validly made out.4. The short point that survives is as to whether the composite purposes of the lease would put it out of the ground set out for eviction under s. 2 of the Madhya Pradesh Accommodation Control Act, 1961. The said Act defines accommodation thus:" accommodation means any building or part of a building, whether residential or non- residential and includes, --XX XXX XX X."It follows that an accommodation can be residential, non-residential or both. S. 12 bars an action of eviction of a tenant from any accommodation except on one or more of the grounds set out therein. S. 12(1) (e) and (f), bearing on the present case, may be appropriately extracted here:"12. Restriction on eviction of tenents (1)(a) to (d) x x x x x(e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held. and that the landlord or such person has no other reasonably suitable residential accommodation of his own in the occupation in the city or town concerned;(f) that the accommodation let for non- residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;.XXX XXX XXX."5. The residential portion is a part of the building and is an accommodation by definition. The non-residential portion is also a part of the building and is an accommodation by definition. The lease has been given for residential as well as non-residential purposes. The landlord is entitled to eviction of the residential portion if he makes out a bonafide residential requirement. Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement. We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non- residential requirements. Therefore, nothing more can be done in defence of the tenant in the light of the present law.6. Counsel contended that in a decision of this Court, viz, S. Sanyal v. Gian Chand, ([1968] 1 S.C.R. 536.) it has been held that it is not permissible for the court to split up a contract in an eviction proceeding. We agree. There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated. The contract was integral but had dual purposes. The landlord has put forward dual requirements which neatly fit into s. 12(1)(e) and (f). The consequence is inevitable that the eviction order has to be upheld.7. It is seep, th at the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years. It is therefore but fair that the. tenant is given sometime to rehabilitate himself by securing an alternative but suitable accommodation. In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises.

0[ds]The residential portion is a part of the building and is an accommodation by definition. The non-residential portion is also a part of the building and is an accommodation by definition. The lease has been given for residential as well as non-residential purposes. The landlord is entitled to eviction of the residential portion if he makes out a bonafide residential requirement. Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement. We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non- residential requirements. Therefore, nothing more can be done in defence of the tenant in the light of the present law.We agree. There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated. The contract was integral but had dual purposes. The landlord has put forward dual requirements which neatly fit into s. 12(1)(e) and (f). The consequence is inevitable that the eviction order has to beis seep, th at the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years. It is therefore but fair that the. tenant is given sometime to rehabilitate himself by securing an alternative but suitable accommodation. In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises.

### 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: KRISHNA IYER, J.1. A suit for eviction of an accommodation from the tenant to whom it had been let for residential and non-residential purposes resulted in dismissal by the trial Judge. But in an appeal, the final court of fact took the view that the landlord (respondent) was entitled to eviction. The tenant challenged the appellate decree before the High Court in Second Appeal without success and has therefore come up to this Court with this appeal by special leave.2. A short point has been raised which deserves only a short answer. Since we agree with the High Court which in turn has agreed with the first appellate court, our judgment can afford to be brief.A statement of necessary facts may now be given. The landlord had let out the premises, which is a storeyed building, to be tenant as per Ex. P-1 of 1955. The significant clause in the lease deed runs thus:"1 XXX2 . I take your house for my own use i.e. for opening a cloth shop and for residential purposes and I will not sublet your house to anybody.XXX XXX XXX XXX."3. The tenant has thus put the building to business and residential purposes. The landlord, who is an M. Sc., claimed the building back on the score that he wanted to run a medical store on the ground floor a non-residential purpose---and stay on the first floor with his wife--a residential purpose. Thus the acommodation was let out for dual purposes, was being used presumably for these requirements and was being claimed back by the landlord for the twin purposes mentioned above. The final court of fact has held that the landlord needs the building for his chemists shop and for his residential use. The High Court in Second Appeal has upheld this finding and added that "the finding as to his bonafide requirement was rightly not challenged before me ...... The conclusion that the courts have reached is the only conclusion possible on the evidence on record in the light of the circumstances appearing."This statement by the High Court that the bonafide requirement of the landlord was not challenged before it has not been questioned in the memorandum of appeal to this Court. It must therefore be taken that the bonafide need of the landlord is validly made out.4. The short point that survives is as to whether the composite purposes of the lease would put it out of the ground set out for eviction under s. 2 of the Madhya Pradesh Accommodation Control Act, 1961. The said Act defines accommodation thus:" accommodation means any building or part of a building, whether residential or non- residential and includes, --XX XXX XX X."It follows that an accommodation can be residential, non-residential or both. S. 12 bars an action of eviction of a tenant from any accommodation except on one or more of the grounds set out therein. S. 12(1) (e) and (f), bearing on the present case, may be appropriately extracted here:"12. Restriction on eviction of tenents (1)(a) to (d) x x x x x(e) that the accommodation let for residential purposes is required bona fide by the landlord for occupation as a residence for himself or for any member of his family, if he is the owner thereof, or for any person for whose benefit the accommodation is held. and that the landlord or such person has no other reasonably suitable residential accommodation of his own in the occupation in the city or town concerned;(f) that the accommodation let for non- residential purposes is required bona fide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or unmarried daughters if he is the owner thereof or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;.XXX XXX XXX."5. The residential portion is a part of the building and is an accommodation by definition. The non-residential portion is also a part of the building and is an accommodation by definition. The lease has been given for residential as well as non-residential purposes. The landlord is entitled to eviction of the residential portion if he makes out a bonafide residential requirement. Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement. We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non- residential requirements. Therefore, nothing more can be done in defence of the tenant in the light of the present law.6. Counsel contended that in a decision of this Court, viz, S. Sanyal v. Gian Chand, ([1968] 1 S.C.R. 536.) it has been held that it is not permissible for the court to split up a contract in an eviction proceeding. We agree. There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated. The contract was integral but had dual purposes. The landlord has put forward dual requirements which neatly fit into s. 12(1)(e) and (f). The consequence is inevitable that the eviction order has to be upheld.7. It is seep, th at the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years. It is therefore but fair that the. tenant is given sometime to rehabilitate himself by securing an alternative but suitable accommodation. In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises. ### Response: 0 ### Explanation: The residential portion is a part of the building and is an accommodation by definition. The non-residential portion is also a part of the building and is an accommodation by definition. The lease has been given for residential as well as non-residential purposes. The landlord is entitled to eviction of the residential portion if he makes out a bonafide residential requirement. Likewise he is entitled to eviction of the non-residential portion which is an accommodation if he makes out a non-residential requirement. We have already found that the final court of fact, affirmed by the High Court, has found in favour of the landlord regarding his residential as well as non- residential requirements. Therefore, nothing more can be done in defence of the tenant in the light of the present law.We agree. There is no question of splitting up of the contract in the present case, as is abundantly plain from what we: have stated. The contract was integral but had dual purposes. The landlord has put forward dual requirements which neatly fit into s. 12(1)(e) and (f). The consequence is inevitable that the eviction order has to beis seep, th at the tenant has been doing a thriving cloth business, with goodwill attached to it, for well knigh 30 years. It is therefore but fair that the. tenant is given sometime to rehabilitate himself by securing an alternative but suitable accommodation. In our towns where scarcity of accommodation is the rule it is not that easy to secure alternative premises.

S.K. Bhargava Vs. The Collector, Chandigarh & Ors

it may, by notification, appoint in this behalf;(b) by a Corporation or a Government company, the Managing Director thereof,shall determine the sum due from the defaulter.(2) The Officer or the Managing Director, as the case may be, referred to in sub-section (1), shall send a certificate to the Collector mentioning the sum due from the defaulter and requesting that such sum together with the cost of proceedings be recovered as if it were an arrears of land revenue.(3) A certificate sent under sub-section (2) shall be conclusive proof of the matters stated therein and the Collector, on receipt of such certificate, shall proceed to recover the amount stated therein as arrears of land revenue.(4) No civil court shall have jurisdiction -(a) to entertain or adjudicate upon any case; or(b) to adjudicate upon or proceed with any pending case,relating to the recovery of any sum due as aforesaid from the defaulter. The proceedings relating to the recovery of the sums due from the defaulters, pending at the commencement of this Act in any civil court, shall abate." 6. It is not in dispute that before a certificate was sent by the Managing Director to the Collector for recovering the amount of Rs. 18,22,178.05, no notice was given to the appellant. Section 3(1) provides a procedure where any sum is recoverable from a defaulter. Section 3(1)(b) requires the Managing Director of a Corporation or a Government company to whom amount is due to determine the sum due from the defaulter. It is that sum so found due in respect whereof certificate is sent by the Managing Director under sub-section (2) of Section 3. The certificate so sent is by sub-section (3) regarded as conclusive proof of matters stated therein and the Collector, on receipt of the said certificate, is required to proceed to recover the amount stated therein as arrear of land revenue. Sub-section (4) ousts the jurisdiction of the civil court to entertain or adjudicate upon any case or proceedings relating to the recovery of any sum due from the defaulter.7. It is clear from the perusal of the above quoted Section that before a certificate can be issued by the Managing Director under sub-section (2) of Section 3, he must determine the `sum due from the defaulter as enjoined upon him by Section 3(1)(b). It is difficult to appreciate the contention of the learned counsel for the respondent Financial Corporation that any such determination can take place without notice to the defaulter. The jurisdiction of the civil courts to go into the question as to what is the amount due is expressly ousted by sub-section (4) of Section 3. In its place, the power has been given to the Managing Director under Section 3(1)(b) to determine as to what is the amount due from the defaulter. There can be no doubt that any such determination by the Managing Director will result in civil consequences ensuing. The determination being final and conclusive, would have the result of the passing of a final decree, inasmuch as the defaulters from whom any amount is found to be due, would become liable to pay the amount so determined and the Collector will have the right to recover the same as arrears of land revenue.8. In our opinion, even though Section 3 does not expressly provide for an opportunity being given to the alleged defaulter to explain as to whether any amount is due or not but in view of the nature of the said provision, the principles of natural justice must be read into it. The requirement of determination of the sum due by the Managing Director must be regarded as providing for the Managing Director hearing the alleged defaulter before coming to the conclusion as to what is the sum due. The very use of the words `determine and `sum due implies that there may be a lis between the parties and they have to be heard before a final conclusion is arrived at by the Managing Director. It is not a mere claim of the Corporation which is forwarded to the Collector for realisation, but it is the `sum due as determined by the Managing Director which alone is recoverable. As already observed, this determination cannot be done without notice to the alleged defaulter. 9. Ms. S. Janani, leaned counsel for the respondent Financial Corporation sought to rely upon the decision of this Court in Director of Industries, U.P. & Ors. v. Deep Chand Aggarwal, 1980(2) SCR 1015. In that case the validity of Section 3 of the Public Moneys (Recovery of Dues) Act, 1965 of U.P. was challenged. That Section enabled the State Government to recover the sums advanced as arrears of land revenue and it was sought to be contended that the said provisions was discriminatory and violative of Article 14 of the Constitution. The validity of the said Section 3 was upheld, but we find that the court was not called upon to deal with a question as to whether the principles of natural justice were implicitly enshrined in the said Section. In any case, this decision is of no assistance to the respondent for the simple reason that Section 3 of the U.P. Act is not identical with Section 3 of the Haryana Act, inasmuch as the U.P. Act did not contain a provision similar to Section 3(1)(b) of the Haryana Act which requires determination by the Managing Director of the sum due from the defaulter. We, however, do not express any opinion that where a provision like Section 3(1)(b) of the Haryana Act is not incorporated in a statute, whether the principles of natural justice would require a notice being given before any amount is sought to be recovered as arrears of land revenue. 10. For the reasons hereinabove as, admittedly, principles of natural justice were not complied with, it must be held that determination of the Managing Director under Section 3(1)(b) and the consequent certificate issued under Section 3(2) of the Haryana Act, both were vitiated.

1[ds]6. It is not in dispute that before a certificate was sent by the Managing Director to the Collector for recovering the amount of Rs. 18,22,178.05, no notice was given to the appellant. Section 3(1) provides a procedure where any sum is recoverable from a defaulter. Section 3(1)(b) requires the Managing Director of a Corporation or a Government company to whom amount is due to determine the sum due from the defaulter. It is that sum so found due in respect whereof certificate is sent by the Managing Director under sub-section (2) of Section 3. The certificate so sent is by sub-section (3) regarded as conclusive proof of matters stated therein and the Collector, on receipt of the said certificate, is required to proceed to recover the amount stated therein as arrear of land revenue. Sub-section (4) ousts the jurisdiction of the civil court to entertain or adjudicate upon any case or proceedings relating to the recovery of any sum due from the defaulter.7. It is clear from the perusal of the above quoted Section that before a certificate can be issued by the Managing Director under sub-section (2) of Section 3, he must determine the `sum due from the defaulter as enjoined upon him by Section 3(1)(b). It is difficult to appreciate the contention of the learned counsel for the respondent Financial Corporation that any such determination can take place without notice to the defaulter. The jurisdiction of the civil courts to go into the question as to what is the amount due is expressly ousted by sub-section (4) of Section 3. In its place, the power has been given to the Managing Director under Section 3(1)(b) to determine as to what is the amount due from the defaulter. There can be no doubt that any such determination by the Managing Director will result in civil consequences ensuing. The determination being final and conclusive, would have the result of the passing of a final decree, inasmuch as the defaulters from whom any amount is found to be due, would become liable to pay the amount so determined and the Collector will have the right to recover the same as arrears of land revenue.8. In our opinion, even though Section 3 does not expressly provide for an opportunity being given to the alleged defaulter to explain as to whether any amount is due or not but in view of the nature of the said provision, the principles of natural justice must be read into it. The requirement of determination of the sum due by the Managing Director must be regarded as providing for the Managing Director hearing the alleged defaulter before coming to the conclusion as to what is the sum due. The very use of the words `determine and `sum due implies that there may be a lis between the parties and they have to be heard before a final conclusion is arrived at by the Managing Director. It is not a mere claim of the Corporation which is forwarded to the Collector for realisation, but it is the `sum due as determined by the Managing Director which alone is recoverable. As already observed, this determination cannot be done without notice to the alleged defaulter.For the reasons hereinabove as, admittedly, principles of natural justice were not complied with, it must be held that determination of the Managing Director under Section 3(1)(b) and the consequent certificate issued under Section 3(2) of the Haryana Act, both were vitiated.

### 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: it may, by notification, appoint in this behalf;(b) by a Corporation or a Government company, the Managing Director thereof,shall determine the sum due from the defaulter.(2) The Officer or the Managing Director, as the case may be, referred to in sub-section (1), shall send a certificate to the Collector mentioning the sum due from the defaulter and requesting that such sum together with the cost of proceedings be recovered as if it were an arrears of land revenue.(3) A certificate sent under sub-section (2) shall be conclusive proof of the matters stated therein and the Collector, on receipt of such certificate, shall proceed to recover the amount stated therein as arrears of land revenue.(4) No civil court shall have jurisdiction -(a) to entertain or adjudicate upon any case; or(b) to adjudicate upon or proceed with any pending case,relating to the recovery of any sum due as aforesaid from the defaulter. The proceedings relating to the recovery of the sums due from the defaulters, pending at the commencement of this Act in any civil court, shall abate." 6. It is not in dispute that before a certificate was sent by the Managing Director to the Collector for recovering the amount of Rs. 18,22,178.05, no notice was given to the appellant. Section 3(1) provides a procedure where any sum is recoverable from a defaulter. Section 3(1)(b) requires the Managing Director of a Corporation or a Government company to whom amount is due to determine the sum due from the defaulter. It is that sum so found due in respect whereof certificate is sent by the Managing Director under sub-section (2) of Section 3. The certificate so sent is by sub-section (3) regarded as conclusive proof of matters stated therein and the Collector, on receipt of the said certificate, is required to proceed to recover the amount stated therein as arrear of land revenue. Sub-section (4) ousts the jurisdiction of the civil court to entertain or adjudicate upon any case or proceedings relating to the recovery of any sum due from the defaulter.7. It is clear from the perusal of the above quoted Section that before a certificate can be issued by the Managing Director under sub-section (2) of Section 3, he must determine the `sum due from the defaulter as enjoined upon him by Section 3(1)(b). It is difficult to appreciate the contention of the learned counsel for the respondent Financial Corporation that any such determination can take place without notice to the defaulter. The jurisdiction of the civil courts to go into the question as to what is the amount due is expressly ousted by sub-section (4) of Section 3. In its place, the power has been given to the Managing Director under Section 3(1)(b) to determine as to what is the amount due from the defaulter. There can be no doubt that any such determination by the Managing Director will result in civil consequences ensuing. The determination being final and conclusive, would have the result of the passing of a final decree, inasmuch as the defaulters from whom any amount is found to be due, would become liable to pay the amount so determined and the Collector will have the right to recover the same as arrears of land revenue.8. In our opinion, even though Section 3 does not expressly provide for an opportunity being given to the alleged defaulter to explain as to whether any amount is due or not but in view of the nature of the said provision, the principles of natural justice must be read into it. The requirement of determination of the sum due by the Managing Director must be regarded as providing for the Managing Director hearing the alleged defaulter before coming to the conclusion as to what is the sum due. The very use of the words `determine and `sum due implies that there may be a lis between the parties and they have to be heard before a final conclusion is arrived at by the Managing Director. It is not a mere claim of the Corporation which is forwarded to the Collector for realisation, but it is the `sum due as determined by the Managing Director which alone is recoverable. As already observed, this determination cannot be done without notice to the alleged defaulter. 9. Ms. S. Janani, leaned counsel for the respondent Financial Corporation sought to rely upon the decision of this Court in Director of Industries, U.P. & Ors. v. Deep Chand Aggarwal, 1980(2) SCR 1015. In that case the validity of Section 3 of the Public Moneys (Recovery of Dues) Act, 1965 of U.P. was challenged. That Section enabled the State Government to recover the sums advanced as arrears of land revenue and it was sought to be contended that the said provisions was discriminatory and violative of Article 14 of the Constitution. The validity of the said Section 3 was upheld, but we find that the court was not called upon to deal with a question as to whether the principles of natural justice were implicitly enshrined in the said Section. In any case, this decision is of no assistance to the respondent for the simple reason that Section 3 of the U.P. Act is not identical with Section 3 of the Haryana Act, inasmuch as the U.P. Act did not contain a provision similar to Section 3(1)(b) of the Haryana Act which requires determination by the Managing Director of the sum due from the defaulter. We, however, do not express any opinion that where a provision like Section 3(1)(b) of the Haryana Act is not incorporated in a statute, whether the principles of natural justice would require a notice being given before any amount is sought to be recovered as arrears of land revenue. 10. For the reasons hereinabove as, admittedly, principles of natural justice were not complied with, it must be held that determination of the Managing Director under Section 3(1)(b) and the consequent certificate issued under Section 3(2) of the Haryana Act, both were vitiated. ### Response: 1 ### Explanation: 6. It is not in dispute that before a certificate was sent by the Managing Director to the Collector for recovering the amount of Rs. 18,22,178.05, no notice was given to the appellant. Section 3(1) provides a procedure where any sum is recoverable from a defaulter. Section 3(1)(b) requires the Managing Director of a Corporation or a Government company to whom amount is due to determine the sum due from the defaulter. It is that sum so found due in respect whereof certificate is sent by the Managing Director under sub-section (2) of Section 3. The certificate so sent is by sub-section (3) regarded as conclusive proof of matters stated therein and the Collector, on receipt of the said certificate, is required to proceed to recover the amount stated therein as arrear of land revenue. Sub-section (4) ousts the jurisdiction of the civil court to entertain or adjudicate upon any case or proceedings relating to the recovery of any sum due from the defaulter.7. It is clear from the perusal of the above quoted Section that before a certificate can be issued by the Managing Director under sub-section (2) of Section 3, he must determine the `sum due from the defaulter as enjoined upon him by Section 3(1)(b). It is difficult to appreciate the contention of the learned counsel for the respondent Financial Corporation that any such determination can take place without notice to the defaulter. The jurisdiction of the civil courts to go into the question as to what is the amount due is expressly ousted by sub-section (4) of Section 3. In its place, the power has been given to the Managing Director under Section 3(1)(b) to determine as to what is the amount due from the defaulter. There can be no doubt that any such determination by the Managing Director will result in civil consequences ensuing. The determination being final and conclusive, would have the result of the passing of a final decree, inasmuch as the defaulters from whom any amount is found to be due, would become liable to pay the amount so determined and the Collector will have the right to recover the same as arrears of land revenue.8. In our opinion, even though Section 3 does not expressly provide for an opportunity being given to the alleged defaulter to explain as to whether any amount is due or not but in view of the nature of the said provision, the principles of natural justice must be read into it. The requirement of determination of the sum due by the Managing Director must be regarded as providing for the Managing Director hearing the alleged defaulter before coming to the conclusion as to what is the sum due. The very use of the words `determine and `sum due implies that there may be a lis between the parties and they have to be heard before a final conclusion is arrived at by the Managing Director. It is not a mere claim of the Corporation which is forwarded to the Collector for realisation, but it is the `sum due as determined by the Managing Director which alone is recoverable. As already observed, this determination cannot be done without notice to the alleged defaulter.For the reasons hereinabove as, admittedly, principles of natural justice were not complied with, it must be held that determination of the Managing Director under Section 3(1)(b) and the consequent certificate issued under Section 3(2) of the Haryana Act, both were vitiated.

Naraini Devi Vs. Smt. Ramo Devi And Ors

SARKARIA, J.1. The following pedigree table illustrates the relationship of the parties:Hira Lal=Smt. Naraini Devi (plaintiff).(died in 1925).Kapoor Chand Nemi Chand Chandra Bhan(died in 1954) (Judgment-debtor) (died in 1930)=Smt. Ramo Devi, (extinct)(Respondent 1)Decree-holder.Smt. Ramo Devi, widow of Kapur Ch and (shown in the above pedigree table) obtained a money decree against her husbands brother Nemi Chand. In execution of her decree she got attached one half-share in the double storeyed House No. 4416, situated at Agra representing it to be of the judgment-debtor. Smt. Naraini Devi, widow of Hira Lal, filed an objection petition under 0.21, r. 58, Code of Civil Procedure against that attachment claiming the house to be her property. That objection was dismissed by the executing court on the 16th July, 1962. Thereafter, she filed a suit under 0.21, r. 63, Code 11 of Civil Procedure to establish her claim. The suit was decreed by the trial court. On appeal, the District Judge reversed the judgment t and dismissed the suit. Naraini Devis second appeal was summarily dismissed by the High Court. She filed a review petition which was rejected by the High Court on August 23, 1967.2. Hence, this appeal by special leave.3. It is common ground between the parties that under a registered J award dated January 4, 1946, the plaintiff Smt. Naraini Devi was given a life interest in the house in dispute. The appellants contention is that her limited interest in the house was enlarged into that of a full owner by the operation of sub-s. (1) of s. 14 of the Hindu Succession Act. As against this, the respondents maintain that her case falls under sub-s. (2) of s. 14. The question thus turns on a construction of the award Ex. 2.We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed by the respondent. This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life-time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house. This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers. A part of this house was in the occupation of a tenant at Rs. 32/- per month. Naraini Devi was given a right to get that rent. A part of it was in the personal occupation of Kapoor Chand. The award protects and assures his right of remaining in possession of the same. A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent-and no more-for her life-time. Thus the award confers on her only a restricted estate in the house within the meaning of sub-s. (2) of s. 14 which says:"Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restrict ed estate in such property." Mr. Goyal however, submits that her case would fall within this Courts ruling in Badri Prasad v. Smt. Kanan Devi([1970] 2 S.C.R. 95.) according to which, if the widow has a pre-existing right in the property, then the A case will fall under sub-s. (1), and sub-section (2) which is in the nature of a proviso to sub- s. (1) of s. 14 will not be attracted. The rule in Badri Prasads case (supra) is not applicable here. Ill that case the widow had acquired a share in the property by virtue of the Hindu Womens Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devis husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre-existing right or interest in the house in question. It was the award dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls; squarely within the ambit of sub-s. (2) of s. 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings.

0[ds]We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed by the respondent. This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life-time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house. This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers. A part of this house was in the occupation of a tenant at Rs. 32/- per month. Naraini Devi was given a right to get that rent. A part of it was in the personal occupation of Kapoor Chand. The award protects and assures his right of remaining in possession of the same. A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent-and no more-for herrule in Badri Prasads case (supra) is not applicable here. Ill that case the widow had acquired a share in the property by virtue of the Hindu Womens Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devis husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre-existing right or interest in the house in question. It was the award dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls; squarely within the ambit of sub-s. (2) of s. 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings.

### 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: SARKARIA, J.1. The following pedigree table illustrates the relationship of the parties:Hira Lal=Smt. Naraini Devi (plaintiff).(died in 1925).Kapoor Chand Nemi Chand Chandra Bhan(died in 1954) (Judgment-debtor) (died in 1930)=Smt. Ramo Devi, (extinct)(Respondent 1)Decree-holder.Smt. Ramo Devi, widow of Kapur Ch and (shown in the above pedigree table) obtained a money decree against her husbands brother Nemi Chand. In execution of her decree she got attached one half-share in the double storeyed House No. 4416, situated at Agra representing it to be of the judgment-debtor. Smt. Naraini Devi, widow of Hira Lal, filed an objection petition under 0.21, r. 58, Code of Civil Procedure against that attachment claiming the house to be her property. That objection was dismissed by the executing court on the 16th July, 1962. Thereafter, she filed a suit under 0.21, r. 63, Code 11 of Civil Procedure to establish her claim. The suit was decreed by the trial court. On appeal, the District Judge reversed the judgment t and dismissed the suit. Naraini Devis second appeal was summarily dismissed by the High Court. She filed a review petition which was rejected by the High Court on August 23, 1967.2. Hence, this appeal by special leave.3. It is common ground between the parties that under a registered J award dated January 4, 1946, the plaintiff Smt. Naraini Devi was given a life interest in the house in dispute. The appellants contention is that her limited interest in the house was enlarged into that of a full owner by the operation of sub-s. (1) of s. 14 of the Hindu Succession Act. As against this, the respondents maintain that her case falls under sub-s. (2) of s. 14. The question thus turns on a construction of the award Ex. 2.We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed by the respondent. This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life-time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house. This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers. A part of this house was in the occupation of a tenant at Rs. 32/- per month. Naraini Devi was given a right to get that rent. A part of it was in the personal occupation of Kapoor Chand. The award protects and assures his right of remaining in possession of the same. A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent-and no more-for her life-time. Thus the award confers on her only a restricted estate in the house within the meaning of sub-s. (2) of s. 14 which says:"Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restrict ed estate in such property." Mr. Goyal however, submits that her case would fall within this Courts ruling in Badri Prasad v. Smt. Kanan Devi([1970] 2 S.C.R. 95.) according to which, if the widow has a pre-existing right in the property, then the A case will fall under sub-s. (1), and sub-section (2) which is in the nature of a proviso to sub- s. (1) of s. 14 will not be attracted. The rule in Badri Prasads case (supra) is not applicable here. Ill that case the widow had acquired a share in the property by virtue of the Hindu Womens Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devis husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre-existing right or interest in the house in question. It was the award dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls; squarely within the ambit of sub-s. (2) of s. 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings. ### Response: 0 ### Explanation: We have examined an English rendering of this document filed by the appellant, the correctness of which is not disputed by the respondent. This award states in clear, unmistakable terms that she, Naraini Devi would be entitled to the rent of this house in lieu of maintenance for her life-time, and after her death, her sons, Kapoor Chand and Nemi Chand will be owners of half share each of this house. This award further partitions this house between Kapoor Chand and Nemi Chand and allots specific portions thereof to the two brothers. A part of this house was in the occupation of a tenant at Rs. 32/- per month. Naraini Devi was given a right to get that rent. A part of it was in the personal occupation of Kapoor Chand. The award protects and assures his right of remaining in possession of the same. A reading of this document as a whole, leaves little doubt that the only interest, in this house created in favour of the widow was that she would be entitled to its rent-and no more-for herrule in Badri Prasads case (supra) is not applicable here. Ill that case the widow had acquired a share in the property by virtue of the Hindu Womens Right to Property Act, 1937, on the death of her husband, which took place after the coming into operation of that Act. In the present case, Smt. Naraini Devis husband died in 1925. In the presence of her sons, the widow did not get any share or interest in the house left by her husband under the Hindu Law as then applicable. In short, she had no pre-existing right or interest in the house in question. It was the award dated January 4, 1946, that created a restricted estate for her in the house in question. Her case thus falls; squarely within the ambit of sub-s. (2) of s. 14 of the Hindu Succession Act. Her interest therefore, came to an end on her death which took place during the pendency of these proceedings.

Shenbagam & Ors Vs. KK Rathinavel

Others (2002) 8 SCC 146, a three- judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed: 6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen. (emphasis supplied) 35. In KS Vidyanadam and others v. Vairavan (1997) 3 SCC 1, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held: 10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. […] In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months period. The question is what was the plaintiff doing in this interval of more than two years? […] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11- 7-1981. It is not the plaintiffs case that within six months, he purchased the stamp papers and offered to pay the balance consideration. […] 13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defendants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. (emphasis supplied) 36. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum. D Conclusion

1[ds]In JP Builders v. A Ramadas Rao (2011) 1 SCC 429, a two-judge Bench of this Court observed that Section 16(c) mandates readiness and willingness of the plaintiff and is a condition precedent to obtain the relief of specific performance. The Court held:25. Section 16(c) of the Specific Relief Act, 1963 mandates readiness and willingness on the part of the plaintiff and it is a condition precedent for obtaining relief of grant of specific performance. It is also clear that in a suit for specific performance, the plaintiff must allege and prove a continuous readiness and willingness to perform the contract on his part from the date of the contract. The onus is on the plaintiff.27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. Readiness and willingness to perform the part of the contract has to be determined/ascertained from the conduct of the parties.The Court further observed that readiness refers to the financial capacity and willingness refers to the conduct of the plaintiff wanting the performance.15. Similarly, in His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar (1996) 4 SCC 526, a two-judge Bench of this Court observed that readiness means the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. To ascertain willingness, the conduct of the plaintiff has to be properly scrutinised. The Court noted:2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. […] The factum of readiness and willingness to perform the plaintiffs part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.16. The precedents of this Court indicate that the plaintiff must establish that he was ready and willing to perform the contract. In this regard, the conduct of the plaintiff must be consistent.18. This Court in P Meenakshisundaram v. P Vijayakumar (2018) 15 SCC 80, dealt with a suit for specific performance of a contract for sale of an immovable property, which had a mortgage over it. In evaluating whether the respondent-plaintiff had established that he was ready and willing to perform the contract, the two-judge Bench, held:8. As regards suit for specific performance, the law is very clear that the plaintiff must plead and prove his readiness and willingness to perform his part of the contract all through i.e. right from the date of the contract till the date of hearing of the suit. If Respondent 1 was well aware about the encumbrance and the parties had chosen that the balance consideration be paid to the appellant before 20-3-2001 so that the sale deed could be registered without any encumbrance, it was for Respondent 1 to have taken appropriate steps in that behalf for completion of transaction. The facts on record disclose that the first step taken by Respondent 1 after the suit agreement was well after four months, when further amount of Rs 2 lakhs was paid on 21-1-2001. Thereafter nothing was done till 20-3-2001 by which the transaction had to be completed. The record is completely silent about any communication sent around 20-3-2001 towards completion of transaction. As a matter of fact the first step thereafter was six months after the deadline, namely, on 22- 9-2001 when the communication (Ext. A-6) was sent along with amount of Rs 10 lakhs. The written submissions filed on behalf of Respondent 1 also do not indicate any steps till this time so as to say that he was all the while ready and willing to complete the transaction.9. The assertion made by Respondent 1 in Para 7 of the plaint is a mere assertion without any relevant details as to what exactly he had done towards fulfilment of his obligations and completion of the transaction.In P. Meenakshisundaram (supra), the Court dealt with a similar case in which the suit property was encumbered and the sale deed, free from encumbrances, had to be executed after payment of the consideration. The Court noted that there was no communication of the plaintiff with the defendant till the date on which the transaction was to be completed, showing his lack of willingness to perform the contract.19. In the present case, the respondent and the appellants entered into an agreement to sell the suit property on 7 February 1990.24. No issue on readiness and willingness was framed by the trial court. The trial court analysed the notice issued by the appellants and held that the appellants made no demand from the respondent to discharge the mortgage liability. Thus, the appellants plea that the respondent-plaintiff had to pay the loan and only thereafter, could the appellants execute the sale deed was rejected. The court also accepted the respondents argument that the advance amount of Rs. 10,000 was paid to discharge the mortgage. Further, the trial court observed that the documents submitted by the respondent indicate that he had sufficient means to purchase the suit property. The judgment of the trial court was upheld by the first appellate court and, in a second appeal, by the High Court.25. All the three courts, including the High Court, grossly erred in the manner in which they have adjudicated upon this dispute in a suit for specific performance. In the first instance, the trial court failed to frame an issue on whether the respondent-plaintiff was ready and willing to perform his obligations under the contract and instead assessed whether he is entitled to the relief of specific performance. In doing so, the trial court viewed the legal issue from an incorrect lens. The foundation of a suit for specific performance lies in ascertaining whether the plaintiff has come to the court with clean hands and has, through his conduct, demonstrated that he has always been willing to perform the contract. There is a conspicuous absence in judgment of the trial court of any reference to evidence led by the respondent to indicate his willingness to perform the contract. The trial court merely adverted to document produced on behalf of the plaintiff and concluded that he had sufficient means to purchase the suit property. Apart from this observation, the judgment fails to analyse the terms of the agreement, the obligations of the parties and the conduct of the respondent or the appellant.27. The respondent has alleged that he did not pay the balance consideration as the appellants failed to remove the encumbrance on the suit property. First of all, we note that the agreement to sell the suit property did not specifically record the mortgage over the suit property. However, neither has the appellant denied the existence of the mortgage nor has the respondent claimed that he was unaware of the encumbrance over the suit property at the time of entering into the agreement. The agreement did not expressly detail whose liability it is to discharge the mortgage.28. Having said that, the terms of the agreement stipulated that the respondent was to pay the balance consideration within a period of six months and on receipt of the balance consideration, the appellants were to execute the sale deed pertaining to the property free from all encumbrances. It is evident from the agreement that the liability to deliver the property free from any encumbrance was on the appellants. However, this obligation is prefaced by the condition that the appellants would be required to execute the sale deed free from encumbrance on the receipt of the balance consideration. Thus, the agreement did not specify when the appellants should discharge their mortgage- before the expiry of six months, after receipt of the advance amount, or after receipt of the balance consideration. It only obligated them to ensure that after the balance consideration is received, the sale deed executed should be free from encumbrances. Based on a plain reading of the agreement, we are unable to accept the respondents plea that he was willing to perform his obligations under the contract. It is evident that he was required to pay the remaining consideration (or indicate his willingness to pay) and only then could have sought specific performance of the contract. The respondent has also urged that the additional amount of Rs. 10,000 was paid to the appellants to discharge the mortgage. The acknowledgment signed by the appellants indicates that the money was to meet urgent family expenses. Since no further details have been provided and no evidence has been adduced by the respondent-plaintiff, we cannot conclude that the money was for discharge of the mortgage. Even assuming that the respondent is correct, the agreement still required the respondent to pay the balance consideration. In this regard, the High Court, while holding in favour of the respondent, has noted that the appellants were free to demand a further amount for discharging the mortgage. This finding ignores the plain terms of the contract. The agreement clearly provided that the balance consideration would be paid and then the sale deed would be executed. How the appellants chose to discharge the mortgage was for them to decide. The respondent had to prove his readiness and willingness to perform the contract.29. We shall now advert to the respondents conduct throughout the sale transaction. The respondent has failed to provide any documents or communication which would indicate that he called upon the appellants to perform their obligations or discharge the mortgage within the time period stipulated in the contract. Even after the expiry of the six months, the respondent did not reach out to the appellants. It is only in response to the appellants legal notice that the respondent demanded performance of their obligations. Merely averring that he was waiting with the balance consideration and believed that the appellants would clear the encumbrance is insufficient to prove that the respondent-plaintiff was willing to perform his obligations under the contract.30. Further, in 1991 the respondent instituted a suit for mandatory injunction for restraining the appellants from alienating the suit property. He did not however, institute a suit for specific performance of the contract until 17 June 1993. The respondent has taken the plea that he was waiting for the appellants to discharge the mortgage to file a suit for specific performance. We are unable to accept this submission. By extending the respondents argument, if the appellants had failed to discharge the mortgage, the respondent would not have filed a suit for specific performance of the contract at all. We also note that the respondent has withdrawn the balance consideration deposited by him before the trial court in 2001. The inconsistency in the respondents conduct, the lack of communication with the appellants urging them to discharge the mortgage and showing his willingness to pay the balance consideration, and the delay of about three years from the date fixed for performance of the contract in filing a suit, are all indicative of the respondents lack of will to perform the contract.31. The readiness of the respondent to perform his obligations refers to whether he was financially capable of paying the balance consideration. Both the trial court and the first appellate court have observed that the respondent was ready to pay the balance consideration as (i) he was paying income tax since 1988 and (ii) his bank passbooks indicate that he had sufficient funds. The payment of income tax by itself does not show that the respondent had sufficient resources to pay for the suit property. Moreover, the bank passbooks submitted in evidence by the respondent were for accounts opened on 11 March 1992 and 22 July 1994, that is, after the expiry of the period written in the contract. The first appellate court despite noting this, has chosen to hold that the respondent was ready and willing to perform the agreement. The respondent however did not lead any evidence to indicate that in the year 1990 he had the money to pay the balance consideration. The first appellate court shifted the burden on the appellants to prove that the respondent-plaintiff was incapable of paying the balance consideration. It is an established principle of law that the plaintiff must prove that he is ready and willing to perform the contract. The burden lies on the plaintiff. The respondent has not led any evidence that he was ready or willing to perform his obligations under the agreement.32. Even assuming that the respondent was willing to perform his obligations under the contract, we must decide whether it would be appropriate to direct the specific performance of the contract in this case. In Zarina Siddiqui v. A. Ramalingam (2015) 1 SCC 705, a two-judge Bench of this Court while dealing with a suit for specific performance of a contract regarding the sale of immovable property observed that the remedy for specific performance is an equitable remedy and Section 20 of the Specific Relief Act confers a discretion on the Court. The Court held:24. It is well settled that remedy for specific performance is an equitable remedy. The court while granting decree of specific performance exercises its discretionary jurisdiction. Section 20 of the Specific Relief Act specifically provides that the Courts discretion to grant decree of specific performance is discretionary but not arbitrary. Discretion must be exercised in accordance with sound and reasonable judicial principles.34. In Nirmala Anand v. Advent Corporation (P.) Ltd. and Others (2002) 8 SCC 146, a three- judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed:6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.35. In KS Vidyanadam and others v. Vairavan (1997) 3 SCC 1, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held:10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing.In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months period. The question is what was the plaintiff doing in this interval of more than two years? […] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11- 7-1981. It is not the plaintiffs case that within six months, he purchased the stamp papers and offered to pay the balance consideration.13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defendants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.36. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum.

### 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: Others (2002) 8 SCC 146, a three- judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed: 6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen. (emphasis supplied) 35. In KS Vidyanadam and others v. Vairavan (1997) 3 SCC 1, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held: 10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing. […] In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months period. The question is what was the plaintiff doing in this interval of more than two years? […] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11- 7-1981. It is not the plaintiffs case that within six months, he purchased the stamp papers and offered to pay the balance consideration. […] 13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defendants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff. (emphasis supplied) 36. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum. D Conclusion ### Response: 1 ### Explanation: reasonable judicial principles.34. In Nirmala Anand v. Advent Corporation (P.) Ltd. and Others (2002) 8 SCC 146, a three- judge Bench of this Court observed that in case of a phenomenal increase in the price of the land, the Court may impose a reasonable condition in the decree such as payment of an additional amount by the purchaser. In decreeing the suit for specific performance, the Court observed:6. It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree of specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the considerations besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her alone, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the considerations to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing specific performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.35. In KS Vidyanadam and others v. Vairavan (1997) 3 SCC 1, an agreement to sell immovable property was entered into between the plaintiff-buyer and the defendant-seller for a consideration of Rs. 60,000, where earnest money of Rs. 5,000 had been paid in advance. The agreement stipulated that the plaintiff had to purchase stamp papers and pay the balance amount within six months and call upon the defendants to execute the sale deed. The plaintiff filed a suit for specific performance after a lapse of two and a half years seeking performance of the contract. The Court held:10. It has been consistently held by the courts in India, following certain early English decisions, that in the case of agreement of sale relating to immovable property, time is not of the essence of the contract unless specifically provided to that effect. The period of limitation prescribed by the Limitation Act for filing a suit is three years. From these two circumstances, it does not follow that any and every suit for specific performance of the agreement (which does not provide specifically that time is of the essence of the contract) should be decreed provided it is filed within the period of limitation notwithstanding the time-limits stipulated in the agreement for doing one or the other thing by one or the other party. That would amount to saying that the time-limits prescribed by the parties in the agreement have no significance or value and that they mean nothing.In this case, the suit property is the house property situated in Madurai, which is one of the major cities of Tamil Nadu. The suit agreement was in December 1978 and the six months period specified therein for completing the sale expired with 15-6-1979. The suit notice was issued by the plaintiff only on 11-7-1981, i.e., more than two years after the expiry of six months period. The question is what was the plaintiff doing in this interval of more than two years? […] There is not a single letter or notice from the plaintiff to the defendants calling upon them to get the tenant vacated and get the sale deed executed until he issued the suit notice on 11- 7-1981. It is not the plaintiffs case that within six months, he purchased the stamp papers and offered to pay the balance consideration.13. In the case before us, it is not mere delay. It is a case of total inaction on the part of the plaintiff for 2 1/2 years in clear violation of the terms of agreement which required him to pay the balance, purchase the stamp papers and then ask for execution of sale deed within six months. Further, the delay is coupled with substantial rise in prices — according to the defendants, three times — between the date of agreement and the date of suit notice. The delay has brought about a situation where it would be inequitable to give the relief of specific performance to the plaintiff.36. True enough, generally speaking, time is not of the essence in an agreement for the sale of immoveable property. In deciding whether to grant the remedy of specific performance, specifically in suits relating to sale of immovable property, the courts must be cognizant of the conduct of the parties, the escalation of the price of the suit property, and whether one party will unfairly benefit from the decree. The remedy provided must not cause injustice to a party, specifically when they are not at fault. In the present case, three decades have passed since the agreement to sell was entered into between the parties. The price of the suit property would undoubtedly have escalated. Given the blemished conduct of the respondent-plaintiff in indicating his willingness to perform the contract, we decline in any event to grant the remedy of specific performance of the contract. However, we order a refund of the consideration together with interest at 6% per annum.

Durga Prashad Vs. Chief Controller Of Imports & Exports & Ors

desired the appellant may see him in the matter. Apparently the Chief Controller invited him and on June 22, 1964, he was informed that no further licence would be issued to him. On August 24, 1964, the appellant filed the petition above-mentioned in the High Court. No explanation has been given in the petition for the delay in filing the petition and it has not been explained what the appellant was doing between March 5, 1962, when the supplementary licence was issued, and April 6, 1964. 3. It is well settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation. 4. Gajendragadkar, C. J., speaking for the constitution Bench, is Smt. Narayani Debi Khaitan v. State of Bihar, Civil Appeal No. 140 of 1964, D/- 22-9-1964 (SC), observed:"It is well settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably." 5. Relying on the judgment of this Court in Maharashtra State Road Transport Corporation v. Shri Balwant Regular Motor Service, Amravati, Civil Appeals Nos. 825 to 851 of 1968, D/- 22-8-1968= (AIR 1969 SC 329 ) the learned counsel for the appellant contends that the delay should not debar him from seeking relief because the respondents have not suffered in any manner because of the delay. In this case Ramaswami, J., speaking for the Court, referred to an earlier decision in Moon Mills v. Industrial Court Bombay, AIR 1967 SC 1450 at pp. 1453-1454. In that case Ramaswami, J., speaking for the Court, observed:"It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery." It would be noticed that Ramaswami, J., had first examined the question of delay and came to a finding that in fact there was no delay. Ramaswami, J., observed :"On behalf of the respondent Mr. B. Sen, however, pointed out that the conduct of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay. It was pointed out that the award of Mr. Bhat was given on April 25, 1958, but an application to the High Court for grant of a writ was made long after on November 16, 1959. We do not think there is any substance in this argument, because the second respondent had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a written statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November16, 1959." 6. The appellant in this case had claimed a mandamus or a direction to the respondents to issue to the appellant import licence for art silk yarn of the value of Rs. 8,03,530.45.It is well known that the exchange position of this country and the policy of the Government regarding International Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. 7. The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay.But we are exercising our jurisdiction not under Article 32 but under Article 226, and as observed by Gajendragadkar, C. J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court.

0[ds]3. It is well settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation6. The appellant in this case had claimed a mandamus or a direction to the respondents to issue to the appellant import licence for art silk yarn of the value of Rs. 8,03,530.45.It is well known that the exchange position of this country and the policy of the Government regarding International Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition7. The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay.But we are exercising our jurisdiction not under Article 32 but under Article 226, and as observed by Gajendragadkar, C. J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: desired the appellant may see him in the matter. Apparently the Chief Controller invited him and on June 22, 1964, he was informed that no further licence would be issued to him. On August 24, 1964, the appellant filed the petition above-mentioned in the High Court. No explanation has been given in the petition for the delay in filing the petition and it has not been explained what the appellant was doing between March 5, 1962, when the supplementary licence was issued, and April 6, 1964. 3. It is well settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation. 4. Gajendragadkar, C. J., speaking for the constitution Bench, is Smt. Narayani Debi Khaitan v. State of Bihar, Civil Appeal No. 140 of 1964, D/- 22-9-1964 (SC), observed:"It is well settled that under Article 226, the power of the High Court to issue an appropriate writ is discretionary. There can be no doubt that if a citizen moves the High Court under Article 226 and contends that his fundamental rights have been contravened by any executive action, the High Court would naturally like to give relief to him; but even in such a case, if the petitioner has been guilty of laches, and there are other relevant circumstances which indicate that it would be inappropriate for the High Court to exercise its high prerogative jurisdiction in favour of the petitioner, ends of justice may require that the High Court should refuse to issue a writ. There can be little doubt that if it is shown that a party moving the High Court under Article 226 for a writ is, in substance, claiming a relief which under the law of limitation was barred at the time when the writ petition was filed, the High Court would refuse to grant any relief in its writ jurisdiction. No hard and fast rule can be laid down as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves it after considerable delay and is otherwise guilty of laches. That is a matter which must be left to the discretion of the High Court and like all matters left to the discretion of the Court, in this matter too discretion must be exercised judiciously and reasonably." 5. Relying on the judgment of this Court in Maharashtra State Road Transport Corporation v. Shri Balwant Regular Motor Service, Amravati, Civil Appeals Nos. 825 to 851 of 1968, D/- 22-8-1968= (AIR 1969 SC 329 ) the learned counsel for the appellant contends that the delay should not debar him from seeking relief because the respondents have not suffered in any manner because of the delay. In this case Ramaswami, J., speaking for the Court, referred to an earlier decision in Moon Mills v. Industrial Court Bombay, AIR 1967 SC 1450 at pp. 1453-1454. In that case Ramaswami, J., speaking for the Court, observed:"It is true that the issue of a writ of certiorari is largely a matter of sound discretion. It is also true that the writ will not be granted if there is such negligence or omission on the part of the applicant to assert his right as, taken in conjunction with the lapse of time and other circumstances, causes prejudice to the adverse party. The principle is to a great extent, though not identical with, similar to the exercise of discretion in the Court of Chancery." It would be noticed that Ramaswami, J., had first examined the question of delay and came to a finding that in fact there was no delay. Ramaswami, J., observed :"On behalf of the respondent Mr. B. Sen, however, pointed out that the conduct of the appellant does not entitle it to the grant of a writ, because it has been guilty of acquiescence or delay. It was pointed out that the award of Mr. Bhat was given on April 25, 1958, but an application to the High Court for grant of a writ was made long after on November 16, 1959. We do not think there is any substance in this argument, because the second respondent had made an application, dated August 19, 1958 to the Labour Court for enforcement of the award and the appellant had contested that application by a written statement, dated September 15, 1958. The Labour Court allowed the application on August 4, 1959 and the appellant had preferred an appeal to the Industrial Court on August 31, 1959. The decision of the Industrial Court was given on October 24, 1959 and after the appeal was dismissed the appellant moved the High Court for grant of a writ on November16, 1959." 6. The appellant in this case had claimed a mandamus or a direction to the respondents to issue to the appellant import licence for art silk yarn of the value of Rs. 8,03,530.45.It is well known that the exchange position of this country and the policy of the Government regarding International Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition. 7. The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay.But we are exercising our jurisdiction not under Article 32 but under Article 226, and as observed by Gajendragadkar, C. J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court. ### Response: 0 ### Explanation: 3. It is well settled that the relief under Article 226 is discretionary, and one ground for refusing relief under Article 226 is that the petitioner has filed the petition after delay for which there is no satisfactory explanation6. The appellant in this case had claimed a mandamus or a direction to the respondents to issue to the appellant import licence for art silk yarn of the value of Rs. 8,03,530.45.It is well known that the exchange position of this country and the policy of the Government regarding International Trade varies from year to year and it would be rather odd for this Court to direct that an import licence be granted in the year 1968 in respect of alleged defaults committed by the Government in 1959 or 1962. In these matters it is essential that persons who are aggrieved by orders of the Government should approach the High Court after exhausting the remedies provided by law, rule or order with utmost expedition7. The learned counsel for the appellant contends that this matter involved fundamental rights and this Court at least should not refuse to give relief on the ground of delay.But we are exercising our jurisdiction not under Article 32 but under Article 226, and as observed by Gajendragadkar, C. J., in the passage extracted above, even in the case of alleged breach of fundamental rights the matter must be left to the discretion of the High Court.

The Commissioner Of Income-Tax, Bombay Vs. Dharamdas Hargovindas

now) it does not seem reasonable to hold that the words "having accrued or arisen" used in that clause have no reference to its receipt also outside the taxable territories. It seems to us therefore that what cl. (b) (iii) provides is that if any income etc. hand arisen or accrued outside the taxable territories and had been received there sometime before the previous year and if such income etc. is brought into or received in the taxable territories by such person in the previous year it will be liable to be charged under S. 3.In the circumstances, looking to the special provision of cl. (b) (iii) it would be reasonable to infer that what it contemplates is bringing into or receipt in the taxable territories in the previous year of income etc. which had already accrued or arisen without the taxable territories earlier than the previous year and may have also been received there. Any other interpretation would really make that part of cl. (b) (iii) which refers to "received in the taxable territories" more or less useless, for it is not likely that income having accrued or arisen outside the taxable territories before the previous year should not have been received also outside the taxable territories. Therefore, the reasonable interpretation of cl. (b) (iii) is that if a person resident in the taxable territories who has already received without the taxable territories any income etc. accuring or arising to him without the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable to income-tax under S. 3. Therefore, for the purpose of cl. (b) (iii) the receiving in the taxable territories need not be the first receipt. We shall later consider what will be the effect of this interpretation on the facts of this case.14. Then there is cl. (c), which deals with the case of a person resident outside the taxable territories to whom income etc. has accrued or arisen or is deemed to have accrued or arisen in the taxable territories during the previous year. It will thus be seen that cl. (a) deals with a person who may or may not be a resident in the taxable territories and makes the income etc. accruing or arising to him in the previous year liable to income-tax if it is received or deemed to be received by him in the taxable territories also within the same year; cl. (b) deals with the case of a person who is resident in the taxable territories and gives a wider definition of the total income and cl. (c) deals with a person not resident in the taxable territories and makes only such of his income as accrues or arises or is deemed to accrue or arise in the previous year in the taxable territories liable to income-tax in addition to what is provided in cl. (a).15. Let us now see on the facts of this case where the respondent can be said to have received this sum of Rs. 50,000 in the taxable territories during the previous year. The statement of the case shows that this sum was income etc. of the respondent which accrued to him outside the taxable territories and had been received by him there and deposited in the Bhavnagar Mills in his account. It is also clear from the facts which we have set out already that this money which was lying to the credit of the respondent in the Bhavnagar Mills was received by him by means of a cheque on the Bank of India Ltd., Bombay, in which the Bhavnagar Mills had an account and on which the respondent had the authority to draw. Having thus drawn the money by a cheque on the said bank, the respondent advanced it to the Bombay Mills and the cheque was cashed by the Bombay Mills and the money was credited into the account of the respondents benamidars in the Bombay Mills.There was thus clearly receipt in the previous year of income etc. which had accrued to the respondent outside the taxable territories before the previous year and he would therefore be chargeable under S. 3 of the Act with respect to this amount.16. The High Court has held that the income would be taxable only when it is brought into or received in the taxable territories by the assessee himself and not when it was so brought or received on behalf of the assessee. The relevant words of cl. (b) (iii) with which we are concerned are these: "are brought into or received in the taxable territories by him during such year". We have held that this is a case of receipt by the respondent in the taxable territories; it is therefore unnecessary to consider in the present case whether the words "brought into the taxable territories by him" mean that the income must be brought in by the person himself as held by the High Court. This being a case of receipt, there can be no doubt that income etc. was received by the respondent and the indirect method employed in this case for receiving the money would nonetheless make it a receipt by the respondent himself. Reference in this connection may be made to Bipin Lal Kuthiala v. Commissioner of Income-tax, Punjab, (S) AIR 1956 S C 634, where it was held that the money was received by the assessee even though in fact what had happened there was that the assessee directed his debtor in Jubbal which was outside the taxable territories to pay money to his creditor in British India. It was held that in the circumstances there was receipt of income in British India, though the method employed was indirect. We are therefore of opinion that the respondent is liable to pay income-tax on the sum of Rs. 50,000 under S. 4 (1) (b) (iii) of the Act and the question framed therefore must be answered in the affirmative.

1[ds]These words however are not terms of art and in our opinion their meaning must receive colour from the context in which they are used. In the context of cl. (a) those words could only refer to the first receipt; but it does not follow from this that in the context of cl. (b) (iii) also they refer only to the first receipt.13. Let us see what cl. (b) (iii) is meant to provide for. It will be noticed that cl. (a), cl. (b) (i) and (ii) and cl. (c) deal only with income etc. which has arisen in the previous year while cl. (b) (iii) deals with a special class of cases where a person resident within the taxable territories had income etc. accruing or arising to him without the taxable territories and which he did not bring in the taxable territories as and when it arose but does so many years later. In such a case it stands to reason that the income etc. having arisen to such person, may be years before the previous year, must have been received by him outside the taxable territories; but it is urged that cl. (b) (iii) does not speak of receipt outside the taxable territories but only speaks of income etc. having accrued or arisen to him without the taxable territories and that it is possible that though the income etc. might have accrued long ago it might not have been received even outside the taxable territories. This is theoretically possible, but in our opinion it is clear that when cl. (b) (iii) speaks of income etc. having accrued or arisen without the taxable territories it is implicit in it further that such income etc. having accrued or arisen without the taxable territories had already been received there. Considering that cl. (b) (iii) applies to all income having accrued or arisen after the first day of April 1933 (that is more than 27 years ago now) it does not seem reasonable to hold that the words "having accrued or arisen" used in that clause have no reference to its receipt also outside the taxable territories. It seems to us therefore that what cl. (b) (iii) provides is that if any income etc. hand arisen or accrued outside the taxable territories and had been received there sometime before the previous year and if such income etc. is brought into or received in the taxable territories by such person in the previous year it will be liable to be charged under S. 3.In the circumstances, looking to the special provision of cl. (b) (iii) it would be reasonable to infer that what it contemplates is bringing into or receipt in the taxable territories in the previous year of income etc. which had already accrued or arisen without the taxable territories earlier than the previous year and may have also been received there. Any other interpretation would really make that part of cl. (b) (iii) which refers to "received in the taxable territories" more or less useless, for it is not likely that income having accrued or arisen outside the taxable territories before the previous year should not have been received also outside the taxable territories. Therefore, the reasonable interpretation of cl. (b) (iii) is that if a person resident in the taxable territories who has already received without the taxable territories any income etc. accuring or arising to him without the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable tounder S. 3. Therefore, for the purpose of cl. (b) (iii) the receiving in the taxable territories need not be the first receipt. We shall later consider what will be the effect of this interpretation on the facts of this case.14. Then there is cl. (c), which deals with the case of a person resident outside the taxable territories to whom income etc. has accrued or arisen or is deemed to have accrued or arisen in the taxable territories during the previous year. It will thus be seen that cl. (a) deals with a person who may or may not be a resident in the taxable territories and makes the income etc. accruing or arising to him in the previous year liable toif it is received or deemed to be received by him in the taxable territories also within the same year; cl. (b) deals with the case of a person who is resident in the taxable territories and gives a wider definition of the total income and cl. (c) deals with a person not resident in the taxable territories and makes only such of his income as accrues or arises or is deemed to accrue or arise in the previous year in the taxable territories liable toin addition to what is provided in cl. (a).15. Let us now see on the facts of this case where the respondent can be said to have received this sum of Rs. 50,000 in the taxable territories during the previous year. The statement of the case shows that this sum was income etc. of the respondent which accrued to him outside the taxable territories and had been received by him there and deposited in the Bhavnagar Mills in his account. It is also clear from the facts which we have set out already that this money which was lying to the credit of the respondent in the Bhavnagar Mills was received by him by means of a cheque on the Bank of India Ltd., Bombay, in which the Bhavnagar Mills had an account and on which the respondent had the authority to draw. Having thus drawn the money by a cheque on the said bank, the respondent advanced it to the Bombay Mills and the cheque was cashed by the Bombay Mills and the money was credited into the account of the respondents benamidars in the Bombay Mills.There was thus clearly receipt in the previous year of income etc. which had accrued to the respondent outside the taxable territories before the previous year and he would therefore be chargeable under S. 3 of the Act with respect to this amount.16. The High Court has held that the income would be taxable only when it is brought into or received in the taxable territories by the assessee himself and not when it was so brought or received on behalf of the assessee. The relevant words of cl. (b) (iii) with which we are concerned are these: "are brought into or received in the taxable territories by him during such year". We have held that this is a case of receipt by the respondent in the taxable territories; it is therefore unnecessary to consider in the present case whether the words "brought into the taxable territories by him" mean that the income must be brought in by the person himself as held by the High Court. This being a case of receipt, there can be no doubt that income etc. was received by the respondent and the indirect method employed in this case for receiving the money would nonetheless make it a receipt by the respondent himself. Reference in this connection may be made to Bipin Lal Kuthiala v. Commissioner ofPunjab, (S) AIR 1956 S C 634, where it was held that the money was received by the assessee even though in fact what had happened there was that the assessee directed his debtor in Jubbal which was outside the taxable territories to pay money to his creditor in British India. It was held that in the circumstances there was receipt of income in British India, though the method employed was indirect. We are therefore of opinion that the respondent is liable to payon the sum of Rs. 50,000 under S. 4 (1) (b) (iii) of the Act and the question framed therefore must be answered in the affirmative.

### 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: now) it does not seem reasonable to hold that the words "having accrued or arisen" used in that clause have no reference to its receipt also outside the taxable territories. It seems to us therefore that what cl. (b) (iii) provides is that if any income etc. hand arisen or accrued outside the taxable territories and had been received there sometime before the previous year and if such income etc. is brought into or received in the taxable territories by such person in the previous year it will be liable to be charged under S. 3.In the circumstances, looking to the special provision of cl. (b) (iii) it would be reasonable to infer that what it contemplates is bringing into or receipt in the taxable territories in the previous year of income etc. which had already accrued or arisen without the taxable territories earlier than the previous year and may have also been received there. Any other interpretation would really make that part of cl. (b) (iii) which refers to "received in the taxable territories" more or less useless, for it is not likely that income having accrued or arisen outside the taxable territories before the previous year should not have been received also outside the taxable territories. Therefore, the reasonable interpretation of cl. (b) (iii) is that if a person resident in the taxable territories who has already received without the taxable territories any income etc. accuring or arising to him without the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable to income-tax under S. 3. Therefore, for the purpose of cl. (b) (iii) the receiving in the taxable territories need not be the first receipt. We shall later consider what will be the effect of this interpretation on the facts of this case.14. Then there is cl. (c), which deals with the case of a person resident outside the taxable territories to whom income etc. has accrued or arisen or is deemed to have accrued or arisen in the taxable territories during the previous year. It will thus be seen that cl. (a) deals with a person who may or may not be a resident in the taxable territories and makes the income etc. accruing or arising to him in the previous year liable to income-tax if it is received or deemed to be received by him in the taxable territories also within the same year; cl. (b) deals with the case of a person who is resident in the taxable territories and gives a wider definition of the total income and cl. (c) deals with a person not resident in the taxable territories and makes only such of his income as accrues or arises or is deemed to accrue or arise in the previous year in the taxable territories liable to income-tax in addition to what is provided in cl. (a).15. Let us now see on the facts of this case where the respondent can be said to have received this sum of Rs. 50,000 in the taxable territories during the previous year. The statement of the case shows that this sum was income etc. of the respondent which accrued to him outside the taxable territories and had been received by him there and deposited in the Bhavnagar Mills in his account. It is also clear from the facts which we have set out already that this money which was lying to the credit of the respondent in the Bhavnagar Mills was received by him by means of a cheque on the Bank of India Ltd., Bombay, in which the Bhavnagar Mills had an account and on which the respondent had the authority to draw. Having thus drawn the money by a cheque on the said bank, the respondent advanced it to the Bombay Mills and the cheque was cashed by the Bombay Mills and the money was credited into the account of the respondents benamidars in the Bombay Mills.There was thus clearly receipt in the previous year of income etc. which had accrued to the respondent outside the taxable territories before the previous year and he would therefore be chargeable under S. 3 of the Act with respect to this amount.16. The High Court has held that the income would be taxable only when it is brought into or received in the taxable territories by the assessee himself and not when it was so brought or received on behalf of the assessee. The relevant words of cl. (b) (iii) with which we are concerned are these: "are brought into or received in the taxable territories by him during such year". We have held that this is a case of receipt by the respondent in the taxable territories; it is therefore unnecessary to consider in the present case whether the words "brought into the taxable territories by him" mean that the income must be brought in by the person himself as held by the High Court. This being a case of receipt, there can be no doubt that income etc. was received by the respondent and the indirect method employed in this case for receiving the money would nonetheless make it a receipt by the respondent himself. Reference in this connection may be made to Bipin Lal Kuthiala v. Commissioner of Income-tax, Punjab, (S) AIR 1956 S C 634, where it was held that the money was received by the assessee even though in fact what had happened there was that the assessee directed his debtor in Jubbal which was outside the taxable territories to pay money to his creditor in British India. It was held that in the circumstances there was receipt of income in British India, though the method employed was indirect. We are therefore of opinion that the respondent is liable to pay income-tax on the sum of Rs. 50,000 under S. 4 (1) (b) (iii) of the Act and the question framed therefore must be answered in the affirmative. ### Response: 1 ### Explanation: of April 1933 (that is more than 27 years ago now) it does not seem reasonable to hold that the words "having accrued or arisen" used in that clause have no reference to its receipt also outside the taxable territories. It seems to us therefore that what cl. (b) (iii) provides is that if any income etc. hand arisen or accrued outside the taxable territories and had been received there sometime before the previous year and if such income etc. is brought into or received in the taxable territories by such person in the previous year it will be liable to be charged under S. 3.In the circumstances, looking to the special provision of cl. (b) (iii) it would be reasonable to infer that what it contemplates is bringing into or receipt in the taxable territories in the previous year of income etc. which had already accrued or arisen without the taxable territories earlier than the previous year and may have also been received there. Any other interpretation would really make that part of cl. (b) (iii) which refers to "received in the taxable territories" more or less useless, for it is not likely that income having accrued or arisen outside the taxable territories before the previous year should not have been received also outside the taxable territories. Therefore, the reasonable interpretation of cl. (b) (iii) is that if a person resident in the taxable territories who has already received without the taxable territories any income etc. accuring or arising to him without the taxable territories before the previous year brings that income into or receives that income in the taxable territories he would be chargeable tounder S. 3. Therefore, for the purpose of cl. (b) (iii) the receiving in the taxable territories need not be the first receipt. We shall later consider what will be the effect of this interpretation on the facts of this case.14. Then there is cl. (c), which deals with the case of a person resident outside the taxable territories to whom income etc. has accrued or arisen or is deemed to have accrued or arisen in the taxable territories during the previous year. It will thus be seen that cl. (a) deals with a person who may or may not be a resident in the taxable territories and makes the income etc. accruing or arising to him in the previous year liable toif it is received or deemed to be received by him in the taxable territories also within the same year; cl. (b) deals with the case of a person who is resident in the taxable territories and gives a wider definition of the total income and cl. (c) deals with a person not resident in the taxable territories and makes only such of his income as accrues or arises or is deemed to accrue or arise in the previous year in the taxable territories liable toin addition to what is provided in cl. (a).15. Let us now see on the facts of this case where the respondent can be said to have received this sum of Rs. 50,000 in the taxable territories during the previous year. The statement of the case shows that this sum was income etc. of the respondent which accrued to him outside the taxable territories and had been received by him there and deposited in the Bhavnagar Mills in his account. It is also clear from the facts which we have set out already that this money which was lying to the credit of the respondent in the Bhavnagar Mills was received by him by means of a cheque on the Bank of India Ltd., Bombay, in which the Bhavnagar Mills had an account and on which the respondent had the authority to draw. Having thus drawn the money by a cheque on the said bank, the respondent advanced it to the Bombay Mills and the cheque was cashed by the Bombay Mills and the money was credited into the account of the respondents benamidars in the Bombay Mills.There was thus clearly receipt in the previous year of income etc. which had accrued to the respondent outside the taxable territories before the previous year and he would therefore be chargeable under S. 3 of the Act with respect to this amount.16. The High Court has held that the income would be taxable only when it is brought into or received in the taxable territories by the assessee himself and not when it was so brought or received on behalf of the assessee. The relevant words of cl. (b) (iii) with which we are concerned are these: "are brought into or received in the taxable territories by him during such year". We have held that this is a case of receipt by the respondent in the taxable territories; it is therefore unnecessary to consider in the present case whether the words "brought into the taxable territories by him" mean that the income must be brought in by the person himself as held by the High Court. This being a case of receipt, there can be no doubt that income etc. was received by the respondent and the indirect method employed in this case for receiving the money would nonetheless make it a receipt by the respondent himself. Reference in this connection may be made to Bipin Lal Kuthiala v. Commissioner ofPunjab, (S) AIR 1956 S C 634, where it was held that the money was received by the assessee even though in fact what had happened there was that the assessee directed his debtor in Jubbal which was outside the taxable territories to pay money to his creditor in British India. It was held that in the circumstances there was receipt of income in British India, though the method employed was indirect. We are therefore of opinion that the respondent is liable to payon the sum of Rs. 50,000 under S. 4 (1) (b) (iii) of the Act and the question framed therefore must be answered in the affirmative.

Kolathoor Variath & Another Vs. Paiaprakottoth Cheriya Kumhahammad Haji

sue on the strength of mortgage as there is no mortgage deed in respect of the properties the plaintiffs are entitled to sue on the strength of the title of their Tavazhi and hencethe Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant." In paragraph 1 of the plaint they set up their title to the disputed land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession on the strength of their title unless he is held to be or to have become under any Kerala land reform measure a tenant. 4. So the crucial question is whether the respondent is a tenant. The lower appellate Court, after discussing the oral and documentary evidence held that the respondent "had failed to prove that he was in possession of the property as lessee." It is a finding of fact. It cannot be said to be perverse or affected with any such infirmity as should invite the High Courts intervention in second appeal Ex. A. 52 is an admission by the predecessor-in-interest of the respondent. He has admitted that he was in possession under usufructuary mortgage for Rs. 600/- Ex. A. 54 records an admission of the respondent himself that he was in possession under a mortgage. These documents would not be admissible to prove the terms of an oral mortgage; but surely they can be admitted to prove that neither the respondent nor his predecessor-in-interest was claiming possession as a tenant. Surprisingly, the High Court has upset the finding of the lower appellate Court in the absence of cogent reasons. The High Court has relied on two documents filed by the respondent. Ex. B. 1 and Ex. B. 2 Exhibit B. 1 is the sale certificate issued to him on May 29, 1943. Exhibit B. 2 is the document showing delivery of possession to him pursuant to the sale certificate. In Ex. B-1 the encumbrance on the property is shown as the purappad and interest payable thereon. In Ex. B-2 the right of the judgment-debtor is shown as the Munpattom right for Rs. 600/-. None of these documents can be used against the appellants because they were not parties to the suit and to the execution proceedings against the respondents predecessor-in-interest. The High Court has also relied on an averment in the plaint. In paragraph 2 of the plaint the appellants have stated that the respondent paid the purappad in 1127 (1951-52), when one of the appellants demanded that the mortgage amount should be increased to Rs. 2000/- and the purappad should be enhanced to 300 paras. The respondent agreed to pay Rs. 1400/- in addition to Rs. 600/- and raised the mortgage amount to Rs. 2000/-. He also agreed to enhance purappad to 300 paras of paddy. From these averments the High Court has spelt out a tenancy right in favour of the respondent. The High Court says: "They are therein that in 1127 (the appellants) made a demand to increase the mortgage amount to Rs. 2000/- and to increase the Purappad to 300 paras of paddy per year, which was not complied with by the (respondent). If the property were given to the transferee as security for the amount advanced by him, what can be expected is that out of the income derivable from the property, after deducting the interest on the mortgage money and probably the cultivation expenses, the rest has to be paid to the mortgagor as excess profits derived from the property. The consequence is that if a further amount of Rs. 1400/- was also taken as mortgage money, what can reasonably be expected is a proportionate reduction in the Purappad payable. What I find, on the other hand, was a demand for an increase of dues from 291 paras of paddy to 300 paras per year even after taking an additional amount of Rs. 1400/- . This is tell-tale that the (appellants) were trying to get an increased pattom from the (respondent), which means that the arrangement was only a lease arrangement." 5. There is little warrant for jettisoning the finding of the lower appellate court, based as it is on appraisal of the whole evidence from an averment in the appellants plaint, which, at worst, may be echoing two voices. More, the respondent did not admit the averment. This part of their case was not pressed by them. Courts below did not act upon it. The trial court granted a decree for arrears of Purappad at the rate of 291 paras of paddy as stated by them in paragraph 1 of their plaint and not as claimed in paragraph 2 thereof. The High Court itself has affirmed this part of the decree. In the circumstances of this case, the High Court should not have interfered with the finding of fact recorded by the lower appellate court. So we would uphold the finding of the lower appellate court that neither the respondent nor his predecessor-in-interest was inducted to the property in dicpute as a tenant. 6. This does not conclude the matter. Counsel for the respondent has urged before us that the respondent has become a tenant under the Kerala Land Reforms Act. But this point was not raised before the High Court. For various reasons, we think that this question should be decided first by the High Court. Accordingly, we propose to remit the case to the High Court for decision of this question and for disposal of the second appeal accordingly.

1[ds]The lower appellate Court, after discussing the oral and documentary evidence held that the respondent "had failed to prove that he was in possession of the property as lessee." It is a finding of fact. It cannot be said to be perverse or affected with any such infirmity as should invite the High Courts intervention in second appeal Ex. A. 52 is an admission by thet of the respondent. He has admitted that he was in possession under usufructuary mortgage for Rs. 600/Ex. A. 54 records an admission of the respondent himself that he was in possession under a mortgage. These documents would not be admissible to prove the terms of an oral mortgage; but surely they can be admitted to prove that neither the respondent nor hist was claiming possession as a tenant. Surprisingly, the High Court has upset the finding of the lower appellate Court in the absence of cogent reasons. The High Court has relied on two documents filed by the respondent. Ex. B. 1 and Ex. B. 2 Exhibit B. 1 is the sale certificate issued to him on May 29, 1943. Exhibit B. 2 is the document showing delivery of possession to him pursuant to the sale certificate. In Ex.1 the encumbrance on the property is shown as the purappad and interest payable thereon. In Ex.2 the right of ther is shown as the Munpattom right for Rs.. None of these documents can be used against the appellants because they were not parties to the suit and to the execution proceedings against the respondents. The High Court has also relied on an averment in the plaint. In paragraph 2 of the plaint the appellants have stated that the respondent paid the purappad in 1127, when one of the appellants demanded that the mortgage amount should be increased to Rs. 2000/and the purappad should be enhanced to 300 paras. The respondent agreed to pay Rs. 1400/in addition to Rs. 600/and raised the mortgage amount to Rs.. He also agreed to enhance purappad to 300 paras of paddy. From these averments the High Court has spelt out a tenancy right in favour of the respondent5. There is little warrant for jettisoning the finding of the lower appellate court, based as it is on appraisal of the whole evidence from an averment in the appellants plaint, which, at worst, may be echoing two voices. More, the respondent did not admit the averment. This part of their case was not pressed by them. Courts below did not act upon it. The trial court granted a decree for arrears of Purappad at the rate of 291 paras of paddy as stated by them in paragraph 1 of their plaint and not as claimed in paragraph 2 thereof. The High Court itself has affirmed this part of the decree. In the circumstances of this case, the High Court should not have interfered with the finding of fact recorded by the lower appellate court. So we would uphold the finding of the lower appellate court that neither the respondent nor hist was inducted to the property in dicpute as a tenant6. This does not conclude the matter. Counsel for the respondent has urged before us that the respondent has become a tenant under the Kerala Land Reforms Act. But this point was not raised before the High Court. For various reasons, we think that this question should be decided first by the High Court. Accordingly, we propose to remit the case to the High Court for decision of this question and for disposal of the second appeal accordingly.

### 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: sue on the strength of mortgage as there is no mortgage deed in respect of the properties the plaintiffs are entitled to sue on the strength of the title of their Tavazhi and hencethe Court may be pleased to decree the suit ordering the defendant to surrender the properties to the 1st plaintiff, with the past and future mesne profits relinquishing all the rights of the defendant." In paragraph 1 of the plaint they set up their title to the disputed land. In paragraph 4 of his written statement the respondent says that he is not a mortgagee but a tenant and has Kudiayma rights in the land. So far from denying their title, he has impliedly admitted that they are the owners of the land. Again, he has not claimed ownership of the land by virtue of adverse possession. He simply claims permissive possession as a tenant under them. In the result, they are entitled to regain possession on the strength of their title unless he is held to be or to have become under any Kerala land reform measure a tenant. 4. So the crucial question is whether the respondent is a tenant. The lower appellate Court, after discussing the oral and documentary evidence held that the respondent "had failed to prove that he was in possession of the property as lessee." It is a finding of fact. It cannot be said to be perverse or affected with any such infirmity as should invite the High Courts intervention in second appeal Ex. A. 52 is an admission by the predecessor-in-interest of the respondent. He has admitted that he was in possession under usufructuary mortgage for Rs. 600/- Ex. A. 54 records an admission of the respondent himself that he was in possession under a mortgage. These documents would not be admissible to prove the terms of an oral mortgage; but surely they can be admitted to prove that neither the respondent nor his predecessor-in-interest was claiming possession as a tenant. Surprisingly, the High Court has upset the finding of the lower appellate Court in the absence of cogent reasons. The High Court has relied on two documents filed by the respondent. Ex. B. 1 and Ex. B. 2 Exhibit B. 1 is the sale certificate issued to him on May 29, 1943. Exhibit B. 2 is the document showing delivery of possession to him pursuant to the sale certificate. In Ex. B-1 the encumbrance on the property is shown as the purappad and interest payable thereon. In Ex. B-2 the right of the judgment-debtor is shown as the Munpattom right for Rs. 600/-. None of these documents can be used against the appellants because they were not parties to the suit and to the execution proceedings against the respondents predecessor-in-interest. The High Court has also relied on an averment in the plaint. In paragraph 2 of the plaint the appellants have stated that the respondent paid the purappad in 1127 (1951-52), when one of the appellants demanded that the mortgage amount should be increased to Rs. 2000/- and the purappad should be enhanced to 300 paras. The respondent agreed to pay Rs. 1400/- in addition to Rs. 600/- and raised the mortgage amount to Rs. 2000/-. He also agreed to enhance purappad to 300 paras of paddy. From these averments the High Court has spelt out a tenancy right in favour of the respondent. The High Court says: "They are therein that in 1127 (the appellants) made a demand to increase the mortgage amount to Rs. 2000/- and to increase the Purappad to 300 paras of paddy per year, which was not complied with by the (respondent). If the property were given to the transferee as security for the amount advanced by him, what can be expected is that out of the income derivable from the property, after deducting the interest on the mortgage money and probably the cultivation expenses, the rest has to be paid to the mortgagor as excess profits derived from the property. The consequence is that if a further amount of Rs. 1400/- was also taken as mortgage money, what can reasonably be expected is a proportionate reduction in the Purappad payable. What I find, on the other hand, was a demand for an increase of dues from 291 paras of paddy to 300 paras per year even after taking an additional amount of Rs. 1400/- . This is tell-tale that the (appellants) were trying to get an increased pattom from the (respondent), which means that the arrangement was only a lease arrangement." 5. There is little warrant for jettisoning the finding of the lower appellate court, based as it is on appraisal of the whole evidence from an averment in the appellants plaint, which, at worst, may be echoing two voices. More, the respondent did not admit the averment. This part of their case was not pressed by them. Courts below did not act upon it. The trial court granted a decree for arrears of Purappad at the rate of 291 paras of paddy as stated by them in paragraph 1 of their plaint and not as claimed in paragraph 2 thereof. The High Court itself has affirmed this part of the decree. In the circumstances of this case, the High Court should not have interfered with the finding of fact recorded by the lower appellate court. So we would uphold the finding of the lower appellate court that neither the respondent nor his predecessor-in-interest was inducted to the property in dicpute as a tenant. 6. This does not conclude the matter. Counsel for the respondent has urged before us that the respondent has become a tenant under the Kerala Land Reforms Act. But this point was not raised before the High Court. For various reasons, we think that this question should be decided first by the High Court. Accordingly, we propose to remit the case to the High Court for decision of this question and for disposal of the second appeal accordingly. ### Response: 1 ### Explanation: The lower appellate Court, after discussing the oral and documentary evidence held that the respondent "had failed to prove that he was in possession of the property as lessee." It is a finding of fact. It cannot be said to be perverse or affected with any such infirmity as should invite the High Courts intervention in second appeal Ex. A. 52 is an admission by thet of the respondent. He has admitted that he was in possession under usufructuary mortgage for Rs. 600/Ex. A. 54 records an admission of the respondent himself that he was in possession under a mortgage. These documents would not be admissible to prove the terms of an oral mortgage; but surely they can be admitted to prove that neither the respondent nor hist was claiming possession as a tenant. Surprisingly, the High Court has upset the finding of the lower appellate Court in the absence of cogent reasons. The High Court has relied on two documents filed by the respondent. Ex. B. 1 and Ex. B. 2 Exhibit B. 1 is the sale certificate issued to him on May 29, 1943. Exhibit B. 2 is the document showing delivery of possession to him pursuant to the sale certificate. In Ex.1 the encumbrance on the property is shown as the purappad and interest payable thereon. In Ex.2 the right of ther is shown as the Munpattom right for Rs.. None of these documents can be used against the appellants because they were not parties to the suit and to the execution proceedings against the respondents. The High Court has also relied on an averment in the plaint. In paragraph 2 of the plaint the appellants have stated that the respondent paid the purappad in 1127, when one of the appellants demanded that the mortgage amount should be increased to Rs. 2000/and the purappad should be enhanced to 300 paras. The respondent agreed to pay Rs. 1400/in addition to Rs. 600/and raised the mortgage amount to Rs.. He also agreed to enhance purappad to 300 paras of paddy. From these averments the High Court has spelt out a tenancy right in favour of the respondent5. There is little warrant for jettisoning the finding of the lower appellate court, based as it is on appraisal of the whole evidence from an averment in the appellants plaint, which, at worst, may be echoing two voices. More, the respondent did not admit the averment. This part of their case was not pressed by them. Courts below did not act upon it. The trial court granted a decree for arrears of Purappad at the rate of 291 paras of paddy as stated by them in paragraph 1 of their plaint and not as claimed in paragraph 2 thereof. The High Court itself has affirmed this part of the decree. In the circumstances of this case, the High Court should not have interfered with the finding of fact recorded by the lower appellate court. So we would uphold the finding of the lower appellate court that neither the respondent nor hist was inducted to the property in dicpute as a tenant6. This does not conclude the matter. Counsel for the respondent has urged before us that the respondent has become a tenant under the Kerala Land Reforms Act. But this point was not raised before the High Court. For various reasons, we think that this question should be decided first by the High Court. Accordingly, we propose to remit the case to the High Court for decision of this question and for disposal of the second appeal accordingly.

Orissa Cement Limited, Rajganpur Vs. Their Workmen & Another

the validity or the propriety of the impugned order of discharge in the present proceedings. The tribunal has held that on earlier occasion the Appellate Tribunal had found that there was no contravention of S. 22 and that was really decisive of the proceedings. The alternative finding made in the said proceedings on the merits is no more than obiter and cannot be pleaded in support of the bar of res judicata. We are not prepared to hold that this view is erroneous. Therefore, in our opinion, the tribunal was justified in dealing with the merits of the present dispute.On the merits, the tribunal has found that there is no law or statutory rule which compelled the appellant to discharge the respondent on the ground that he has not obtained a permit, and according to it the appellant should have told the department that, in the absence of a statutory rule, it was not bound to comply with the requisition issued by the department that all wiremen should obtain a permit before the appellant employed them as such. The tribunal conceded that there is no mala fides about the action of the appellant; but it held that the appellant acted under a mistaken notion about the effect of the electricity rules, and so, in its opinion, the discharge of the respondent was not justified. It has also observed that the appellant might have given the respondent an alternative appointment as a telephone operator which did not require any permit. It is on these findings that the impugned order of reinstatement has been passed.4. It is perfectly true that there is no law or statutory rule which compelled the appellant to terminate the services of the respondent on the ground that he had not obtained a permit; but on the other hand, it seems to us that the department is fully justified in insisting upon all wiremen being duly qualified before they are appointed as such. Whether or not the statutory rule justifies such a request is really not material. The request is made in public interest because it is obviously desirable that wiremen should be duly qualified and one of the well recognized methods of testing such qualifications is to require the candidate concerned to appear for an examination held in that behalf. Therefore, even in the absence of a statutory rule, if the department desired that the appellant should appoint qualified wiremen and the appellant complied with the request we see nothing wrong or improper about it.It is not alleged or proved that the appellant has singled out the respondent and has kept other wiremen though they may not have obtained a permit by passing the examination. Such a plea appears to have been made in the earlier proceedings by the respondent but it was rejected; it had not been proved in the present proceedings either. Therefore, it is clear that the appellant had acted bona fide and in the interest of efficient work in that it has discharged all the wiremen who failed to obtain the necessary permit. We are unable to see how such conduct can be treated as anything but bona fide.5. It is not denied that the department was insisting that the appellant should require its wiremen to obtain the necessary permit; but it is urged that when the respondent was appointed on 5 July 1951, he should have been expressly told that he would not be confirmed unless he obtained the necessary permit after passing the examination; and in that connexion reference is made to the fact that the appellant must have already received a letter from the department in that behalf and yet it did not make it a condition of the respondents appointment. It is true that the letter in question which was addressed to the appellant by the department bears the date 3 July 1951, but it is not shown that the appellant had received it before 5 July when it appointed the respondent as a temporary wiremen, and so failure to provide for such a condition in the temporary appointment cannot be used against the appellant. Besides, the respondent was admittedly a temporary employee, and if it appeared that the department began to insist that every wireman must pass the examination and refused to grant exemption to anyone, the appellant cannot be blamed for asking the respondent to qualify himself in that behalf. In fact, it was at the appellants instance that the department allowed the respondent to take another chance and permitted him to appear at the second examination. Therefore, there is no substance in the argument that the appellant did not act bona fide in discharging the respondent.In dealing with the question of bona fides the tribunal appears to have lost sight of the fact that it is for the party alleging mala fides to lead reliable evidence in support of the said plea. In the present case, we see no trace of any such evidence, and so it is difficult to sustain the ultimate finding of the tribunal that the order of discharge should be set aside and the appellant should be ordered to reinstate the respondent.The tribunal has, no doubt observed that the respondent should have been taken as a telephone operator. We do not see how this can have a material bearing on the question with which the tribunal was concerned. The respondent was appointed as a wireman, and if the appellant was justified in discharging as such, there was no obligation on the appellant to give the respondent another employment on its staff. Besides, it is somewhat significant that on an earlier occasion when wireman were appointed as telephone attendants by rotation, the union itself had objected to such a course on the ground that a wireman would thereby lose his skill as a wireman. In any event, the failure to provide an alternative employment to the respondent cannot lead to the inference that the termination of his services as a wireman is unfair.6.

1[ds]It is perfectly true that there is no law or statutory rule which compelled the appellant to terminate the services of the respondent on the ground that he had not obtained a permit; but on the other hand, it seems to us that the department is fully justified in insisting upon all wiremen being duly qualified before they are appointed as such. Whether or not the statutory rule justifies such a request is really not material. The request is made in public interest because it is obviously desirable that wiremen should be duly qualified and one of the well recognized methods of testing such qualifications is to require the candidate concerned to appear for an examination held in that behalf. Therefore, even in the absence of a statutory rule, if the department desired that the appellant should appoint qualified wiremen and the appellant complied with the request we see nothing wrong or improper about it.It is not alleged or proved that the appellant has singled out the respondent and has kept other wiremen though they may not have obtained a permit by passing the examination. Such a plea appears to have been made in the earlier proceedings by the respondent but it was rejected; it had not been proved in the present proceedings either. Therefore, it is clear that the appellant had acted bona fide and in the interest of efficient work in that it has discharged all the wiremen who failed to obtain the necessary permit. We are unable to see how such conduct can be treated as anything but bonais not denied that the department was insisting that the appellant should require its wiremen to obtain the necessary permit; but it is urged that when the respondent was appointed on 5 July 1951, he should have been expressly told that he would not be confirmed unless he obtained the necessary permit after passing the examination; and in that connexion reference is made to the fact that the appellant must have already received a letter from the department in that behalf and yet it did not make it a condition of the respondents appointment. It is true that the letter in question which was addressed to the appellant by the department bears the date 3 July 1951, but it is not shown that the appellant had received it before 5 July when it appointed the respondent as a temporary wiremen, and so failure to provide for such a condition in the temporary appointment cannot be used against the appellant. Besides, the respondent was admittedly a temporary employee, and if it appeared that the department began to insist that every wireman must pass the examination and refused to grant exemption to anyone, the appellant cannot be blamed for asking the respondent to qualify himself in that behalf. In fact, it was at the appellants instance that the department allowed the respondent to take another chance and permitted him to appear at the second examination. Therefore, there is no substance in the argument that the appellant did not act bona fide in discharging the respondent.In dealing with the question of bona fides the tribunal appears to have lost sight of the fact that it is for the party alleging mala fides to lead reliable evidence in support of the said plea. In the present case, we see no trace of any such evidence, and so it is difficult to sustain the ultimate finding of the tribunal that the order of discharge should be set aside and the appellant should be ordered to reinstate the respondent.The tribunal has, no doubt observed that the respondent should have been taken as a telephone operator. We do not see how this can have a material bearing on the question with which the tribunal was concerned. The respondent was appointed as a wireman, and if the appellant was justified in discharging as such, there was no obligation on the appellant to give the respondent another employment on its staff. Besides, it is somewhat significant that on an earlier occasion when wireman were appointed as telephone attendants by rotation, the union itself had objected to such a course on the ground that a wireman would thereby lose his skill as a wireman. In any event, the failure to provide an alternative employment to the respondent cannot lead to the inference that the termination of his services as a wireman is unfair.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: the validity or the propriety of the impugned order of discharge in the present proceedings. The tribunal has held that on earlier occasion the Appellate Tribunal had found that there was no contravention of S. 22 and that was really decisive of the proceedings. The alternative finding made in the said proceedings on the merits is no more than obiter and cannot be pleaded in support of the bar of res judicata. We are not prepared to hold that this view is erroneous. Therefore, in our opinion, the tribunal was justified in dealing with the merits of the present dispute.On the merits, the tribunal has found that there is no law or statutory rule which compelled the appellant to discharge the respondent on the ground that he has not obtained a permit, and according to it the appellant should have told the department that, in the absence of a statutory rule, it was not bound to comply with the requisition issued by the department that all wiremen should obtain a permit before the appellant employed them as such. The tribunal conceded that there is no mala fides about the action of the appellant; but it held that the appellant acted under a mistaken notion about the effect of the electricity rules, and so, in its opinion, the discharge of the respondent was not justified. It has also observed that the appellant might have given the respondent an alternative appointment as a telephone operator which did not require any permit. It is on these findings that the impugned order of reinstatement has been passed.4. It is perfectly true that there is no law or statutory rule which compelled the appellant to terminate the services of the respondent on the ground that he had not obtained a permit; but on the other hand, it seems to us that the department is fully justified in insisting upon all wiremen being duly qualified before they are appointed as such. Whether or not the statutory rule justifies such a request is really not material. The request is made in public interest because it is obviously desirable that wiremen should be duly qualified and one of the well recognized methods of testing such qualifications is to require the candidate concerned to appear for an examination held in that behalf. Therefore, even in the absence of a statutory rule, if the department desired that the appellant should appoint qualified wiremen and the appellant complied with the request we see nothing wrong or improper about it.It is not alleged or proved that the appellant has singled out the respondent and has kept other wiremen though they may not have obtained a permit by passing the examination. Such a plea appears to have been made in the earlier proceedings by the respondent but it was rejected; it had not been proved in the present proceedings either. Therefore, it is clear that the appellant had acted bona fide and in the interest of efficient work in that it has discharged all the wiremen who failed to obtain the necessary permit. We are unable to see how such conduct can be treated as anything but bona fide.5. It is not denied that the department was insisting that the appellant should require its wiremen to obtain the necessary permit; but it is urged that when the respondent was appointed on 5 July 1951, he should have been expressly told that he would not be confirmed unless he obtained the necessary permit after passing the examination; and in that connexion reference is made to the fact that the appellant must have already received a letter from the department in that behalf and yet it did not make it a condition of the respondents appointment. It is true that the letter in question which was addressed to the appellant by the department bears the date 3 July 1951, but it is not shown that the appellant had received it before 5 July when it appointed the respondent as a temporary wiremen, and so failure to provide for such a condition in the temporary appointment cannot be used against the appellant. Besides, the respondent was admittedly a temporary employee, and if it appeared that the department began to insist that every wireman must pass the examination and refused to grant exemption to anyone, the appellant cannot be blamed for asking the respondent to qualify himself in that behalf. In fact, it was at the appellants instance that the department allowed the respondent to take another chance and permitted him to appear at the second examination. Therefore, there is no substance in the argument that the appellant did not act bona fide in discharging the respondent.In dealing with the question of bona fides the tribunal appears to have lost sight of the fact that it is for the party alleging mala fides to lead reliable evidence in support of the said plea. In the present case, we see no trace of any such evidence, and so it is difficult to sustain the ultimate finding of the tribunal that the order of discharge should be set aside and the appellant should be ordered to reinstate the respondent.The tribunal has, no doubt observed that the respondent should have been taken as a telephone operator. We do not see how this can have a material bearing on the question with which the tribunal was concerned. The respondent was appointed as a wireman, and if the appellant was justified in discharging as such, there was no obligation on the appellant to give the respondent another employment on its staff. Besides, it is somewhat significant that on an earlier occasion when wireman were appointed as telephone attendants by rotation, the union itself had objected to such a course on the ground that a wireman would thereby lose his skill as a wireman. In any event, the failure to provide an alternative employment to the respondent cannot lead to the inference that the termination of his services as a wireman is unfair.6. ### Response: 1 ### Explanation: It is perfectly true that there is no law or statutory rule which compelled the appellant to terminate the services of the respondent on the ground that he had not obtained a permit; but on the other hand, it seems to us that the department is fully justified in insisting upon all wiremen being duly qualified before they are appointed as such. Whether or not the statutory rule justifies such a request is really not material. The request is made in public interest because it is obviously desirable that wiremen should be duly qualified and one of the well recognized methods of testing such qualifications is to require the candidate concerned to appear for an examination held in that behalf. Therefore, even in the absence of a statutory rule, if the department desired that the appellant should appoint qualified wiremen and the appellant complied with the request we see nothing wrong or improper about it.It is not alleged or proved that the appellant has singled out the respondent and has kept other wiremen though they may not have obtained a permit by passing the examination. Such a plea appears to have been made in the earlier proceedings by the respondent but it was rejected; it had not been proved in the present proceedings either. Therefore, it is clear that the appellant had acted bona fide and in the interest of efficient work in that it has discharged all the wiremen who failed to obtain the necessary permit. We are unable to see how such conduct can be treated as anything but bonais not denied that the department was insisting that the appellant should require its wiremen to obtain the necessary permit; but it is urged that when the respondent was appointed on 5 July 1951, he should have been expressly told that he would not be confirmed unless he obtained the necessary permit after passing the examination; and in that connexion reference is made to the fact that the appellant must have already received a letter from the department in that behalf and yet it did not make it a condition of the respondents appointment. It is true that the letter in question which was addressed to the appellant by the department bears the date 3 July 1951, but it is not shown that the appellant had received it before 5 July when it appointed the respondent as a temporary wiremen, and so failure to provide for such a condition in the temporary appointment cannot be used against the appellant. Besides, the respondent was admittedly a temporary employee, and if it appeared that the department began to insist that every wireman must pass the examination and refused to grant exemption to anyone, the appellant cannot be blamed for asking the respondent to qualify himself in that behalf. In fact, it was at the appellants instance that the department allowed the respondent to take another chance and permitted him to appear at the second examination. Therefore, there is no substance in the argument that the appellant did not act bona fide in discharging the respondent.In dealing with the question of bona fides the tribunal appears to have lost sight of the fact that it is for the party alleging mala fides to lead reliable evidence in support of the said plea. In the present case, we see no trace of any such evidence, and so it is difficult to sustain the ultimate finding of the tribunal that the order of discharge should be set aside and the appellant should be ordered to reinstate the respondent.The tribunal has, no doubt observed that the respondent should have been taken as a telephone operator. We do not see how this can have a material bearing on the question with which the tribunal was concerned. The respondent was appointed as a wireman, and if the appellant was justified in discharging as such, there was no obligation on the appellant to give the respondent another employment on its staff. Besides, it is somewhat significant that on an earlier occasion when wireman were appointed as telephone attendants by rotation, the union itself had objected to such a course on the ground that a wireman would thereby lose his skill as a wireman. In any event, the failure to provide an alternative employment to the respondent cannot lead to the inference that the termination of his services as a wireman is unfair.

Mazharul Islam Hashmi Vs. State of Uttar Pradesh and Another

to secure a reasonable uniformity in the standard to be applied by the Divisional Committee in making the selection. The Government reiterated its declared policy that all such officers and servants, whose services were proposed to be determined on the ground of unsuitability, be given an opportunity of personal interview by the Committee and the official concerned should be given a chance to clerk up his position with reference to any adverse entries appearing in his service record. It was also desired by the Government that only those adverse remarks may be considered against the official concerned which were found to have been only communicated to him.15. The appellants case, as laid before the High Court was that he had become finally absorbed in the Palika Centralised Services by the operation of the legal fiction contained in Rule 6(2)(iii). But on September 6, 1967 an order of the State Government dated August 26, 1967 was served upon him, intimating that his services had been terminated under the U. P. Palika (Centralised) Rules.16. The appellants further contention here as there is that this order terminating his services, was passed without giving him an opportunity to explain his position, or without giving him any show cause notice, whatever.17. It was mainly on this ground that the appellant impugned the Government Order dated August 18, 1967, terminating his service, in the writ petition under Article 226 of the Constitution, filed in the High Court.18. Several other employees, similarly situated, had filed writ petitions in the High Court to challenge the orders whereby their services were terminated. The learned single Judge, who tried these petitions, dismissed them by a common judgment, dated March 27, 1968.19. The appellant and other writ petitioners preferred special appeals in the High Court. Those appeals were dismissed by a Division Bench of the High Court, by an order dated May 12, 1969.20. Two of those writ petitioner, namely Mohamad Rashid Ahmed and Ashfaq Hussain filed Civil Appeal 1724 of 1969 and Civil Appeal 1732 of 1971 after obtaining special leave of this Court. Those appeals have been disposed of by a common judgment dated December 15, 1978 by this Court (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82). One of us (Sarkaria, J.) was a party to that judgment. The appeal of Mohamad Rashid Ahmed was allowed by this Court on the ground that no opportunity was afforded to him, before the State Government passed the impugned order dated July 18, 1967 terminating his services.21. The appellant before us also impugnes the termination of his services precisely on the same ground.22. Mr. Dixit, who appears for the respondents States does not dispute the appellants allegation that no opportunity or notice was given to him to show cause against the contemplated termination of his services. But, it is submitted by him that the appeal has become infructuous because the appellant had superannuated long ago. In this connection, he has pointed out that when the impugned order dated August 28, 1967 was passed, the appellant, according to his own allegation was about 56 years old. He, therefore, must have attained the age of superannuation in August 1971. On the other hand it is submitted that the appellant has been continued in service first under the stay order issued by the High Court and after the filing of the petition for special leave in this Court, under an injunction issued by this Court.23. As against this, learned counsel for the appellant points out that the interim order restraining the respondent from discontinuing his services initially passed by this court was vacated on December 9, 1969 and in consequence, the appellant has not been continuing in services thereafter. If age of superannuation under the Rules is 60 years, as has been asserted by the learned counsel for the appellant, then it means that the appellants services were prematurely discontinued at a time when he had several months to serve before attaining the age of superannuation. In this view of the matter the appeal cannot be said to be infructuous.24. The ratio of Mohd. Rashid Ahmed (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82) case therefore, squarely covers the case of the appellant.25. It was observed in that case that it is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing, as pointed out by this Court earlier, are : (i) A person must know the case that he is to meet; and (ii) he must have an adequate opportunity of meeting that case. These rules of natural justice, however, operate in voids of a statute. Their application can be expressly or implicitly excluded by the legislature. But, such is not the case here. On the contrary, the two circulars issued by the State Government, to which a reference has been made earlier, expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobodys case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the Stated) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated is having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration.

1[ds]24. The ratio of Mohd. Rashid Ahmed (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82) case therefore, squarely covers the case of the appellant.25. It was observed in that case that it is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing, as pointed out by this Court earlier, are : (i) A person must know the case that he is to meet; and (ii) he must have an adequate opportunity of meeting that case. These rules of natural justice, however, operate in voids of a statute. Their application can be expressly or implicitly excluded by the legislature. But, such is not the case here. On the contrary, the two circulars issued by the State Government, to which a reference has been made earlier, expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobodys case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the Stated) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated is having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration.

### 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: to secure a reasonable uniformity in the standard to be applied by the Divisional Committee in making the selection. The Government reiterated its declared policy that all such officers and servants, whose services were proposed to be determined on the ground of unsuitability, be given an opportunity of personal interview by the Committee and the official concerned should be given a chance to clerk up his position with reference to any adverse entries appearing in his service record. It was also desired by the Government that only those adverse remarks may be considered against the official concerned which were found to have been only communicated to him.15. The appellants case, as laid before the High Court was that he had become finally absorbed in the Palika Centralised Services by the operation of the legal fiction contained in Rule 6(2)(iii). But on September 6, 1967 an order of the State Government dated August 26, 1967 was served upon him, intimating that his services had been terminated under the U. P. Palika (Centralised) Rules.16. The appellants further contention here as there is that this order terminating his services, was passed without giving him an opportunity to explain his position, or without giving him any show cause notice, whatever.17. It was mainly on this ground that the appellant impugned the Government Order dated August 18, 1967, terminating his service, in the writ petition under Article 226 of the Constitution, filed in the High Court.18. Several other employees, similarly situated, had filed writ petitions in the High Court to challenge the orders whereby their services were terminated. The learned single Judge, who tried these petitions, dismissed them by a common judgment, dated March 27, 1968.19. The appellant and other writ petitioners preferred special appeals in the High Court. Those appeals were dismissed by a Division Bench of the High Court, by an order dated May 12, 1969.20. Two of those writ petitioner, namely Mohamad Rashid Ahmed and Ashfaq Hussain filed Civil Appeal 1724 of 1969 and Civil Appeal 1732 of 1971 after obtaining special leave of this Court. Those appeals have been disposed of by a common judgment dated December 15, 1978 by this Court (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82). One of us (Sarkaria, J.) was a party to that judgment. The appeal of Mohamad Rashid Ahmed was allowed by this Court on the ground that no opportunity was afforded to him, before the State Government passed the impugned order dated July 18, 1967 terminating his services.21. The appellant before us also impugnes the termination of his services precisely on the same ground.22. Mr. Dixit, who appears for the respondents States does not dispute the appellants allegation that no opportunity or notice was given to him to show cause against the contemplated termination of his services. But, it is submitted by him that the appeal has become infructuous because the appellant had superannuated long ago. In this connection, he has pointed out that when the impugned order dated August 28, 1967 was passed, the appellant, according to his own allegation was about 56 years old. He, therefore, must have attained the age of superannuation in August 1971. On the other hand it is submitted that the appellant has been continued in service first under the stay order issued by the High Court and after the filing of the petition for special leave in this Court, under an injunction issued by this Court.23. As against this, learned counsel for the appellant points out that the interim order restraining the respondent from discontinuing his services initially passed by this court was vacated on December 9, 1969 and in consequence, the appellant has not been continuing in services thereafter. If age of superannuation under the Rules is 60 years, as has been asserted by the learned counsel for the appellant, then it means that the appellants services were prematurely discontinued at a time when he had several months to serve before attaining the age of superannuation. In this view of the matter the appeal cannot be said to be infructuous.24. The ratio of Mohd. Rashid Ahmed (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82) case therefore, squarely covers the case of the appellant.25. It was observed in that case that it is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing, as pointed out by this Court earlier, are : (i) A person must know the case that he is to meet; and (ii) he must have an adequate opportunity of meeting that case. These rules of natural justice, however, operate in voids of a statute. Their application can be expressly or implicitly excluded by the legislature. But, such is not the case here. On the contrary, the two circulars issued by the State Government, to which a reference has been made earlier, expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobodys case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the Stated) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated is having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration. ### Response: 1 ### Explanation: 24. The ratio of Mohd. Rashid Ahmed (Mohd. Rashid Ahmad v. State of U. P., (1979) 1 SCC 596 : 1979 SCC (L & S) 82) case therefore, squarely covers the case of the appellant.25. It was observed in that case that it is fundamental rule of law that no decision must be taken which will affect the rights of any person without first giving him an opportunity of putting forward his case. The main requirements of a fair hearing, as pointed out by this Court earlier, are : (i) A person must know the case that he is to meet; and (ii) he must have an adequate opportunity of meeting that case. These rules of natural justice, however, operate in voids of a statute. Their application can be expressly or implicitly excluded by the legislature. But, such is not the case here. On the contrary, the two circulars issued by the State Government, to which a reference has been made earlier, expressly imported these principles of natural justice and required that in all cases in which the services of an officer or servant were to be determined on the ground of his unsuitability, they must be given an opportunity of personal hearing by the Committee. The whole purpose of the personal interview was that, when it was proposed to declare an official unsuitable for absorption, the Committee had to afford him an opportunity to appear before it and clear up his position. Since it is nobodys case that such an opportunity was afforded to the appellant, we would hold that the order dated August 26, 1967 (of termination of his services passed by the Stated) suffers from a serious legal infirmity and must be quashed. He will, therefore, have to be treated is having continued in service till the age of superannuation and entitled to all the benefits incidental to such a declaration.

Bhagwan Dass Arora Vs. First Additional Distt. Judge, Rampur

and accordingly it was held that the security bond executed by a surety to comply with an order made by the Court under the proviso would be governed by Art. 6 Schedule 2 of the Court-fee Act and not by the provisions of the Indian Stamp Act. The learned judge then referred to Kasemali v. Ajovendra Paul and ors (3) which in its turn had followed Babu Rao Keshav Rao v. Kalavatibai Amrut Rao(1) herein it was held that the provisions of the Provincial Small Cause Courts Act cannot be said to be supplemental to the Code of Civil Procedure and that the special provision enacted in the proviso to sec. 17 (1) of the Act. would have to be complied with on its own force and cannot be treated as part of order 9 Rule 13 of the Code of Civil Procedure. It was noticed that even though the application for setting aside an ex-parte decree has to be made under order 9 Rule 13 that provision does not obligate the judgment-debtor to g ive any security as condition precedent which the proviso to sec. 17 (1) mandates.After having noticed this conflict, the learned Judge concluded that he preferred the Calcutta view and consequently held that the surety bond to be furnished for complying with the order made under the proviso to section 17(1) of the Act must be duly stamped as required by the Indian Stamp Act. Art. 57 of the Indian Stamp Act was called in aid of this conclusion. Frankly speaking, we have ow n reservations whether Art 57 would at all be attracted but we are not disposed to resolve this controversy in this case and leave it for a more detailed argument because in this case, as directed by the Court, the appellant had furnished the requisite stamps to be affixed on the surety bond which was submitted within the period of limitation. 3. To recall a few facts, an application praying for an order under the proviso to sec. 17 (1) was made within 2 days from the date on which the suit was decreed exparte. The suit was decreed exparte on August 6, 1977 and the application under the proviso to sec. 17 (1) was made on August 8, 1977. On that very day, the Court made an order for security bond to be furnished for a certain amount and a bond was furnished with the legal infirmity as found by the learned Judge of the High Court that instead of it being stamped as required by the Indian Stamp Act, it was stamped with a court-fee stamp of Rs. 2. 4. Look at the agony and misery of the appellant. Two premier High Courts, Madras and Calcutta, differ on the requirement of a valid security bond to comply with the proviso to sec. 17 (1). And the degree of difference is not narrow but irreconcilable. If the view taken by the Madras High Court had prevailed with the learned Judge, the matter would have been decided in favour of the appellant because he had already furnished a bond stamped with court-fee stamp of Rs. 2 and it was never suggested that it wa s inadequate. But as the learned Judge preferred the view taken by the Calcutta High Court, the surety bond was found to be not duly stamped. However, when the matter was before the trial court, on the contention being raised by the decree-holde r the appellant, as directed by the Court, did supply the requisite stamps as required by the provisions of the Indian Stamp Act. There wag no fresh bond but old bond was duly stamped. In this situation, why should the appellant be penalized by shutting the doors of justice even though as advised by his lawyer, he acted in the best possible manner to comply with the courts order. Uncertainty of the law, as far as the State of U.P. is concerned, came to be resolved by the decision of t he learned single Judge of the High Court. Till then, the trial court was faced with two conflicting views of two different High Courts. What ought to be the position of an indigent litigant, advised by his lawer, in this situation left us guessing if not wholly bewildered. We are of the opinion that in this situation, the litigant cannot be visited with the consequence of being thrown out of court and shutting the doors of justice in his face. What horrible agonosing situation, the a ppellant faced cannot be gauged. He had produced the surety bond on the first day i.e. August 8, 1977 duly stamped as then advised. And had the learned Single Judge preferred the Madras view which required that it should be stamped with court-f ee stamp, the appellant was fully protected. To his utter misfortune, the Calcutta view found favour with the learned Single Judge and the appellant suffered the irremediable consequence of this later day preference. We are of the opinion t hat preferences of judges should not be allow to work hardship on litigant in respect of a procedural provision. In this state of law and in view of the further fact that after the limitation period of 30 days expired, Munasarim of the Court drew the attention of the Court to the fact that the surety bond was not duly stamped, the appellant, a litigant, cannot be penalized on the pain of being thrown out of court on this technical ground. Justice cannot be a playground by kicking the ball from one court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks and ultimately to be told that he acted according to the view taken by a Full Bench of a High Court which d id not find favour with the learned Single Judge of the High Court of the State in which he resided. This is not justice. This is legalese which ought to be avoided.

1[ds]Look at the agony and misery of the appellant. Two premier High Courts, Madras and Calcutta, differ on the requirement of a valid security bond to comply with the proviso to sec. 17 (1). And the degree of difference is not narrow but irreconcilable. If the view taken by the Madras High Court had prevailed with the learned Judge, the matter would have been decided in favour of the appellant because he had already furnished a bond stamped with court-fee stamp of Rs. 2 and it was never suggested that it wa s inadequate. But as the learned Judge preferred the view taken by the Calcutta High Court, the surety bond was found to be not duly stamped. However, when the matter was before the trial court, on the contention being raised by the decree-holde r the appellant, as directed by the Court, did supply the requisite stamps as required by the provisions of the Indian Stamp Act. There wag no fresh bond but old bond was duly stamped. In this situation, why should the appellant be penalized by shutting the doors of justice even though as advised by his lawyer, he acted in the best possible manner to comply with the courts order. Uncertainty of the law, as far as the State of U.P. is concerned, came to be resolved by the decision of t he learned single Judge of the High Court. Till then, the trial court was faced with two conflicting views of two different High Courts. What ought to be the position of an indigent litigant, advised by his lawer, in this situation left us guessing if not wholly bewildered. We are of the opinion that in this situation, the litigant cannot be visited with the consequence of being thrown out of court and shutting the doors of justice in his face. What horrible agonosing situation, the a ppellant faced cannot be gauged. He had produced the surety bond on the first day i.e. August 8, 1977 duly stamped as then advised. And had the learned Single Judge preferred the Madras view which required that it should be stamped with court-f ee stamp, the appellant was fully protected. To his utter misfortune, the Calcutta view found favour with the learned Single Judge and the appellant suffered the irremediable consequence of this later day preference. We are of the opinion t hat preferences of judges should not be allow to work hardship on litigant in respect of a procedural provision. In this state of law and in view of the further fact that after the limitation period of 30 days expired, Munasarim of the Court drew the attention of the Court to the fact that the surety bond was not duly stamped, the appellant, a litigant, cannot be penalized on the pain of being thrown out of court on this technical ground. Justice cannot be a playground by kicking the ball from one court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks and ultimately to be told that he acted according to the view taken by a Full Bench of a High Court which d id not find favour with the learned Single Judge of the High Court of the State in which he resided. This is not justice. This is legalese which ought to be avoided. We accordingly allow this appeal, set aside the order of the trial court as well as the order in revision petition by the learned Addl. Distt. Judge as also the decision of the High Court and grant the application made by the appellant for setting aside the exparte decree and set aside the exparte decree. The trial of the suit shall proceed from the stage where the suit was decreed exparte.

### 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: and accordingly it was held that the security bond executed by a surety to comply with an order made by the Court under the proviso would be governed by Art. 6 Schedule 2 of the Court-fee Act and not by the provisions of the Indian Stamp Act. The learned judge then referred to Kasemali v. Ajovendra Paul and ors (3) which in its turn had followed Babu Rao Keshav Rao v. Kalavatibai Amrut Rao(1) herein it was held that the provisions of the Provincial Small Cause Courts Act cannot be said to be supplemental to the Code of Civil Procedure and that the special provision enacted in the proviso to sec. 17 (1) of the Act. would have to be complied with on its own force and cannot be treated as part of order 9 Rule 13 of the Code of Civil Procedure. It was noticed that even though the application for setting aside an ex-parte decree has to be made under order 9 Rule 13 that provision does not obligate the judgment-debtor to g ive any security as condition precedent which the proviso to sec. 17 (1) mandates.After having noticed this conflict, the learned Judge concluded that he preferred the Calcutta view and consequently held that the surety bond to be furnished for complying with the order made under the proviso to section 17(1) of the Act must be duly stamped as required by the Indian Stamp Act. Art. 57 of the Indian Stamp Act was called in aid of this conclusion. Frankly speaking, we have ow n reservations whether Art 57 would at all be attracted but we are not disposed to resolve this controversy in this case and leave it for a more detailed argument because in this case, as directed by the Court, the appellant had furnished the requisite stamps to be affixed on the surety bond which was submitted within the period of limitation. 3. To recall a few facts, an application praying for an order under the proviso to sec. 17 (1) was made within 2 days from the date on which the suit was decreed exparte. The suit was decreed exparte on August 6, 1977 and the application under the proviso to sec. 17 (1) was made on August 8, 1977. On that very day, the Court made an order for security bond to be furnished for a certain amount and a bond was furnished with the legal infirmity as found by the learned Judge of the High Court that instead of it being stamped as required by the Indian Stamp Act, it was stamped with a court-fee stamp of Rs. 2. 4. Look at the agony and misery of the appellant. Two premier High Courts, Madras and Calcutta, differ on the requirement of a valid security bond to comply with the proviso to sec. 17 (1). And the degree of difference is not narrow but irreconcilable. If the view taken by the Madras High Court had prevailed with the learned Judge, the matter would have been decided in favour of the appellant because he had already furnished a bond stamped with court-fee stamp of Rs. 2 and it was never suggested that it wa s inadequate. But as the learned Judge preferred the view taken by the Calcutta High Court, the surety bond was found to be not duly stamped. However, when the matter was before the trial court, on the contention being raised by the decree-holde r the appellant, as directed by the Court, did supply the requisite stamps as required by the provisions of the Indian Stamp Act. There wag no fresh bond but old bond was duly stamped. In this situation, why should the appellant be penalized by shutting the doors of justice even though as advised by his lawyer, he acted in the best possible manner to comply with the courts order. Uncertainty of the law, as far as the State of U.P. is concerned, came to be resolved by the decision of t he learned single Judge of the High Court. Till then, the trial court was faced with two conflicting views of two different High Courts. What ought to be the position of an indigent litigant, advised by his lawer, in this situation left us guessing if not wholly bewildered. We are of the opinion that in this situation, the litigant cannot be visited with the consequence of being thrown out of court and shutting the doors of justice in his face. What horrible agonosing situation, the a ppellant faced cannot be gauged. He had produced the surety bond on the first day i.e. August 8, 1977 duly stamped as then advised. And had the learned Single Judge preferred the Madras view which required that it should be stamped with court-f ee stamp, the appellant was fully protected. To his utter misfortune, the Calcutta view found favour with the learned Single Judge and the appellant suffered the irremediable consequence of this later day preference. We are of the opinion t hat preferences of judges should not be allow to work hardship on litigant in respect of a procedural provision. In this state of law and in view of the further fact that after the limitation period of 30 days expired, Munasarim of the Court drew the attention of the Court to the fact that the surety bond was not duly stamped, the appellant, a litigant, cannot be penalized on the pain of being thrown out of court on this technical ground. Justice cannot be a playground by kicking the ball from one court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks and ultimately to be told that he acted according to the view taken by a Full Bench of a High Court which d id not find favour with the learned Single Judge of the High Court of the State in which he resided. This is not justice. This is legalese which ought to be avoided. ### Response: 1 ### Explanation: Look at the agony and misery of the appellant. Two premier High Courts, Madras and Calcutta, differ on the requirement of a valid security bond to comply with the proviso to sec. 17 (1). And the degree of difference is not narrow but irreconcilable. If the view taken by the Madras High Court had prevailed with the learned Judge, the matter would have been decided in favour of the appellant because he had already furnished a bond stamped with court-fee stamp of Rs. 2 and it was never suggested that it wa s inadequate. But as the learned Judge preferred the view taken by the Calcutta High Court, the surety bond was found to be not duly stamped. However, when the matter was before the trial court, on the contention being raised by the decree-holde r the appellant, as directed by the Court, did supply the requisite stamps as required by the provisions of the Indian Stamp Act. There wag no fresh bond but old bond was duly stamped. In this situation, why should the appellant be penalized by shutting the doors of justice even though as advised by his lawyer, he acted in the best possible manner to comply with the courts order. Uncertainty of the law, as far as the State of U.P. is concerned, came to be resolved by the decision of t he learned single Judge of the High Court. Till then, the trial court was faced with two conflicting views of two different High Courts. What ought to be the position of an indigent litigant, advised by his lawer, in this situation left us guessing if not wholly bewildered. We are of the opinion that in this situation, the litigant cannot be visited with the consequence of being thrown out of court and shutting the doors of justice in his face. What horrible agonosing situation, the a ppellant faced cannot be gauged. He had produced the surety bond on the first day i.e. August 8, 1977 duly stamped as then advised. And had the learned Single Judge preferred the Madras view which required that it should be stamped with court-f ee stamp, the appellant was fully protected. To his utter misfortune, the Calcutta view found favour with the learned Single Judge and the appellant suffered the irremediable consequence of this later day preference. We are of the opinion t hat preferences of judges should not be allow to work hardship on litigant in respect of a procedural provision. In this state of law and in view of the further fact that after the limitation period of 30 days expired, Munasarim of the Court drew the attention of the Court to the fact that the surety bond was not duly stamped, the appellant, a litigant, cannot be penalized on the pain of being thrown out of court on this technical ground. Justice cannot be a playground by kicking the ball from one court to other depending upon which of the conflicting views will ultimately prevail leaving a litigant on the tenterhooks and ultimately to be told that he acted according to the view taken by a Full Bench of a High Court which d id not find favour with the learned Single Judge of the High Court of the State in which he resided. This is not justice. This is legalese which ought to be avoided. We accordingly allow this appeal, set aside the order of the trial court as well as the order in revision petition by the learned Addl. Distt. Judge as also the decision of the High Court and grant the application made by the appellant for setting aside the exparte decree and set aside the exparte decree. The trial of the suit shall proceed from the stage where the suit was decreed exparte.

Indofil Industries Ltd. & Others Vs. State of Punjab

in any prosecution in respect of the samples. 13. Sub-sections (3) and (4) of Section 24 are of some significance. The same read thus: "24. (3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.(4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide Analysts report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory, [which shall, within a period of thirty days, which shall make the test or analysis] and report in writing signed by, or under the authority of, the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein." On a bare reading of sub-section (3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of sub-section (4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the concerned Magistrate before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24 (4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part of sub-section (4) of Section 24 opens with the words, "Unless the sample has already been tested or analysed in the CIL". Therefore, in cases where such report is already obtained or available, the criminal prosecution must proceed on that basis. In other words, only if the analysis report of the CIL is not available or filed along with complaint or placed on record in the criminal prosecution, would the accused get a right to request the concerned Magistrate to direct testing or analysis of the third sample produced before that Court by the prosecution from the CIL and not otherwise. Any other view would entail in rewriting of the provisions, which are otherwise plain and unambiguous. Thus, if the report of the CIL has been obtained before filing of the complaint or pursuant to the direction given by the concerned Magistrate and made part of record of the criminal prosecution, as in this case, the accused named in the complaint cannot ask for analysis of the sample already used at the instance of the person from whom it was taken and is named as co-accused. 14. To put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the concerned Magistrate so directs, is in the teeth of the dictum of this Court in the case of State of Haryana v. Unique Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and submit the third sample in the concerned Court well before the expiry of shelf life of the Insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment.15. While parting, we make it clear that we have not expressed any opinion either way on the efficacy of the CIL report in question including on the issue of admissibility thereof. All questions in that regard will have to be answered by the trial court.

0[ds]7. Having cogitated over the rival submissions, we find force in the argument of the respondent State.11. On a bare perusal of Section 21 of the Act, it is amply clear that the Insecticide Inspector is empowered to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for testing in the prescribed manner. The manner of dispatch of samples for test or analysis is prescribed in Rule 34. It predicates as to how each sample is required to be sent by registered post or by hand in a sealed packet together with a memorandum set out in Form XII in an outer cover addressed to the Insecticide Analyst. As per(5) of Section 22, if the Insecticide Inspector decides to take a sample of an insecticide for the purpose of test or analysis, he is obliged to intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, he shall then divide the sample into three portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. After that, the Insecticide Inspector is expected to restore one portion of a sample so divided or one container as the case may be, to the person from whom he takes it and retain the remainder and deal with same in the manner prescribed in(6) of Section 22. Out of the remainder, one portion or container is required to be sent for Insecticide Analyst Test or Analysis. The second portion is required to be produced before the Court where the proceedings if any are instituted in relation to the said insecticide. As noted earlier, the analysis of the sample can be obtained from either the Insecticide Analyst appointed under Section 19 or the CIL established under Section 16 of thea bare reading of(3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of(4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the concerned Magistrate before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24 (4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part ofTo put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the concerned Magistrate so directs, is in the teeth of the dictum of this Court in the case of State of Haryana v. Unique Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and submit the third sample in the concerned Court well before the expiry of shelf life of the Insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment.15. While parting, we make it clear that we have not expressed any opinion either way on the efficacy of the CIL report in question including on the issue of admissibility thereof. All questions in that regard will have to be answered by the trial court.

### Instruction: Judge the probable resolution of the case (approval (1) or disapproval (0)), and elaborate on this forecast by extracting and interpreting significant sentences from the proceeding. ### Input: in any prosecution in respect of the samples. 13. Sub-sections (3) and (4) of Section 24 are of some significance. The same read thus: "24. (3) Any document purporting to be a report signed by an Insecticide Analyst shall be evidence of the facts stated therein, and such evidence shall be conclusive unless the person from whom the sample was taken has within twenty-eight days of the receipt of a copy of the report notified in writing the Insecticide Inspector or the Court before which any proceedings in respect of the sample are pending that he intends to adduce evidence in controversion of the report.(4) Unless the sample has already been tested or analysed in the Central Insecticides Laboratory, where a person has under sub-section (3) notified his intention of adducing evidence in controversion of the Insecticide Analysts report, the court may, of its own motion or in its discretion at the request either of the complainant or of the accused, cause the sample of the insecticide produced before the Magistrate under sub-section (6) of section 22 to be sent for test or analysis to the said laboratory, [which shall, within a period of thirty days, which shall make the test or analysis] and report in writing signed by, or under the authority of, the Director of the Central Insecticides Laboratory the result thereof, and such report shall be conclusive evidence of the facts stated therein." On a bare reading of sub-section (3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of sub-section (4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the concerned Magistrate before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24 (4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part of sub-section (4) of Section 24 opens with the words, "Unless the sample has already been tested or analysed in the CIL". Therefore, in cases where such report is already obtained or available, the criminal prosecution must proceed on that basis. In other words, only if the analysis report of the CIL is not available or filed along with complaint or placed on record in the criminal prosecution, would the accused get a right to request the concerned Magistrate to direct testing or analysis of the third sample produced before that Court by the prosecution from the CIL and not otherwise. Any other view would entail in rewriting of the provisions, which are otherwise plain and unambiguous. Thus, if the report of the CIL has been obtained before filing of the complaint or pursuant to the direction given by the concerned Magistrate and made part of record of the criminal prosecution, as in this case, the accused named in the complaint cannot ask for analysis of the sample already used at the instance of the person from whom it was taken and is named as co-accused. 14. To put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the concerned Magistrate so directs, is in the teeth of the dictum of this Court in the case of State of Haryana v. Unique Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and submit the third sample in the concerned Court well before the expiry of shelf life of the Insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment.15. While parting, we make it clear that we have not expressed any opinion either way on the efficacy of the CIL report in question including on the issue of admissibility thereof. All questions in that regard will have to be answered by the trial court. ### Response: 0 ### Explanation: 7. Having cogitated over the rival submissions, we find force in the argument of the respondent State.11. On a bare perusal of Section 21 of the Act, it is amply clear that the Insecticide Inspector is empowered to take samples of any insecticide and send such samples for analysis to the Insecticide Analyst for testing in the prescribed manner. The manner of dispatch of samples for test or analysis is prescribed in Rule 34. It predicates as to how each sample is required to be sent by registered post or by hand in a sealed packet together with a memorandum set out in Form XII in an outer cover addressed to the Insecticide Analyst. As per(5) of Section 22, if the Insecticide Inspector decides to take a sample of an insecticide for the purpose of test or analysis, he is obliged to intimate such purpose in writing in the prescribed form to the person from whom he takes it and, in the presence of such person unless he wilfully absents himself, he shall then divide the sample into three portions and effectively seal and suitably mark the same and permit such person to add his own seal and mark to all or any of the portions so sealed and marked. After that, the Insecticide Inspector is expected to restore one portion of a sample so divided or one container as the case may be, to the person from whom he takes it and retain the remainder and deal with same in the manner prescribed in(6) of Section 22. Out of the remainder, one portion or container is required to be sent for Insecticide Analyst Test or Analysis. The second portion is required to be produced before the Court where the proceedings if any are instituted in relation to the said insecticide. As noted earlier, the analysis of the sample can be obtained from either the Insecticide Analyst appointed under Section 19 or the CIL established under Section 16 of thea bare reading of(3), it is seen that the first part declares that the report signed by the Insecticide Analyst shall be evidence of the facts stated therein and it shall be conclusive, unless the "person from whom" the sample was taken exercises his right by notifying in writing within the specified time that he intends to adduce evidence in controversion of that report. Thus, the second part of this provision gives a right to the person from whom the sample was collected to raise an objection. Once the person from whom the sample was taken exercises that right in terms of(4), the conclusiveness of the report of the Insecticide Analyst (State Analyst) referred to in the first part of the same provision cannot be used against such person. These provisions are in the nature of rules of evidence. Further, if the criminal complaint is launched and the person is named as an accused, he can request the concerned Magistrate before whom the proceedings are pending to send the third sample produced before the Court to the CIL for testing or analysis. That right can be exercised only if the complaint is founded on the report of the State Insecticide Analyst. However, if the complaint is filed also on the basis of the report of the CIL, then the question of exercising the right under Section 24 (4) does not endure to the accused. For, the purport of Section 24(4) is that the report of the CIL shall be conclusive evidence of the facts stated therein. It is pertinent to bear in mind that the opening part ofTo put it differently, the provisions of the Act predicate that the Insecticide Inspector has ample power to send the sample for testing or analysis to the CIL on his own. Rather, it is his duty to do so if such an express request is made by the person from whom the sample was taken. The argument of the appellants that the Insecticide Analyst cannot do so unless a formal complaint is filed and the concerned Magistrate so directs, is in the teeth of the dictum of this Court in the case of State of Haryana v. Unique Pvt. Ltd. (supra) and Gupta Chemicals Pvt. Ltd. (supra). This Court has expressly rejected that stand taken by the State and has held that the Insecticide Inspector must take prompt steps to send the sample to the CIL immediately after the protest is notified about the report given by the State Insecticide Analyst. The Insecticide Inspector has the option either to send the third sample on the request made by the person from whom it was collected to the CIL for testing or analysis or to launch a criminal prosecution and submit the third sample in the concerned Court well before the expiry of shelf life of the Insecticide to enable the accused named in the complaint to ask for testing or analysis thereof in the CIL. We, therefore, conclude that the High Court was right in dismissing the petition to quash the criminal proceedings pending against the appellants in respect of misbranded insecticide, for the additional reasons indicated in this judgment.15. While parting, we make it clear that we have not expressed any opinion either way on the efficacy of the CIL report in question including on the issue of admissibility thereof. All questions in that regard will have to be answered by the trial court.

Sone Valley Portland Cement Co Vs. The Workmen

this Court (see at p. 1019):" ......... it is an incentive to higher production and is in the nature of an incentive wage."Referring to Labour Law by Smith. Second Edition, p. 723, where various plans prevalent in other countries known as Incentive Wage Plans have been worked out on various bases, the Court said:"The simplest of such plans is the straight piece-rate plan where payment is made according to each piece produced, subject in some cases to a guaranteed minimum wage for so many hours work. But the straight piece-rate system cannot work where the finished product is the result of the co-operative effort of a large number of workers each holding a small part which contributes to the result. In such cases, production bonus by tonnage produced, as in this case, is given. There is a base or standard above which extra payment is made for extra production in addition to the basic wage. But whatever may be the nature of the plan the payment is effect is an extra emolument for extra effort put in by workmen over the standard that may be fixed. ............ The extra payment depends not on extra profits but on extra production. ....... Therefore, generally speaking payment of production bonus is nothing more or less than a payment of further emoluments depending upon production as an incentive to the workmen to put in more than the standard performance. Production bonus in this case also is of this nature and nothing more than additional emolument paid as an incentive for higher production."As to the initiation of such a scheme the argument before the Court was:"Whether there should be increased production in particular concern is a matter to be determined entirely by the employer and depends upon a consideration of so many complex factors, namely, the state of the market, the demand for the product, the range of prices, and so on. It is, therefore, entirely for the employer to introduce a production bonus scheme or not."On the question as to whether the Industrial Tribunal could have jurisdiction to introduce a production bonus scheme at all, the Court left the question open but took the view that whereas in the case before the Court there was a scheme of production bonus in existence, the Tribunal had jurisdiction under the Industrial Disputed Act to deal with it and make suitable amendments to it. A similar view was expressed in Burn and Co. Ltd., v. Their Employees, (1960) 3 SCR 423 = (AIR 1960 SC 896 ) and National Iron and Steel Co Ltd. v. Their Workmen, (1963) 3 SCR 660 = (AIR 1963 SC 325 ).23. It would of course always be open to the Legislature to introduce any kind of bonus not so far recognised by industrial law evolved either by tribunals or by this Court. But that must rest on a solid foundation and express words must be used to that effect. Although it is not necessary to express any final view on the subject we are inclined to think that apart from legislation an incentive bonus for increase of production, irrespective of the question as to whether the industry was making profit or not is one that must be introduced by the particular unit of industry. It would be for the management to fix what incentives should be given to different department to step up production. An Industrial Tribunal would not be justified in holding that merely because there had been augmentation in the production labour would be entitled to make a claim to bonus because of such increase. Labour would undoubtedly be entitled to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus; but in the absence of legislation or a scheme of incentive production, industrial tribunals would not be justified in laying down a scheme themselves.24. In our view the Cement Control Order even if it offered some inducement to the producers to step up their production, the terms thereof did not entitle the Tribunal to treat it as and by way of incentive bonus in which the workmen could share. It was certainly up to the producer to intimate the workmen that under the terms of the Control Order an extra amount of money would come to the till of the company if production was increased and the producer could have settled what incentives should be offered to the workmen but merely because an extra amount of money which as we have already described, was as and by way of price would find its way into the till of the company because the production target was exceeded; the workmen did not become entitled ipso facto to lay a claim to the excess amount and the Industrial Tribunal was not entitled to take the view that because an increase in production can only come about with the co-operation of the workmen they automatically become entitled to a share thereof. It may be that they all had the benefit of the extra payment by way of profit bonus under the Labour Appellate Tribunal formula and it would appear that the claims to incentive bonus rested rather on a frail foundation in several of the companies earlier mentioned. This will hardly be a case where we should lay down a principle of such far-reaching importance viz., that workmen are entitled to an extra payment by way of incentive bonus as soon as they can establish that production in a particular year exceeded the highest figure of the three preceding years. Nor can we look at the terms of the award in Kymores case as showing the course industrial adjudication should take. An industrial court can only award that which the law allows. In the absence of legislation on the subject and in the absence of a scheme for incentive payment introduced by the management in the particular facts and circumstances of the case, we would negative such a claim on the part of the workmen.

1[ds]15. In our view being impressed by the above reasoning the Tribunal concluded that the basis of payment for each of the two years should be on a fifty fifty basis.16. Before us elaborate arguments were put up on either side, counsel on behalf of the employers contending that so far as at least the four out of the six producers were concerned, in view of the special features workmen could not claim anything over and above the usual bonus allowable under the Labour Appellant Tribunal formula or the Bonus Act.17. As against this, it was contended on behalf of the workmen that there could be no doubt that workers had played some part in raising the figure of production above the maximum of the last three years ending in 1962 and if the producers were given something by way of incentive there was no reason why the workers should be deprived of a share thereof. Mr. Ramamurty frankly concede that if it was established that substantial capital expenditure had been incurred in the case of any particular producer, that was a factor to be taken into consideration in making allocation out of the extra payments earned; but even that would not justify the total negation of the claim of the workers to some payment. He also concede that if the producer was free to raise the price by reason of conditions prevailing in the market labour could not claim any share in the increased price on the ground that it was based on the extra efforts put forwarded by them. He however argued that the extra amount chargeable was not due to any such conditions in the market and was allowed to be charged by the Government so that the producers in the conjunction with their labour could raise the level of production for the benefit of the community as a whole. It was also argued by Mr. Ramamurty that the case required a special consideration of the circumstances by the Tribunal and by this Court in appeal and the view to be adopted should be the one which is consonant with social justice.18. As against this counsel for the producers submitted that social justice was a vague concept and except in circumstances recongnised by Courts of Law as justifying the adoption of a particular course should not be allowed to influence the decision of Tribunal administering Industrial law. It is only too well known that in most of the Industries in our country the objective of a living wage will remain a distant dream for a long time to come and social justice certainly required that efforts should be made to reduce the disparity between a living wage and the actual wage but Industrial tribunals are not to consider themselves free to depart from settled principles of Industrial law by chalking out a path of their own whenever opportunity occurs.19. In our view however, it is not necessary to examine the aspect of social justice in the matter or even the special features with regard to the working of six of the above producers. We must first consider the nature of the extra payment which was received by the producers, from the State Trading Corporation i.e. was it by way of or towards the price payable, or was it unconnected with the question of price e.g. a payment by way of a tip? Mr. Ramamurty submitted that it could not be the former in which case one would expect the extra payment to be linked with the entire quantity produced and not limited to the production over and above the target fixed by Government. While it cannot be denied that the underlying object of paragraph (B) and the Schedule to the Cement Control Order of 1963 was that the producer should adopt ways and means to increase the production either with the help of Government reducing bottle-necks or the producer itself finding out and adopting devices to step up production with the help of the workmen concerned, the extra amount paid can only be treated as and by way of price offered because of the scarcity of the commodity in the country. The Cement Control Order which has been set out in some detail clearly shows that producers were not entitled to charge their own price. If they had been, we have no doubt that taking advantage of the scarcity they would have charged much more than Rupees 69-50 per ton to start with. Whatever their production each unit could only sell to the State Trading Corporation and at the price fixed. As a result of the order the Corporation was not free to offer an inducement to the producer for producing Cement in excess of the target fixed as in its turn it was not entitled to charge the actual consumers or the dealers in the market any amount in excess of the price fixed under the Control Order. The transaction between a cement producer and the State Trading Corporation can only be described as a sale and whatever was paid to the producer by the Corporation can only be described as the price.20. Mr. Ramamurty conceded that normally a workman could only share in the general prosperity of the undertaking and ask for a revision of his wage, dearness allowance etc. when the production of the employer shoots up thereby enhancing its profit-making capacity. He also agreed that in normal circumstances greater production leading to a greater amount of profit would ensure to the benefit of the labour by way of production bonus under the Labour Appellate Tribunal formula or under the Bonus Act. He however contended that the facts in this case must be treated as justifying the claim of workmen to something like an incentive bonus though it was not to be treated in the way such bonus is usually claimed or awarded. In other words his submission was that but for the inducement of extra payment the target figure would not have been exceeded and that as the efforts of workmen must to some extent be held to have contributed to the increase in production they must have a share of such payment de hors the question of any profit. We find ourselves unable to accept this proposition. There is nothing in law which prevents a buyer and seller from agreeing that whatever the seller can offer up to certain quantity will be paid for at a particular rate and any quantity over and above that figure will be paid for at a higher rate. The total amount which the seller would receive can only be called price even if the contract of sale was so worded as to show that the excess amount was to be treated as an incentive payment. Between the buyer and the seller the amount which changes hands i. e. the consideration for the thing sold, can only be described in legal terminology as price. In some cases in ordinary commercial transactions, the seller allows the buyer a certain amount of commission in case the buyer takes delivery of a quantity over and above a particular figure fixed. This will only mean that the buyer was allowing a reduction in price in the particular circumstances of that case. What has taken place under the Cement Control Order is that the terms of sale are fixed by Government under the Order, the parties i.e. the producers and the Corporation not being allowed to discuss and settle the terms themselves.21. Government recognised that unless it held out an inducement to the producers by allowing them to charge a price over and above that fixed under the Schedule to paragraph (A) there was little chance of the shortage of the commodity in the market being reduced. It however realised at the same time that a general increase of price on the whole outturn of the produce would make it difficult for the State Corporation to function properly unless it allowed the Corporation to charge a higher price to the consumer. It was only because Government did not want the consumer to have to pay more that it adopted the device of the extra amount being chargeable only In respect of this additional quantity over the figure of production up to 1962.22. There is however another aspect of the matter. Assuming that the extra payment was to be treated and described as an incentive payment, it is difficult to see how to employees can under the Industrial Law which this Court has so far expounded have any claim to any share of such payment. In New Maneck Chowk Spg. and Wvg. Co. Ltd. v. Textile Association, (1961) 3 SCR 1 at p. 9 = (AIR 1961 SC 867 ) this Court examined the concept of bonus as involved in industrial law of this country by Industrial Tribunal and by the decisions of this Court. It took the view that there are four types of bonus which had been evolved under the industrial law, namely, (1) production bonus or incentive wage, (2) bonus as an implied term of contract between the parties, (3) customary bonus in connection with some festival and (4) profit bonus evolved by the Labour Appellate Tribunal in Millowners Association Bombay v. Rashtriya Mill Mazdoor Sangh, Bombay, (1950) 2 Lab LJ 1247 (FB) (L. A. T. I. - Bom.). An incentive bonus for increased production partakes of the nature of a production bonus.It would of course always be open to the Legislature to introduce any kind of bonus not so far recognised by industrial law evolved either by tribunals or by this Court. But that must rest on a solid foundation and express words must be used to that effect. Although it is not necessary to express any final view on the subject we are inclined to think that apart from legislation an incentive bonus for increase of production, irrespective of the question as to whether the industry was making profit or not is one that must be introduced by the particular unit of industry. It would be for the management to fix what incentives should be given to different department to step up production. An Industrial Tribunal would not be justified in holding that merely because there had been augmentation in the production labour would be entitled to make a claim to bonus because of such increase. Labour would undoubtedly be entitled to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus; but in the absence of legislation or a scheme of incentive production, industrial tribunals would not be justified in laying down a scheme themselves.24. In our view the Cement Control Order even if it offered some inducement to the producers to step up their production, the terms thereof did not entitle the Tribunal to treat it as and by way of incentive bonus in which the workmen could share. It was certainly up to the producer to intimate the workmen that under the terms of the Control Order an extra amount of money would come to the till of the company if production was increased and the producer could have settled what incentives should be offered to the workmen but merely because an extra amount of money which as we have already described, was as and by way of price would find its way into the till of the company because the production target was exceeded; the workmen did not become entitled ipso facto to lay a claim to the excess amount and the Industrial Tribunal was not entitled to take the view that because an increase in production can only come about with the co-operation of the workmen they automatically become entitled to a share thereof. It may be that they all had the benefit of the extra payment by way of profit bonus under the Labour Appellate Tribunal formula and it would appear that the claims to incentive bonus rested rather on a frail foundation in several of the companies earlier mentioned. This will hardly be a case where we should lay down a principle of such far-reaching importance viz., that workmen are entitled to an extra payment by way of incentive bonus as soon as they can establish that production in a particular year exceeded the highest figure of the three preceding years. Nor can we look at the terms of the award in Kymores case as showing the course industrial adjudication should take. An industrial court can only award that which the law allows. In the absence of legislation on the subject and in the absence of a scheme for incentive payment introduced by the management in the particular facts and circumstances of the case, we would negative such a claim on the part of the workmen.

### 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: this Court (see at p. 1019):" ......... it is an incentive to higher production and is in the nature of an incentive wage."Referring to Labour Law by Smith. Second Edition, p. 723, where various plans prevalent in other countries known as Incentive Wage Plans have been worked out on various bases, the Court said:"The simplest of such plans is the straight piece-rate plan where payment is made according to each piece produced, subject in some cases to a guaranteed minimum wage for so many hours work. But the straight piece-rate system cannot work where the finished product is the result of the co-operative effort of a large number of workers each holding a small part which contributes to the result. In such cases, production bonus by tonnage produced, as in this case, is given. There is a base or standard above which extra payment is made for extra production in addition to the basic wage. But whatever may be the nature of the plan the payment is effect is an extra emolument for extra effort put in by workmen over the standard that may be fixed. ............ The extra payment depends not on extra profits but on extra production. ....... Therefore, generally speaking payment of production bonus is nothing more or less than a payment of further emoluments depending upon production as an incentive to the workmen to put in more than the standard performance. Production bonus in this case also is of this nature and nothing more than additional emolument paid as an incentive for higher production."As to the initiation of such a scheme the argument before the Court was:"Whether there should be increased production in particular concern is a matter to be determined entirely by the employer and depends upon a consideration of so many complex factors, namely, the state of the market, the demand for the product, the range of prices, and so on. It is, therefore, entirely for the employer to introduce a production bonus scheme or not."On the question as to whether the Industrial Tribunal could have jurisdiction to introduce a production bonus scheme at all, the Court left the question open but took the view that whereas in the case before the Court there was a scheme of production bonus in existence, the Tribunal had jurisdiction under the Industrial Disputed Act to deal with it and make suitable amendments to it. A similar view was expressed in Burn and Co. Ltd., v. Their Employees, (1960) 3 SCR 423 = (AIR 1960 SC 896 ) and National Iron and Steel Co Ltd. v. Their Workmen, (1963) 3 SCR 660 = (AIR 1963 SC 325 ).23. It would of course always be open to the Legislature to introduce any kind of bonus not so far recognised by industrial law evolved either by tribunals or by this Court. But that must rest on a solid foundation and express words must be used to that effect. Although it is not necessary to express any final view on the subject we are inclined to think that apart from legislation an incentive bonus for increase of production, irrespective of the question as to whether the industry was making profit or not is one that must be introduced by the particular unit of industry. It would be for the management to fix what incentives should be given to different department to step up production. An Industrial Tribunal would not be justified in holding that merely because there had been augmentation in the production labour would be entitled to make a claim to bonus because of such increase. Labour would undoubtedly be entitled to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus; but in the absence of legislation or a scheme of incentive production, industrial tribunals would not be justified in laying down a scheme themselves.24. In our view the Cement Control Order even if it offered some inducement to the producers to step up their production, the terms thereof did not entitle the Tribunal to treat it as and by way of incentive bonus in which the workmen could share. It was certainly up to the producer to intimate the workmen that under the terms of the Control Order an extra amount of money would come to the till of the company if production was increased and the producer could have settled what incentives should be offered to the workmen but merely because an extra amount of money which as we have already described, was as and by way of price would find its way into the till of the company because the production target was exceeded; the workmen did not become entitled ipso facto to lay a claim to the excess amount and the Industrial Tribunal was not entitled to take the view that because an increase in production can only come about with the co-operation of the workmen they automatically become entitled to a share thereof. It may be that they all had the benefit of the extra payment by way of profit bonus under the Labour Appellate Tribunal formula and it would appear that the claims to incentive bonus rested rather on a frail foundation in several of the companies earlier mentioned. This will hardly be a case where we should lay down a principle of such far-reaching importance viz., that workmen are entitled to an extra payment by way of incentive bonus as soon as they can establish that production in a particular year exceeded the highest figure of the three preceding years. Nor can we look at the terms of the award in Kymores case as showing the course industrial adjudication should take. An industrial court can only award that which the law allows. In the absence of legislation on the subject and in the absence of a scheme for incentive payment introduced by the management in the particular facts and circumstances of the case, we would negative such a claim on the part of the workmen. ### Response: 1 ### Explanation: which changes hands i. e. the consideration for the thing sold, can only be described in legal terminology as price. In some cases in ordinary commercial transactions, the seller allows the buyer a certain amount of commission in case the buyer takes delivery of a quantity over and above a particular figure fixed. This will only mean that the buyer was allowing a reduction in price in the particular circumstances of that case. What has taken place under the Cement Control Order is that the terms of sale are fixed by Government under the Order, the parties i.e. the producers and the Corporation not being allowed to discuss and settle the terms themselves.21. Government recognised that unless it held out an inducement to the producers by allowing them to charge a price over and above that fixed under the Schedule to paragraph (A) there was little chance of the shortage of the commodity in the market being reduced. It however realised at the same time that a general increase of price on the whole outturn of the produce would make it difficult for the State Corporation to function properly unless it allowed the Corporation to charge a higher price to the consumer. It was only because Government did not want the consumer to have to pay more that it adopted the device of the extra amount being chargeable only In respect of this additional quantity over the figure of production up to 1962.22. There is however another aspect of the matter. Assuming that the extra payment was to be treated and described as an incentive payment, it is difficult to see how to employees can under the Industrial Law which this Court has so far expounded have any claim to any share of such payment. In New Maneck Chowk Spg. and Wvg. Co. Ltd. v. Textile Association, (1961) 3 SCR 1 at p. 9 = (AIR 1961 SC 867 ) this Court examined the concept of bonus as involved in industrial law of this country by Industrial Tribunal and by the decisions of this Court. It took the view that there are four types of bonus which had been evolved under the industrial law, namely, (1) production bonus or incentive wage, (2) bonus as an implied term of contract between the parties, (3) customary bonus in connection with some festival and (4) profit bonus evolved by the Labour Appellate Tribunal in Millowners Association Bombay v. Rashtriya Mill Mazdoor Sangh, Bombay, (1950) 2 Lab LJ 1247 (FB) (L. A. T. I. - Bom.). An incentive bonus for increased production partakes of the nature of a production bonus.It would of course always be open to the Legislature to introduce any kind of bonus not so far recognised by industrial law evolved either by tribunals or by this Court. But that must rest on a solid foundation and express words must be used to that effect. Although it is not necessary to express any final view on the subject we are inclined to think that apart from legislation an incentive bonus for increase of production, irrespective of the question as to whether the industry was making profit or not is one that must be introduced by the particular unit of industry. It would be for the management to fix what incentives should be given to different department to step up production. An Industrial Tribunal would not be justified in holding that merely because there had been augmentation in the production labour would be entitled to make a claim to bonus because of such increase. Labour would undoubtedly be entitled to revision of wage scales, dearness allowance and other terms and conditions of service as also profit bonus; but in the absence of legislation or a scheme of incentive production, industrial tribunals would not be justified in laying down a scheme themselves.24. In our view the Cement Control Order even if it offered some inducement to the producers to step up their production, the terms thereof did not entitle the Tribunal to treat it as and by way of incentive bonus in which the workmen could share. It was certainly up to the producer to intimate the workmen that under the terms of the Control Order an extra amount of money would come to the till of the company if production was increased and the producer could have settled what incentives should be offered to the workmen but merely because an extra amount of money which as we have already described, was as and by way of price would find its way into the till of the company because the production target was exceeded; the workmen did not become entitled ipso facto to lay a claim to the excess amount and the Industrial Tribunal was not entitled to take the view that because an increase in production can only come about with the co-operation of the workmen they automatically become entitled to a share thereof. It may be that they all had the benefit of the extra payment by way of profit bonus under the Labour Appellate Tribunal formula and it would appear that the claims to incentive bonus rested rather on a frail foundation in several of the companies earlier mentioned. This will hardly be a case where we should lay down a principle of such far-reaching importance viz., that workmen are entitled to an extra payment by way of incentive bonus as soon as they can establish that production in a particular year exceeded the highest figure of the three preceding years. Nor can we look at the terms of the award in Kymores case as showing the course industrial adjudication should take. An industrial court can only award that which the law allows. In the absence of legislation on the subject and in the absence of a scheme for incentive payment introduced by the management in the particular facts and circumstances of the case, we would negative such a claim on the part of the workmen.

Mohammad Yusuf and Ors Vs. State of Haryana and Ors

there are several exemplars with reference to similar land, usually the highest of the exemplars which is a bonafide transaction, will be considered. In the present case, the Reference Court, in Para 20 held as under:- …..Here in this case, applying the said authority to the facts and circumstances of this case, I am of the considered opinion that exemplar sale deed Exhibit P1 hold the fields in preference to the other sale deeds. Reason for exclusion of sale deeds Exhibit P2 to P3 is that sale deed Exhibit P1 is of the highest land 1 kanal 6 marlas and is of the highest amount, which is very close to the date of notification because vide sale deed Exhibit P1 dated 5.10.2005, land measuring 1 kanal 6 Marlas, whose nature wasNarmot, situated in village Ferozpur Namak, Tehsil Nuh, was sold for a sale consideration of Rs. 11,70,000/- by one Mahmood son of Inshe Khan in favour of Smt. Hanisha Khatoon wife of Mohammad Iqbal of the same village. The value per acre of the land, as per the said sale deed is calculated as Rs. 72,00,000/- per acre. The said sale deed was executed on5.10.2005 whereas notification under Section 4 of the Act for the acquired land was published on 18.10.2005 and thus, this sale deed Exhibit P1 is proximate to the point of time from the date of issuance of notification under Section 4 of the Act. No iota of evidence could be led by the respondents to rebut the veracity of this sale deed. There is nothing on record to show that the sale deed is not Bonafide and a genuine transaction. In fact despite availing number of opportunities, the respondents failed to lead any evidence to rebut the evidence led by the petitioners. 16. On a perusal of the Map of the concerned area which is produced on record by the appellants, we find that the acquired land in the present case falls within the control area of Nuh and newly constructed Nalhar Medical College is at a distance of 3-4 kms from the acquired land. We also find that the said acquired land is situated on Palwal Road from one side and on Delhi Road on the other. However, it is a matter of record that such acquired land is far away from D.C. office and other offices. Also, Bus Stand as well as Nuh Town is situated far away from the acquired land. Hence, acquired land of Firozpur village in such terms cannot be said to be situated very near to the urban area of Nuh Town. The appellants produced various sale deeds for the perusal of this Court. The vital sale deed dated 05.10.2005, wherein land admeasuring 1 kanal 6 Marlas, situated in village Ferozpur Namak, Tehsil Nuh, was sold for a sale consideration of Rs. 11,70,000/- by one Mahmood s/o Inshe Khan in favour of Smt. Hanisha Khatoon w/o Mohammad Iqbal of the same village. If we calculate the value of per acre in terms of the above sale deed then it stands at Rs 72 Lakhs per acre. It is pertinent to mention here that the date of this sale deed is05.10.2005 which is proximate to the date of Notification i.e.,18.10.2005 under Section 4 of the LA Act. In the present case, after having regard to the circumstances of the case and perusal of the sale deeds of adjourning area, we are of the considered view that the compensation granted at the rate of Rs. 72 lacs per acre is as per the law and no injustice has been occurred to the appellants herein. 17. Now coming to the point of development charges which applied by the High court @10% on the assessed value of acquired land. Appellants herein contended that the rate of deduction as applied by the High Court was not required as the acquired land is situated in the area already developed and have all the potential for development. It is a matter of record that the Reference Court determined 60% (55% as development charges and 5% for waiting period) in totality towards development charges which later on in appeal reduced by the High Court to 10%. Deductions may be made for a variety of reasons, which may differ in different cases. However, in the backdrop of judicial precedents on this issue, it is well settled position that all deductions should not cumulatively be exceeded the upper benchmark of 75% and at the same time, it should be kept in mind that no hypothetical view shall be taken in order to calculate the percentage of the development charges. 18. In the present case, the appellants contended that the acquired land has all basic facilities such as water, electricity, sewer, telephone etc which respondent-State has not disputed. These are, however, not enough to meet the purpose of acquisition. To make such land suitable for the acquisition purpose i.e. for the construction of Mini Secretariat at Nuh, some further development is sine qua non. For calculating the percentage of development charges, various factors need to be taken into consideration such as location of land, facilities available in nearby area, size of the land, purpose of acquisition etc. The present acquired land of Firozpur Namak village which is located at some distance from the Nuh Town needs to be developed in proper manner like construction of better and wide roads etc., to make it suitable for the acquisition purposes. The fact that facilities already available such as sewer, electricity etc., seems to be taken into consideration properly while reducing the development charges by the High Court from 60% to 10%. 19. In the case at hand, after giving our thoughtful consideration to the facts and circumstance noticed hereinabove, we are of the considered view that a cut at the rate of 10 % is very reasonable towards development of acquired land as some further development would obviously be required to make it fit for the purpose for which it was acquired. 20.

0[ds]In the instant case, the appellants contented and invited our attention to the fact that the valuation of the acquired land should be assessed on urban land criteria since land had all basic amenities like water, sewer, electricity and telephone lines were already present on the date of Notification under Section 4 of the LA Act. However for being an urban area, there must be some other facilities like commercial activities, population growth, education activities, paying capacity of people, healthy public transport, infrastructure etc. It is also a well established rule that in the cases of calculation of compensation, there cannot be a straight jacket formula, hence, each case has to be dealt in the light of circumstances of each case. Common sense is the best and most reliable guideOn a perusal of the Map of the concerned area which is produced on record by the appellants, we find that the acquired land in the present case falls within the control area of Nuh and newly constructed Nalhar Medical College is at a distance of4 kms from the acquired land. We also find that the said acquired land is situated on Palwal Road from one side and on Delhi Road on the other. However, it is a matter of record that such acquired land is far away from D.C. office and other offices. Also, Bus Stand as well as Nuh Town is situated far away from the acquired land. Hence, acquired land of Firozpur village in such terms cannot be said to be situated very near to the urban area of Nuh Town. The appellants produced various sale deeds for the perusal of this Court. The vital sale deed dated 05.10.2005, wherein land admeasuring 1 kanal 6 Marlas, situated in village Ferozpur Namak, Tehsil Nuh, was sold for a sale consideration of Rs. 11,70,000/by one Mahmood s/o Inshe Khan in favour of Smt. Hanisha Khatoon w/o Mohammad Iqbal of the same village. If we calculate the value of per acre in terms of the above sale deed then it stands at Rs 72 Lakhs per acre. It is pertinent to mention here that the date of this sale deed is05.10.2005 which is proximate to the date of Notification i.e.,18.10.2005 under Section 4 of the LA Act. In the present case, after having regard to the circumstances of the case and perusal of the sale deeds of adjourning area, we are of the considered view that the compensation granted at the rate of Rs. 72 lacs per acre is as per the law and no injustice has been occurred to the appellants hereinIt is a matter of record that the Reference Court determined 60% (55% as development charges and 5% for waiting period) in totality towards development charges which later on in appeal reduced by the High Court to 10%. Deductions may be made for a variety of reasons, which may differ in different cases. However, in the backdrop of judicial precedents on this issue, it is well settled position that all deductions should not cumulatively be exceeded the upper benchmark of 75% and at the same time, it should be kept in mind that no hypothetical view shall be taken in order to calculate the percentage of the development chargesIn the present case, the appellants contended that the acquired land has all basic facilities such as water, electricity, sewer, telephone etc whiche has not disputed. These are, however, not enough to meet the purpose of acquisition. To make such land suitable for the acquisition purpose i.e. for the construction of Mini Secretariat at Nuh, some further development is sine qua non. For calculating the percentage of development charges, various factors need to be taken into consideration such as location of land, facilities available in nearby area, size of the land, purpose of acquisition etc. The present acquired land of Firozpur Namak village which is located at some distance from the Nuh Town needs to be developed in proper manner like construction of better and wide roads etc., to make it suitable for the acquisition purposes. The fact that facilities already available such as sewer, electricity etc., seems to be taken into consideration properly while reducing the development charges by the High Court from 60% to 10%In the case at hand, after giving our thoughtful consideration to the facts and circumstance noticed hereinabove, we are of the considered view that a cut at the rate of 10 % is very reasonable towards development of acquired land as some further development would obviously be required to make it fit for the purpose for which it was acquired.

### 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: there are several exemplars with reference to similar land, usually the highest of the exemplars which is a bonafide transaction, will be considered. In the present case, the Reference Court, in Para 20 held as under:- …..Here in this case, applying the said authority to the facts and circumstances of this case, I am of the considered opinion that exemplar sale deed Exhibit P1 hold the fields in preference to the other sale deeds. Reason for exclusion of sale deeds Exhibit P2 to P3 is that sale deed Exhibit P1 is of the highest land 1 kanal 6 marlas and is of the highest amount, which is very close to the date of notification because vide sale deed Exhibit P1 dated 5.10.2005, land measuring 1 kanal 6 Marlas, whose nature wasNarmot, situated in village Ferozpur Namak, Tehsil Nuh, was sold for a sale consideration of Rs. 11,70,000/- by one Mahmood son of Inshe Khan in favour of Smt. Hanisha Khatoon wife of Mohammad Iqbal of the same village. The value per acre of the land, as per the said sale deed is calculated as Rs. 72,00,000/- per acre. The said sale deed was executed on5.10.2005 whereas notification under Section 4 of the Act for the acquired land was published on 18.10.2005 and thus, this sale deed Exhibit P1 is proximate to the point of time from the date of issuance of notification under Section 4 of the Act. No iota of evidence could be led by the respondents to rebut the veracity of this sale deed. There is nothing on record to show that the sale deed is not Bonafide and a genuine transaction. In fact despite availing number of opportunities, the respondents failed to lead any evidence to rebut the evidence led by the petitioners. 16. On a perusal of the Map of the concerned area which is produced on record by the appellants, we find that the acquired land in the present case falls within the control area of Nuh and newly constructed Nalhar Medical College is at a distance of 3-4 kms from the acquired land. We also find that the said acquired land is situated on Palwal Road from one side and on Delhi Road on the other. However, it is a matter of record that such acquired land is far away from D.C. office and other offices. Also, Bus Stand as well as Nuh Town is situated far away from the acquired land. Hence, acquired land of Firozpur village in such terms cannot be said to be situated very near to the urban area of Nuh Town. The appellants produced various sale deeds for the perusal of this Court. The vital sale deed dated 05.10.2005, wherein land admeasuring 1 kanal 6 Marlas, situated in village Ferozpur Namak, Tehsil Nuh, was sold for a sale consideration of Rs. 11,70,000/- by one Mahmood s/o Inshe Khan in favour of Smt. Hanisha Khatoon w/o Mohammad Iqbal of the same village. If we calculate the value of per acre in terms of the above sale deed then it stands at Rs 72 Lakhs per acre. It is pertinent to mention here that the date of this sale deed is05.10.2005 which is proximate to the date of Notification i.e.,18.10.2005 under Section 4 of the LA Act. In the present case, after having regard to the circumstances of the case and perusal of the sale deeds of adjourning area, we are of the considered view that the compensation granted at the rate of Rs. 72 lacs per acre is as per the law and no injustice has been occurred to the appellants herein. 17. Now coming to the point of development charges which applied by the High court @10% on the assessed value of acquired land. Appellants herein contended that the rate of deduction as applied by the High Court was not required as the acquired land is situated in the area already developed and have all the potential for development. It is a matter of record that the Reference Court determined 60% (55% as development charges and 5% for waiting period) in totality towards development charges which later on in appeal reduced by the High Court to 10%. Deductions may be made for a variety of reasons, which may differ in different cases. However, in the backdrop of judicial precedents on this issue, it is well settled position that all deductions should not cumulatively be exceeded the upper benchmark of 75% and at the same time, it should be kept in mind that no hypothetical view shall be taken in order to calculate the percentage of the development charges. 18. In the present case, the appellants contended that the acquired land has all basic facilities such as water, electricity, sewer, telephone etc which respondent-State has not disputed. These are, however, not enough to meet the purpose of acquisition. To make such land suitable for the acquisition purpose i.e. for the construction of Mini Secretariat at Nuh, some further development is sine qua non. For calculating the percentage of development charges, various factors need to be taken into consideration such as location of land, facilities available in nearby area, size of the land, purpose of acquisition etc. The present acquired land of Firozpur Namak village which is located at some distance from the Nuh Town needs to be developed in proper manner like construction of better and wide roads etc., to make it suitable for the acquisition purposes. The fact that facilities already available such as sewer, electricity etc., seems to be taken into consideration properly while reducing the development charges by the High Court from 60% to 10%. 19. In the case at hand, after giving our thoughtful consideration to the facts and circumstance noticed hereinabove, we are of the considered view that a cut at the rate of 10 % is very reasonable towards development of acquired land as some further development would obviously be required to make it fit for the purpose for which it was acquired. 20. ### Response: 0 ### Explanation: In the instant case, the appellants contented and invited our attention to the fact that the valuation of the acquired land should be assessed on urban land criteria since land had all basic amenities like water, sewer, electricity and telephone lines were already present on the date of Notification under Section 4 of the LA Act. However for being an urban area, there must be some other facilities like commercial activities, population growth, education activities, paying capacity of people, healthy public transport, infrastructure etc. It is also a well established rule that in the cases of calculation of compensation, there cannot be a straight jacket formula, hence, each case has to be dealt in the light of circumstances of each case. Common sense is the best and most reliable guideOn a perusal of the Map of the concerned area which is produced on record by the appellants, we find that the acquired land in the present case falls within the control area of Nuh and newly constructed Nalhar Medical College is at a distance of4 kms from the acquired land. We also find that the said acquired land is situated on Palwal Road from one side and on Delhi Road on the other. However, it is a matter of record that such acquired land is far away from D.C. office and other offices. Also, Bus Stand as well as Nuh Town is situated far away from the acquired land. Hence, acquired land of Firozpur village in such terms cannot be said to be situated very near to the urban area of Nuh Town. The appellants produced various sale deeds for the perusal of this Court. The vital sale deed dated 05.10.2005, wherein land admeasuring 1 kanal 6 Marlas, situated in village Ferozpur Namak, Tehsil Nuh, was sold for a sale consideration of Rs. 11,70,000/by one Mahmood s/o Inshe Khan in favour of Smt. Hanisha Khatoon w/o Mohammad Iqbal of the same village. If we calculate the value of per acre in terms of the above sale deed then it stands at Rs 72 Lakhs per acre. It is pertinent to mention here that the date of this sale deed is05.10.2005 which is proximate to the date of Notification i.e.,18.10.2005 under Section 4 of the LA Act. In the present case, after having regard to the circumstances of the case and perusal of the sale deeds of adjourning area, we are of the considered view that the compensation granted at the rate of Rs. 72 lacs per acre is as per the law and no injustice has been occurred to the appellants hereinIt is a matter of record that the Reference Court determined 60% (55% as development charges and 5% for waiting period) in totality towards development charges which later on in appeal reduced by the High Court to 10%. Deductions may be made for a variety of reasons, which may differ in different cases. However, in the backdrop of judicial precedents on this issue, it is well settled position that all deductions should not cumulatively be exceeded the upper benchmark of 75% and at the same time, it should be kept in mind that no hypothetical view shall be taken in order to calculate the percentage of the development chargesIn the present case, the appellants contended that the acquired land has all basic facilities such as water, electricity, sewer, telephone etc whiche has not disputed. These are, however, not enough to meet the purpose of acquisition. To make such land suitable for the acquisition purpose i.e. for the construction of Mini Secretariat at Nuh, some further development is sine qua non. For calculating the percentage of development charges, various factors need to be taken into consideration such as location of land, facilities available in nearby area, size of the land, purpose of acquisition etc. The present acquired land of Firozpur Namak village which is located at some distance from the Nuh Town needs to be developed in proper manner like construction of better and wide roads etc., to make it suitable for the acquisition purposes. The fact that facilities already available such as sewer, electricity etc., seems to be taken into consideration properly while reducing the development charges by the High Court from 60% to 10%In the case at hand, after giving our thoughtful consideration to the facts and circumstance noticed hereinabove, we are of the considered view that a cut at the rate of 10 % is very reasonable towards development of acquired land as some further development would obviously be required to make it fit for the purpose for which it was acquired.

Collector of Customs, Bangalore Vs. M/s. Western India Plywood Mfg. Co. Ltd. and another

an auxiliary duty at 40 per cent in cases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with any relevant notification) is 60 per cent or above and an auxiliary duty at 30 per cent in cases where such effective basic rates is nil or less than 60 per cent. If the notification had stopped here, the assessee would have been perfectly within its right to claim that the auxiliary duty payable by it would only be 30 per cent because the effective basic rate in its case is nil. 7. However, the explanation has made in inroad into this simple rule. It has provided that where there are two (or more) effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country of origin of the goods imported, then the auxiliary duty payable will be the higher of the two (or the highest of the) rates. In the present case, when timber is imported from Burma and the other countries specified in the notification or notifications under Section 25(1), the rate of basic duty is nil but if the goods are imported from other countries, the notification does not apply and a basic duty of 60 per cent would be leviable under the entry in the First Schedule. The result, therefore, is that when we read the rates specified in the First Schedule along with the relevant notifications in respect of a particular article, namely, timber, we find that the effective basic duty is leviable on it at two rates and this differentiation in rates is attributable to the country of origin in regard to the import. Hence the explanation squarely comes into operation and the assessee will have to pay auxiliary duty by reference to the higher of the two rates of the effective basic duty, namely, 60 per cent.8. The contention on behalf of the respondent - and this is also the view taken by the Tribunal - appears to be that the explanation comes into operation only if there is more than one notification granting concession or exemption in respect of basic duty providing for different rates in respect of articles imported from different countries. We are unable to see any warrant for reading any such restriction into the terms of the explanation. As we see it, the terms of the explanation are perfectly clear. It is this : that if, in respect of any article, there are two or more effective basic duties in operation and the different is referable to the country from which the article is imported, then the highest of the effective rates will govern the levy of auxiliary duty. It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification applies in other cases. Clearly, the use of the words "rate .... specified in the First Schedule, read with any relevant notification" does not necessarily require that there should be such a notification; they mean : "the rates specified in the First Schedule read with the relevant notification, if any". If there is no notification the rate specified in the First Schedule has obviously to be taken into account for purpose of the notification we are now concerned with. It is, therefore, not necessary that the differentiation referred to in the explanation should arise on account of the existence of more than one notification altering the basic duty set out in the Schedule. 9. Shri Ramchandran contended that the construction sought to be placed by us would lead to this anomaly that a person will have to pay an auxiliary duty even though the effective basic duty is nil. This argument is without force for two reasons. In the first place that is the direct result of the explanation and, therefore, if that is the clear intention of the statutory instrument, the anomaly cannot be helped. The second and perhaps more appropriate answer to Sri Ramchandrans contention is that the explanation is based on good reason. It will be seen that in a case of this type as well as in cases governed by more than one notification, which make a distinction in the rate of duty based on the country of origin, there will be different importers importing goods but paying basic duty at different rates. The intention of the statute could well be that while for purposes of basic duty a differentiation in rates may be justified depending upon the country of origin that consideration would be totally irrelevant in the context of auxiliary duty. In the context of auxiliary duty, it is equitable that all importers should pay the additional duty at the same rate and that they should have no advantage or disadvantage inter se. A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader. The provision, therefore, seems to have been deliberately enacted to achieve this result which is not really an anomaly as described by Sri Ramachandran. 10. Sri Ramachandran sought to make same point on the use of the word article in the notification. We do not, however, see any significance in the use of this word which has any relevance to the point at issue. The word article is used because though a number of articles may be included in one item in the First Schedule, the relevant notification may not govern all of them and it may be restricted only to some out of the many articles mentioned in the Schedule. The notification and the explanation, therefore, make it clear that the auxiliary duty has to be calculated with reference to each article based on the effective basic rates of duty applicable to such article in terms of the First Schedule read with any relevant notification under Section 25.

1[ds]6. We are of opinion that the Tribunal has erred in itsof the notificationset out above and that the assessees case is clearly covered by the explanation in the notification. It is true that the main partof the notificationprovides for an auxiliary duty atper cent incases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with anyis 60 per centor above and an auxiliary duty at30 per centin cases where such effective basic rates is nilor less than 60 percent. If the notification had stopped here, the assessee would have been perfectly within its right to claim that the auxiliary duty payable by it would only be30 per centbecause the effective basic rate in its7. However, the explanation has made in inroad into this simple rule. It has provided that where there are two (or more) effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country ofds imported, then the auxiliary duty payable will be the higher of the two (or the highest of the) rates. In the present case, when timber is imported from Burma and the other countries specified in the notification or notifications under Section 25(1), the rate of basic duty is nil but if the goods are imported from other countries, the notification does not apply and a basic duty of 60 per cent would be leviable under the entry in the First Schedule. The result, therefore, is that when we read the rates specified in the First Schedule along with thes in respect ofa particular article, namely, timber, we find that the effective basic duty is leviable on it at two rates and this differentiation in rates is attributable to the country of origin in regard to the import. Hence the explanation squarely comes into operation and the assessee will have to pay auxiliary duty by reference to the higher of the twoof the effectivebasic duty, namely, 60 perdo not, however, see any significance in the use of this word which has any relevance to the point at issue. The word article is used because though a number of articles may be included in one item in the First Schedule, theay not govern all of them and it may be restricted only to some out of the many articles mentioned in the Schedule. The notification and the explanation, therefore, make it clear that the auxiliary duty has to be calculated with reference to each article based on the effective basicty applicable to such article inhe First Schedule read with anynotification under Section 25

### 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: an auxiliary duty at 40 per cent in cases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with any relevant notification) is 60 per cent or above and an auxiliary duty at 30 per cent in cases where such effective basic rates is nil or less than 60 per cent. If the notification had stopped here, the assessee would have been perfectly within its right to claim that the auxiliary duty payable by it would only be 30 per cent because the effective basic rate in its case is nil. 7. However, the explanation has made in inroad into this simple rule. It has provided that where there are two (or more) effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country of origin of the goods imported, then the auxiliary duty payable will be the higher of the two (or the highest of the) rates. In the present case, when timber is imported from Burma and the other countries specified in the notification or notifications under Section 25(1), the rate of basic duty is nil but if the goods are imported from other countries, the notification does not apply and a basic duty of 60 per cent would be leviable under the entry in the First Schedule. The result, therefore, is that when we read the rates specified in the First Schedule along with the relevant notifications in respect of a particular article, namely, timber, we find that the effective basic duty is leviable on it at two rates and this differentiation in rates is attributable to the country of origin in regard to the import. Hence the explanation squarely comes into operation and the assessee will have to pay auxiliary duty by reference to the higher of the two rates of the effective basic duty, namely, 60 per cent.8. The contention on behalf of the respondent - and this is also the view taken by the Tribunal - appears to be that the explanation comes into operation only if there is more than one notification granting concession or exemption in respect of basic duty providing for different rates in respect of articles imported from different countries. We are unable to see any warrant for reading any such restriction into the terms of the explanation. As we see it, the terms of the explanation are perfectly clear. It is this : that if, in respect of any article, there are two or more effective basic duties in operation and the different is referable to the country from which the article is imported, then the highest of the effective rates will govern the levy of auxiliary duty. It does not matter whether the difference in the rates is because the First Schedule applies in certain cases and a concession notification applies in other cases. Clearly, the use of the words "rate .... specified in the First Schedule, read with any relevant notification" does not necessarily require that there should be such a notification; they mean : "the rates specified in the First Schedule read with the relevant notification, if any". If there is no notification the rate specified in the First Schedule has obviously to be taken into account for purpose of the notification we are now concerned with. It is, therefore, not necessary that the differentiation referred to in the explanation should arise on account of the existence of more than one notification altering the basic duty set out in the Schedule. 9. Shri Ramchandran contended that the construction sought to be placed by us would lead to this anomaly that a person will have to pay an auxiliary duty even though the effective basic duty is nil. This argument is without force for two reasons. In the first place that is the direct result of the explanation and, therefore, if that is the clear intention of the statutory instrument, the anomaly cannot be helped. The second and perhaps more appropriate answer to Sri Ramchandrans contention is that the explanation is based on good reason. It will be seen that in a case of this type as well as in cases governed by more than one notification, which make a distinction in the rate of duty based on the country of origin, there will be different importers importing goods but paying basic duty at different rates. The intention of the statute could well be that while for purposes of basic duty a differentiation in rates may be justified depending upon the country of origin that consideration would be totally irrelevant in the context of auxiliary duty. In the context of auxiliary duty, it is equitable that all importers should pay the additional duty at the same rate and that they should have no advantage or disadvantage inter se. A grant of concession in the matter of auxiliary duty as well would result in widening the gulf between one importer and another and also that between such an importer and the local trader. The provision, therefore, seems to have been deliberately enacted to achieve this result which is not really an anomaly as described by Sri Ramachandran. 10. Sri Ramachandran sought to make same point on the use of the word article in the notification. We do not, however, see any significance in the use of this word which has any relevance to the point at issue. The word article is used because though a number of articles may be included in one item in the First Schedule, the relevant notification may not govern all of them and it may be restricted only to some out of the many articles mentioned in the Schedule. The notification and the explanation, therefore, make it clear that the auxiliary duty has to be calculated with reference to each article based on the effective basic rates of duty applicable to such article in terms of the First Schedule read with any relevant notification under Section 25. ### Response: 1 ### Explanation: 6. We are of opinion that the Tribunal has erred in itsof the notificationset out above and that the assessees case is clearly covered by the explanation in the notification. It is true that the main partof the notificationprovides for an auxiliary duty atper cent incases where the effective rate of basic duty (i.e. the rates set out in the First Schedule read with anyis 60 per centor above and an auxiliary duty at30 per centin cases where such effective basic rates is nilor less than 60 percent. If the notification had stopped here, the assessee would have been perfectly within its right to claim that the auxiliary duty payable by it would only be30 per centbecause the effective basic rate in its7. However, the explanation has made in inroad into this simple rule. It has provided that where there are two (or more) effective basic rates applicable in respect of any article and the differentiation in rates is attributable to the country ofds imported, then the auxiliary duty payable will be the higher of the two (or the highest of the) rates. In the present case, when timber is imported from Burma and the other countries specified in the notification or notifications under Section 25(1), the rate of basic duty is nil but if the goods are imported from other countries, the notification does not apply and a basic duty of 60 per cent would be leviable under the entry in the First Schedule. The result, therefore, is that when we read the rates specified in the First Schedule along with thes in respect ofa particular article, namely, timber, we find that the effective basic duty is leviable on it at two rates and this differentiation in rates is attributable to the country of origin in regard to the import. Hence the explanation squarely comes into operation and the assessee will have to pay auxiliary duty by reference to the higher of the twoof the effectivebasic duty, namely, 60 perdo not, however, see any significance in the use of this word which has any relevance to the point at issue. The word article is used because though a number of articles may be included in one item in the First Schedule, theay not govern all of them and it may be restricted only to some out of the many articles mentioned in the Schedule. The notification and the explanation, therefore, make it clear that the auxiliary duty has to be calculated with reference to each article based on the effective basicty applicable to such article inhe First Schedule read with anynotification under Section 25

Satyanarain Prasad Vs. State of Bihar

SHAH, J.1. Proceedings were started against the appellant a Range Assistant Engineer, for some delinquency in the performance of his duty. A departmental enquiry was held and the enquiry officer submitted his report provisionally holding that the appellant was guilty of the delinquency charged against him. By a notice, dated May 17, 1968, the appellant was called upon to show cause why he should not be removed from service.2. The appellant then moved a petition under Article 226 of the constitution in the High Court of Patna challenging the validity of the notice. The High Court summarily dismissed the petition. An application for a certificate to appeal to this Court was however successful. The High Court granted a certificate under Article 133(1) on the assumption that the value of the subject-matter in dispute was more than Rs. 20, 000/-. In our judgment the High Court was incompetent to grant the certificate.3. Under Article 133 of the constitution an appeal may lie to this Court from any judgment or decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies -(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than Rs. 20, 000/- or such other sum as may be specified in that behalf by Parliament by law; or(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or(c) that the case is a fit one for appeal to the Supreme Court;and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.4. The High court has not issued a certificate under Article 133(1)(c). No substantial question of law is stated in the order granting certificate to arise out of the petition. In order that a certificate may be issued by the High Court for leave to appeal to this court under clause (a) it is one of the conditions that the value of the subject-matter in dispute in the court of first instance and still in dispute on appeal in the Supreme Court is not less than Rs. 20, 000/-. A certificate under clause (b) may be granted if the judgment, decree or final order involves a claim or question relating to property of the like amount or value. A claim in a petition challenging the validity of a notice to show cause why a person in public service shall not be dismissed or removed from service is not capable of valuation and can in no event by regarded an of a value not less than Rs. 20, 000/-. It appears that counsel appearing on behalf of the State in the High Court conceded that the valuation was not less than Rs. 20, 000/- but that concession will not invest the High court with jurisdiction to grant a certificate under clause (a) or clause (b) which the High Court did not possess.5. In the absence of a valid certificate this appeal is incompetent.

0[ds]The High Court granted a certificate under Article 133(1) on the assumption that the value of thein dispute was more than Rs. 20,In our judgment the High Court was incompetent to grant the certificate.The High court has not issued a certificate under Article 133(1)(c). No substantial question of law is stated in the order granting certificate to arise out of the petition. In order that a certificate may be issued by the High Court for leave to appeal to this court under clause (a) it is one of the conditions that the value of thein dispute in the court of first instance and still in dispute on appeal in the Supreme Court is not less than Rs. 20,A certificate under clause (b) may be granted if the judgment, decree or final order involves a claim or question relating to property of the like amount or value. A claim in a petition challenging the validity of a notice to show cause why a person in public service shall not be dismissed or removed from service is not capable of valuation and can in no event by regarded an of a value not less than Rs. 20,It appears that counsel appearing on behalf of the State in the High Court conceded that the valuation was not less than Rs. 20, 000/but that concession will not invest the High court with jurisdiction to grant a certificate under clause (a) or clause (b) which the High Court did not possess.5. In the absence of a valid certificate this appeal is incompetent.

### 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: SHAH, J.1. Proceedings were started against the appellant a Range Assistant Engineer, for some delinquency in the performance of his duty. A departmental enquiry was held and the enquiry officer submitted his report provisionally holding that the appellant was guilty of the delinquency charged against him. By a notice, dated May 17, 1968, the appellant was called upon to show cause why he should not be removed from service.2. The appellant then moved a petition under Article 226 of the constitution in the High Court of Patna challenging the validity of the notice. The High Court summarily dismissed the petition. An application for a certificate to appeal to this Court was however successful. The High Court granted a certificate under Article 133(1) on the assumption that the value of the subject-matter in dispute was more than Rs. 20, 000/-. In our judgment the High Court was incompetent to grant the certificate.3. Under Article 133 of the constitution an appeal may lie to this Court from any judgment or decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies -(a) that the amount or value of the subject-matter of the dispute in the court of first instance and still in dispute on appeal was and is not less than Rs. 20, 000/- or such other sum as may be specified in that behalf by Parliament by law; or(b) that the judgment, decree or final order involves directly or indirectly some claim or question respecting property of the like amount or value; or(c) that the case is a fit one for appeal to the Supreme Court;and where the judgment, decree or final order appealed from affirms the decision of the court immediately below in any case other than a case referred to in sub-clause (c), if the High Court further certifies that the appeal involves some substantial question of law.4. The High court has not issued a certificate under Article 133(1)(c). No substantial question of law is stated in the order granting certificate to arise out of the petition. In order that a certificate may be issued by the High Court for leave to appeal to this court under clause (a) it is one of the conditions that the value of the subject-matter in dispute in the court of first instance and still in dispute on appeal in the Supreme Court is not less than Rs. 20, 000/-. A certificate under clause (b) may be granted if the judgment, decree or final order involves a claim or question relating to property of the like amount or value. A claim in a petition challenging the validity of a notice to show cause why a person in public service shall not be dismissed or removed from service is not capable of valuation and can in no event by regarded an of a value not less than Rs. 20, 000/-. It appears that counsel appearing on behalf of the State in the High Court conceded that the valuation was not less than Rs. 20, 000/- but that concession will not invest the High court with jurisdiction to grant a certificate under clause (a) or clause (b) which the High Court did not possess.5. In the absence of a valid certificate this appeal is incompetent. ### Response: 0 ### Explanation: The High Court granted a certificate under Article 133(1) on the assumption that the value of thein dispute was more than Rs. 20,In our judgment the High Court was incompetent to grant the certificate.The High court has not issued a certificate under Article 133(1)(c). No substantial question of law is stated in the order granting certificate to arise out of the petition. In order that a certificate may be issued by the High Court for leave to appeal to this court under clause (a) it is one of the conditions that the value of thein dispute in the court of first instance and still in dispute on appeal in the Supreme Court is not less than Rs. 20,A certificate under clause (b) may be granted if the judgment, decree or final order involves a claim or question relating to property of the like amount or value. A claim in a petition challenging the validity of a notice to show cause why a person in public service shall not be dismissed or removed from service is not capable of valuation and can in no event by regarded an of a value not less than Rs. 20,It appears that counsel appearing on behalf of the State in the High Court conceded that the valuation was not less than Rs. 20, 000/but that concession will not invest the High court with jurisdiction to grant a certificate under clause (a) or clause (b) which the High Court did not possess.5. In the absence of a valid certificate this appeal is incompetent.

M/S NANDAN BIOMATRIX LTD Vs. S. AMBIKA DEVI & ORS.

1800 trees on a 9-acre field, and that too for resale, could not be said to be on a self-employment level and without a commercial purpose. Thus, the complainant was held to not be a consumer within the 1986 Act. We find that this decision is clearly distinguishable since it is evident from the facts therein that the trees were being grown for a commercial purpose, which is not the case here. 15. Finally, we may refer to the decision in Prithviraj Narayanrao Chavan v. The National Seeds Corporation Ltd., [2012] SCC OnLine NCDRC 7, cited by the Appellant. This was also a case involving buyback of seeds produced with the help of foundation seeds provided by the seed company. The seed company had approached farmers to participate in its seed production programme for a variety of jute, and were assured a certain minimum procurement price per quintal of seed produced. The area under cultivation was withdrawn from the certification of the seed company due to poor germination of crop, leading to heavy losses for the farmers, based on which consumer complaints were filed. 15.1 The State Commission in Prithviraj had adopted the view taken in Sakthi Sugars (supra) that a seller could not be treated as a consumer, to hold that since the complainants therein had entered into a buyback transaction, they were acting as sellers and hence could not be treated as consumers. This view was upheld by the National Commission, which also placed reliance upon the decision in Wimco (supra). 15.2 As we have already noticed, we find ourselves unable to agree with the view taken in Sakthi Sugars. Moreover, for reasons expressed already, and particularly in view of the decision of this Court in Madhusudan (supra), we find that the National Commission in Prithviraj erred in holding that entering into a buyback transaction would preclude a farmer from taking benefit as a consumer under the 1986 Act. 16. Before we part with this matter, we feel constrained to note that the Indian agricultural scenario, today, is in a very imperilled state. Agriculturists have to deal with serious environmental concerns like topsoil depletion, contamination of food, water and soil due to toxic fertilizers and pesticides, and the vagaries of the weather, which are becoming more and more severe and unpredictable as the climate deteriorates. In some parts of the country, such as Punjab, pesticides being used are toxic enough to have led to unprecedented incidence of diseases like cancer. The mechanization of farms has undoubtedly led to many advances in the food security of the country, but this has come at a grave cost. 16.1 Practices such as crop diversification and rotation, which are crucial to species diversity and thus to maintain soil health and ensure farm security, and are in-built in traditional forms of farming, are under threat from the increasing inroads being made into the Indian farm by corporates of all sizes, which come with the promise of increased yields and attractive returns. This is true with regard to the sale of seeds as well, even though Indian law protects plant material including seeds from patentability. 16.2 Most Indian farmers own only small landholdings, which require expensive inputs such as irrigation, electricity, seeds, fertilizer, and pesticide, but do not generate sufficient output to cover the costs of the same. Though the sway of seed companies over small farmers in India is, as of now, minimal, when agriculturists with such small landholdings do enter into agreements to grow crops on terms dictated by seed companies, it is in the hope of earning some profit that would offset the cost of their inputs and generate some income for the household. Often, the crops require the intensive usage of labour and mechanization. Therefore, agreements such as the one in the instant case often guarantee technical and financial assistance to the farmer in order to be able to discharge his end of the deal. Needless to say, the success or failure of the crop would make or break the income of the farmer for the entire season. This can result in situations where small and medium scale farmers find themselves trapped in contracts where they buy expensive seeds which turn out to be defective, resulting in a failed season and severe financial hardship. The problem of indebtedness further worsens the plight of the farmer, and, all too often, manifests in the tragedy of suicide. Farmer suicides are indeed a systemic issue that has persisted, and perhaps worsened, over the last few decades. 16.3 The summary redressal available to the farmer under the 1986 Act may go a small but crucial way to provide instant relief in a sector which is already facing stress on several counts. Undoubtedly, farmers faced with grievances against seed companies, may, in suitable cases, opt for other remedies such as a civil suit, relief under the Seeds Act, 1966 (the reform of which has been under process for some time), and so on. But excluding such farmers from the purview of the 1986 Act would be a complete mockery of the object and purpose of the statute. 16.4 We are alarmed by the growing trend amongst seed companies of engaging in frivolous litigation with farmers, virtually defeating the purpose of speedy redressal envisaged under 1986 Act. In the instant case, the Appellant contested the farmers claims before consumer fora on the preliminary point of maintainability right up to this Court, compelling small agriculturists such as the Respondents to spend unnecessarily on litigation in order to secure relief for themselves, amounting to a sum which probably exceeds even the quantum of relief claimed. This tendency to resist even the smallest of claims on any ground possible, by exploiting the relatively greater capacity of seed companies to litigate for long periods of time, amounts to little more than harassment of agriculturists. To discourage such conduct in the future by the Appellant as well as other seed corporations, we deem it fit to impose costs on the Appellant

0[ds]9. In the matter on hand, though the Appellant has sought to project that the Respondent were cultivating musli on a large scale and with a profit motive, we find ourselves unable to conclude that the cultivation being undertaken was for a purpose other than for eking out a livelihood through self- employment9.1 In matters such as the one on hand, the agriculturist buys the foundation seeds from the seed company, or the company itself reaches out and requests the farmers to generate the seeds so that it may market the same. By accepting such an offer, and after purchasing the foundation seeds from the seed company, the agriculturist, with hard labour and sweat, produces seeds to be marketed by the seed company. Thus, the agriculturist is not reselling any product, but grows his own product by utilizing the foundation seeds. There cannot be any dispute that the agriculturist has to sell his product in the open market or to the seed company, as the case may be, in order to eke out his livelihood. In other words, the agriculturist sustains himself by selling his product. This cannot be termed as resale or activity in furtherance of a commercial purpose bringing him out of the purview of the definition of consumer under Section 2(d). Rather, it is purely for the purpose of earning his livelihood by means of self- employment9.2 Contrary to what the Appellant has sought to impress upon us, we find that cases such as these cannot be compared to activities undertaken by industrial concerns, for example, where the employment of raw materials to produce finished goods for sale has also been held by this Court to amount to resale or being for a commercial purpose [see Rajeev Metal Works v. Mineral & Metal Trading Corporation of India Ltd., (1996) 9 SCC 422 ]9.3 Indeed, in the matter on hand, the Respondent is a housewife who has undertaken agricultural activity on land of 1-1.5 acres for the purpose of increasing her household income, and would perhaps not have undertaken the growing of musli if the Appellant had not assured a profitable price for buyback of the crop. Of course, we cannot base our conclusion on any surmise or conjecture in this regard. At the same time, in our opinion, the fact that such profitable price was guaranteed by the Appellant cannot now be relied upon to argue that the activity was undertaken by the Respondent for a commercial purpose, so as to exclude the same from the purview of the 1986 Act10. We particularly find the argument untenable that the tripartite agreement would amount to resale by virtue of containing a buyback clause, and would hence exclude the Respondent from the ambit of the definition of consumer10.1 It is amply evident from the above that an agreement for buyback by the seed company of the crop grown by a farmer cannot be regarded as a resale transaction, and he cannot be brought out of the scope of being a consumer under the 1986 Act only on such ground. Thus, even in the instant case, the fact that there was a buyback agreement for the musli crop would not bring the Respondent outside the purview of the definition of consumer by rendering the buyback arrangement a resale transaction or being for a commercial purpose. We hasten to emphasise that the fact situation herein diverges from Madhusudan to the extent that in the instant case, the Respondent had the freedom to sell her produce on the open market if she was able to obtain a better price. However, as we have already mentioned, in our opinion, this aspect would not take away from the conclusion that the Respondent had entered into an agreement for growing the musli crop for the purpose of earning a livelihood, since an agriculturist would always have to sell his produce in order to earn his livelihood11. It is pertinent to note at this juncture that the Appellant has sought to rely on several decisions rendered by the National Commission in order to argue that the Respondent cannot be regarded as a consumer under the 1986 Act, and we find it necessary to advert to the same below12. The Appellant has referred to Synco Textiles (supra), a case decided before the 1993 amendment, where the National Commission opined that large scale commercial activities would be excluded from the purview of the definition ofIt was held that a person purchasing a generator used for generating electricity, to be used in an industrial concern producing oil on a large scale, would not amount to a consumer, since the generator was being used for an activity directly intended to generate profit. This view was upheld in Laxmi Engineering (supra) by this Court, and we see no reason to depart from the same. At the same time, the said decision cannot come to the rescue of the Appellant as the facts in Synco clearly indicated that the generator purchased was employed for production that was geared for a commercial purpose, and had nothing to do with the agricultural sector and the status of a farmer as a consumer13. However, the same cannot be said with regard to the decision in Sakthi Sugars Ltd., Orissa v. Sridhar Sahoo, II (1999) CPJ 4 (NC). In this case, the respondent farmer had entered into an agreement with the appellant corporation for financial assistance, agreeing to sell the sugarcane crop grown by him to it. The corporation, in turn, had agreed to help the farmer get a loan from specified sources for a diesel pump set and dug-well. In 1991-92, the farmer obtained inadequate output in his crop. In his complaint, he alleged that this was because he was unable to irrigate his field properly because of the lack of a dug-well and pump set, and that he had been unable to procure a loan in this regard because of the failure of the appellant to deposit margin money for the sameThe Appellant in the instant case has referred to this reasoning adopted by the National Commission to substantiate its case. However, for reasons discussed below, we are of the considered view that the proposition of law expressed in Sakthi Sugars is incorrect13.2 To begin with, a perusal of the decision in Sankar Reddy, which was relied upon in Sakthi Sugars, shows that in that case, the National Commission had held that a farmer who was selling his produce through an intermediary was not a consumer vis-à-vis such intermediary. The complainant therein was a horticulturist who was selling his produce to an intermediary for further sale. One of the consignments had been rejected by the intermediary for non-adherence with standards pertaining to quality and packaging, but in view of the perishable nature of the goods, the complainant requested the intermediary for help in disposal, who arranged for the sale of the consignment through an authorized commission agent for a specified price. The complaint was filed alleging that the intermediary had failed to pay the complainant the entire amount promised. On these facts, the National Commission had held that while obliging with the request of the complainant, the intermediary was acting only as an agent, and that too only in order to minimize the loss that the complainant would have suffered if the consignment remained unsold, without receiving any consideration. Thus, it could not be said that the intermediary had undertaken to render a service for consideration13.3 It is relevant to note that from the order of the National Commission, no material is forthcoming to the effect that the parties had entered into an agreement whereby the intermediary agreed to render a service to the farmers regarding the further sale of their produce. Additionally, the National Commission found that even if it was presumed that the intermediary had purchased goods in terms of an agreement between the parties, the fact remained that in such transaction, it was the farmer who was a seller, and could not be deemed to be a consumer under the 1986 Act13.4 It is evident that in Sakthi Sugars, there was a clear agreement between the farmer and the corporation for the latter to render financial assistance by way of help in procuring a loan, which amounted to the rendering of a service, a deficiency in which would give rise to a cause of action under the 1986 Act. Thus, the farmer was not purely a seller and was also availing of services from the corporation. In this respect, reliance on Sankar Reddy may not have been proper13.5 We also find that the view that a consumer dispute may not arise out of a contractual arrangement is erroneous since it falls foul of the clear stipulation under Section 2(f) of the 1986 Act that a deficiency in service may arise out of any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any serviceWe find that this decision is clearly distinguishable since it is evident from the facts therein that the trees were being grown for a commercial purpose, which is not the case here15.2 As we have already noticed, we find ourselves unable to agree with the view taken in Sakthi Sugars. Moreover, for reasons expressed already, and particularly in view of the decision of this Court in Madhusudan (supra), we find that the National Commission in Prithviraj erred in holding that entering into a buyback transaction would preclude a farmer from taking benefit as a consumer under the 1986 Act16.3 The summary redressal available to the farmer under the 1986 Act may go a small but crucial way to provide instant relief in a sector which is already facing stress on several counts. Undoubtedly, farmers faced with grievances against seed companies, may, in suitable cases, opt for other remedies such as a civil suit, relief under the Seeds Act, 1966 (the reform of which has been under process for some time), and so on. But excluding such farmers from the purview of the 1986 Act would be a complete mockery of the object and purpose of the statute16.4 We are alarmed by the growing trend amongst seed companies of engaging in frivolous litigation with farmers, virtually defeating the purpose of speedy redressal envisaged under 1986 Act. In the instant case, the Appellant contested the farmers claims before consumer fora on the preliminary point of maintainability right up to this Court, compelling small agriculturists such as the Respondents to spend unnecessarily on litigation in order to secure relief for themselves, amounting to a sum which probably exceeds even the quantum of relief claimed. This tendency to resist even the smallest of claims on any ground possible, by exploiting the relatively greater capacity of seed companies to litigate for long periods of time, amounts to little more than harassment of agriculturists. To discourage such conduct in the future by the Appellant as well as other seed corporations, we deem it fit to impose costs on the Appellant

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: 1800 trees on a 9-acre field, and that too for resale, could not be said to be on a self-employment level and without a commercial purpose. Thus, the complainant was held to not be a consumer within the 1986 Act. We find that this decision is clearly distinguishable since it is evident from the facts therein that the trees were being grown for a commercial purpose, which is not the case here. 15. Finally, we may refer to the decision in Prithviraj Narayanrao Chavan v. The National Seeds Corporation Ltd., [2012] SCC OnLine NCDRC 7, cited by the Appellant. This was also a case involving buyback of seeds produced with the help of foundation seeds provided by the seed company. The seed company had approached farmers to participate in its seed production programme for a variety of jute, and were assured a certain minimum procurement price per quintal of seed produced. The area under cultivation was withdrawn from the certification of the seed company due to poor germination of crop, leading to heavy losses for the farmers, based on which consumer complaints were filed. 15.1 The State Commission in Prithviraj had adopted the view taken in Sakthi Sugars (supra) that a seller could not be treated as a consumer, to hold that since the complainants therein had entered into a buyback transaction, they were acting as sellers and hence could not be treated as consumers. This view was upheld by the National Commission, which also placed reliance upon the decision in Wimco (supra). 15.2 As we have already noticed, we find ourselves unable to agree with the view taken in Sakthi Sugars. Moreover, for reasons expressed already, and particularly in view of the decision of this Court in Madhusudan (supra), we find that the National Commission in Prithviraj erred in holding that entering into a buyback transaction would preclude a farmer from taking benefit as a consumer under the 1986 Act. 16. Before we part with this matter, we feel constrained to note that the Indian agricultural scenario, today, is in a very imperilled state. Agriculturists have to deal with serious environmental concerns like topsoil depletion, contamination of food, water and soil due to toxic fertilizers and pesticides, and the vagaries of the weather, which are becoming more and more severe and unpredictable as the climate deteriorates. In some parts of the country, such as Punjab, pesticides being used are toxic enough to have led to unprecedented incidence of diseases like cancer. The mechanization of farms has undoubtedly led to many advances in the food security of the country, but this has come at a grave cost. 16.1 Practices such as crop diversification and rotation, which are crucial to species diversity and thus to maintain soil health and ensure farm security, and are in-built in traditional forms of farming, are under threat from the increasing inroads being made into the Indian farm by corporates of all sizes, which come with the promise of increased yields and attractive returns. This is true with regard to the sale of seeds as well, even though Indian law protects plant material including seeds from patentability. 16.2 Most Indian farmers own only small landholdings, which require expensive inputs such as irrigation, electricity, seeds, fertilizer, and pesticide, but do not generate sufficient output to cover the costs of the same. Though the sway of seed companies over small farmers in India is, as of now, minimal, when agriculturists with such small landholdings do enter into agreements to grow crops on terms dictated by seed companies, it is in the hope of earning some profit that would offset the cost of their inputs and generate some income for the household. Often, the crops require the intensive usage of labour and mechanization. Therefore, agreements such as the one in the instant case often guarantee technical and financial assistance to the farmer in order to be able to discharge his end of the deal. Needless to say, the success or failure of the crop would make or break the income of the farmer for the entire season. This can result in situations where small and medium scale farmers find themselves trapped in contracts where they buy expensive seeds which turn out to be defective, resulting in a failed season and severe financial hardship. The problem of indebtedness further worsens the plight of the farmer, and, all too often, manifests in the tragedy of suicide. Farmer suicides are indeed a systemic issue that has persisted, and perhaps worsened, over the last few decades. 16.3 The summary redressal available to the farmer under the 1986 Act may go a small but crucial way to provide instant relief in a sector which is already facing stress on several counts. Undoubtedly, farmers faced with grievances against seed companies, may, in suitable cases, opt for other remedies such as a civil suit, relief under the Seeds Act, 1966 (the reform of which has been under process for some time), and so on. But excluding such farmers from the purview of the 1986 Act would be a complete mockery of the object and purpose of the statute. 16.4 We are alarmed by the growing trend amongst seed companies of engaging in frivolous litigation with farmers, virtually defeating the purpose of speedy redressal envisaged under 1986 Act. In the instant case, the Appellant contested the farmers claims before consumer fora on the preliminary point of maintainability right up to this Court, compelling small agriculturists such as the Respondents to spend unnecessarily on litigation in order to secure relief for themselves, amounting to a sum which probably exceeds even the quantum of relief claimed. This tendency to resist even the smallest of claims on any ground possible, by exploiting the relatively greater capacity of seed companies to litigate for long periods of time, amounts to little more than harassment of agriculturists. To discourage such conduct in the future by the Appellant as well as other seed corporations, we deem it fit to impose costs on the Appellant ### Response: 0 ### Explanation: the decision in Sakthi Sugars Ltd., Orissa v. Sridhar Sahoo, II (1999) CPJ 4 (NC). In this case, the respondent farmer had entered into an agreement with the appellant corporation for financial assistance, agreeing to sell the sugarcane crop grown by him to it. The corporation, in turn, had agreed to help the farmer get a loan from specified sources for a diesel pump set and dug-well. In 1991-92, the farmer obtained inadequate output in his crop. In his complaint, he alleged that this was because he was unable to irrigate his field properly because of the lack of a dug-well and pump set, and that he had been unable to procure a loan in this regard because of the failure of the appellant to deposit margin money for the sameThe Appellant in the instant case has referred to this reasoning adopted by the National Commission to substantiate its case. However, for reasons discussed below, we are of the considered view that the proposition of law expressed in Sakthi Sugars is incorrect13.2 To begin with, a perusal of the decision in Sankar Reddy, which was relied upon in Sakthi Sugars, shows that in that case, the National Commission had held that a farmer who was selling his produce through an intermediary was not a consumer vis-à-vis such intermediary. The complainant therein was a horticulturist who was selling his produce to an intermediary for further sale. One of the consignments had been rejected by the intermediary for non-adherence with standards pertaining to quality and packaging, but in view of the perishable nature of the goods, the complainant requested the intermediary for help in disposal, who arranged for the sale of the consignment through an authorized commission agent for a specified price. The complaint was filed alleging that the intermediary had failed to pay the complainant the entire amount promised. On these facts, the National Commission had held that while obliging with the request of the complainant, the intermediary was acting only as an agent, and that too only in order to minimize the loss that the complainant would have suffered if the consignment remained unsold, without receiving any consideration. Thus, it could not be said that the intermediary had undertaken to render a service for consideration13.3 It is relevant to note that from the order of the National Commission, no material is forthcoming to the effect that the parties had entered into an agreement whereby the intermediary agreed to render a service to the farmers regarding the further sale of their produce. Additionally, the National Commission found that even if it was presumed that the intermediary had purchased goods in terms of an agreement between the parties, the fact remained that in such transaction, it was the farmer who was a seller, and could not be deemed to be a consumer under the 1986 Act13.4 It is evident that in Sakthi Sugars, there was a clear agreement between the farmer and the corporation for the latter to render financial assistance by way of help in procuring a loan, which amounted to the rendering of a service, a deficiency in which would give rise to a cause of action under the 1986 Act. Thus, the farmer was not purely a seller and was also availing of services from the corporation. In this respect, reliance on Sankar Reddy may not have been proper13.5 We also find that the view that a consumer dispute may not arise out of a contractual arrangement is erroneous since it falls foul of the clear stipulation under Section 2(f) of the 1986 Act that a deficiency in service may arise out of any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any serviceWe find that this decision is clearly distinguishable since it is evident from the facts therein that the trees were being grown for a commercial purpose, which is not the case here15.2 As we have already noticed, we find ourselves unable to agree with the view taken in Sakthi Sugars. Moreover, for reasons expressed already, and particularly in view of the decision of this Court in Madhusudan (supra), we find that the National Commission in Prithviraj erred in holding that entering into a buyback transaction would preclude a farmer from taking benefit as a consumer under the 1986 Act16.3 The summary redressal available to the farmer under the 1986 Act may go a small but crucial way to provide instant relief in a sector which is already facing stress on several counts. Undoubtedly, farmers faced with grievances against seed companies, may, in suitable cases, opt for other remedies such as a civil suit, relief under the Seeds Act, 1966 (the reform of which has been under process for some time), and so on. But excluding such farmers from the purview of the 1986 Act would be a complete mockery of the object and purpose of the statute16.4 We are alarmed by the growing trend amongst seed companies of engaging in frivolous litigation with farmers, virtually defeating the purpose of speedy redressal envisaged under 1986 Act. In the instant case, the Appellant contested the farmers claims before consumer fora on the preliminary point of maintainability right up to this Court, compelling small agriculturists such as the Respondents to spend unnecessarily on litigation in order to secure relief for themselves, amounting to a sum which probably exceeds even the quantum of relief claimed. This tendency to resist even the smallest of claims on any ground possible, by exploiting the relatively greater capacity of seed companies to litigate for long periods of time, amounts to little more than harassment of agriculturists. To discourage such conduct in the future by the Appellant as well as other seed corporations, we deem it fit to impose costs on the Appellant

N. T. Veluswami Thevar, Vs. G. Raja Nainar And Others

be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised.15. Mr. Ganapathy Iyer, learned counsel for the appellant, invited our attention to the decisions of the Election Tribunals on the question whether grounds, other than those raised before the returning officer could be put forward in an enquiry in an election petition. They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj v. Bhimandas, 1952-2 E L R 301 at p. 310 as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer. If the Legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret S. 100 (1) (c) as not intended to alter the law as laid down in those decisions.16. It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehtas case, 1955-1 SCRR 267 : (A I R 1954 S C 520), the election was to a double-member constituency. The appellant who obtained the largest number of votes was declared elected to the general seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to stand. The Election Tribunal upheld that objection, and set aside the entire election, The decision was taken in appeal to this Court, and the point for determination was whether the election of the appellant was liable to be set aside on account of the disqualification of Vasantarao. It was held that the matter fell within S. 100 (2) (c) as it then stood and not under S. 100 (1) (c), and that the election of the appellant could not be declared void. This is not a direct pronouncement on the point now in controversy, and that is conceded. In Vashist Narain Sharma v. Dev Chandra, 1955-1 S C R 509 : (A I R 1954 S C 513), a question was raised as to what would be "improper acceptance" within the meaning of S. 100; but in the view taken by this Court, no opinion was expressed thereon.17. The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204 ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutory orders.

1[ds]This in our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returningthe argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.12. In support of his contention that it is only the ground that is urged before the returning officer that can be raised before the Tribunal, Mr.Sinha, learned counsel for the respondent, relies on the provision in S.36 (6) that when a nomination paper is rejected, the returning officer should record his reasons therefor. The object of this provision, it is argued, is to enable the Tribunal to decide whether the order of the returning officer is right or not, and by implication it confines the scope of the enquiry before the Tribunal to the ground put forward before the returning officer.This contention is, in our opinion, unsound. Now, when a nomination paper is accepted, S. 36(6) does not require that any reason should be recorded, therefor. If the contention of the respondent is right, it would follow that acceptance of a nomination paper can never be questioned. But that would be against S. 100 (1)(d)(i), and it must therefore be held that an acceptance can be questioned on all the grounds available under S. 36(2). Section 100(1)(d)(i) deals with improper acceptance of a nomination paper, and if the word "improper" in that provision has reference to the matters mentioned in S. 36(2), it must have the same connotation in S. 100(1)(c) as well.The word "improper" which occurs in both S.100(1)(c) and S.100(1)(d)(i) must bear the same meaning in both the provisions, unless there is something in the context to the contrary, and none such has been shown.13. There is another difficulty in the way of accepting this argument of the respondent. A candidate may be subject to more than one disqualification, and his nomination paper may be questioned on all those grounds. Supposing that the returning officer upholds one objection and rejects the nomination paper on the basis of that objection without going into other objections, notwithstanding that, under S. 36(2) he has to decide all the objections, is it open to the respondents in the election petition to adduce evidence on those objections? According to the respondent, it is not, so that if the decision of the returning officer on the objection on which he rejected the nomination paper is held to be bad, the Tribunal has no option but to set aside the election under S.100 (1)(c), even though the candidate was, in fact, disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent concedes that the result would be anomalous, but he says that the Law of Election is full of anomalies, and this is one of them, and that is no reason for not interpreting the law on its own terms.It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other, not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in S. 36(2).The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204 ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutoryin our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returninge argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.

### 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: be raised under that section. The fact that a particular ground which could have been raised was not, in fact, raised before the returning officer does not put an end to his jurisdiction to decide it, and what he could have decided if it had been raised, could be decided by the Tribunal, when raised.15. Mr. Ganapathy Iyer, learned counsel for the appellant, invited our attention to the decisions of the Election Tribunals on the question whether grounds, other than those raised before the returning officer could be put forward in an enquiry in an election petition. They held, with one solitary exception, that it is permissible, and indeed, it is stated in Mengh Raj v. Bhimandas, 1952-2 E L R 301 at p. 310 as settled law that the rejection of a nomination paper can be sustained on grounds not raised before the returning officer. If the Legislature which must be taken to have knowledge of the law as interpreted in those decisions wanted to make a departure from it, it would have said so in clear terms, and in the absence of such an expression, it would be right to interpret S. 100 (1) (c) as not intended to alter the law as laid down in those decisions.16. It is now necessary to refer to the decisions which have been cited before us. In Durga Shankar Mehtas case, 1955-1 SCRR 267 : (A I R 1954 S C 520), the election was to a double-member constituency. The appellant who obtained the largest number of votes was declared elected to the general seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to stand. The Election Tribunal upheld that objection, and set aside the entire election, The decision was taken in appeal to this Court, and the point for determination was whether the election of the appellant was liable to be set aside on account of the disqualification of Vasantarao. It was held that the matter fell within S. 100 (2) (c) as it then stood and not under S. 100 (1) (c), and that the election of the appellant could not be declared void. This is not a direct pronouncement on the point now in controversy, and that is conceded. In Vashist Narain Sharma v. Dev Chandra, 1955-1 S C R 509 : (A I R 1954 S C 513), a question was raised as to what would be "improper acceptance" within the meaning of S. 100; but in the view taken by this Court, no opinion was expressed thereon.17. The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204 ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutory orders. ### Response: 1 ### Explanation: adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.Anomalies will disappear, and the law will be found to be simple and logical, if it is understood that when a question is raised in an election petition as to the propriety of the rejection of a nomination paper, the point to be decided is about the propriety of the nomination and not the decision of the returning officer on the materials placed before him, and that decision must depend on whether the candidate is duly qualified and is not subject to any disqualifications as provided in S. 36(2).The question now under consideration came up directly fop decision before the High Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur, 1954-9 E L R 193 , (A I R 1954 Raj 204 ), and it was held that the respondent to an election petition was entitled to raise a plea that the nomination of the petitioner rejected on one ground by the returning officer was defective on one or more of the other grounds mentioned in S. 36 (2) of the Act, and that such a plea, it taken, must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y. Tamaskar, 1953-15 E L R 260 it was observed by a Bench of the Madhya Pradesh High Court that in determining whether a nomination was improperly rejected, the Election Tribunal was not bound to confine its enquiry to the ground on which the returning officer rejected it and that even if the ground on which the returning officer rejected the nomination could not be sustained, the rejection could not be held to be improper if the Tribunal found other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High Court in Badrivishal Pitti v. J. V. Narsing Rao, Special Appeal No. 1 of 1957 (Andh. Pra.) has been cited before us, and that also takes the view that in an enquiry before the Election Tribunal, it is open to the parties to support an order of rejection of a nomination paper on grounds other than those which were put forward before the returning officer. We are in agreement with these decisions.18. As the question has also been raised as to the propriety of interfering in writ petitions under Art. 226 with interlocutory orders passed in the course of an enquiry before the Election Tribunal, we shall express our opinion thereon.The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then, it is well settled that where there is another remedy provided, the Court may properly exercise its discretion in declining to interfere under Art. 226.It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Art. 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous. A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani, 1955-2 S C B 428 : ((S) A I B 1955 S C 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under S. 116-A,and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should beset right in an appeal under that section.In this view, it would be a proper exercise of discretion under Art. 226 to decline to interfere with interlocutoryin our view, is quite correct. The enquiry which a returning officer has to make under S. 36 is summary in character. He may make "such summary enquiry, if any, as he thinks necessary"; he can act suo motu. Such being the nature of the enquiry, the right which is given to a party under S. 100 (1)(c) and S. 100(1)(d)(i) to challenge the propriety of an order of rejection or acceptance of a nomination paper would become illusory, if the Tribunal is to base its decision only on the materials placed before the returninge argument before the High Court was that the failure to mention the age in the nomination paper was a formal defect which should have been condoned under S. 36(4) of the Act. The learned Judges held that the defect was not merely one of failure to mention the age but of want of the requisite qualification in age, and that that could not be cured under S. 36(4). In this context, the observations relied on could not be read as meaning that no evidence could be adduced even in respect of a ground which was urged before the returning officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they meant what the respondent suggests they do, we do not agree with them. It is to be noted that in many of the cases which came before this Court, as for example, Durga Shankar v. T. Raghuraj Singh, 1955-1 S C R 267 : (A I R 1954 S C 520), the finding of the Tribunal was based on fresh evidence admitted before it, and the propriety of such admission was never questioned. And if the true position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be regarded as in the nature of appeal against the decision of the returning officer.

UNION OF INDIA AND ANR Vs. PFIZER LIMITED AND ORS

it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the courts duty to undertake such exercise, but it is beyond its jurisdiction to do so."(emphasis supplied)52. Applying the aforesaid test to the impugned Regulation, it is clear that the language of the Regulation is definite and unambiguous - every service provider has to credit the account of the calling consumer by one rupee for every single call drop which occurs within its network. The Explanatory Memorandum to the aforesaid Regulation further makes it clear, in Para 19 thereof, that the Authority has come to the conclusion that call drops are instances of deficiency in service delivery on the part of the service provider. It is thus unambiguously clear that the impugned Regulation is based on the fact that the service provider is alone at fault and must pay for that fault. In these circumstances, to read a proviso into the Regulation that it will not apply to consumers who are at fault themselves is not to restrict general words to a particular meaning, but to add something to the provision which does not exist, which would be nothing short of the court itself legislating.For this reason, it is not possible to accept the learned Attorney Generals contention that the impugned Regulation be read down in the manner suggested by him."27. Also, as a matter of statutory interpretation, words can only be added if the literal interpretation of the Section leads to an absurd result. As has been stated by us, the construction of Section 26A on a literal reading thereof does not lead to any such result. Dr. Singhvis argument to read in words to save Section 26A must, therefore, be rejected.28. We may also mention that the Madras High Court in its judgment in Macleods Pharmaceuticals Limited v. Union of India & Ors., Writ Petition Nos.21933 and 25442 of 2011, specifically held as under:"38. Thus, the Act gives in every Chapter, an indication of the functions to be exercised by the DTAB. In other words, the territory within which the DTAB is to operate and exercise its functions, is clearly demarcated in various provisions of the Act such as 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). But Section 26-A is completely silent about any consultation with DTAB. It is so even with Section 26-B.39. While the advisory role of DTAB is indicated in broad and general terms in Section 5(1), it is indicated in specific terms in Sections 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). Therefore, the absence of any reference to such requirement of consultation in Section 26-A assumes great significance. It is a well settled principle of interpretation of statutes that the Courts are not expected to supply the omission. The Parliament had consciously incorporated the expressions "after consultation with the Board" or "on the recommendation of the Board", in certain provisions of the Act such as Sections 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1).But it has deliberately omitted to include any of those expressions while inserting Sections 26-A and 26-B. It is a case of casus omisus. Therefore, the argument that the Central Government ought to have taken the consultation of the DTAB before issuing the ban order, can hold good only if I can supply into Section 26-A, what was deliberately left out by the Parliament. This cannot be done by me and hence the first contention has to be rejected."29. To similar effect is the judgment of a single Judge of the Karnataka High Court in Lundbeck India Pvt. Ltd. v Union of India, (2014) 5 Kant LJ 440.30. We approve of these two judgments as having laid down the correct law on the construction of Section 26A of the Drugs Act.31. Though arguments have been made as to whether Section 26A is legislative in nature and therefore excludes natural justice, we do not propose to go into the same inasmuch as since the learned single Judges judgment is being set aside on one point and one point alone. In this view of the matter, we are of the opinion that the impugned judgment dated 1.12.2016 deserves to be set aside.32. On the facts of these cases, a suggested course of action was stated by learned counsel appearing on behalf of the petitioners/appellants. This course is that instead of now remitting the matter back to the Delhi High Court for an adjudication on the other points raised in the writ petitions, the case of 344 FDCs that have been banned, plus another FDCs that have been banned, which comes to 349 FDCs, (barring 15 FDCs that are pre 1988 and 17 FDCs which have DCG(I) approval) pursuant to the Kokate Committee report, by notifications of the Central Government under Section 26A of the Drugs Act, should be sent to the DTAB, constituted under Section 5 of the Drugs Act, so that it can examine each of these cases and ultimately send a report to the Central Government. We reiterate that only on the peculiar facts of these cases, we think that such a course commends itself to us, which would obviate further litigation and finally set at rest all other contentions raised by the petitioners. We say so because we find that the Kokate Committee did deliberate on the 344 FDCs plus 5 FDCs and did come to a conclusion that the aforesaid FDCs be banned, but we are not clear as to what exactly the reasons for such conclusions are, and whether it was necessary in the public interest to take the extreme step of prohibiting such FDCs, instead of restricting or regulating their manufacture and supply.

1[ds]15. Having heard learned counsel for the parties, it is clear that Section 26A has been introduced by an amendment in 1982. A bare reading of this provision would show, firstly, that it is without prejudice to any other provision contained in this Chapter (meaning thereby Chapter IV). This expression only means that apart from the Central Governments other powers contained in Chapter IV, Section 26A is an additional power which must be governed by its own terms. Under Section 26A, the Central Government must be "satisfied" that any drug or cosmetic is likely to involve(i) any risk to human beings or families; or(ii) that any drug does not have the therapeutic value claimed or purported to be claimed for it; or(iii) contains ingredients in such quantity for which there is no therapeutic justification. Obviously, the Central Government has to apply its mind to any or all of these three factors which has to be based upon its "satisfaction" as to the existence of any or all of these factors. The power exercised under Section 26A must further be exercised only if it is found necessary or expedient to do so in public interest. When the power is so exercised, it may regulate, restrict or prohibit manufacture, sale or distribution of any drug or cosmetic.16. Undoubtedly, Section 26A has to be read with the rest of the Drugs Act. So read, it is clear that unlike Section 6(2), Section 8(2), second proviso to Section 10, proviso to Section 12(1), Section 16(2), proviso to Section 18(2), Section 33 and Section 33N, there is no explicit requirement to consult the DTAB set up under Section 5 of the Drugsobvious answer is no inasmuch as the Central Governments satisfaction is based upon relevant material, namely, the fact that 50 nations have banned the aforesaid drug, which in turn is based on expert committee reports taken in each of those nations. Take another example. Suppose the Central Government were to ban an FDC on the ground that, in the recent past, it has been apprised of the fact that the FDCs taken over a short period of time would lead toe, which has come to the notice of the Central Government through reports from various district authorities, in let us say, a majority of districts in which the said FDC has beenobvious answer again is yes for the reason that the Central Government has been satisfied on relevant material that it is necessary in public interest to ban such drug. Examples of this nature can be multiplied to show that the width of the power granted under Section 26A cannot be cut down by artificially cutting down the language of Section 26A.It is clear that a stray sentence in a judgment without a focused argument cannot be considered as the ratio of such a judgment. Also, on a careful reading of the second sentence in paragraph 19, it is clear that all that is stated by this Court is that, while exercising its power under Section 26A of the Drugs Act, the basis of the Central Governments decision must be "expert advice". The sentence then goes on to add that the Drugs Act makes provision for obtaining such advice through the Board and the DCC. According to us, there was no focused argument on whether such advice is or is not mandatory before powers under Section 26A of the Drugs Act can be exercised, and merely reading a stray sentence in this judgment does not lead to such amust first advert to the fact that the DTAB is only an advisory body. No doubt, it would be desirable for the Central Government to take its advice on technical matters arising out of the administration of the Drugs Act, but this does not lead to the conclusion that if such advice is not taken power under Section 26A cannot be exercised. Indeed, the Central Governments satisfaction may be based on a number of factors, one of which may be advice tendered to it by the DTAB under Section 5. There is no warrant to read Section 26A to constrict the wide powers granted to the Central Government by aharmonious construction of the statute. Another argument made is that Section 5 makes it clear that the DTAB alone can constitutewhich may have persons who are not members of the Board on them. We are afraid that this again does not lead us very far. It is clear that the reason for Section 5(5) is completely different.may be appointed for such periods not exceeding three years or temporarily for the consideration of particular matters. Suchmay be set up in the wisdom of the DTAB for short periods of time or temporarily to consider certain matters and make reports which the DTAB may then utilize. This is a power of the DTAB which can be exercised when the DTAB deems it desirable. From this power, it cannot be inferred, as a matter of logic, that since Section 5(5) permits persons who are not members of the board to sit onthe Central Government may not, under Section 26A, refer to any persons other than those who are board members. This argument, therefore, is alsohave already pointed out how the very amendment Act of 1982 also amended Sections 33 and 33N by referring to the DTAB and that, therefore, it is obvious that the omission of any reference to the DTAB under Sections 10A and 26A cannot but be said to be deliberate. This argument also need not detain us further.22. A negative argument was made stating that Section 7A of the Drugs Act makes it clear that Section 5 will not apply to Ayurvedic, Siddha or Unani drugs and that, therefore, it will apply to all other drugs. The reason for Section 7A is again something very different from what has beenmust first be pointed out that under Chapter IVA, which is a separate Chapter introduced by Act 13 of 1964, Ayurvedic, Siddha and Unani drugs are completely separately dealt with. Indeed, Section 33A, which must be read with Section 7A, expressly provides that save as provided in this Drugs Act, nothing contained in this Chapter, i.e. Chapter IV, shall apply to Ayurvedic, Siddha or Unani drugs. Chapter IVA consists of a separate and distinct drill to be followed in the case of Ayurvedic, Siddha and Unani drugs. Under Section 33C, there is a separate technical advisory board for Ayurvedic and Unani drugs and a separate consultative committee for Ayurvedic, Siddha and Unani drugs (see Section 33D). When Section 7A says that nothing in section 5 shall apply to Ayurvedic, Siddha or Unani drugs, all that it affirms is that the DTAB set up under Section 5 will apply to all drugs except Ayurvedic, Siddha or Unani medicines. The Latin maxim "expressio unius est exclusio alterius" cannot apply, as has been held in State of Karnataka v Union of India & Ors., (1977) 4 SCC 608 at 662, making it clear that the said maxim should be very carefully applied and when misapplied would turn out to be a "dangerous master" as opposed to a "useful servant". This has also been held in Assistant Collector of Central Excise, Calcutta Division v. National Tobaccoia Ltd., (1972) 2 SCC 560 at 575 asHigh Courts view was based on an application of the rule of construction that where a mode of performing a duty is laid down by law it must be performed in that mode or not at all. This rule flows from the maxim: "Expressio unius ast exclusio alterius". But, as was pointed out by Wills, J., in Colguoboun v. Brooks [(1888) 21 QBD 52, 62] this maxim "is often a valuable servant, but a dangerous master....". The rule is subservient to the basic principle that Courts must endeavour to ascertain the legislative intent and purpose, and then adopt a rule of construction which effectuates rather than one that may defeat these. "This argument, therefore, also need not detainour construction of Section 26A, it is clear that no such non obstante clause was necessary in that the width of the expression "is satisfied" contained in Section 26A cannot be cut down by reference to Section 5. As has been stated by us hereinabove, the expression "without prejudice" makes it clear that Section 26A is an additional power given to the Central Government which must be exercised on its ownour opinion, there are sufficient indicators in the Section to eschew any ground of arbitrariness. The power can only be exercised based on satisfaction of material that is relevant to form an opinion that the drug in question falls within any of the three categories outlined by the Section and that, further, it is necessary or expedient to either regulate, restrict or prohibit manufacture, sale or distribution of the said drug in public interest. Indeed, this is made explicit in Section 33 EED of the Drugs Act, wherein a similar power is given to the Central Government qua Ayurvedic, Siddha or Unani drugs, where the Section states: "... the Central Government is satisfied on the basis of any evidence or other material available before it that ..."25. If the power under Section 26A is exercised on the basis of irrelevant material or on the basis of no material, the satisfaction itself that is contemplated by Section 26A would not be there and the exercise of the power would be struck down on this ground. Further, it is argued that the provision may be read down to make it constitutionally valid, but in so doing, words cannot be added as a matter of constitutional doctrine.Also, as a matter of statutory interpretation, words can only be added if the literal interpretation of the Section leads to an absurd result. As has been stated by us, the construction of Section 26A on a literal reading thereof does not lead to any such result. Dr. Singhvis argument to read in words to save Section 26A must, therefore, be rejected.28. We may also mention that the Madras High Court in its judgment in Macleods Pharmaceuticals Limited v. Union of India & Ors., Writ Petition Nos.21933 and 25442 of 2011, specifically held asThus, the Act gives in every Chapter, an indication of the functions to be exercised by the DTAB. In other words, the territory within which the DTAB is to operate and exercise its functions, is clearly demarcated in various provisions of the Act such as 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). But SectionWhile the advisory role of DTAB is indicated in broad and general terms in Section 5(1), it is indicated in specific terms in Sections 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). Therefore, the absence of any reference to such requirement of consultation in Sectionassumes great significance. It is a well settled principle of interpretation of statutes that the Courts are not expected to supply the omission. The Parliament had consciously incorporated the expressions "after consultation with the Board" or "on the recommendation of the Board", in certain provisions of the Act such as Sections 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1).But it has deliberately omitted to include any of those expressions while inserting SectionsB. It is a case of casus omisus. Therefore, the argument that the Central Government ought to have taken the consultation of the DTAB before issuing the ban order, can hold good only if I can supply into Sectionwhat was deliberately left out by the Parliament. This cannot be done by me and hence the first contention has to be rejected.To similar effect is the judgment of a single Judge of the Karnataka High Court in Lundbeck India Pvt. Ltd. v Union of India, (2014) 5 Kant LJ 440.30. We approve of these two judgments as having laid down the correct law on the construction of Section 26A of the Drugs Act.31. Though arguments have been made as to whether Section 26A is legislative in nature and therefore excludes natural justice, we do not propose to go into the same inasmuch as since the learned single Judges judgment is being set aside on one point and one point alone. In this view of the matter, we are of the opinion that the impugned judgment dated 1.12.2016 deserves to be set aside.32. On the facts of these cases, a suggested course of action was stated by learned counsel appearing on behalf of the petitioners/appellants. This course is that instead of now remitting the matter back to the Delhi High Court for an adjudication on the other points raised in the writ petitions, the case of 344 FDCs that have been banned, plus another FDCs that have been banned, which comes to 349 FDCs, (barring 15 FDCs that are pre 1988 and 17 FDCs which have DCG(I) approval) pursuant to the Kokate Committee report, by notifications of the Central Government under Section 26A of the Drugs Act, should be sent to the DTAB, constituted under Section 5 of the Drugs Act, so that it can examine each of these cases and ultimately send a report to the Central Government. We reiterate that only on the peculiar facts of these cases, we think that such a course commends itself to us, which would obviate further litigation and finally set at rest all other contentions raised by the petitioners. We say so because we find that the Kokate Committee did deliberate on the 344 FDCs plus 5 FDCs and did come to a conclusion that the aforesaid FDCs be banned, but we are not clear as to what exactly the reasons for such conclusions are, and whether it was necessary in the public interest to take the extreme step of prohibiting such FDCs, instead of restricting or regulating their manufacture and supply.Insofar as the list of cases handed over by Shri Sibal, in which DCG(I) approvals have allegedly been granted, we are of the view that since the Parliamentary Standing Committee itself refers to DCG(I) approvals and the manner in which they were granted, we do not accede to Mr. Sibals request that these cases be kept outside the purview of the fresh look that has to be given by thein these cases.39. Insofar as the status quo, obtaining as on today, is concerned, that will continue in all cases (including the 5 FDCs which are not the subject matter of stay orders already made) until the Central Government issues fresh notifications in this behalf.

### Instruction: First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document. ### Input: it so desires, to amend it. What is further, if the remaking of the statute by the courts is to lead to its distortion that course is to be scrupulously avoided. One of the situations further where the doctrine can never be called into play is where the statute requires extensive additions and deletions. Not only it is no part of the courts duty to undertake such exercise, but it is beyond its jurisdiction to do so."(emphasis supplied)52. Applying the aforesaid test to the impugned Regulation, it is clear that the language of the Regulation is definite and unambiguous - every service provider has to credit the account of the calling consumer by one rupee for every single call drop which occurs within its network. The Explanatory Memorandum to the aforesaid Regulation further makes it clear, in Para 19 thereof, that the Authority has come to the conclusion that call drops are instances of deficiency in service delivery on the part of the service provider. It is thus unambiguously clear that the impugned Regulation is based on the fact that the service provider is alone at fault and must pay for that fault. In these circumstances, to read a proviso into the Regulation that it will not apply to consumers who are at fault themselves is not to restrict general words to a particular meaning, but to add something to the provision which does not exist, which would be nothing short of the court itself legislating.For this reason, it is not possible to accept the learned Attorney Generals contention that the impugned Regulation be read down in the manner suggested by him."27. Also, as a matter of statutory interpretation, words can only be added if the literal interpretation of the Section leads to an absurd result. As has been stated by us, the construction of Section 26A on a literal reading thereof does not lead to any such result. Dr. Singhvis argument to read in words to save Section 26A must, therefore, be rejected.28. We may also mention that the Madras High Court in its judgment in Macleods Pharmaceuticals Limited v. Union of India & Ors., Writ Petition Nos.21933 and 25442 of 2011, specifically held as under:"38. Thus, the Act gives in every Chapter, an indication of the functions to be exercised by the DTAB. In other words, the territory within which the DTAB is to operate and exercise its functions, is clearly demarcated in various provisions of the Act such as 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). But Section 26-A is completely silent about any consultation with DTAB. It is so even with Section 26-B.39. While the advisory role of DTAB is indicated in broad and general terms in Section 5(1), it is indicated in specific terms in Sections 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). Therefore, the absence of any reference to such requirement of consultation in Section 26-A assumes great significance. It is a well settled principle of interpretation of statutes that the Courts are not expected to supply the omission. The Parliament had consciously incorporated the expressions "after consultation with the Board" or "on the recommendation of the Board", in certain provisions of the Act such as Sections 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1).But it has deliberately omitted to include any of those expressions while inserting Sections 26-A and 26-B. It is a case of casus omisus. Therefore, the argument that the Central Government ought to have taken the consultation of the DTAB before issuing the ban order, can hold good only if I can supply into Section 26-A, what was deliberately left out by the Parliament. This cannot be done by me and hence the first contention has to be rejected."29. To similar effect is the judgment of a single Judge of the Karnataka High Court in Lundbeck India Pvt. Ltd. v Union of India, (2014) 5 Kant LJ 440.30. We approve of these two judgments as having laid down the correct law on the construction of Section 26A of the Drugs Act.31. Though arguments have been made as to whether Section 26A is legislative in nature and therefore excludes natural justice, we do not propose to go into the same inasmuch as since the learned single Judges judgment is being set aside on one point and one point alone. In this view of the matter, we are of the opinion that the impugned judgment dated 1.12.2016 deserves to be set aside.32. On the facts of these cases, a suggested course of action was stated by learned counsel appearing on behalf of the petitioners/appellants. This course is that instead of now remitting the matter back to the Delhi High Court for an adjudication on the other points raised in the writ petitions, the case of 344 FDCs that have been banned, plus another FDCs that have been banned, which comes to 349 FDCs, (barring 15 FDCs that are pre 1988 and 17 FDCs which have DCG(I) approval) pursuant to the Kokate Committee report, by notifications of the Central Government under Section 26A of the Drugs Act, should be sent to the DTAB, constituted under Section 5 of the Drugs Act, so that it can examine each of these cases and ultimately send a report to the Central Government. We reiterate that only on the peculiar facts of these cases, we think that such a course commends itself to us, which would obviate further litigation and finally set at rest all other contentions raised by the petitioners. We say so because we find that the Kokate Committee did deliberate on the 344 FDCs plus 5 FDCs and did come to a conclusion that the aforesaid FDCs be banned, but we are not clear as to what exactly the reasons for such conclusions are, and whether it was necessary in the public interest to take the extreme step of prohibiting such FDCs, instead of restricting or regulating their manufacture and supply. ### Response: 1 ### Explanation: can only be exercised based on satisfaction of material that is relevant to form an opinion that the drug in question falls within any of the three categories outlined by the Section and that, further, it is necessary or expedient to either regulate, restrict or prohibit manufacture, sale or distribution of the said drug in public interest. Indeed, this is made explicit in Section 33 EED of the Drugs Act, wherein a similar power is given to the Central Government qua Ayurvedic, Siddha or Unani drugs, where the Section states: "... the Central Government is satisfied on the basis of any evidence or other material available before it that ..."25. If the power under Section 26A is exercised on the basis of irrelevant material or on the basis of no material, the satisfaction itself that is contemplated by Section 26A would not be there and the exercise of the power would be struck down on this ground. Further, it is argued that the provision may be read down to make it constitutionally valid, but in so doing, words cannot be added as a matter of constitutional doctrine.Also, as a matter of statutory interpretation, words can only be added if the literal interpretation of the Section leads to an absurd result. As has been stated by us, the construction of Section 26A on a literal reading thereof does not lead to any such result. Dr. Singhvis argument to read in words to save Section 26A must, therefore, be rejected.28. We may also mention that the Madras High Court in its judgment in Macleods Pharmaceuticals Limited v. Union of India & Ors., Writ Petition Nos.21933 and 25442 of 2011, specifically held asThus, the Act gives in every Chapter, an indication of the functions to be exercised by the DTAB. In other words, the territory within which the DTAB is to operate and exercise its functions, is clearly demarcated in various provisions of the Act such as 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). But SectionWhile the advisory role of DTAB is indicated in broad and general terms in Section 5(1), it is indicated in specific terms in Sections 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1). Therefore, the absence of any reference to such requirement of consultation in Sectionassumes great significance. It is a well settled principle of interpretation of statutes that the Courts are not expected to supply the omission. The Parliament had consciously incorporated the expressions "after consultation with the Board" or "on the recommendation of the Board", in certain provisions of the Act such as Sections 5(1), 6(2), 7(1), 8(2), second proviso to Section 10, 12(1) and 33(1).But it has deliberately omitted to include any of those expressions while inserting SectionsB. It is a case of casus omisus. Therefore, the argument that the Central Government ought to have taken the consultation of the DTAB before issuing the ban order, can hold good only if I can supply into Sectionwhat was deliberately left out by the Parliament. This cannot be done by me and hence the first contention has to be rejected.To similar effect is the judgment of a single Judge of the Karnataka High Court in Lundbeck India Pvt. Ltd. v Union of India, (2014) 5 Kant LJ 440.30. We approve of these two judgments as having laid down the correct law on the construction of Section 26A of the Drugs Act.31. Though arguments have been made as to whether Section 26A is legislative in nature and therefore excludes natural justice, we do not propose to go into the same inasmuch as since the learned single Judges judgment is being set aside on one point and one point alone. In this view of the matter, we are of the opinion that the impugned judgment dated 1.12.2016 deserves to be set aside.32. On the facts of these cases, a suggested course of action was stated by learned counsel appearing on behalf of the petitioners/appellants. This course is that instead of now remitting the matter back to the Delhi High Court for an adjudication on the other points raised in the writ petitions, the case of 344 FDCs that have been banned, plus another FDCs that have been banned, which comes to 349 FDCs, (barring 15 FDCs that are pre 1988 and 17 FDCs which have DCG(I) approval) pursuant to the Kokate Committee report, by notifications of the Central Government under Section 26A of the Drugs Act, should be sent to the DTAB, constituted under Section 5 of the Drugs Act, so that it can examine each of these cases and ultimately send a report to the Central Government. We reiterate that only on the peculiar facts of these cases, we think that such a course commends itself to us, which would obviate further litigation and finally set at rest all other contentions raised by the petitioners. We say so because we find that the Kokate Committee did deliberate on the 344 FDCs plus 5 FDCs and did come to a conclusion that the aforesaid FDCs be banned, but we are not clear as to what exactly the reasons for such conclusions are, and whether it was necessary in the public interest to take the extreme step of prohibiting such FDCs, instead of restricting or regulating their manufacture and supply.Insofar as the list of cases handed over by Shri Sibal, in which DCG(I) approvals have allegedly been granted, we are of the view that since the Parliamentary Standing Committee itself refers to DCG(I) approvals and the manner in which they were granted, we do not accede to Mr. Sibals request that these cases be kept outside the purview of the fresh look that has to be given by thein these cases.39. Insofar as the status quo, obtaining as on today, is concerned, that will continue in all cases (including the 5 FDCs which are not the subject matter of stay orders already made) until the Central Government issues fresh notifications in this behalf.

Surendra Nath Bibra Vs. Stephen Court Ltd

matter is now before us.6. Mr. N. C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutts case, 70 Ind App 18 : (AIR 1943 PC 24), which the High Court and the Full Bench of the Small Causes Court had followed was distinguishable because in that case the tenancy was an agricultural tenancy and the tenant in that case had raised the point after the lapse of a number of years. He says that the doctrine of suspension of rent should be applied to the facts of this case because the plaintiff had deliberately not given possession of one bed-room. In the alternative he contends that the Full Bench of the Small Causes Court and the High Court should have made an order for apportionment of rent.7. We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutts case, 70 Ind App 18 : (AIR 1943 PC 24), can be distinguished on the ground urged by him. It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mackenzie, (1836) 150 ER 635, should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the subject-matter of the lease in (1836) 150 ER 635, was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in (1836) 150 ER 635, is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property; in other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.8. We may make it clear that like the Privy Council in Ram Lal Dutts case, 70 Ind App 18: (AIR 1948 PC 24), we are not deciding that the doctrine of suspension of rent should or should not "be applied at all to cases of eviction of the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule - these questions will call for careful review when they are presented by the facts of a particular case".In view of this we need not consider cases like Hakim Sardar Bahadur v. Tej Parkash Singh, AIR 1962 Punj 385; Jatindra Kumar Seal v. Rai-Mohan Rai, AIR 1961 Assam 52; and Nilkantha Pati v. Kshitish Chandra, (AIR 1951 Cal 338 ).9. The High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific plea to this effect in the written statement. The second ground given by the High Court was that it would be unreasonable to thrust a relief on the defendant unless he himself chooses one or more of the alternative reliefs available to him. Further, no prayer was made before the High Court to amend the written statement to include this relief.10. In our opinion, the Full Bench of the Small Causes Court should have remanded the case for calculation of the proportionate rent for the portion of the premises taken possession of by the defendant. In our view, the High Court has taken too technical a view. It would be inequitable to allow the plaintiff to recover the full rent when he has not delivered possession of the whole of the premises in question.11. Mr. Sarjoo Prasad, the learned counsel for the plaintiff, urges that the defendant had paid rent voluntarily for four months - this fact also is relied on by the High Court - and, therefore, we should not remand the case. But we find that three months rent was paid in advance as security deposit, and hence there is no force in the contention.12. Mr. Sarjoo Prasad finally contends that as this appeal arises from an application under S. 115 of Civil Procedure Code and Art. 227 of the Constitution, we should not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the point it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application was also under Art. 227 of the Constitution, and although ordinarily Art. 227 should be used sparingly, on the facts of this case we are satisfied that the High Court was right in not throwing out the application on this ground.

1[ds]It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Nealev. Mackenzie, (1836) 150 ER635, should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the subject-matter of the lease in (1836) 150 ER 635, was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in (1836) 150 ER 635, is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property; in other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.8. We may make it clear that like the Privy Council in Ram Lal Dutts case, 70 Ind App 18: (AIR 1948 PC 24), we are not deciding that the doctrine of suspension of rent should or should not "be applied at all to cases of eviction of the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule - these questions will call for careful review when they are presented by the facts of a particular case".In view of this we need not consider cases like Hakim Sardar Bahadur v. Tej Parkash Singh, AIR 1962 Punj 385; Jatindra Kumar Seal v. Rai-Mohan Rai, AIR 1961 Assam 52; and Nilkantha Pati v. Kshitish Chandra, (AIR 1951 Cal 338 ).9. The High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific plea to this effect in the written statement. The second ground given by the High Court was that it would be unreasonable to thrust a relief on the defendant unless he himself chooses one or more of the alternative reliefs available to him. Further, no prayer was made before the High Court to amend the written statement to include this relief.10. In our opinion, the Full Bench of the Small Causes Court should have remanded the case for calculation of the proportionate rent for the portion of the premises taken possession of by the defendant. In our view, the High Court has taken too technical a view. It would be inequitable to allow the plaintiff to recover the full rent when he has not delivered possession of the whole of the premises inshould not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the point it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application was also under Art. 227 of the Constitution, and although ordinarily Art. 227 should be used sparingly, on the facts of this case we are satisfied that the High Court was right in not throwing out the application on this ground.We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutts case, 70 Ind App 18 : (AIR 1943 PC 24), can be distinguished on the ground urged bywe find that three months rent was paid in advance as security deposit, and hence there is no force in the contention.

### 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: matter is now before us.6. Mr. N. C. Chatterjee, the learned counsel for the defendant, contends that the decision in Ram Lal Dutts case, 70 Ind App 18 : (AIR 1943 PC 24), which the High Court and the Full Bench of the Small Causes Court had followed was distinguishable because in that case the tenancy was an agricultural tenancy and the tenant in that case had raised the point after the lapse of a number of years. He says that the doctrine of suspension of rent should be applied to the facts of this case because the plaintiff had deliberately not given possession of one bed-room. In the alternative he contends that the Full Bench of the Small Causes Court and the High Court should have made an order for apportionment of rent.7. We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutts case, 70 Ind App 18 : (AIR 1943 PC 24), can be distinguished on the ground urged by him. It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Neale v. Mackenzie, (1836) 150 ER 635, should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the subject-matter of the lease in (1836) 150 ER 635, was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in (1836) 150 ER 635, is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property; in other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.8. We may make it clear that like the Privy Council in Ram Lal Dutts case, 70 Ind App 18: (AIR 1948 PC 24), we are not deciding that the doctrine of suspension of rent should or should not "be applied at all to cases of eviction of the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule - these questions will call for careful review when they are presented by the facts of a particular case".In view of this we need not consider cases like Hakim Sardar Bahadur v. Tej Parkash Singh, AIR 1962 Punj 385; Jatindra Kumar Seal v. Rai-Mohan Rai, AIR 1961 Assam 52; and Nilkantha Pati v. Kshitish Chandra, (AIR 1951 Cal 338 ).9. The High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific plea to this effect in the written statement. The second ground given by the High Court was that it would be unreasonable to thrust a relief on the defendant unless he himself chooses one or more of the alternative reliefs available to him. Further, no prayer was made before the High Court to amend the written statement to include this relief.10. In our opinion, the Full Bench of the Small Causes Court should have remanded the case for calculation of the proportionate rent for the portion of the premises taken possession of by the defendant. In our view, the High Court has taken too technical a view. It would be inequitable to allow the plaintiff to recover the full rent when he has not delivered possession of the whole of the premises in question.11. Mr. Sarjoo Prasad, the learned counsel for the plaintiff, urges that the defendant had paid rent voluntarily for four months - this fact also is relied on by the High Court - and, therefore, we should not remand the case. But we find that three months rent was paid in advance as security deposit, and hence there is no force in the contention.12. Mr. Sarjoo Prasad finally contends that as this appeal arises from an application under S. 115 of Civil Procedure Code and Art. 227 of the Constitution, we should not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the point it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application was also under Art. 227 of the Constitution, and although ordinarily Art. 227 should be used sparingly, on the facts of this case we are satisfied that the High Court was right in not throwing out the application on this ground. ### Response: 1 ### Explanation: It is no doubt true that the Privy Council was concerned with an agricultural tenancy but the Privy Council decided the appeal on a matter of principle, the principle being that the doctrine enunciated in Nealev. Mackenzie, (1836) 150 ER635, should not be regarded as a rule of justice, equity and good conscience in India in all circumstances. It is interesting to note that the subject-matter of the lease in (1836) 150 ER 635, was a dwelling house and land attached to it, and it was eight acres of the land which was attached to the house that the tenant had been kept out of possession. Be that as it may, in our opinion, the doctrine laid down in (1836) 150 ER 635, is too inflexible and cannot be applied to all cases. As observed by Sir George Rankin, the doctrine cannot be justified as a dependable rule to be adhered to notwithstanding hard cases. On the one hand it does not seem equitable that when a tenant enjoys a substantial portion of the property of the landlord, leased to him, without much inconvenience, he should not pay any compensation for the use of the property; in other words, to borrow the language of Sir George Rankin, that he should enjoy a windfall. On the other hand it is unfair that if a tenant is not given possession of a substantial portion of the property, he should be asked to pay any compensation for the use of the property while he is taking appropriate measures for specific performance of the contract. It seems to us that it will depend on the circumstances of each case whether a tenant would be entitled to suspend payment of the rent or whether he should be held liable to pay proportionate part of the rent. On the facts of this case we are of the opinion that the tenant is not entitled to suspend the payment of rent but he must pay a proportionate part of the rent.8. We may make it clear that like the Privy Council in Ram Lal Dutts case, 70 Ind App 18: (AIR 1948 PC 24), we are not deciding that the doctrine of suspension of rent should or should not "be applied at all to cases of eviction of the lessee by the lessor from a part of the land, and if so, whether it is limited to rents reserved as a lump sum, and whether it is a rigid or discretionary rule - these questions will call for careful review when they are presented by the facts of a particular case".In view of this we need not consider cases like Hakim Sardar Bahadur v. Tej Parkash Singh, AIR 1962 Punj 385; Jatindra Kumar Seal v. Rai-Mohan Rai, AIR 1961 Assam 52; and Nilkantha Pati v. Kshitish Chandra, (AIR 1951 Cal 338 ).9. The High Court rejected the plea of apportionment of rent on the ground that the defendant had not taken a specific plea to this effect in the written statement. The second ground given by the High Court was that it would be unreasonable to thrust a relief on the defendant unless he himself chooses one or more of the alternative reliefs available to him. Further, no prayer was made before the High Court to amend the written statement to include this relief.10. In our opinion, the Full Bench of the Small Causes Court should have remanded the case for calculation of the proportionate rent for the portion of the premises taken possession of by the defendant. In our view, the High Court has taken too technical a view. It would be inequitable to allow the plaintiff to recover the full rent when he has not delivered possession of the whole of the premises inshould not interfere with the decision of the Full Bench of the Small Causes Court even though it be erroneous. A similar point was raised before the High Court and although the High Court found some substance in the point it chose to go into the merits of the case and not dismiss the application on this ground. It must be remembered that the application was also under Art. 227 of the Constitution, and although ordinarily Art. 227 should be used sparingly, on the facts of this case we are satisfied that the High Court was right in not throwing out the application on this ground.We are unable to agree with Mr. Chatterjee that the decision of the Privy Council in Ram Lal Dutts case, 70 Ind App 18 : (AIR 1943 PC 24), can be distinguished on the ground urged bywe find that three months rent was paid in advance as security deposit, and hence there is no force in the contention.

Parbati Devi and Others Vs. Mahadeo Prasad Tibrewalla

judgment-debtors to the Solicitor of the decree holder. The terms of settlement are quoted in full in the appellate judgment of the High Court. The salient terms o f the settlement may be stated as follows:-"(1) That the total dues on the date came to Rs. 1, 10, 000/-.(2) That Shri Anandilal Poddar, the receiver was to pay Rs. 35, 000/-.(3) That a sum of Rs. 40, 000/- was to be paid by conveying premises No. 13/2 Syed Salley Lane to the decree holder, and,(4) That a sum of Rs. 35, 000/- was to be paid in cash by raising money by execution of an another mortgage of premises No. 126, Harrison Road."3. Anandilal Poddar paid the sum of Rs. 35, 000/-. But nothing further was done by the judgment-debtors pursuant to the settlement arrived at on the 17th June, 1953. Sewbux Saraogi, one of the judgment-debtors, died leaving a Will in which the universal legatee was his daughter Smt. Kapurbai and the sole executor appointed therein was Motilal Jhunjhunwalla, husband of Kapurbai. On the 7th June, 1965 the respondent affirmed a tabular statement for execution of the decree. A learned single judge of the Calcutta High Court dismissed that application mainly on the grounds-(1) that the terms of bargain between the parties recorded on t he 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; the former decree, therefore, was not executable; (2) that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement. In passing, the learned single Judge also expressed the view that the execution was barred under section 48 of the Code of Civil Procedure. On appeal by the decree holder the Appellate Bench has reversed the decision of the learned single Judge on all the points. Hence this appeal by the judgment-debtors.We shall first dispose of the point of limitation. From the facts stated above it is abundantly clear that there was no bar of limitation in the present execution instituted in the year 1965. At no point of time the mortgage decree had been fully satisfied. All through steps were being taken and it was not a case where the execution was barred either under section 48 of the Code of Civil Procedure or Article 183 of the Limitation Act 1908. It was conceded and rightly so by learned counsel for the appellants that the execution was not barred under Article 136 of the Limitation Act, 1963. But the submission was that it was already barred when that Act came into force on the 1st of January, 1964 under Article 183 of the old Act. We have no difficulty in rejecting the argument of limitation. All through steps had been taken by the decree-holder. The case was not lying dormant at any point of time for a period of more than 12 years. When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934. Thereafter the mod e of execution proceeded by appointment of a receiver. A sum of Rs. 10, 000/- was paid in the year 1939. In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment-debt ors. Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors failure to fulfill the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953. The point of limitation raised on behalf of the appellants, therefore, must be rejected.A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment-debtors, was dead. Kapurbai, his daughter along with others were sought to be substituted in his place. Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi. She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi. Even in absence of the substitution of Mot ilal Jhunjhunwalla, the sole executor of the w ill, the execution was not defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v. R. Srinivasan and Others, (1) decision relied upon by the Appellate Bench.4. Coming to the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35, 000/- in cash by raising the money by mortgage of the other house. The judgment-debtors did neither . The terms of settlement were silent as to what was to happen on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the order dated 17th June, 1953 ha d not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.

0[ds]We have no difficulty in rejecting the argument of limitation. All through steps had been taken by the decree-holder. The case was not lying dormant at any point of time for a period of more than 12 years. When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934. Thereafter the mod e of execution proceeded by appointment of a receiver. A sum of Rs. 10, 000/- was paid in the year 1939. In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment-debt ors. Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors failure to fulfill the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953. The point of limitation raised on behalf of the appellants, therefore, must be rejected.A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment-debtors, was dead. Kapurbai, his daughter along with others were sought to be substituted in his place. Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi. She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi. Even in absence of the substitution of Mot ilal Jhunjhunwalla, the sole executor of the w ill, the execution was not defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v. R. Srinivasan and Others, (1) decision relied upon by the Appellateto the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35, 000/- in cash by raising the money by mortgage of the other house. The judgment-debtors did neither . The terms of settlement were silent as to what was to happen on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the order dated 17th June, 1953 ha d not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.

### 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: judgment-debtors to the Solicitor of the decree holder. The terms of settlement are quoted in full in the appellate judgment of the High Court. The salient terms o f the settlement may be stated as follows:-"(1) That the total dues on the date came to Rs. 1, 10, 000/-.(2) That Shri Anandilal Poddar, the receiver was to pay Rs. 35, 000/-.(3) That a sum of Rs. 40, 000/- was to be paid by conveying premises No. 13/2 Syed Salley Lane to the decree holder, and,(4) That a sum of Rs. 35, 000/- was to be paid in cash by raising money by execution of an another mortgage of premises No. 126, Harrison Road."3. Anandilal Poddar paid the sum of Rs. 35, 000/-. But nothing further was done by the judgment-debtors pursuant to the settlement arrived at on the 17th June, 1953. Sewbux Saraogi, one of the judgment-debtors, died leaving a Will in which the universal legatee was his daughter Smt. Kapurbai and the sole executor appointed therein was Motilal Jhunjhunwalla, husband of Kapurbai. On the 7th June, 1965 the respondent affirmed a tabular statement for execution of the decree. A learned single judge of the Calcutta High Court dismissed that application mainly on the grounds-(1) that the terms of bargain between the parties recorded on t he 17th June, 1953 were entirely different from the original decree and had the effect of superseding it; the former decree, therefore, was not executable; (2) that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement. In passing, the learned single Judge also expressed the view that the execution was barred under section 48 of the Code of Civil Procedure. On appeal by the decree holder the Appellate Bench has reversed the decision of the learned single Judge on all the points. Hence this appeal by the judgment-debtors.We shall first dispose of the point of limitation. From the facts stated above it is abundantly clear that there was no bar of limitation in the present execution instituted in the year 1965. At no point of time the mortgage decree had been fully satisfied. All through steps were being taken and it was not a case where the execution was barred either under section 48 of the Code of Civil Procedure or Article 183 of the Limitation Act 1908. It was conceded and rightly so by learned counsel for the appellants that the execution was not barred under Article 136 of the Limitation Act, 1963. But the submission was that it was already barred when that Act came into force on the 1st of January, 1964 under Article 183 of the old Act. We have no difficulty in rejecting the argument of limitation. All through steps had been taken by the decree-holder. The case was not lying dormant at any point of time for a period of more than 12 years. When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934. Thereafter the mod e of execution proceeded by appointment of a receiver. A sum of Rs. 10, 000/- was paid in the year 1939. In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment-debt ors. Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors failure to fulfill the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953. The point of limitation raised on behalf of the appellants, therefore, must be rejected.A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment-debtors, was dead. Kapurbai, his daughter along with others were sought to be substituted in his place. Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi. She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi. Even in absence of the substitution of Mot ilal Jhunjhunwalla, the sole executor of the w ill, the execution was not defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v. R. Srinivasan and Others, (1) decision relied upon by the Appellate Bench.4. Coming to the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35, 000/- in cash by raising the money by mortgage of the other house. The judgment-debtors did neither . The terms of settlement were silent as to what was to happen on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the order dated 17th June, 1953 ha d not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree. ### Response: 0 ### Explanation: We have no difficulty in rejecting the argument of limitation. All through steps had been taken by the decree-holder. The case was not lying dormant at any point of time for a period of more than 12 years. When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934. Thereafter the mod e of execution proceeded by appointment of a receiver. A sum of Rs. 10, 000/- was paid in the year 1939. In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi, one of the deceased judgment-debt ors. Parbati Devi, appellant No. 1, was allowed to take some steps for the satisfaction of the decree. But nothing was done. Eventually a settlement was again arrived at on the 17th June, 1953 for satisfaction of the decree but on the judgment-debtors failure to fulfill the settlement the present proceedings were started by filing the tabular statement on the 7th of June, 1965 well within 12 years of the 17th June, 1953. The point of limitation raised on behalf of the appellants, therefore, must be rejected.A statement had been made in the tabular statement that Sewbux Saraogi, one of the judgment-debtors, was dead. Kapurbai, his daughter along with others were sought to be substituted in his place. Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi. She was, therefore, undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi. Even in absence of the substitution of Mot ilal Jhunjhunwalla, the sole executor of the w ill, the execution was not defective. Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd. v. R. Srinivasan and Others, (1) decision relied upon by the Appellateto the third and the last point it may be mentioned that the settlement arrived at on the 17th June, 1953 was not an altogether renovation of the old decree. The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment-debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs. 35, 000/- in cash by raising the money by mortgage of the other house. The judgment-debtors did neither . The terms of settlement were silent as to what was to happen on the failure of the judgment-debtors to satisfy the decree in the manner agreed upon. In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree. Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment-debtors it is plain to us that the order dated 17th June, 1953 ha d not the effect of passing a new decree in substitution of the old one. It had merely the effect of giving facility to the judgment-debtors for the satisfaction of the decretal dues. On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree.

M/s. Mahabir Cold Storage Vs. Commissioner of Income Tax

during which time the entire amount invested is computed in the manner prescribed under the act to nil. The object thereby is that the development rebate in the manner specified under the repealed Act or the Act, was to be allowed in full. If any residue remains after the expiry of eight years, that amount was not to be adjusted and no balance could be carried forward to the 9th yearThe capital asset, namely the ship, plant or machinery, should be owned by the assessee during the relevant accounting year and wholly used in the business carried on by the assessee during the previous year in question. There must exist unity of ownership and user in the business. The emphasis for entitlement to rebate accrues from the use of the machinery or the plant by the owner for the purpose of its business resulting in the manufacture of the goods or services. It is not the ownership of the goods or the resultant end product of the raw materials used that is relevant. The only relevant consideration is that, during the previous year of part of the relevant period, ownership of the asset shall remain with the assessee. Only the successor-in-interest of the business, in accordance with the provisions of the Act, so long as the twin requirements under section 33(1) are fulfilled, is entitled to the benefit. But, when the unity of ownership and use of the asset in the business are disrupted or a branch of an earlier business is taken over by a new firm which exists simultaneously with the other branches of the old business, the benefit of development rebate under section 33(1) does not extend to either firm. Take, for instance, a case where an assessee leases the asset to another person during the previous accounting year, the use of the plant and machinery is not for the business of the assessee for which the development allowances were accorded under section 33(1) since the machinery was not wholly used by the assessee for his/its business during the previous accounting year. Suppose the plant or machinery was used for a purpose other than the business of the assessee, then also the assessee is not eligible for development rebate, obviously for the reason that the plant or machinery was not used for the purpose of the business of the assessee in the previous accounting year or a portion thereofThe crucial question, therefore, is whether the appellant is the owner of the machinery and plant in the relevant assessment year 1962-63. Acquisition of ownership is a condition precedent for availing of the development rebate under section 33(1) of the Act. It is now fairly clear from the statement of facts that the old and the new partnership firms are separately registered under the Act and the old one was doing its business at Calcutta and the new one at Purnea. They have been separately assessed as independent assessable entities. Only the new firm was reconstituted consisting of the two partners of the old firm, Messrs. Prayagchand Hanumanmal and Periwal and Co. (P) Ltd. Prayagchand and Hanumanmal individually an entitled to 25 per cent share each of the profits in the appellant firm and Periwal and Co. (P) Ltd. has 50 per cent. share of profit. Under the Indian Partnership Act, 1932, the partnership firm registered thereunder is neither a person nor a legal entity. It is merely a collective name for the individual members of the partnership. A firm as such cannot be a partner in another firm though its partners may be partners in the other firm in their individual capacity. Either under the repealed Act or the Act a firm is liable to be separately assessed to tax as well as all its partners in their capacity as individuals if they have taxable income. the appellant is separately registered under section 26A of the 1822 Act and assessed to tax from the assessment year 1960- 61 and onwards. there is no reconstitution of the original firm, Prayagchand Hanumanmal, inducting Periwal and Co. (P) Ltd. as its partner. Thus, it is not a successor-in -interest of the old firm as per the provisions of the Act. the question then is whether the assessee is entitled to development rebate under section 33(1) of the Act (under section 10(2) (vib) of the repealed Act.) Section 33(1) gives right to development rebate only to the owner who has acquired the ship or installed the machinery or plant. the necessary implication is that the assessee who claims development rebate should continue to remain to be the owner of the ship or plant or machinery during the relevant previous assessment year/years and the relevant previous assessment year or the succeeding assessment years carried forward up to eight years and not thereafterThe entries in the books of account of the appellant would amount to an acknowledgment of the liability to Messrs. Prayagchand Hanumanmal within the meaning of section 18 of the Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt. Section 2(47) of the Act defines "transfer" in relation to a capital asset under clause (i) as sale, exchange or relinquishment of the asset, or (ii) the extinguishment of any right therein, or - (clauses(iii) to (vi) are not relevant hence omitted). Unfortunately, the assessee did not bring on record the necessary material facts to establish that it became owner by any non testamentary instrument acquiring right, title and interest in the plant and machinery nor was the point argued before the High Court and we do not have the benefit in this regard either of the Tribunal or of the High Court. In this view, we decline to go into the question but confine ourselves to the first question and agree with the High Court answering the reference in favour of the Revenue and against the assessee that the appellant is not entitled to the development rebate under section 33(1) of the Act. 5.

0[ds]Under both the repealed Act as well as the Act, two conditions precedent are required to be fulfilled for entitlement to development to rebate, namely, a new ship acquired or new machinery or plant installed must be (1) owned by the assessee, and (2) wholly used for the purpose of the business carried on by him. It is an admitted case that the plant and machinery was wholly used for the purposes of the cold storage business carried on by the original firm, Messrs. Prayagchand Hanumanmal, and also by the appellate. The only dispute is whether the appellant owned the plant and machinery purchased and erected as a part of the capital asset to run the cold storage business by Messrs. Prayagchand Hanumanmal. In the context of section 33(1) of the Act, the ownership consists of a bundle of rights, namely title to, possession of and beneficial enjoyment thereof. It is an indisputable legal position that the sum to be allowed by way of development rebate was to be only such amount as was sufficient to reduce the total income to nil. The development rebate, to the extent to which it had not been allowed in the previous assessment year or succeeding years, was to be carried forward to the following year or years up to a maximum of eight years during which time the entire amount invested is computed in the manner prescribed under the act to nil. The object thereby is that the development rebate in the manner specified under the repealed Act or the Act, was to be allowed in full. If any residue remains after the expiry of eight years, that amount was not to be adjusted and no balance could be carried forward to the 9th yearThe capital asset, namely the ship, plant or machinery, should be owned by the assessee during the relevant accounting year and wholly used in the business carried on by the assessee during the previous year in question. There must exist unity of ownership and user in the business. The emphasis for entitlement to rebate accrues from the use of the machinery or the plant by the owner for the purpose of its business resulting in the manufacture of the goods or services. It is not the ownership of the goods or the resultant end product of the raw materials used that is relevant. The only relevant consideration is that, during the previous year of part of the relevant period, ownership of the asset shall remain with the assessee. Only the successor-in-interest of the business, in accordance with the provisions of the Act, so long as the twin requirements under section 33(1) are fulfilled, is entitled to the benefit. But, when the unity of ownership and use of the asset in the business are disrupted or a branch of an earlier business is taken over by a new firm which exists simultaneously with the other branches of the old business, the benefit of development rebate under section 33(1) does not extend to either firm. Take, for instance, a case where an assessee leases the asset to another person during the previous accounting year, the use of the plant and machinery is not for the business of the assessee for which the development allowances were accorded under section 33(1) since the machinery was not wholly used by the assessee for his/its business during the previous accounting year. Suppose the plant or machinery was used for a purpose other than the business of the assessee, then also the assessee is not eligible for development rebate, obviously for the reason that the plant or machinery was not used for the purpose of the business of the assessee in the previous accounting year or a portion thereofThe crucial question, therefore, is whether the appellant is the owner of the machinery and plant in the relevant assessment year 1962-63. Acquisition of ownership is a condition precedent for availing of the development rebate under section 33(1) of the Act. It is now fairly clear from the statement of facts that the old and the new partnership firms are separately registered under the Act and the old one was doing its business at Calcutta and the new one at Purnea. They have been separately assessed as independent assessable entities. Only the new firm was reconstituted consisting of the two partners of the old firm, Messrs. Prayagchand Hanumanmal and Periwal and Co. (P) Ltd. Prayagchand and Hanumanmal individually an entitled to 25 per cent share each of the profits in the appellant firm and Periwal and Co. (P) Ltd. has 50 per cent. share of profit. Underthe Indian Partnership Act, 1932, the partnership firm registered thereunder is neither a person nor a legal entity. It is merely a collective name for the individual members of the partnership. A firm as such cannot be a partner in another firm though its partners may be partners in the other firm in their individual capacity. Either under the repealed Act or the Act a firm is liable to be separately assessed to tax as well as all its partners in their capacity as individuals if they have taxable income. the appellant is separately registered under section 26A of the 1822 Act and assessed to tax from the assessment year 1960- 61 and onwards. there is no reconstitution of the original firm, Prayagchand Hanumanmal, inducting Periwal and Co. (P) Ltd. as its partner. Thus, it is not a successor-in -interest of the old firm as per the provisions of the Act. the question then is whether the assessee is entitled to development rebate under section 33(1) of the Act (under section 10(2) (vib) of the repealed Act.) Section 33(1) gives right to development rebate only to the owner who has acquired the ship or installed the machinery or plant. the necessary implication is that the assessee who claims development rebate should continue to remain to be the owner of the ship or plant or machinery during the relevant previous assessment year/years and the relevant previous assessment year or the succeeding assessment years carried forward up to eight years and not thereafterThe entries in the books of account of the appellant would amount to an acknowledgment of the liability to Messrs. Prayagchand Hanumanmal within the meaning of section 18 ofthe Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt. Section 2(47) of the Act defines "transfer" in relation to a capital asset under clause (i) as sale, exchange or relinquishment of the asset, or (ii) the extinguishment of any right therein, or - (clauses(iii) to (vi) are not relevant hence omitted). Unfortunately, the assessee did not bring on record the necessary material facts to establish that it became owner by any non testamentary instrument acquiring right, title and interest in the plant and machinery nor was the point argued before the High Court and we do not have the benefit in this regard either of the Tribunal or of the High Court. In this view, we decline to go into the question but confine ourselves to the first question and agree with the High Court answering the reference in favour of the Revenue and against the assessee that the appellant is not entitled to the development rebate under section 33(1) of the Act.

### 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: during which time the entire amount invested is computed in the manner prescribed under the act to nil. The object thereby is that the development rebate in the manner specified under the repealed Act or the Act, was to be allowed in full. If any residue remains after the expiry of eight years, that amount was not to be adjusted and no balance could be carried forward to the 9th yearThe capital asset, namely the ship, plant or machinery, should be owned by the assessee during the relevant accounting year and wholly used in the business carried on by the assessee during the previous year in question. There must exist unity of ownership and user in the business. The emphasis for entitlement to rebate accrues from the use of the machinery or the plant by the owner for the purpose of its business resulting in the manufacture of the goods or services. It is not the ownership of the goods or the resultant end product of the raw materials used that is relevant. The only relevant consideration is that, during the previous year of part of the relevant period, ownership of the asset shall remain with the assessee. Only the successor-in-interest of the business, in accordance with the provisions of the Act, so long as the twin requirements under section 33(1) are fulfilled, is entitled to the benefit. But, when the unity of ownership and use of the asset in the business are disrupted or a branch of an earlier business is taken over by a new firm which exists simultaneously with the other branches of the old business, the benefit of development rebate under section 33(1) does not extend to either firm. Take, for instance, a case where an assessee leases the asset to another person during the previous accounting year, the use of the plant and machinery is not for the business of the assessee for which the development allowances were accorded under section 33(1) since the machinery was not wholly used by the assessee for his/its business during the previous accounting year. Suppose the plant or machinery was used for a purpose other than the business of the assessee, then also the assessee is not eligible for development rebate, obviously for the reason that the plant or machinery was not used for the purpose of the business of the assessee in the previous accounting year or a portion thereofThe crucial question, therefore, is whether the appellant is the owner of the machinery and plant in the relevant assessment year 1962-63. Acquisition of ownership is a condition precedent for availing of the development rebate under section 33(1) of the Act. It is now fairly clear from the statement of facts that the old and the new partnership firms are separately registered under the Act and the old one was doing its business at Calcutta and the new one at Purnea. They have been separately assessed as independent assessable entities. Only the new firm was reconstituted consisting of the two partners of the old firm, Messrs. Prayagchand Hanumanmal and Periwal and Co. (P) Ltd. Prayagchand and Hanumanmal individually an entitled to 25 per cent share each of the profits in the appellant firm and Periwal and Co. (P) Ltd. has 50 per cent. share of profit. Under the Indian Partnership Act, 1932, the partnership firm registered thereunder is neither a person nor a legal entity. It is merely a collective name for the individual members of the partnership. A firm as such cannot be a partner in another firm though its partners may be partners in the other firm in their individual capacity. Either under the repealed Act or the Act a firm is liable to be separately assessed to tax as well as all its partners in their capacity as individuals if they have taxable income. the appellant is separately registered under section 26A of the 1822 Act and assessed to tax from the assessment year 1960- 61 and onwards. there is no reconstitution of the original firm, Prayagchand Hanumanmal, inducting Periwal and Co. (P) Ltd. as its partner. Thus, it is not a successor-in -interest of the old firm as per the provisions of the Act. the question then is whether the assessee is entitled to development rebate under section 33(1) of the Act (under section 10(2) (vib) of the repealed Act.) Section 33(1) gives right to development rebate only to the owner who has acquired the ship or installed the machinery or plant. the necessary implication is that the assessee who claims development rebate should continue to remain to be the owner of the ship or plant or machinery during the relevant previous assessment year/years and the relevant previous assessment year or the succeeding assessment years carried forward up to eight years and not thereafterThe entries in the books of account of the appellant would amount to an acknowledgment of the liability to Messrs. Prayagchand Hanumanmal within the meaning of section 18 of the Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt. Section 2(47) of the Act defines "transfer" in relation to a capital asset under clause (i) as sale, exchange or relinquishment of the asset, or (ii) the extinguishment of any right therein, or - (clauses(iii) to (vi) are not relevant hence omitted). Unfortunately, the assessee did not bring on record the necessary material facts to establish that it became owner by any non testamentary instrument acquiring right, title and interest in the plant and machinery nor was the point argued before the High Court and we do not have the benefit in this regard either of the Tribunal or of the High Court. In this view, we decline to go into the question but confine ourselves to the first question and agree with the High Court answering the reference in favour of the Revenue and against the assessee that the appellant is not entitled to the development rebate under section 33(1) of the Act. 5. ### Response: 0 ### Explanation: of eight years during which time the entire amount invested is computed in the manner prescribed under the act to nil. The object thereby is that the development rebate in the manner specified under the repealed Act or the Act, was to be allowed in full. If any residue remains after the expiry of eight years, that amount was not to be adjusted and no balance could be carried forward to the 9th yearThe capital asset, namely the ship, plant or machinery, should be owned by the assessee during the relevant accounting year and wholly used in the business carried on by the assessee during the previous year in question. There must exist unity of ownership and user in the business. The emphasis for entitlement to rebate accrues from the use of the machinery or the plant by the owner for the purpose of its business resulting in the manufacture of the goods or services. It is not the ownership of the goods or the resultant end product of the raw materials used that is relevant. The only relevant consideration is that, during the previous year of part of the relevant period, ownership of the asset shall remain with the assessee. Only the successor-in-interest of the business, in accordance with the provisions of the Act, so long as the twin requirements under section 33(1) are fulfilled, is entitled to the benefit. But, when the unity of ownership and use of the asset in the business are disrupted or a branch of an earlier business is taken over by a new firm which exists simultaneously with the other branches of the old business, the benefit of development rebate under section 33(1) does not extend to either firm. Take, for instance, a case where an assessee leases the asset to another person during the previous accounting year, the use of the plant and machinery is not for the business of the assessee for which the development allowances were accorded under section 33(1) since the machinery was not wholly used by the assessee for his/its business during the previous accounting year. Suppose the plant or machinery was used for a purpose other than the business of the assessee, then also the assessee is not eligible for development rebate, obviously for the reason that the plant or machinery was not used for the purpose of the business of the assessee in the previous accounting year or a portion thereofThe crucial question, therefore, is whether the appellant is the owner of the machinery and plant in the relevant assessment year 1962-63. Acquisition of ownership is a condition precedent for availing of the development rebate under section 33(1) of the Act. It is now fairly clear from the statement of facts that the old and the new partnership firms are separately registered under the Act and the old one was doing its business at Calcutta and the new one at Purnea. They have been separately assessed as independent assessable entities. Only the new firm was reconstituted consisting of the two partners of the old firm, Messrs. Prayagchand Hanumanmal and Periwal and Co. (P) Ltd. Prayagchand and Hanumanmal individually an entitled to 25 per cent share each of the profits in the appellant firm and Periwal and Co. (P) Ltd. has 50 per cent. share of profit. Underthe Indian Partnership Act, 1932, the partnership firm registered thereunder is neither a person nor a legal entity. It is merely a collective name for the individual members of the partnership. A firm as such cannot be a partner in another firm though its partners may be partners in the other firm in their individual capacity. Either under the repealed Act or the Act a firm is liable to be separately assessed to tax as well as all its partners in their capacity as individuals if they have taxable income. the appellant is separately registered under section 26A of the 1822 Act and assessed to tax from the assessment year 1960- 61 and onwards. there is no reconstitution of the original firm, Prayagchand Hanumanmal, inducting Periwal and Co. (P) Ltd. as its partner. Thus, it is not a successor-in -interest of the old firm as per the provisions of the Act. the question then is whether the assessee is entitled to development rebate under section 33(1) of the Act (under section 10(2) (vib) of the repealed Act.) Section 33(1) gives right to development rebate only to the owner who has acquired the ship or installed the machinery or plant. the necessary implication is that the assessee who claims development rebate should continue to remain to be the owner of the ship or plant or machinery during the relevant previous assessment year/years and the relevant previous assessment year or the succeeding assessment years carried forward up to eight years and not thereafterThe entries in the books of account of the appellant would amount to an acknowledgment of the liability to Messrs. Prayagchand Hanumanmal within the meaning of section 18 ofthe Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt. Section 2(47) of the Act defines "transfer" in relation to a capital asset under clause (i) as sale, exchange or relinquishment of the asset, or (ii) the extinguishment of any right therein, or - (clauses(iii) to (vi) are not relevant hence omitted). Unfortunately, the assessee did not bring on record the necessary material facts to establish that it became owner by any non testamentary instrument acquiring right, title and interest in the plant and machinery nor was the point argued before the High Court and we do not have the benefit in this regard either of the Tribunal or of the High Court. In this view, we decline to go into the question but confine ourselves to the first question and agree with the High Court answering the reference in favour of the Revenue and against the assessee that the appellant is not entitled to the development rebate under section 33(1) of the Act.

Western U.P. Electric And Power Vs. Hind Lamps Ltd

could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the suit.4. Mr. Chagla urged that the cause of action for the suit tiled by the appellant arose within the jurisdiction of the Civil Judge, Mainpuri, and the suit could lie in that Court alone, and not in the Court of the Subordinate Judge, Delhi. The respondent contended that at all material times it had a branch office in Delhi, and on that account the suit could be instituted in the Court of the Subordinate Judge, Delhi.5. Existence of a branch office of the respondent in Delhi was a matter in dispute. The respondent asserted that it had a branch office in Delhi since 1950: the Appellant Company contended that at the date of the institution of the suit, the respondent had no branch office or place of business within the limits of the Sub-Judge 1st Class Delhi. Seth J. directed an inquiry in that behalf by his order dated 24-3-67. The Civil Judge at Mainpuri after recording evidence apparently came to the conclusion that the respondent had a branch office or a place of business within the jurisdiction of the Sub-Judge, Delhi. D.W.I, S.P. Sabarwal, Working as Branch Incharge of the respondent stated that M/s. Hind Lamps Ltd. had a branch office at 4/11, Asaf Ali Road, New Delhi, since the year 1950-51.6. It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exerciseable by the High Court, but denied the existence of the conditions precedent to the exercise of the jurisdiction.7. It was also contended by Mr. Chagla that the appellant is in the Mainpuri suit dominus litis and had the right to choose the forum of trial, and unless there are strong grounds made out, the appellant should not be driven to litigate in a court not of its choice. It is true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court to transfer.8. It was also contended that the procedure followed by the High Court was erroneous. It was submitted that the High Court should merely have declared that the suit should proceed in the court of the Sub-Judge Delhi, and the High Court could not transfer the suit from the court of Civil Judge at Mainpuri. But the application contemplated to be made under Section 22 is one for transfer and when such an application is made, the court is competent to determine in which of the several Courts having Jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.9. The argument that the plaint pending in the Mainpuri Court should have been returned for presentation to the proper court, does not merit serious consideration. A plaint may be returned for presentation to the proper Court if the Court in which it is pending has no jurisdiction to try it. A suit properly instituted in a court which has jurisdiction may alone be transferred to another court: it cannot be transferred to another court if the court in which it is pending is incompetent to entertain it. In the present case, the suit was properly entertained by the court of the Civil Judge at Mainpuri and by an application made under Section 22 read with Section 23(3) C.P. Code, it was ordered to be transferred. It was submitted that a High Court by transferring a suit pending in a court subordinate to it, to another court not subordinate to it intrudes its authority to compel that Court to try the proceeding which it cannot control : exercise jurisdiction of that character it was said could not have been contemplated by the legislature. Bat that is what Sections 22 and 23(3) C. P. Code, expressly provide. We see no ground for holding that the sections were not intended to confer jurisdiction of the character exercised by the High Court by the order appealed against.10.

0[ds]6. It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exerciseable by the High Court, but denied the existence of the conditions precedent to the exercise of theis true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court toCourt of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer thes true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court tothe application contemplated to be made under Section 22 is one for transfer and when such an application is made, the court is competent to determine in which of the several Courts having Jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.9. The argument that the plaint pending in the Mainpuri Court should have been returned for presentation to the proper court, does not merit serious consideration. A plaint may be returned for presentation to the proper Court if the Court in which it is pending has no jurisdiction to try it. A suit properly instituted in a court which has jurisdiction may alone be transferred to another court: it cannot be transferred to another court if the court in which it is pending is incompetent to entertain it. In the present case, the suit was properly entertained by the court of the Civil Judge at Mainpuri and by an application made under Section 22 read with Section 23(3) C.P. Code, it was ordered to be transferred. It was submitted that a High Court by transferring a suit pending in a court subordinate to it, to another court not subordinate to it intrudes its authority to compel that Court to try the proceeding which it cannot control : exercise jurisdiction of that character it was said could not have been contemplated by the legislature. Bat that is what Sections 22 and 23(3) C. P. Code, expressly provide. We see no ground for holding that the sections were not intended to confer jurisdiction of the character exercised by the High Court by the order appealedCourt of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the

### Instruction: Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding. ### Input: could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the suit.4. Mr. Chagla urged that the cause of action for the suit tiled by the appellant arose within the jurisdiction of the Civil Judge, Mainpuri, and the suit could lie in that Court alone, and not in the Court of the Subordinate Judge, Delhi. The respondent contended that at all material times it had a branch office in Delhi, and on that account the suit could be instituted in the Court of the Subordinate Judge, Delhi.5. Existence of a branch office of the respondent in Delhi was a matter in dispute. The respondent asserted that it had a branch office in Delhi since 1950: the Appellant Company contended that at the date of the institution of the suit, the respondent had no branch office or place of business within the limits of the Sub-Judge 1st Class Delhi. Seth J. directed an inquiry in that behalf by his order dated 24-3-67. The Civil Judge at Mainpuri after recording evidence apparently came to the conclusion that the respondent had a branch office or a place of business within the jurisdiction of the Sub-Judge, Delhi. D.W.I, S.P. Sabarwal, Working as Branch Incharge of the respondent stated that M/s. Hind Lamps Ltd. had a branch office at 4/11, Asaf Ali Road, New Delhi, since the year 1950-51.6. It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exerciseable by the High Court, but denied the existence of the conditions precedent to the exercise of the jurisdiction.7. It was also contended by Mr. Chagla that the appellant is in the Mainpuri suit dominus litis and had the right to choose the forum of trial, and unless there are strong grounds made out, the appellant should not be driven to litigate in a court not of its choice. It is true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court to transfer.8. It was also contended that the procedure followed by the High Court was erroneous. It was submitted that the High Court should merely have declared that the suit should proceed in the court of the Sub-Judge Delhi, and the High Court could not transfer the suit from the court of Civil Judge at Mainpuri. But the application contemplated to be made under Section 22 is one for transfer and when such an application is made, the court is competent to determine in which of the several Courts having Jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.9. The argument that the plaint pending in the Mainpuri Court should have been returned for presentation to the proper court, does not merit serious consideration. A plaint may be returned for presentation to the proper Court if the Court in which it is pending has no jurisdiction to try it. A suit properly instituted in a court which has jurisdiction may alone be transferred to another court: it cannot be transferred to another court if the court in which it is pending is incompetent to entertain it. In the present case, the suit was properly entertained by the court of the Civil Judge at Mainpuri and by an application made under Section 22 read with Section 23(3) C.P. Code, it was ordered to be transferred. It was submitted that a High Court by transferring a suit pending in a court subordinate to it, to another court not subordinate to it intrudes its authority to compel that Court to try the proceeding which it cannot control : exercise jurisdiction of that character it was said could not have been contemplated by the legislature. Bat that is what Sections 22 and 23(3) C. P. Code, expressly provide. We see no ground for holding that the sections were not intended to confer jurisdiction of the character exercised by the High Court by the order appealed against.10. ### Response: 0 ### Explanation: 6. It may be conceded that some other parts of the evidence of the witnesses are inconsistent with the statement made by him. The learned Civil Judge accepted the testimony and made a report to the High Court that Hind Lamps Ltd. had a place of business in Delhi. At the hearing Counsel for the Appellant conceded that the High Court had jurisdiction to transfer the suit. It would be reasonable to infer that the Appellant admitted that because the respondent had a branch office in Delhi the High Court of Allahabad had jurisdiction to transfer the Mainpuri suit in exercise of the power under Section 22 read with Section 23(3) of the Code of Civil procedure. Sitting in appeal with Special Leave, we would not be justified in ignoring the concession made at the bar by Counsel for the Appellant. We are unable to accept the contention that Counsel merely admitted that jurisdiction under Sections 22 and 23(3) was exerciseable by the High Court, but denied the existence of the conditions precedent to the exercise of theis true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court toCourt of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer thes true that in the judgment of the High Court delivered in the first instance on March 24, 1957 and affirmed on. April 29, 1968, the question whether it was expedient in the interest of justice that the Mainpuri suit should be transferred to the Court of the Subordinate Judge, Delhi is not discussed. But the reason is not far to seek. When Counsel for the appellant conceded that the High Court had jurisdiction to transfer the suit to the Delhi Court: no reservation could be implied that in the circumstances of the case no grounds were still made out for transferring the suit. The concession related alike to the existence of the conditions precedent as to the jurisdiction of the Court tothe application contemplated to be made under Section 22 is one for transfer and when such an application is made, the court is competent to determine in which of the several Courts having Jurisdiction the suit shall proceed and to transfer, the suit to that Court if it is already not pending in that Court. If the application made before the Court is one for transfer, and the Court after considering the circumstances determines that one of the several courts shall proceed to hear the suit, the determination of necessity must be followed by transfer of the suit to the court in which it is to proceed; to hold otherwise would be to make the entire proceeding before the High Court meaningless.9. The argument that the plaint pending in the Mainpuri Court should have been returned for presentation to the proper court, does not merit serious consideration. A plaint may be returned for presentation to the proper Court if the Court in which it is pending has no jurisdiction to try it. A suit properly instituted in a court which has jurisdiction may alone be transferred to another court: it cannot be transferred to another court if the court in which it is pending is incompetent to entertain it. In the present case, the suit was properly entertained by the court of the Civil Judge at Mainpuri and by an application made under Section 22 read with Section 23(3) C.P. Code, it was ordered to be transferred. It was submitted that a High Court by transferring a suit pending in a court subordinate to it, to another court not subordinate to it intrudes its authority to compel that Court to try the proceeding which it cannot control : exercise jurisdiction of that character it was said could not have been contemplated by the legislature. Bat that is what Sections 22 and 23(3) C. P. Code, expressly provide. We see no ground for holding that the sections were not intended to confer jurisdiction of the character exercised by the High Court by the order appealedCourt of the Civil Judge Mainpuri is subordinate to the High Court of Allahabad. But the application under Section 23(3) could be granted only if the suit in the Mainpuri Court could have been filed in the Court of the Subordinate Judge, Delhi, and for reasons of convenience it was just to transfer the

K.C. Gajapati Narayan Deo & Others Vs. State of Orissa

Acts passed by the legislaures of other States, provides for payment of compensation on the basis of the net income of the whole estate. One result of the adoption of this principle, undoubtedly is, that no compensation is allowed in respect of potential values of properties; and those parts of an estate which do not fetch any income have practically been ignored. There is no doubt that the Act does not give anything like a fair or market price of the properties acquired and the appellants may be right in their contention that the compensation allowed is inadequate and improper; but that does not affect the constitutionality of the provisions. In the first place, no question of inadequacy of compensation can be raised in view of the provision of Art. 31 (4) of the Constitution and it cannot also be suggested that the rule for payment of compensation on rental basis is outside the ambit of Entry 42 of List III. This point is concluded by the earlier decision of this Court in - Suriya Pal Singh v. The State of U. P., AIR 1952 SC 252 (A), and is not open to further discussion. Mr. Narasaraju is not right in saying that the compensation for the private lands in possession of temporary tenants has been given only for the landlords interest in these properties and nothing has been given in lieu of the tenants interest. The entire interest of the proprietor in these lands has been acquired and the compensation payable for the whole interest has been assessed on the basis of the net income of the property as represented by the share of the produce payable by the temporary tenants to the landlord. It is true that the Orissa Tenants Protection Act is a temporary statute, but whether or not it is renewed In future, the rent fixed by it has been taken only as the measure of the income derivable from these properties at the date of acquisition.27. Mr. Narasaraju further argues that his clients are not precluded from raising any objection on the ground of inadequacy of compensation in regard to these private lands by reason of Article 31 (4) of the Constitution; as the provision of that Article is not attracted to the facts of the present case. What is said is, that the original Estates Abolition Bill, which was pending before the Orissa Legislature at the time when the Constitution came into force, did not contain any provision that the private lands of the proprietor in occupation of temporary tenants would also vest in the State . This provision was subsequently introduced by way of amendment during the progress of the Bill and after the Constitution came into force. It is argued, therefore, that this provision is not protected by Art 31 (4). The contention seems to us to be manifestly untenable. Article 31 (4) is worded as follows:"If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any Court on the ground that it contravenes the provisions of clause (2.)"Thus it is necessary first of all that the Bill, which ultimately becomes law, should be pending before the State Legislature at the time of the coming into force of the Constitution. That Bill must be passed by the Legislature and then receive the assent of the President. It is the law to which the assent of the President is given that is protected from any attack on the ground of non-compliance with the provisions of Cl. (2) of Art. 31. The fallacy in the reasoning of the learned counsel lies in the assumption that the Bill has got to be passed in its original shape without any change whatsoever, before the provision of Cl. (4), Art. 31, could be attracted. There is no warrant for such assumption in the language of the clause. The expression "passed by such Legislature" must. mean passed with or without amendments" in accordance with the normal procedure contemplated by Art, 107 of the Constitution. There can be no doubt that all the requirements of Art. 34 (4) have been complied with in the present case and consequently there is no room for any objection to the legislation on the ground that the compensation provided by it is inadequate.28. The last contention of the appellants is directed against the provision of the Act laying down the manner of payment of the compensation money. The relevant section is S. 37 and it provides for the payment of compensation together with interest in 30 annual equated instalments leaving it open to the State to make the payment In full at any time prior to the expiration of the period. The validity of this provision has been challenged on the ground that it is a piece of colourable legislation which comes within the principle enunciated by the majority of this Court in the Bihar case referred to above. It is difficult to appreciate this argument of the learned counsel. Section 37 of the Act contains the legislative provision regarding the form and the manner in which the compensation for acquired properties is to be given and as such it comes within the clear language of Entry 42, List III, Sch. VII of the Constitution. It is not a legislation on something which is non-existent or unrelated to facts. It cannot also be seriously contended that what S. 37 provides for, is not the giving of compensation but of negativing the right to compensation as the learned counsel seems to suggest. There is no substance In this contention and we have no hesitation in overruling it. The result is that all the points raised by the learned counsel for the appellants fail and the appeals are dismissed.

0[ds]9. It may be made clear at the outset that the doctrine of colourable legislation does net involve any question of bond fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. Vide Cooleys Constitutional Limitations, Vol. 1, p. 379. A distinction, however, exists between a legislature which is legally omnipotent like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetency, and a legislature which enjoys only a limited or a qualified jurisdiction.If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to theof the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest on direct but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what, appears, on proper examination, to be a mere pretence or disguise. As was said by Duff, J. infor Ontario v. Reciprocal Insurers, 1924 A C 328 at p. 337 (B)the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is reallyother words, it is the substance of the Act that is material and not merely the form or outward appearance, and if thein substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method. In cases like these, the enquiry, must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the power of the legislative authorityVide 1924 A C 328 at p. 337 (B). For the purpose of this investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or designl for Alberta v.for Canada, 1939 A C 117 at p. 130 (C). But these are only relevant for the purpose of ascertaining the true character and substance of the enactment and the class of subjects of legislation to which it really belongs and not for finding out the motives which induced the legislature to exercise itsagree with the learnedthat if the appellants are right in their contention, they can raise these objections if and when the gross assets are sought to be computed on the basis of the rents settled under the above provisions. If the provisions are void, the rents settled in pursuance thereof could not legitimately form the basis of the valuation of the estate under the Estates Abolition Act and it might be open to the appellants then to say that for purposes "of S. 26, Estates Abolition Act, the rents payable for the previous year would be the rents settled under the Madras Estates Lend Act, as it stood unamended before 1947.The learned counsel for the appellants eventually agreed with the views of theon this point and with the consent of both sides we decided to leave these questions open. They should not be deemed to have been decided in theserelevant section is S. 37 and it provides for the payment of compensation together with interest in 30 annual equated instalments leaving it open to the State to make the payment In full at any time prior to the expiration of the period.The validity of this provision has been challenged on the ground that it is a piece of colourable legislation which comes within the principle enunciated by the majority of this Court in the Bihar case referred to above. It is difficult to appreciate this argument of the learned counsel. Section 37 of the Act contains the legislative provision regarding the form and the manner in which the compensation for acquired properties is to be given and as such it comes within the clear language of Entry 42, List III, Sch. VII of the Constitution. It is not a legislation on something which isor unrelated to facts. It cannot also be seriously contended that what S. 37 provides for, is not the giving of compensation but of negativing the right to compensation as the learned counsel seems to suggest. There is no substance In this contention and we have no hesitation in overruling it. The result is that all the points raised by the learned counsel for the appellants fail and the appeals are dismissed.

### 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: Acts passed by the legislaures of other States, provides for payment of compensation on the basis of the net income of the whole estate. One result of the adoption of this principle, undoubtedly is, that no compensation is allowed in respect of potential values of properties; and those parts of an estate which do not fetch any income have practically been ignored. There is no doubt that the Act does not give anything like a fair or market price of the properties acquired and the appellants may be right in their contention that the compensation allowed is inadequate and improper; but that does not affect the constitutionality of the provisions. In the first place, no question of inadequacy of compensation can be raised in view of the provision of Art. 31 (4) of the Constitution and it cannot also be suggested that the rule for payment of compensation on rental basis is outside the ambit of Entry 42 of List III. This point is concluded by the earlier decision of this Court in - Suriya Pal Singh v. The State of U. P., AIR 1952 SC 252 (A), and is not open to further discussion. Mr. Narasaraju is not right in saying that the compensation for the private lands in possession of temporary tenants has been given only for the landlords interest in these properties and nothing has been given in lieu of the tenants interest. The entire interest of the proprietor in these lands has been acquired and the compensation payable for the whole interest has been assessed on the basis of the net income of the property as represented by the share of the produce payable by the temporary tenants to the landlord. It is true that the Orissa Tenants Protection Act is a temporary statute, but whether or not it is renewed In future, the rent fixed by it has been taken only as the measure of the income derivable from these properties at the date of acquisition.27. Mr. Narasaraju further argues that his clients are not precluded from raising any objection on the ground of inadequacy of compensation in regard to these private lands by reason of Article 31 (4) of the Constitution; as the provision of that Article is not attracted to the facts of the present case. What is said is, that the original Estates Abolition Bill, which was pending before the Orissa Legislature at the time when the Constitution came into force, did not contain any provision that the private lands of the proprietor in occupation of temporary tenants would also vest in the State . This provision was subsequently introduced by way of amendment during the progress of the Bill and after the Constitution came into force. It is argued, therefore, that this provision is not protected by Art 31 (4). The contention seems to us to be manifestly untenable. Article 31 (4) is worded as follows:"If any Bill pending at the commencement of this Constitution in the Legislature of a State has, after it has been passed by such Legislature, been reserved for the consideration of the President and has received his assent, then, notwithstanding anything in this Constitution, the law so assented to shall not be called in question in any Court on the ground that it contravenes the provisions of clause (2.)"Thus it is necessary first of all that the Bill, which ultimately becomes law, should be pending before the State Legislature at the time of the coming into force of the Constitution. That Bill must be passed by the Legislature and then receive the assent of the President. It is the law to which the assent of the President is given that is protected from any attack on the ground of non-compliance with the provisions of Cl. (2) of Art. 31. The fallacy in the reasoning of the learned counsel lies in the assumption that the Bill has got to be passed in its original shape without any change whatsoever, before the provision of Cl. (4), Art. 31, could be attracted. There is no warrant for such assumption in the language of the clause. The expression "passed by such Legislature" must. mean passed with or without amendments" in accordance with the normal procedure contemplated by Art, 107 of the Constitution. There can be no doubt that all the requirements of Art. 34 (4) have been complied with in the present case and consequently there is no room for any objection to the legislation on the ground that the compensation provided by it is inadequate.28. The last contention of the appellants is directed against the provision of the Act laying down the manner of payment of the compensation money. The relevant section is S. 37 and it provides for the payment of compensation together with interest in 30 annual equated instalments leaving it open to the State to make the payment In full at any time prior to the expiration of the period. The validity of this provision has been challenged on the ground that it is a piece of colourable legislation which comes within the principle enunciated by the majority of this Court in the Bihar case referred to above. It is difficult to appreciate this argument of the learned counsel. Section 37 of the Act contains the legislative provision regarding the form and the manner in which the compensation for acquired properties is to be given and as such it comes within the clear language of Entry 42, List III, Sch. VII of the Constitution. It is not a legislation on something which is non-existent or unrelated to facts. It cannot also be seriously contended that what S. 37 provides for, is not the giving of compensation but of negativing the right to compensation as the learned counsel seems to suggest. There is no substance In this contention and we have no hesitation in overruling it. The result is that all the points raised by the learned counsel for the appellants fail and the appeals are dismissed. ### Response: 0 ### Explanation: 9. It may be made clear at the outset that the doctrine of colourable legislation does net involve any question of bond fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. Whether a statute is constitutional or not is thus always a question of power. Vide Cooleys Constitutional Limitations, Vol. 1, p. 379. A distinction, however, exists between a legislature which is legally omnipotent like the British Parliament and the laws promulgated by which could not be challenged on the ground of incompetency, and a legislature which enjoys only a limited or a qualified jurisdiction.If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the legislature in a particular case has or has not, in respect to theof the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest on direct but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what, appears, on proper examination, to be a mere pretence or disguise. As was said by Duff, J. infor Ontario v. Reciprocal Insurers, 1924 A C 328 at p. 337 (B)the law making authority is of a limited or qualified character it may be necessary to examine with some strictness the substance of the legislation for the purpose of determining what is that the legislature is reallyother words, it is the substance of the Act that is material and not merely the form or outward appearance, and if thein substance is something which is beyond the powers of that legislature to legislate upon, the form in which the law is clothed would not save it from condemnation. The legislature cannot violate the constitutional prohibitions by employing an indirect method. In cases like these, the enquiry, must always be as to the true nature and character of the challenged legislation and it is the result of such investigation and not the form alone that will determine as to whether or not it relates to a subject which is within the power of the legislative authorityVide 1924 A C 328 at p. 337 (B). For the purpose of this investigation the court could certainly examine the effect of the legislation and take into consideration its object, purpose or designl for Alberta v.for Canada, 1939 A C 117 at p. 130 (C). But these are only relevant for the purpose of ascertaining the true character and substance of the enactment and the class of subjects of legislation to which it really belongs and not for finding out the motives which induced the legislature to exercise itsagree with the learnedthat if the appellants are right in their contention, they can raise these objections if and when the gross assets are sought to be computed on the basis of the rents settled under the above provisions. If the provisions are void, the rents settled in pursuance thereof could not legitimately form the basis of the valuation of the estate under the Estates Abolition Act and it might be open to the appellants then to say that for purposes "of S. 26, Estates Abolition Act, the rents payable for the previous year would be the rents settled under the Madras Estates Lend Act, as it stood unamended before 1947.The learned counsel for the appellants eventually agreed with the views of theon this point and with the consent of both sides we decided to leave these questions open. They should not be deemed to have been decided in theserelevant section is S. 37 and it provides for the payment of compensation together with interest in 30 annual equated instalments leaving it open to the State to make the payment In full at any time prior to the expiration of the period.The validity of this provision has been challenged on the ground that it is a piece of colourable legislation which comes within the principle enunciated by the majority of this Court in the Bihar case referred to above. It is difficult to appreciate this argument of the learned counsel. Section 37 of the Act contains the legislative provision regarding the form and the manner in which the compensation for acquired properties is to be given and as such it comes within the clear language of Entry 42, List III, Sch. VII of the Constitution. It is not a legislation on something which isor unrelated to facts. It cannot also be seriously contended that what S. 37 provides for, is not the giving of compensation but of negativing the right to compensation as the learned counsel seems to suggest. There is no substance In this contention and we have no hesitation in overruling it. The result is that all the points raised by the learned counsel for the appellants fail and the appeals are dismissed.

Income-Tax Appellate Tribunal, Bombay & Others Vs. S.C. Cambatta & Company, Limited

be final."Therefore it is clear that except in cases which may go up to the High Court on, a reference, the decision of the Appellate Tribunal under S. 33 is final. But where a reference does go up to the High Court, no finality attaches to the decision of the Appellate Tribunal because by reason of the decision of the High Court the decision given by the Appellate Tribunal is liable to be reopened and it will be the duty of the Appellate Tribunal to give effect to whatever decision the High Court gives. When we turn to S. 66, Sub-S. (5) provides :"The High Court upon hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment."Mr. Joshi has laid great emphasis on the expression used in this sub-section that the Appellate Tribunal has to dispose of the case and he says that the Legislature does not provide that the Appellate Tribunal has to dispose of the appeal which has already been disposed of under S. 33. It is clear that the expression "case" used in the latter part of Sub-S. (5) has not the same connotation as the expression used in the earlier part of that sub-section.The case that the High Court hears is the case stated to it under S. 66 by the Tribunal. The case that the Appellate Tribunal has to dispose of is the matter before it or the appeal which has lost its finality by reason of S. 33(6).Therefore, reading S. 33(6) and S. 66(5) together, the scheme is fairly clear that when a reference is made to the High Court either under S. 66(1) or S. 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of.It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides ,it, that the appeal is finally disposed of.In one sense, as the learned Judge rightly points out, it may be said that on the High Court giving its decision there is a continuation of the appeal under S. 33 in another sense it may be said that there is a rehearing of the appeal by the Appellate Tribunal, but it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under S. 33.Any other construction which might be put upon S. 66(5) will lead to absurdities. For instance, under S. 33(4) an obligation is cast upon the Appellate Tribunal to hear both the parties and to communicate any order that it has passed to the assessee and to the Commissioner.It is Suggested that when the Appellate Tribunal disposes of the matter after the reference has been heard by the High Court, the obligation cast upon it under S. 33(4) does not attach to the further hearing contemplated by S. 66(5).Take this very case where pursuant to the directions of the High Court the Tribunal had to value the goodwill and it put a value of Rs. 2,00,000/- upon the goodwill. Can it be seriously suggested that in computing the value of the goodwill the Appellate Tribunal was under no obligation to give an opportunity to both the parties to be heardIt is clear therefore that the appeal has not been finally disposed of whenever there is a reference to the High Court. The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court.The High Court may accept the view of the law taken by the Tribunal, in which case the decision of the Appellate Tribunal would stand. The High Court may reverse the decision of the Appellate Tribunal on a question of law, in which case the appeal would have to be disposed of in accordance with the opinion of the High Court.Therefore, in all cases where S. 66 comes in to play the final decision in appeal has only to be given by the Appellate Tribunal after the reference has been made and that decision can only be given under S. 33(4).It would indeed be curious that if questions of law were to arise when the Appellate Tribunal was giving effect to the directions of the High Court that those questions of law could not be referred to the High Court and that the Appellate Tribunal would only be subject to the control of the High Court up to a particular stage of the appeal and that control would disappear as soon as the reference was disposed of.We wish to make it clear that the questions of law which can be agitated in what we might for convenience describe as the second reference, could only be those questions which do not arise out of the first order passed by the Appellate Tribunal and which have not been considered by the Appellate Tribunal in its first order.If a question has been considered and no reference is sought, then it is not open to the assessee or the Commissioner to seek a reference at a subsequent stage because that reference would be barred. But if in giving effect to the decision of the High Court, the Tribunal passes an order out of which a question of law arises, which question never arose out of the first order, then there is no reason why the assessee or the Commissioner should not have the right of coming to the High Court under S. 66(1) or S. 66(2).

0[ds]2. Mr. Joshi who appears for thes is perfectly right when he contends that the power of reference is a limited power conferred upon the High Court under S. 66 and that we should not extend the ambit of that power. He is equally right when he contends that a reference only lies under S. 66 provided that a question of law arises out of an order passed by the Tribunal under) of S. 33, and his whole attempt has been to satisfy us that the second order passed by the Tribunal was not an order passed under S.reading S. 33(6) and S. 66(5) together, the scheme is fairly clear that when a reference is made to the High Court either under S. 66(1) or S. 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of.It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides ,it, that the appeal is finally disposed of.In one sense, as the learned Judge rightly points out, it may be said that on the High Court giving its decision there is a continuation of the appeal under S. 33 in another sense it may be said that there is a rehearing of the appeal by the Appellate Tribunal, but it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under S. 33.Any other construction which might be put upon S. 66(5) will lead tothis very case where pursuant to the directions of the High Court the Tribunal had to value the goodwill and it put a value of Rs. 2,00,000/upon the goodwill. Can it be seriously suggested that in computing the value of the goodwill the Appellate Tribunal was under no obligation to give an opportunity to both the parties to be heardIt is clear therefore that the appeal has not been finally disposed of whenever there is a reference to the High Court. The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court.The High Court may accept the view of the law taken by the Tribunal, in which case the decision of the Appellate Tribunal would stand. The High Court may reverse the decision of the Appellate Tribunal on a question of law, in which case the appeal would have to be disposed of in accordance with the opinion of the High Court.Therefore, in all cases where S. 66 comes in to play the final decision in appeal has only to be given by the Appellate Tribunal after the reference has been made and that decision can only be given under S. 33(4).It would indeed be curious that if questions of law were to arise when the Appellate Tribunal was giving effect to the directions of the High Court that those questions of law could not be referred to the High Court and that the Appellate Tribunal would only be subject to the control of the High Court up to a particular stage of the appeal and that control would disappear as soon as the reference was disposed of.We wish to make it clear that the questions of law which can be agitated in what we might for convenience describe as the second reference, could only be those questions which do not arise out of the first order passed by the Appellate Tribunal and which have not been considered by the Appellate Tribunal in its first order.If a question has been considered and no reference is sought, then it is not open to the assessee or the Commissioner to seek a reference at a subsequent stage because that reference would be barred. But if in giving effect to the decision of the High Court, the Tribunal passes an order out of which a question of law arises, which question never arose out of the first order, then there is no reason why the assessee or the Commissioner should not have the right of coming to the High Court under S. 66(1) or S. 66(2).

### 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: be final."Therefore it is clear that except in cases which may go up to the High Court on, a reference, the decision of the Appellate Tribunal under S. 33 is final. But where a reference does go up to the High Court, no finality attaches to the decision of the Appellate Tribunal because by reason of the decision of the High Court the decision given by the Appellate Tribunal is liable to be reopened and it will be the duty of the Appellate Tribunal to give effect to whatever decision the High Court gives. When we turn to S. 66, Sub-S. (5) provides :"The High Court upon hearing of any such case shall decide the questions of law raised thereby and shall deliver its judgment thereon containing the grounds on which such decision is founded and shall send a copy of such judgment under the seal of the Court and the signature of the Registrar to the Appellate Tribunal which shall pass such orders as are necessary to dispose of the case conformably to such judgment."Mr. Joshi has laid great emphasis on the expression used in this sub-section that the Appellate Tribunal has to dispose of the case and he says that the Legislature does not provide that the Appellate Tribunal has to dispose of the appeal which has already been disposed of under S. 33. It is clear that the expression "case" used in the latter part of Sub-S. (5) has not the same connotation as the expression used in the earlier part of that sub-section.The case that the High Court hears is the case stated to it under S. 66 by the Tribunal. The case that the Appellate Tribunal has to dispose of is the matter before it or the appeal which has lost its finality by reason of S. 33(6).Therefore, reading S. 33(6) and S. 66(5) together, the scheme is fairly clear that when a reference is made to the High Court either under S. 66(1) or S. 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of.It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides ,it, that the appeal is finally disposed of.In one sense, as the learned Judge rightly points out, it may be said that on the High Court giving its decision there is a continuation of the appeal under S. 33 in another sense it may be said that there is a rehearing of the appeal by the Appellate Tribunal, but it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under S. 33.Any other construction which might be put upon S. 66(5) will lead to absurdities. For instance, under S. 33(4) an obligation is cast upon the Appellate Tribunal to hear both the parties and to communicate any order that it has passed to the assessee and to the Commissioner.It is Suggested that when the Appellate Tribunal disposes of the matter after the reference has been heard by the High Court, the obligation cast upon it under S. 33(4) does not attach to the further hearing contemplated by S. 66(5).Take this very case where pursuant to the directions of the High Court the Tribunal had to value the goodwill and it put a value of Rs. 2,00,000/- upon the goodwill. Can it be seriously suggested that in computing the value of the goodwill the Appellate Tribunal was under no obligation to give an opportunity to both the parties to be heardIt is clear therefore that the appeal has not been finally disposed of whenever there is a reference to the High Court. The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court.The High Court may accept the view of the law taken by the Tribunal, in which case the decision of the Appellate Tribunal would stand. The High Court may reverse the decision of the Appellate Tribunal on a question of law, in which case the appeal would have to be disposed of in accordance with the opinion of the High Court.Therefore, in all cases where S. 66 comes in to play the final decision in appeal has only to be given by the Appellate Tribunal after the reference has been made and that decision can only be given under S. 33(4).It would indeed be curious that if questions of law were to arise when the Appellate Tribunal was giving effect to the directions of the High Court that those questions of law could not be referred to the High Court and that the Appellate Tribunal would only be subject to the control of the High Court up to a particular stage of the appeal and that control would disappear as soon as the reference was disposed of.We wish to make it clear that the questions of law which can be agitated in what we might for convenience describe as the second reference, could only be those questions which do not arise out of the first order passed by the Appellate Tribunal and which have not been considered by the Appellate Tribunal in its first order.If a question has been considered and no reference is sought, then it is not open to the assessee or the Commissioner to seek a reference at a subsequent stage because that reference would be barred. But if in giving effect to the decision of the High Court, the Tribunal passes an order out of which a question of law arises, which question never arose out of the first order, then there is no reason why the assessee or the Commissioner should not have the right of coming to the High Court under S. 66(1) or S. 66(2). ### Response: 0 ### Explanation: 2. Mr. Joshi who appears for thes is perfectly right when he contends that the power of reference is a limited power conferred upon the High Court under S. 66 and that we should not extend the ambit of that power. He is equally right when he contends that a reference only lies under S. 66 provided that a question of law arises out of an order passed by the Tribunal under) of S. 33, and his whole attempt has been to satisfy us that the second order passed by the Tribunal was not an order passed under S.reading S. 33(6) and S. 66(5) together, the scheme is fairly clear that when a reference is made to the High Court either under S. 66(1) or S. 66(2) the decision of the Appellate Tribunal cannot be looked upon as final; in other words, the appeal is not finally disposed of.It is only when the High Court decides the case, exercises its advisory jurisdiction, and gives directions to the Tribunal on questions of law, and the Tribunal reconsiders the matter and decides ,it, that the appeal is finally disposed of.In one sense, as the learned Judge rightly points out, it may be said that on the High Court giving its decision there is a continuation of the appeal under S. 33 in another sense it may be said that there is a rehearing of the appeal by the Appellate Tribunal, but it is clear that what the Appellate Tribunal is doing after the High Court has heard the case is to exercise its appellate powers under S. 33.Any other construction which might be put upon S. 66(5) will lead tothis very case where pursuant to the directions of the High Court the Tribunal had to value the goodwill and it put a value of Rs. 2,00,000/upon the goodwill. Can it be seriously suggested that in computing the value of the goodwill the Appellate Tribunal was under no obligation to give an opportunity to both the parties to be heardIt is clear therefore that the appeal has not been finally disposed of whenever there is a reference to the High Court. The shape that the appeal would ultimately take and the decision that the Appellate Tribunal would ultimately give would entirely depend upon the view taken by the High Court.The High Court may accept the view of the law taken by the Tribunal, in which case the decision of the Appellate Tribunal would stand. The High Court may reverse the decision of the Appellate Tribunal on a question of law, in which case the appeal would have to be disposed of in accordance with the opinion of the High Court.Therefore, in all cases where S. 66 comes in to play the final decision in appeal has only to be given by the Appellate Tribunal after the reference has been made and that decision can only be given under S. 33(4).It would indeed be curious that if questions of law were to arise when the Appellate Tribunal was giving effect to the directions of the High Court that those questions of law could not be referred to the High Court and that the Appellate Tribunal would only be subject to the control of the High Court up to a particular stage of the appeal and that control would disappear as soon as the reference was disposed of.We wish to make it clear that the questions of law which can be agitated in what we might for convenience describe as the second reference, could only be those questions which do not arise out of the first order passed by the Appellate Tribunal and which have not been considered by the Appellate Tribunal in its first order.If a question has been considered and no reference is sought, then it is not open to the assessee or the Commissioner to seek a reference at a subsequent stage because that reference would be barred. But if in giving effect to the decision of the High Court, the Tribunal passes an order out of which a question of law arises, which question never arose out of the first order, then there is no reason why the assessee or the Commissioner should not have the right of coming to the High Court under S. 66(1) or S. 66(2).

M/S. K.R.C.D. (I) Pvt. Ltd Vs. Commnr. Of Central Excise, Mumbai

goods the value of their own property in the goodwill of the “brand name”. The petitioners are therefore right and the respondents wrong.” 11. Both the aforesaid judgments, though decided before the Central Excise Valuation (Determination of Price of Excisable Goods) Rules of 2000, go to show that the value of goodwill contained in a brand name would not form part of the assessable value of goods that are produced and sold only to the owner of the goodwill. In the present case, the appellant also sells the duplicate CDs only to the distributor who is the owner of the copyright, and this enhancement cannot be added as part of the value of the goods sold in such cases. 12. The Tribunal relied upon a customs case reported in Associated Cement Companies Ltd. v. Commissioner of Customs, 2001 (128) E.L.T. 21 (S.C.). In that case, certain drawings and designs were received from abroad as part of technical collaboration and/or knowhow. The value of these drawings and designs was declared at a nominal value of one dollar because according to the appellant the drawings by themselves have no value and it is only the cost of the paper on which they are made that would have any value. On a reading of Rule 9(1)(b)(iv) which is similar to Rule 6 of the Central Excise Rules, this Court held:- “39. To put it differently, the legislative intent can easily be gathered by reference to the Customs Valuation Rules and the specific entries in the Customs Tariff Act. The value of an encyclopaedia or a dictionary or a magazine is not only the value of the paper. The value of the paper is in fact negligible as compared to the value or price of an encyclopaedia. Therefore, the intellectual input in such items greatly enhances the value of the paper and ink in the aforesaid examples. This means that the charge of duty is on the final product, whether it be the encyclopaedia or the engineering or architectural drawings or any manual.40. Similar would be the position in the case of a programme of any kind loaded on a disc or a floppy. For example in the case of music the value of a popular music cassette is several times more than the value of a blank cassette. However, if a pre-recorded music cassette or a popular film or a musical score is imported into India duty will necessarily have to be charged on the value of the final product. In this behalf we may note that in State Bank of India v. Collector of Customs [(2000) 1 SCC 727 : (2000) 1 Scale 72 ] the Bank had, under an agreement with the foreign company, imported a computer software and manuals, the total value of which was US $ 4,084,475. The Bank filed an application for refund of customs duty on the ground that the basic cost of software was US $ 401.047. While the rest of the amount of US $ 3,683,428 was payable only as a licence fee for its right to use the software for the Bank countrywide. The claim for the refund of the customs duty paid on the aforesaid amount of US $ 3,683,428 was not accepted by this Court as in its opinion, on a correct interpretation of Section 14 read with the Rules, duty was payable on the transaction value determined therein, and as per Rule 9 in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the licence fee for which the buyer is required to pay, directly or indirectly, as a condition of sale of goods to the extent that such royalties and fees are not included in the price actually paid or payable. This clearly goes to show that when technical material is supplied whether in the form of drawings or manuals the same are goods liable to customs duty on the transaction value in respect thereof.41. It is a misconception to contend that what is being taxed is intellectual input. What is being taxed under the Customs Act read with the Customs Tariff Act and the Customs Valuation Rules is not the input alone but goods whose value has been enhanced by the said inputs. The final product at the time of import is either the magazine or the encyclopaedia or the engineering drawings as the case may be. There is no scope for splitting the engineering drawing or the encyclopaedia into intellectual input on the one hand and the paper on which it is scribed on the other. For example, paintings are also to be taxed. Valuable paintings are worth millions. A painting or a portrait may be specially commissioned or an article may be tailor-made. This aspect is irrelevant since what is taxed is the final product as defined and it will be an absurdity to contend that the value for the purposes of duty ought to be the cost of the canvas and the oil paint even though the composite product, i.e., the painting, is worth millions.” 13. This case is clearly distinguishable. What was imported by the appellant was not merely paper but drawings and designs on paper whose value had to be added for the reason that the appellants/importers were themselves going to exploit the intellectual content of the goods that were imported themselves. In the facts before us the appellants, as has been pointed out above, do not exploit the intellectual content in the CDs produced by them by way of sale as the sale by them can only be to the copyright owner himself. It is clear therefore that this case would have no bearing on the present case.14. Given the fact that no part of the royalty can be loaded on to the duplicate CDs produced by the appellant, the circular dated 19.2.2002 which deals with apportionment of royalty would have no application to the facts of the present case.

1[ds]8. Clause (iv) of the explanation also makes it clear that the value of art work or design work on goods which is undertaken elsewhere than in the factory of the production and necessary for the production on such goods alone must be taken into account. On the assumption that the music/picture component is the art work in the master CD, that alone is to be taken into account as it is necessary for the production of the duplicate CDs. Royalty payable for such music/picture cannot extend to art work that is necessary for the production of duplicate CDs, as no part of it is in fact taken into account by either the distributor who is the copyright holder or the appellant in the job work done by the appellant.Both the aforesaid judgments, though decided before the Central Excise Valuation (Determination of Price of Excisable Goods) Rules of 2000, go to show that the value of goodwill contained in a brand name would not form part of the assessable value of goods that are produced and sold only to the owner of the goodwill. In the present case, the appellant also sells the duplicate CDs only to the distributor who is the owner of the copyright, and this enhancement cannot be added as part of the value of the goods sold in such cases.This case is clearly distinguishable. What was imported by the appellant was not merely paper but drawings and designs on paper whose value had to be added for the reason that the appellants/importers were themselves going to exploit the intellectual content of the goods that were imported themselves. In the facts before us the appellants, as has been pointed out above, do not exploit the intellectual content in the CDs produced by them by way of sale as the sale by them can only be to the copyright owner himself. It is clear therefore that this case would have no bearing on the present case.14. Given the fact that no part of the royalty can be loaded on to the duplicate CDs produced by the appellant, the circular dated 19.2.2002 which deals with apportionment of royalty would have no application to the facts of the present case.

### Instruction: Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation. ### Input: goods the value of their own property in the goodwill of the “brand name”. The petitioners are therefore right and the respondents wrong.” 11. Both the aforesaid judgments, though decided before the Central Excise Valuation (Determination of Price of Excisable Goods) Rules of 2000, go to show that the value of goodwill contained in a brand name would not form part of the assessable value of goods that are produced and sold only to the owner of the goodwill. In the present case, the appellant also sells the duplicate CDs only to the distributor who is the owner of the copyright, and this enhancement cannot be added as part of the value of the goods sold in such cases. 12. The Tribunal relied upon a customs case reported in Associated Cement Companies Ltd. v. Commissioner of Customs, 2001 (128) E.L.T. 21 (S.C.). In that case, certain drawings and designs were received from abroad as part of technical collaboration and/or knowhow. The value of these drawings and designs was declared at a nominal value of one dollar because according to the appellant the drawings by themselves have no value and it is only the cost of the paper on which they are made that would have any value. On a reading of Rule 9(1)(b)(iv) which is similar to Rule 6 of the Central Excise Rules, this Court held:- “39. To put it differently, the legislative intent can easily be gathered by reference to the Customs Valuation Rules and the specific entries in the Customs Tariff Act. The value of an encyclopaedia or a dictionary or a magazine is not only the value of the paper. The value of the paper is in fact negligible as compared to the value or price of an encyclopaedia. Therefore, the intellectual input in such items greatly enhances the value of the paper and ink in the aforesaid examples. This means that the charge of duty is on the final product, whether it be the encyclopaedia or the engineering or architectural drawings or any manual.40. Similar would be the position in the case of a programme of any kind loaded on a disc or a floppy. For example in the case of music the value of a popular music cassette is several times more than the value of a blank cassette. However, if a pre-recorded music cassette or a popular film or a musical score is imported into India duty will necessarily have to be charged on the value of the final product. In this behalf we may note that in State Bank of India v. Collector of Customs [(2000) 1 SCC 727 : (2000) 1 Scale 72 ] the Bank had, under an agreement with the foreign company, imported a computer software and manuals, the total value of which was US $ 4,084,475. The Bank filed an application for refund of customs duty on the ground that the basic cost of software was US $ 401.047. While the rest of the amount of US $ 3,683,428 was payable only as a licence fee for its right to use the software for the Bank countrywide. The claim for the refund of the customs duty paid on the aforesaid amount of US $ 3,683,428 was not accepted by this Court as in its opinion, on a correct interpretation of Section 14 read with the Rules, duty was payable on the transaction value determined therein, and as per Rule 9 in determining the transaction value there has to be added to the price actually paid or payable for the imported goods, royalties and the licence fee for which the buyer is required to pay, directly or indirectly, as a condition of sale of goods to the extent that such royalties and fees are not included in the price actually paid or payable. This clearly goes to show that when technical material is supplied whether in the form of drawings or manuals the same are goods liable to customs duty on the transaction value in respect thereof.41. It is a misconception to contend that what is being taxed is intellectual input. What is being taxed under the Customs Act read with the Customs Tariff Act and the Customs Valuation Rules is not the input alone but goods whose value has been enhanced by the said inputs. The final product at the time of import is either the magazine or the encyclopaedia or the engineering drawings as the case may be. There is no scope for splitting the engineering drawing or the encyclopaedia into intellectual input on the one hand and the paper on which it is scribed on the other. For example, paintings are also to be taxed. Valuable paintings are worth millions. A painting or a portrait may be specially commissioned or an article may be tailor-made. This aspect is irrelevant since what is taxed is the final product as defined and it will be an absurdity to contend that the value for the purposes of duty ought to be the cost of the canvas and the oil paint even though the composite product, i.e., the painting, is worth millions.” 13. This case is clearly distinguishable. What was imported by the appellant was not merely paper but drawings and designs on paper whose value had to be added for the reason that the appellants/importers were themselves going to exploit the intellectual content of the goods that were imported themselves. In the facts before us the appellants, as has been pointed out above, do not exploit the intellectual content in the CDs produced by them by way of sale as the sale by them can only be to the copyright owner himself. It is clear therefore that this case would have no bearing on the present case.14. Given the fact that no part of the royalty can be loaded on to the duplicate CDs produced by the appellant, the circular dated 19.2.2002 which deals with apportionment of royalty would have no application to the facts of the present case. ### Response: 1 ### Explanation: 8. Clause (iv) of the explanation also makes it clear that the value of art work or design work on goods which is undertaken elsewhere than in the factory of the production and necessary for the production on such goods alone must be taken into account. On the assumption that the music/picture component is the art work in the master CD, that alone is to be taken into account as it is necessary for the production of the duplicate CDs. Royalty payable for such music/picture cannot extend to art work that is necessary for the production of duplicate CDs, as no part of it is in fact taken into account by either the distributor who is the copyright holder or the appellant in the job work done by the appellant.Both the aforesaid judgments, though decided before the Central Excise Valuation (Determination of Price of Excisable Goods) Rules of 2000, go to show that the value of goodwill contained in a brand name would not form part of the assessable value of goods that are produced and sold only to the owner of the goodwill. In the present case, the appellant also sells the duplicate CDs only to the distributor who is the owner of the copyright, and this enhancement cannot be added as part of the value of the goods sold in such cases.This case is clearly distinguishable. What was imported by the appellant was not merely paper but drawings and designs on paper whose value had to be added for the reason that the appellants/importers were themselves going to exploit the intellectual content of the goods that were imported themselves. In the facts before us the appellants, as has been pointed out above, do not exploit the intellectual content in the CDs produced by them by way of sale as the sale by them can only be to the copyright owner himself. It is clear therefore that this case would have no bearing on the present case.14. Given the fact that no part of the royalty can be loaded on to the duplicate CDs produced by the appellant, the circular dated 19.2.2002 which deals with apportionment of royalty would have no application to the facts of the present case.

Bharat Forge Co. Ltd Vs. Uttam Manohar Nakate

of this Court in U.P. State Road Transport Corporation vs. Mohan Lal Gupta and others (2000) 9 SCC 521 ), opined: "The learned advocate appearing in support of the appeal mainly contended on two counts. On the first, it has been very strenuously contended as to whether the Labour Court can alter the punishment awarded to Respondent 1 workman upon recording a finding that the charges have duly been proved and secondly, it has been contended as to whether the employee who has admittedly misappropriated the property of the employer Corporation can be allowed to be retained in service.These two issues are undoubtedly of some importance. The workman concerned during the course of inquiry in no uncertain terms admitted his guilt though however he has stated that the same amounted to mere negligence and not a deliberate act. But the Labour Court being the fact finding court came to the conclusion that the charges stood proved and we are not in a position to reassess the factual situation at this stage of the proceedings under Article 136 of the Constitution. The finding as regards the proof of charges shall have to be taken as accepted and we do not see any perversity therein having regard to the state of facts more so by reason of acceptance of charge by the delinquent employee." 24. Yet again in U.P. State Road Transport Corpn. vs. Subhash Chandra Sharma and others (2000) 3 SCC 324), upon noticing Colour-Chem Ltd. (supra), this Court observed: "The charge against the respondent was that he, in a drunken state, along with the conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of the respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way shockingly disproportionate to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in a miscarriage of justice." 25. Each case, therefore, has to be decided on its own facts. 26. We have noticed hereinbefore that all the courts have answered the question as regard commission of misconduct by the Respondent in one voice. The Labour Court evidently had taken recourse to Clause (g) of Item I of Schedule IV of the Act which ex facie was inapplicable. The said provisions clearly postulates two situations, namely (i) the misconduct should be of minor or technical character, and (ii) the punishment is a shockingly disproportionate without having any regard to the nature of the particular misconduct or the past record of service of the employee. The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not. As has been noticed hereinbefore, before the learned Single Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion the Division Bench committed a manifest error in invoking Clause (a) thereof.27. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. (supra) and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. (See Cement Corporation of India Ltd. vs. Purya and others (2004) 8 SCC 270 )28. In Bhagubhai Balubhai Patel (supra), this Court observed: ".... In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization." 29. It was, therefore, obligatory on the part of the Respondent to plead and prove the acts of victimization. He failed to do so.30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four-corner thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground. 32. In Regional Manager, Rajasthan State Road Transport Corporation vs. Sohan Lal (2004) 8 SCC 218 ), it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein.

1[ds]10. The jurisdiction of a Labour Court was, therefore, confined to make an enquiry and pass an order thereupon as to whether the Appellant herein had committed an act of unfair labour practice within the meaning of Section 26 read with the relevant provisions of Item 1 of Schedule IV of the Act.11. Before we proceed to determine the merit of the decision rendered by the Division Bench, it is useful to notice that the act of misconduct committed by the Respondent was admitted by him in terms of his letter dated 26.8.It is also pertinent to note that the Enquiry Officer in his report categorically stated as to how the Respondent had been conducting himself during the domesticNo sufficient or cogent reason, in our opinion, was assigned by the learned Labour Court as to why a lenient view should be taken. The Revisional Court while allowing the Revision Application of the Appellant and dismissing the Revision Application of the Respondent came to the conclusion that as the misconduct has been proved and relying on the decision of this Court in Bhagubhai Balubhai Patel (supra) where it was opined that a proved misconduct is anti thesis of victimization in the industrialState Road Transport Corpn. vs. Subhash Chandra Sharma and others (2000) 3 SCCWe have noticed hereinbefore that all the courts have answered the question as regard commission of misconduct by the Respondent in one voice. The Labour Court evidently had taken recourse to Clause (g) of Item I of Schedule IV of the Act which ex facie was inapplicable. The said provisions clearly postulates two situations, namely (i) the misconduct should be of minor or technical character, and (ii) the punishment is a shockingly disproportionate without having any regard to the nature of the particular misconduct or the past record of service of the employee. The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not. As has been noticed hereinbefore, before the learned Single Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion the Division Bench committed a manifest error in invoking Clause (a) thereof.27. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. (supra) and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. (See Cement Corporation of India Ltd. vs. Purya and others (2004) 8 SCC 270 )28. In Bhagubhai Balubhai Patel (supra), this CourtIn such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization.It was, therefore, obligatory on the part of the Respondent to plead and prove the acts of victimization. He failed to do so.30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four-corner thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground.

### Instruction: Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences. ### Input: of this Court in U.P. State Road Transport Corporation vs. Mohan Lal Gupta and others (2000) 9 SCC 521 ), opined: "The learned advocate appearing in support of the appeal mainly contended on two counts. On the first, it has been very strenuously contended as to whether the Labour Court can alter the punishment awarded to Respondent 1 workman upon recording a finding that the charges have duly been proved and secondly, it has been contended as to whether the employee who has admittedly misappropriated the property of the employer Corporation can be allowed to be retained in service.These two issues are undoubtedly of some importance. The workman concerned during the course of inquiry in no uncertain terms admitted his guilt though however he has stated that the same amounted to mere negligence and not a deliberate act. But the Labour Court being the fact finding court came to the conclusion that the charges stood proved and we are not in a position to reassess the factual situation at this stage of the proceedings under Article 136 of the Constitution. The finding as regards the proof of charges shall have to be taken as accepted and we do not see any perversity therein having regard to the state of facts more so by reason of acceptance of charge by the delinquent employee." 24. Yet again in U.P. State Road Transport Corpn. vs. Subhash Chandra Sharma and others (2000) 3 SCC 324), upon noticing Colour-Chem Ltd. (supra), this Court observed: "The charge against the respondent was that he, in a drunken state, along with the conductor went to the Assistant Cashier in the cash room of the appellant and demanded money from the Assistant Cashier. When the Assistant Cashier refused, the respondent abused him and threatened to assault him. It was certainly a serious charge of misconduct against the respondent. In such circumstances, the Labour Court was not justified in interfering with the order of removal of the respondent from the service when the charge against him stood proved. Rather we find that the discretion exercised by the Labour Court in the circumstances of the present case was capricious and arbitrary and certainly not justified. It could not be said that the punishment awarded to the respondent was in any way shockingly disproportionate to the nature of the charge found proved against him. In our opinion, the High Court failed to exercise its jurisdiction under Article 226 of the Constitution and did not correct the erroneous order of the Labour Court which, if allowed to stand, would certainly result in a miscarriage of justice." 25. Each case, therefore, has to be decided on its own facts. 26. We have noticed hereinbefore that all the courts have answered the question as regard commission of misconduct by the Respondent in one voice. The Labour Court evidently had taken recourse to Clause (g) of Item I of Schedule IV of the Act which ex facie was inapplicable. The said provisions clearly postulates two situations, namely (i) the misconduct should be of minor or technical character, and (ii) the punishment is a shockingly disproportionate without having any regard to the nature of the particular misconduct or the past record of service of the employee. The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not. As has been noticed hereinbefore, before the learned Single Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion the Division Bench committed a manifest error in invoking Clause (a) thereof.27. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. (supra) and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. (See Cement Corporation of India Ltd. vs. Purya and others (2004) 8 SCC 270 )28. In Bhagubhai Balubhai Patel (supra), this Court observed: ".... In such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization." 29. It was, therefore, obligatory on the part of the Respondent to plead and prove the acts of victimization. He failed to do so.30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four-corner thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground. 32. In Regional Manager, Rajasthan State Road Transport Corporation vs. Sohan Lal (2004) 8 SCC 218 ), it has been held that it is not the normal jurisdiction of the superior courts to interfere with the quantum of sentence unless it is wholly disproportionate to the misconduct proved. Such is not the case herein. ### Response: 1 ### Explanation: 10. The jurisdiction of a Labour Court was, therefore, confined to make an enquiry and pass an order thereupon as to whether the Appellant herein had committed an act of unfair labour practice within the meaning of Section 26 read with the relevant provisions of Item 1 of Schedule IV of the Act.11. Before we proceed to determine the merit of the decision rendered by the Division Bench, it is useful to notice that the act of misconduct committed by the Respondent was admitted by him in terms of his letter dated 26.8.It is also pertinent to note that the Enquiry Officer in his report categorically stated as to how the Respondent had been conducting himself during the domesticNo sufficient or cogent reason, in our opinion, was assigned by the learned Labour Court as to why a lenient view should be taken. The Revisional Court while allowing the Revision Application of the Appellant and dismissing the Revision Application of the Respondent came to the conclusion that as the misconduct has been proved and relying on the decision of this Court in Bhagubhai Balubhai Patel (supra) where it was opined that a proved misconduct is anti thesis of victimization in the industrialState Road Transport Corpn. vs. Subhash Chandra Sharma and others (2000) 3 SCCWe have noticed hereinbefore that all the courts have answered the question as regard commission of misconduct by the Respondent in one voice. The Labour Court evidently had taken recourse to Clause (g) of Item I of Schedule IV of the Act which ex facie was inapplicable. The said provisions clearly postulates two situations, namely (i) the misconduct should be of minor or technical character, and (ii) the punishment is a shockingly disproportionate without having any regard to the nature of the particular misconduct or the past record of service of the employee. The past record of service, therefore, is a relevant factor for considering as to whether the punishment imposed upon the delinquent employee is shockingly disproportionate or not. As has been noticed hereinbefore, before the learned Single Judge an attempt on the part of the Respondent to take recourse to Clause (b) of Item (1) of Schedule IV failed. In absence of any plea of factual victimization and furthermore in absence of any foundational fact having been laid down for arriving at a conclusion of the legal victimization, in our opinion the Division Bench committed a manifest error in invoking Clause (a) thereof.27. The Division Bench, thus, was not correct in relying on Colour-Chem Ltd. (supra) and failed to notice the distinguishing features thereof. A decision, as is well-known, is an authority of what it decides and not what can logically be deduced therefrom. (See Cement Corporation of India Ltd. vs. Purya and others (2004) 8 SCC 270 )28. In Bhagubhai Balubhai Patel (supra), this CourtIn such a case the employee, found guilty, cannot be equated with a victim or a scapegoat and the plea of victimization as a defence will fall flat. This is why once, in the opinion of the tribunal a gross misconduct is established, as required, on legal evidence either in a fairly conducted domestic enquiry or before the tribunal on merits, the plea of victimization will not carry the case of the employee any further. A proved misconduct is antithesis of victimization as understood in industrial relations. This is not to say that the tribunal has no jurisdiction to interfere with an order of dismissal on proof of victimization.It was, therefore, obligatory on the part of the Respondent to plead and prove the acts of victimization. He failed to do so.30. Furthermore, it is trite, the Labour Court or the Industrial Tribunal, as the case may be, in terms of the provisions of the Act, must act within the four-corner thereof. The Industrial Courts would not sit in appeal over the decision of the employer unless there exists a statutory provision in this behalf. Although its jurisdiction is wide but the same must be applied in terms of the provisions of the statute and no other.31. If the punishment is harsh, albeit a lesser punishment may be imposed, but such an order cannot be passed on an irrational or extraneous factor and certainly not on a compassionate ground.

Profulla Chorone Requitte & Ors Vs. Satya Chorone Requitte

family idol to whom the property was absolutely dedicated. The testator did not create a trust estate in the sense in which it is understood in English law. 44. The above-quoted provisions from the wills further show that no rights to act as ministrant of the idol were conferred upon the trustees. On the other hand, a mere obligation to hold and use the property for the endowment indicated was imposed upon the persons designated as trustees. 45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property. 46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law. 47. In arriving at the conclusion that in spite of the interposition of the trust, the founder by his will left the shebaitship undisposed of, and as such, the defendant also, under Hindu law, became one of the shebaits, we are fortified by the inference arising out of the facts admitted by no less a witness than plaintiff 3, Satish Chandra Dass, himself, who alone deposed for the plaintiffs. Though he claimed that there were no shebaits of the deities and the trustees were managing the shebas, he categorically admitted the following facts : (a) "The disputed house is a big house", having 84-85 rooms. "It is the only family dwelling house" of the sons and grandsons of Durga Chorone Requitte, who live in it, while "the deity is installed in room 66 in the first floor". (b) The inmates of the disputed house, as far as practicable, look after the bath of the deity as also the preparation of Naibedya (tray containing the offerings) and Bhog (food) of the deity. 48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants. 49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder. 50. Assuming for the sake of argument, that the trustees were also vested with the rights and obligations of a shebait, then also, the evidence on the record shows that those trustees who were not descendants of the founder, Durga Chorone Requitte, never acted as such. They went out of the picture long ago and must be presumed to have renounced their shebaiti rights in favour of their co-shebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to the accommodation in their residential occupation. Thereupon, the trustees agreed with the descendants of the founder by means of the agreement (Ex. E) to refer the dispute to the sole arbitration of Shri Bhringeswar Sreemany. The arbitrator, inter alia, held that the heirs of late Durga Chorone Requitte and his descendants alone had the right to act as shebaits. There is documentary evidence on the record to show that this award (Ex. G) given by the arbitrator was accepted by the trustees. The present plaintiffs-appellants, by their letter dated June 18, 1950 (Ex. A/7), asserted their rights on the basis of this award and described the defendant-respondent as shebait of the deity. The letters (Exs. A-8 and A-10) also point to the same conclusion. 51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid. 52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone. 53. In the view we take, it is not necessary to decide whether the trust created by the will of Durga Chorone Requitte was a continuing trust or not, or whether the mode of devolution of the office of trustees indicated by the founder in his will, was or was not hit by the rule in Tagore v. Tagore (supra).

1[ds]34. It may be observed that this will, in English, appears to have been drafted in pursuance of legal advice by an expert draftsman. The omission of the words "management", "manager", "custodian of the idol" or "ministrant of the idol" from the will, therefore, cannot but be intentional35. It seems clear to us that the underlined (Herein given in bold) words in the above extract, by themselves, merely create a trust or endowment and indicate the nature and purpose of the endowment. These words do not touch or deal with shebaiti rights. This inference receives support from the surrounding circumstances39. Thus construed conjointly, the two wills make it clear that although the entire family house, comprising 84 or 85 rooms, at Chandernagore was formally endowed to the family idol, yet the testators intention was that his heirs and descendants would also be entitled to use this house as their family dwelling house, apart from the room wherein the idol was enshrined41. The aforesaid provisions further show that although the trustees were provided with the funds for the sewa puja of the family deity and for other festivals out of the estate left by the testator, but they were not expressly constituted as shebaits of the deity. It will, therefore, be not unreasonable to infer that the intention of the testator was that these funds would be expended for the purposes indicated by him, through the shebaits45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone.

### 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: family idol to whom the property was absolutely dedicated. The testator did not create a trust estate in the sense in which it is understood in English law. 44. The above-quoted provisions from the wills further show that no rights to act as ministrant of the idol were conferred upon the trustees. On the other hand, a mere obligation to hold and use the property for the endowment indicated was imposed upon the persons designated as trustees. 45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property. 46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law. 47. In arriving at the conclusion that in spite of the interposition of the trust, the founder by his will left the shebaitship undisposed of, and as such, the defendant also, under Hindu law, became one of the shebaits, we are fortified by the inference arising out of the facts admitted by no less a witness than plaintiff 3, Satish Chandra Dass, himself, who alone deposed for the plaintiffs. Though he claimed that there were no shebaits of the deities and the trustees were managing the shebas, he categorically admitted the following facts : (a) "The disputed house is a big house", having 84-85 rooms. "It is the only family dwelling house" of the sons and grandsons of Durga Chorone Requitte, who live in it, while "the deity is installed in room 66 in the first floor". (b) The inmates of the disputed house, as far as practicable, look after the bath of the deity as also the preparation of Naibedya (tray containing the offerings) and Bhog (food) of the deity. 48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants. 49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder. 50. Assuming for the sake of argument, that the trustees were also vested with the rights and obligations of a shebait, then also, the evidence on the record shows that those trustees who were not descendants of the founder, Durga Chorone Requitte, never acted as such. They went out of the picture long ago and must be presumed to have renounced their shebaiti rights in favour of their co-shebaits who were descendants of the founder. It is in evidence that in 1934, a dispute arose among the descendants of the founder with regard to the accommodation in their residential occupation. Thereupon, the trustees agreed with the descendants of the founder by means of the agreement (Ex. E) to refer the dispute to the sole arbitration of Shri Bhringeswar Sreemany. The arbitrator, inter alia, held that the heirs of late Durga Chorone Requitte and his descendants alone had the right to act as shebaits. There is documentary evidence on the record to show that this award (Ex. G) given by the arbitrator was accepted by the trustees. The present plaintiffs-appellants, by their letter dated June 18, 1950 (Ex. A/7), asserted their rights on the basis of this award and described the defendant-respondent as shebait of the deity. The letters (Exs. A-8 and A-10) also point to the same conclusion. 51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid. 52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone. 53. In the view we take, it is not necessary to decide whether the trust created by the will of Durga Chorone Requitte was a continuing trust or not, or whether the mode of devolution of the office of trustees indicated by the founder in his will, was or was not hit by the rule in Tagore v. Tagore (supra). ### Response: 1 ### Explanation: 34. It may be observed that this will, in English, appears to have been drafted in pursuance of legal advice by an expert draftsman. The omission of the words "management", "manager", "custodian of the idol" or "ministrant of the idol" from the will, therefore, cannot but be intentional35. It seems clear to us that the underlined (Herein given in bold) words in the above extract, by themselves, merely create a trust or endowment and indicate the nature and purpose of the endowment. These words do not touch or deal with shebaiti rights. This inference receives support from the surrounding circumstances39. Thus construed conjointly, the two wills make it clear that although the entire family house, comprising 84 or 85 rooms, at Chandernagore was formally endowed to the family idol, yet the testators intention was that his heirs and descendants would also be entitled to use this house as their family dwelling house, apart from the room wherein the idol was enshrined41. The aforesaid provisions further show that although the trustees were provided with the funds for the sewa puja of the family deity and for other festivals out of the estate left by the testator, but they were not expressly constituted as shebaits of the deity. It will, therefore, be not unreasonable to infer that the intention of the testator was that these funds would be expended for the purposes indicated by him, through the shebaits45. Reading the two wills together, with particular focus on the provisions extracted in this judgment, it is clear that the testator, Durga Chorone Requitte, did leave shebaitship undisposed of, presumed intention being that shebaitship should devolve on his natural heirs who would have a right to use the suit house as their family dwelling house. The rights conferred on the trustees under the will may, at the most, amount to a curtailment of the right to manage the endowed property which a shebait would otherwise have. But such curtailment by itself would not make the ordinary rules of succession in Hindu law inapplicable in regard to the devolution of shebaitship, which is heritable property46. The upshot of the above discussion is that in spite of the interposition of the trust for management of the endowed property, the shebaitship remained undisposed of, and, as such, the defendant and other descendants of Durga Chorone Requitte became co-shebaits of the deity by the operation of the ordinary rules of Hindu law48. Thus even according to the plaintiffs-appellants, only the descendants and heirs of the founder, who live in the endowed house, have throughout been acting as ministrants of the family idol, which, as already noticed, is one of the vital characteristics of a shebait. In other words, the sons and the descendants of Durga Chorone Requitte, alone, have throughout been acting as co-shebaits of the family deity, to the exclusion of the trustees who were not his descendants49. The first two courts were, therefore, right in holding that the shebaiti rights remained with the heirs of the founder51. Thus, even if it is assumed that originally, the trustees were regarded as having been constituted as shebaits, then also, those among them who were not family members of descendants of the founder, renounced and relinquished their shebaiti rights, if any, in favour of the descendants of the founder. Such a relinquishment made in favour of the co-shebaits, will be valid52. From whatever angle the matter may be looked at, the conclusion is inescapable that shebaitship of the family deity remained solely with the descendants of the founder; and the defendant-respondent who is admittedly a grandson of the founder had been regarded as one of the shebaits, and as such, entitled to reside in the disputed rooms. All the shebaits were therefore, necessary parties; but all of them have not been impleaded. The trustees by themselves, have no right to maintain the suit in respect of the debutter property, the legal title to which vests in the idol, and not in the trustees. The right to sue on behalf of the deity vests in the shebaits. All the shebaits of the deity not having been made parties, the suit was not property constituted, and was liable to be dismissed on this score alone.

M/S.Shree Chamundi Mopeds Ltd Vs. Church Of South India Trust Asson

decree against a lessee. In that sense, it can be said that the leasehold interest of a company is its property. But the question is whether the same is true in respect of the interest of a company which is in occupation of the premises as statutory tenant by virtue of the protection conferred by the relevant rent law because in the instant case on the date of reference to the Board the proceedings for eviction of the appellant company were pending and the appellant company was in occupation of the premises only as a statutory tenant governed by the provisions of the Karnataka Rent Control Act. In Smt. Gian Devi Anand v. Jeevan Kumar, 1985 Supp (1) SCR 1, this Court has laid down that the termination of a contractual tenancy does not bring about a change in the status and legal position of the tenant .unless there are contrary provisions in the relevant Rent Act and the tenant, notwithstanding the termination of tenancy, does enjoy an estate or interest in the tenanted premises. It is further laid down that this interest or estate which the tenant continues to enjoy despite termination of the contractual tenancy creates a heritable interest in the absence of any provision to the contrary. This Court has also held that the legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant.14. In the instant case, we are concerned with the right of the tenant as governed by the Karnataka Rent Control Act. In Cl. (r) of S. 3, the expression "tenant" has been defined to include "the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family after the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour". In view of Cl. (5) of the proviso to sub-sec. (1) of S. 21, protection against eviction is not available to a tenant who has "unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of sub-letting, assignment or transfer to which the provisions of S. 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force. S. 23 prohibits subletting or transfer by the tenant and provides as under: "(1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this part, for any tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:Provided that the State Government may, by notification, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification:Provided further that nothing in this section shall apply to a tenant having a right to enjoy any premises in perpetuity.(2) Any person who contravenes the provisions of sub-sec. (1), shall, on conviction, be punished with fine which may extend to one hundred rupees." 15. From these provisions, it would appear that except in cases covered by the two provisos to sub-sec. (1) of S. 23, there is a prohibition for a tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This prohibition is, however, subject to a contract to the contrary. A tenant who subjects or assigns or transfers the premises,in contravention of this prohibition loses the protection of law and can be evicted by the landlord under S. 21(1)(f). In the case of a statutory tenant, the relationship is not governed by contract. The prohibition against assignment and transfer is, therefore absolute and the interest of a statutory tenant can neither be assigned nor transferred. This means that the interest of the statutory tenant in the premises in his occupation, as governed by the Karnataka Rent Control Act is a limited interest which enables the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family up to the death of the tenant and aperson continuing in possession after the termination of the tenancy in his favour, to inherit the interest of the tenant on his death. The said interest of the tenant is, however, not assignable or transferable and, therefore, the interest, of a company which is continuing in occupation of the premises as a statutory tenant by virtue of the protection conferred by the Karnataka Rent Control Act, cannot be regarded as property of the company for the purpose of sub-see. (1) of S. 22 of the Act and for that reason also the provisions of S. 22(1) were not attracted to the eviction proceedings institution by the respondents against the appellant company. The provisions of S. 22(1) did not, therefore, bar the prosecution of the said proceedings by the respondents and the order dated September 30, 1989 passed by the XII Additional Small Cause Judge, Bangalore allowing the eviction petition cannot be held to have been passed in contravention of the provisions of S. 22(1) of the Act. Civil Appeal No. 2553 of 1991 also, therefore, fails and is liable to be dismissed.

0[ds]We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21,991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant company against the order of the learned single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant company. The said appeal, therefore, fails and is liable to be dismissed.We are also unable to agree with the contention of the learned counsel for the appellant company that the leasehold interest of the appellant company in premises leased out to it is property for the purpose of Section 22(1). It is no doubt true that leasehold interest of the lessee in the premises leased out to him is property which can be transferred and the said interest can also be attached and sold by way of execution in satisfaction of a decree against a lessee. In that sense, it can be said that the leasehold interest of a company is its property. But the question is whether the same is true in respect of the interest of a company which is in occupation of the premises as statutory tenant by virtue of the protection conferred by the relevant rent law because in the instant case on the date of reference to the Board the proceedings for eviction of the appellant company were pending and the appellant company was in occupation of the premises only as a statutory tenant governed by the provisions of the Karnataka Rent Control Act. In Smt. Gian Devi Anand v. Jeevan Kumar, 1985 Supp (1) SCR 1, this Court has laid down that the termination of a contractual tenancy does not bring about a change in the status and legal position of the tenant .unless there are contrary provisions in the relevant Rent Act and the tenant, notwithstanding the termination of tenancy, does enjoy an estate or interest in the tenanted premises. It is further laid down that this interest or estate which the tenant continues to enjoy despite termination of the contractual tenancy creates a heritable interest in the absence of any provision to the contrary. This Court has also held that the legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant.14. In the instant case, we are concerned with the right of the tenant as governed by the Karnataka Rent Control Act. In Cl. (r) of S. 3, the expression "tenant" has been defined to include "the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family after the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour". In view of Cl. (5) of the proviso to sub-sec. (1) of S. 21, protection against eviction is not available to a tenant who has "unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of sub-letting, assignment or transfer to which the provisions of S. 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force.From these provisions, it would appear that except in cases covered by the two provisos to sub-sec. (1) of S. 23, there is a prohibition for a tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This prohibition is, however, subject to a contract to the contrary. A tenant who subjects or assigns or transfers the premises,in contravention of this prohibition loses the protection of law and can be evicted by the landlord under S. 21(1)(f). In the case of a statutory tenant, the relationship is not governed by contract. The prohibition against assignment and transfer is, therefore absolute and the interest of a statutory tenant can neither be assigned nor transferred. This means that the interest of the statutory tenant in the premises in his occupation, as governed by the Karnataka Rent Control Act is a limited interest which enables the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family up to the death of the tenant and aperson continuing in possession after the termination of the tenancy in his favour, to inherit the interest of the tenant on his death. The said interest of the tenant is, however, not assignable or transferable and, therefore, the interest, of a company which is continuing in occupation of the premises as a statutory tenant by virtue of the protection conferred by the Karnataka Rent Control Act, cannot be regarded as property of the company for the purpose of sub-see. (1) of S. 22 of the Act and for that reason also the provisions of S. 22(1) were not attracted to the eviction proceedings institution by the respondents against the appellant company. The provisions of S. 22(1) did not, therefore, bar the prosecution of the said proceedings by the respondents and the order dated September 30, 1989 passed by the XII Additional Small Cause Judge, Bangalore allowing the eviction petition cannot be held to have been passed in contravention of the provisions of S. 22(1) of the Act. Civil Appeal No. 2553 of 1991 also, therefore, fails and is liable to be dismissed.

### Instruction: Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding. ### Input: decree against a lessee. In that sense, it can be said that the leasehold interest of a company is its property. But the question is whether the same is true in respect of the interest of a company which is in occupation of the premises as statutory tenant by virtue of the protection conferred by the relevant rent law because in the instant case on the date of reference to the Board the proceedings for eviction of the appellant company were pending and the appellant company was in occupation of the premises only as a statutory tenant governed by the provisions of the Karnataka Rent Control Act. In Smt. Gian Devi Anand v. Jeevan Kumar, 1985 Supp (1) SCR 1, this Court has laid down that the termination of a contractual tenancy does not bring about a change in the status and legal position of the tenant .unless there are contrary provisions in the relevant Rent Act and the tenant, notwithstanding the termination of tenancy, does enjoy an estate or interest in the tenanted premises. It is further laid down that this interest or estate which the tenant continues to enjoy despite termination of the contractual tenancy creates a heritable interest in the absence of any provision to the contrary. This Court has also held that the legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant.14. In the instant case, we are concerned with the right of the tenant as governed by the Karnataka Rent Control Act. In Cl. (r) of S. 3, the expression "tenant" has been defined to include "the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family after the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour". In view of Cl. (5) of the proviso to sub-sec. (1) of S. 21, protection against eviction is not available to a tenant who has "unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of sub-letting, assignment or transfer to which the provisions of S. 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force. S. 23 prohibits subletting or transfer by the tenant and provides as under: "(1) Notwithstanding anything contained in any law, but subject to any contract to the contrary, it shall not be lawful after the coming into operation of this part, for any tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein:Provided that the State Government may, by notification, permit in any area the transfer of interest in premises held under such leases or class of leases and to such extent as may be specified in the notification:Provided further that nothing in this section shall apply to a tenant having a right to enjoy any premises in perpetuity.(2) Any person who contravenes the provisions of sub-sec. (1), shall, on conviction, be punished with fine which may extend to one hundred rupees." 15. From these provisions, it would appear that except in cases covered by the two provisos to sub-sec. (1) of S. 23, there is a prohibition for a tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This prohibition is, however, subject to a contract to the contrary. A tenant who subjects or assigns or transfers the premises,in contravention of this prohibition loses the protection of law and can be evicted by the landlord under S. 21(1)(f). In the case of a statutory tenant, the relationship is not governed by contract. The prohibition against assignment and transfer is, therefore absolute and the interest of a statutory tenant can neither be assigned nor transferred. This means that the interest of the statutory tenant in the premises in his occupation, as governed by the Karnataka Rent Control Act is a limited interest which enables the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family up to the death of the tenant and aperson continuing in possession after the termination of the tenancy in his favour, to inherit the interest of the tenant on his death. The said interest of the tenant is, however, not assignable or transferable and, therefore, the interest, of a company which is continuing in occupation of the premises as a statutory tenant by virtue of the protection conferred by the Karnataka Rent Control Act, cannot be regarded as property of the company for the purpose of sub-see. (1) of S. 22 of the Act and for that reason also the provisions of S. 22(1) were not attracted to the eviction proceedings institution by the respondents against the appellant company. The provisions of S. 22(1) did not, therefore, bar the prosecution of the said proceedings by the respondents and the order dated September 30, 1989 passed by the XII Additional Small Cause Judge, Bangalore allowing the eviction petition cannot be held to have been passed in contravention of the provisions of S. 22(1) of the Act. Civil Appeal No. 2553 of 1991 also, therefore, fails and is liable to be dismissed. ### Response: 0 ### Explanation: 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in the High Court dealing with the winding up petition filed by the respondents. This is the only question that has been canvassed in Civil Appeal No. 126 of 1992, directed against the order for winding up of the appellant company. The said appeal, therefore, fails and is liable to be dismissed.We are also unable to agree with the contention of the learned counsel for the appellant company that the leasehold interest of the appellant company in premises leased out to it is property for the purpose of Section 22(1). It is no doubt true that leasehold interest of the lessee in the premises leased out to him is property which can be transferred and the said interest can also be attached and sold by way of execution in satisfaction of a decree against a lessee. In that sense, it can be said that the leasehold interest of a company is its property. But the question is whether the same is true in respect of the interest of a company which is in occupation of the premises as statutory tenant by virtue of the protection conferred by the relevant rent law because in the instant case on the date of reference to the Board the proceedings for eviction of the appellant company were pending and the appellant company was in occupation of the premises only as a statutory tenant governed by the provisions of the Karnataka Rent Control Act. In Smt. Gian Devi Anand v. Jeevan Kumar, 1985 Supp (1) SCR 1, this Court has laid down that the termination of a contractual tenancy does not bring about a change in the status and legal position of the tenant .unless there are contrary provisions in the relevant Rent Act and the tenant, notwithstanding the termination of tenancy, does enjoy an estate or interest in the tenanted premises. It is further laid down that this interest or estate which the tenant continues to enjoy despite termination of the contractual tenancy creates a heritable interest in the absence of any provision to the contrary. This Court has also held that the legislature which by the Rent Act seeks to confer the benefit on the tenants and to afford protection against eviction, is perfectly competent to make appropriate provision regulating the nature of protection and the manner and extent of enjoyment of such tenancy rights after the termination of contractual tenancy of the tenant including the rights and the nature of protection of the heirs on the death of the tenant.14. In the instant case, we are concerned with the right of the tenant as governed by the Karnataka Rent Control Act. In Cl. (r) of S. 3, the expression "tenant" has been defined to include "the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family after the death of the tenant and a person continuing in possession after the termination of the tenancy in his favour". In view of Cl. (5) of the proviso to sub-sec. (1) of S. 21, protection against eviction is not available to a tenant who has "unlawfully sublet the whole or part of the premises or assigned or transferred in any other manner his interest therein and where the subletting, assignment or transfer has been made before the coming into operation of this part (except in respect of sub-letting, assignment or transfer to which the provisions of S. 61 are applicable), such sub-letting, assignment or transfer has been made contrary to any provision of law then in force.From these provisions, it would appear that except in cases covered by the two provisos to sub-sec. (1) of S. 23, there is a prohibition for a tenant to sub-let whole or any part of the premises let to him or to assign or transfer in any other manner his interest therein. This prohibition is, however, subject to a contract to the contrary. A tenant who subjects or assigns or transfers the premises,in contravention of this prohibition loses the protection of law and can be evicted by the landlord under S. 21(1)(f). In the case of a statutory tenant, the relationship is not governed by contract. The prohibition against assignment and transfer is, therefore absolute and the interest of a statutory tenant can neither be assigned nor transferred. This means that the interest of the statutory tenant in the premises in his occupation, as governed by the Karnataka Rent Control Act is a limited interest which enables the surviving spouse or any son or daughter or father or mother of a deceased tenant who had been living with the tenant in the premises as a member of the tenants family up to the death of the tenant and aperson continuing in possession after the termination of the tenancy in his favour, to inherit the interest of the tenant on his death. The said interest of the tenant is, however, not assignable or transferable and, therefore, the interest, of a company which is continuing in occupation of the premises as a statutory tenant by virtue of the protection conferred by the Karnataka Rent Control Act, cannot be regarded as property of the company for the purpose of sub-see. (1) of S. 22 of the Act and for that reason also the provisions of S. 22(1) were not attracted to the eviction proceedings institution by the respondents against the appellant company. The provisions of S. 22(1) did not, therefore, bar the prosecution of the said proceedings by the respondents and the order dated September 30, 1989 passed by the XII Additional Small Cause Judge, Bangalore allowing the eviction petition cannot be held to have been passed in contravention of the provisions of S. 22(1) of the Act. Civil Appeal No. 2553 of 1991 also, therefore, fails and is liable to be dismissed.

U.P. State Electricity Board, Lucknow Vs. The Official Liquidator Lower Gangesjamuna Electricity Dist

dispute about the actual amount in the Development Reserve it was finally agreed that the above sum was the correct figure.2. The Official Liquidator contended that the Development Reserve had been used in adding to the assets of the Electricity Undertaking and, therefore. that amount could not be paid. On the purchase of an Electricity Undertaking by the Electricity Board the market value of the Undertaking at the time of the purchase is payable under Section 7A of the Indian Electricity Act, 1910 and under sub-section (2) of that section the market value shall be deemed to be the value of all lands, buildings, works, materials and plant of the licensee suitable to, and used by him, for the purpose of the undertaking.:.... but without any addition in respect of compulsory purchase or of goodwill or of any profits which may be or might have been made from the undertaking or of any similar consideration. As already noticed under clause VA of the Sixth Schedule to the Electricity (Supply) Act, 1948, on the purchase of an undertaking the Development Reserve shall be handed over to the purchaser. It is on this basis that the appellant Board insisted that a sum of Rs. 1,45,482/should either be paid to it or should be deducted from the purchase price payable by it to the licensee. This contention having been overruled by the Courts below. this appea1 has been filed.3. It appears to us that the decision of the Courts below was right. Under sub-cl. (3) of clause VA of the Sixth Schedule to the Electricity (Supply) Act, 1948 the Development Reserve shall be available only for investment in the business of electricity supply of the undertaking. There is no prohibition against the Development Reserve being used for that purpose. There is no allegation that the Development Reserve in this case was used for any purpose other than in the business of electricity supply of the undertaking. There is no allegation of the money in the Development Reserve having been dissipated otherwise or misappropriated or anything of that sort. There is no allegation that any portion of the Development Reserve was spent on any item not permissible under either of the two Acts. There is no allegation that the Development Reserve is as a matter of fact available in the form of either cash or deposits in banks or in investment in Government bonds or in liquid cash. The whole of the Development Reserve has admittedly gone into the creation of assets which have enhanced the value of the undertaking and the appellant Board has had the benefit of all such additions, improvements and accretions to the assets of the Electricity Supply Undertaking as a consequence of the investment of the Development Reserve in the business of electricity supply of the undertaking. What is really asked for on behalf of the appellant Board is that the Official Liquidator should pay to it a notional sum representing what should have been in the Development Reserve and not that there is any amount available in the Development Reserve. The argument that the Development Reserve should be handed over is based upon sub-cl. (4) of clause VA of the Sixth Schedule. The Development Reserve can be handed over to the purchaser only if it is available. A notional amount cannot be handed over. The Development Reserve has been converted into other assets which have passed on to the appellant Board. In that sense the appellant Board has had the benefit of the Development Reserve, though not in cash but in other assets representing the Development Reserve. The demand of the Board really amounts to saying that it must be paid twice over, once in the form of the assets created out of the Development Reserve, which it Development Reserve in cash as though it is still available in cash. There is no justification either in law or in equity for such a demand. We are not impressed by the argument on behalf of the appellant Board that compared to the language used in clauses II, III and IV which deal with the Tariffs and Dividends Control Reserve and the Contingencies Reserve, the language in clause VA regarding the Development Reserve is different and, therefore, the Development Reserve should be handed over to it. The Division Bench has dealt in detail with the arguments regarding the distinction between the Development Reserve and the other reserves advanced before it and we find ourselves in agreement with those observations and consider it unnecessary to repeat them. We can see no such distinction which will lead to the conclusion that the accumulated Development Reserve should be paid over to the purchaser. even where it has already been used up in the creation of tangible assets which have passed on to the purchaser. The principle is so clear that it does not lend itself to any argument whatsoever. Nor does Section 70 of the 1948 Act give us any guide in interpreting the relevant provision of law which will lead to the conclusion contended for by the appellant. The provision regarding Development Reserve came into existence only in 1957 when the new clause VA was inserted in the Sixth Schedule by Act 101 of 1956 with effect from 1-41957. The language of that clause, therefore, is not the same as the language of Cls. II, III and IV which have been in the Act from the very beginning. But that by itself does not create any difficulty or problem in the interpretation of clause VA. We, therefore, find ourselves in agreement with the learned Judges of the High Court that as the Development Reserve is available for investment in the business of electricity supply of the undertaking and the entire sum therein has been utilized by investment in such business and there is no amount left in cash in the Development Reserve the Official Liquidator cannot be directed to pay any amount to the appellant Board as representing the Develop -ment Reserve.

0[ds]3. It appears to us that the decision of the Courts below was right. Under sub-cl. (3) of clause VA of the Sixth Schedule tothe Electricity (Supply) Act, 1948 the Development Reserve shall be available only for investment in the business of electricity supply of the undertaking. There is no prohibition against the Development Reserve being used for that purpose. There is no allegation that the Development Reserve in this case was used for any purpose other than in the business of electricity supply of the undertaking. There is no allegation of the money in the Development Reserve having been dissipated otherwise or misappropriated or anything of that sort. There is no allegation that any portion of the Development Reserve was spent on any item not permissible under either of the two Acts. There is no allegation that the Development Reserve is as a matter of fact available in the form of either cash or deposits in banks or in investment in Government bonds or in liquid cash. The whole of the Development Reserve has admittedly gone into the creation of assets which have enhanced the value of the undertaking and the appellant Board has had the benefit of all such additions, improvements and accretions to the assets of the Electricity Supply Undertaking as a consequence of the investment of the Development Reserve in the business of electricity supply of the undertaking. What is really asked for on behalf of the appellant Board is that the Official Liquidator should pay to it a notional sum representing what should have been in the Development Reserve and not that there is any amount available in the Development Reserve. The argument that the Development Reserve should be handed over is based upon sub-cl. (4) of clause VA of the Sixth Schedule. The Development Reserve can be handed over to the purchaser only if it is available. A notional amount cannot be handed over. The Development Reserve has been converted into other assets which have passed on to the appellant Board. In that sense the appellant Board has had the benefit of the Development Reserve, though not in cash but in other assets representing the Development Reserve. The demand of the Board really amounts to saying that it must be paid twice over, once in the form of the assets created out of the Development Reserve, which it Development Reserve in cash as though it is still available in cash. There is no justification either in law or in equity for such a demand. We are not impressed by the argument on behalf of the appellant Board that compared to the language used in clauses II, III and IV which deal with the Tariffs and Dividends Control Reserve and the Contingencies Reserve, the language in clause VA regarding the Development Reserve is different and, therefore, the Development Reserve should be handed over to it. The Division Bench has dealt in detail with the arguments regarding the distinction between the Development Reserve and the other reserves advanced before it and we find ourselves in agreement with those observations and consider it unnecessary to repeat them. We can see no such distinction which will lead to the conclusion that the accumulated Development Reserve should be paid over to the purchaser. even where it has already been used up in the creation of tangible assets which have passed on to the purchaser. The principle is so clear that it does not lend itself to any argument whatsoever. Nor does Section 70 of the 1948 Act give us any guide in interpreting the relevant provision of law which will lead to the conclusion contended for by the appellant. The provision regarding Development Reserve came into existence only in 1957 when the new clause VA was inserted in the Sixth Schedule by Act 101 of 1956 with effect from 1-41957. The language of that clause, therefore, is not the same as the language of Cls. II, III and IV which have been in the Act from the very beginning. But that by itself does not create any difficulty or problem in the interpretation of clause VA. We, therefore, find ourselves in agreement with the learned Judges of the High Court that as the Development Reserve is available for investment in the business of electricity supply of the undertaking and the entire sum therein has been utilized by investment in such business and there is no amount left in cash in the Development Reserve the Official Liquidator cannot be directed to pay any amount to the appellant Board as representing the Develop -ment Reserve.

### 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: dispute about the actual amount in the Development Reserve it was finally agreed that the above sum was the correct figure.2. The Official Liquidator contended that the Development Reserve had been used in adding to the assets of the Electricity Undertaking and, therefore. that amount could not be paid. On the purchase of an Electricity Undertaking by the Electricity Board the market value of the Undertaking at the time of the purchase is payable under Section 7A of the Indian Electricity Act, 1910 and under sub-section (2) of that section the market value shall be deemed to be the value of all lands, buildings, works, materials and plant of the licensee suitable to, and used by him, for the purpose of the undertaking.:.... but without any addition in respect of compulsory purchase or of goodwill or of any profits which may be or might have been made from the undertaking or of any similar consideration. As already noticed under clause VA of the Sixth Schedule to the Electricity (Supply) Act, 1948, on the purchase of an undertaking the Development Reserve shall be handed over to the purchaser. It is on this basis that the appellant Board insisted that a sum of Rs. 1,45,482/should either be paid to it or should be deducted from the purchase price payable by it to the licensee. This contention having been overruled by the Courts below. this appea1 has been filed.3. It appears to us that the decision of the Courts below was right. Under sub-cl. (3) of clause VA of the Sixth Schedule to the Electricity (Supply) Act, 1948 the Development Reserve shall be available only for investment in the business of electricity supply of the undertaking. There is no prohibition against the Development Reserve being used for that purpose. There is no allegation that the Development Reserve in this case was used for any purpose other than in the business of electricity supply of the undertaking. There is no allegation of the money in the Development Reserve having been dissipated otherwise or misappropriated or anything of that sort. There is no allegation that any portion of the Development Reserve was spent on any item not permissible under either of the two Acts. There is no allegation that the Development Reserve is as a matter of fact available in the form of either cash or deposits in banks or in investment in Government bonds or in liquid cash. The whole of the Development Reserve has admittedly gone into the creation of assets which have enhanced the value of the undertaking and the appellant Board has had the benefit of all such additions, improvements and accretions to the assets of the Electricity Supply Undertaking as a consequence of the investment of the Development Reserve in the business of electricity supply of the undertaking. What is really asked for on behalf of the appellant Board is that the Official Liquidator should pay to it a notional sum representing what should have been in the Development Reserve and not that there is any amount available in the Development Reserve. The argument that the Development Reserve should be handed over is based upon sub-cl. (4) of clause VA of the Sixth Schedule. The Development Reserve can be handed over to the purchaser only if it is available. A notional amount cannot be handed over. The Development Reserve has been converted into other assets which have passed on to the appellant Board. In that sense the appellant Board has had the benefit of the Development Reserve, though not in cash but in other assets representing the Development Reserve. The demand of the Board really amounts to saying that it must be paid twice over, once in the form of the assets created out of the Development Reserve, which it Development Reserve in cash as though it is still available in cash. There is no justification either in law or in equity for such a demand. We are not impressed by the argument on behalf of the appellant Board that compared to the language used in clauses II, III and IV which deal with the Tariffs and Dividends Control Reserve and the Contingencies Reserve, the language in clause VA regarding the Development Reserve is different and, therefore, the Development Reserve should be handed over to it. The Division Bench has dealt in detail with the arguments regarding the distinction between the Development Reserve and the other reserves advanced before it and we find ourselves in agreement with those observations and consider it unnecessary to repeat them. We can see no such distinction which will lead to the conclusion that the accumulated Development Reserve should be paid over to the purchaser. even where it has already been used up in the creation of tangible assets which have passed on to the purchaser. The principle is so clear that it does not lend itself to any argument whatsoever. Nor does Section 70 of the 1948 Act give us any guide in interpreting the relevant provision of law which will lead to the conclusion contended for by the appellant. The provision regarding Development Reserve came into existence only in 1957 when the new clause VA was inserted in the Sixth Schedule by Act 101 of 1956 with effect from 1-41957. The language of that clause, therefore, is not the same as the language of Cls. II, III and IV which have been in the Act from the very beginning. But that by itself does not create any difficulty or problem in the interpretation of clause VA. We, therefore, find ourselves in agreement with the learned Judges of the High Court that as the Development Reserve is available for investment in the business of electricity supply of the undertaking and the entire sum therein has been utilized by investment in such business and there is no amount left in cash in the Development Reserve the Official Liquidator cannot be directed to pay any amount to the appellant Board as representing the Develop -ment Reserve. ### Response: 0 ### Explanation: 3. It appears to us that the decision of the Courts below was right. Under sub-cl. (3) of clause VA of the Sixth Schedule tothe Electricity (Supply) Act, 1948 the Development Reserve shall be available only for investment in the business of electricity supply of the undertaking. There is no prohibition against the Development Reserve being used for that purpose. There is no allegation that the Development Reserve in this case was used for any purpose other than in the business of electricity supply of the undertaking. There is no allegation of the money in the Development Reserve having been dissipated otherwise or misappropriated or anything of that sort. There is no allegation that any portion of the Development Reserve was spent on any item not permissible under either of the two Acts. There is no allegation that the Development Reserve is as a matter of fact available in the form of either cash or deposits in banks or in investment in Government bonds or in liquid cash. The whole of the Development Reserve has admittedly gone into the creation of assets which have enhanced the value of the undertaking and the appellant Board has had the benefit of all such additions, improvements and accretions to the assets of the Electricity Supply Undertaking as a consequence of the investment of the Development Reserve in the business of electricity supply of the undertaking. What is really asked for on behalf of the appellant Board is that the Official Liquidator should pay to it a notional sum representing what should have been in the Development Reserve and not that there is any amount available in the Development Reserve. The argument that the Development Reserve should be handed over is based upon sub-cl. (4) of clause VA of the Sixth Schedule. The Development Reserve can be handed over to the purchaser only if it is available. A notional amount cannot be handed over. The Development Reserve has been converted into other assets which have passed on to the appellant Board. In that sense the appellant Board has had the benefit of the Development Reserve, though not in cash but in other assets representing the Development Reserve. The demand of the Board really amounts to saying that it must be paid twice over, once in the form of the assets created out of the Development Reserve, which it Development Reserve in cash as though it is still available in cash. There is no justification either in law or in equity for such a demand. We are not impressed by the argument on behalf of the appellant Board that compared to the language used in clauses II, III and IV which deal with the Tariffs and Dividends Control Reserve and the Contingencies Reserve, the language in clause VA regarding the Development Reserve is different and, therefore, the Development Reserve should be handed over to it. The Division Bench has dealt in detail with the arguments regarding the distinction between the Development Reserve and the other reserves advanced before it and we find ourselves in agreement with those observations and consider it unnecessary to repeat them. We can see no such distinction which will lead to the conclusion that the accumulated Development Reserve should be paid over to the purchaser. even where it has already been used up in the creation of tangible assets which have passed on to the purchaser. The principle is so clear that it does not lend itself to any argument whatsoever. Nor does Section 70 of the 1948 Act give us any guide in interpreting the relevant provision of law which will lead to the conclusion contended for by the appellant. The provision regarding Development Reserve came into existence only in 1957 when the new clause VA was inserted in the Sixth Schedule by Act 101 of 1956 with effect from 1-41957. The language of that clause, therefore, is not the same as the language of Cls. II, III and IV which have been in the Act from the very beginning. But that by itself does not create any difficulty or problem in the interpretation of clause VA. We, therefore, find ourselves in agreement with the learned Judges of the High Court that as the Development Reserve is available for investment in the business of electricity supply of the undertaking and the entire sum therein has been utilized by investment in such business and there is no amount left in cash in the Development Reserve the Official Liquidator cannot be directed to pay any amount to the appellant Board as representing the Develop -ment Reserve.

Tata Tea Ltd Vs. The Commissioner Of Customs, Chennai

of Tribunal, the appellant has filed these appeals under Section 130 E of the Customs Act, 1962. The only question arising for decision is whether the appellant is entitled to benefit of Notification No. 13/81 read with Export Import Policy, 1992-97 (hereinafter `Policy, for short). 2. Export and Import Policy 1992-97 announced certain benefits and privileges to 100% export oriented units (EQUs). Vide order dated 9th June, 1992 the Government of India declared the appellant a unit entitled to facilities and privileges admissible under the 100% export oriented scheme by permitting the conversion of the appellant from existing domestic tariff area (DTA) into 100% EQU at Munnar in the State of Kerala for the manufacture of instant tea powder and aqueous tea aroma (by-product) upto the specified capacity. This decision of the Government of India entitled the appellant to import additional capital goods worth Rs. 300 lacs CIF for the project as per the list enclosed which included decanters, two in number. It was also specified that the import of capital goods, raw materials and components for production under this scheme shall be exempt from customs duty. Availing the benefit of EQU sanction letter the appellant had imported capital goods (other than those in issue) worth Rs. 225 lacs. A balance of Rs. 75 lacs entitlement was still available to the appellant. According to the appellant the cost of repairs incurred in Germany was Rs. 38,06,017/- which was declared by it to be the value of the goods for the purpose of re-importation in terms of Notification No. 13/81. 3. Notification No. 13/81 has been issued in exercise of powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962. The Central Government has exempted capital goods, inter alia, when imported into India for the purpose of manufacture of articles for export out of India by 100% EQUs provided that the importer has been granted necessary licence for the import of the goods for the said purpose. This is one of the several conditions that is required to be satisfied. 4. The Import Export Policy 1992-97, vide para 24, provides that second hand capital goods and any other second hand goods shall not be imported unless permitted by this policy or in accordance with a licence issued in this behalf. Para 25 catalogues (a) to (1) sectors of the industry for which second hand capital goods may be imported without a licence. Admittedly, the appellant does not fall in any of such categories. Para 25 provides that any other second hand capital goods (i.e. other than those specified in para 25) may be imported in accordance with a licence issued in that behalf. Para 31 permits imported capital goods or parts thereof being sent abroad for repairs and re-imported but subject to certain specified conditions. Para 159 permits conversion of an existing domestic tariff area (DTA) unit into an EQU. It is specifically provided - "no concession in duties and tax shall, however, be available under the scheme for plant machinery and equipment already installed". Para 172 allows the units to re-import, after repairs abroad, machinery equipment exported by them for this specific purpose and payment of foreign exchange for this purpose. 5. There is yet another notification No. 204/76 issued under Section 25(1) of the Customs Act whereby articles when re-imported into India after having been exported for repairs subject to compliance with certain specified conditions have been declared liable to payment of duty only on the value of such re-imported goods which would be made up of the fair cost of repairs carried out plus insurance and freight charges both ways. 6. The Tribunal has referred to and made analysis of all the abovesaid provisions and then concluded that the Import Export Policy 1992-97 read with Notification No., 13/81 gives exemption to the goods imported for the first time in India and does not cover the goods already imported and sent abroad for the purpose of repairs and then re-imported to India. 7. Having heard the learned counsel for the parties, we are of the opinion that the order of the Tribunal cannot be found fault with. Under Section 20 of the Customs Act, 1962 read with the definition of `import as given in clause 23 of Section 2, imported goods would include re-imported goods as well and therefore the goods sent out of India and re-imported would also be liable to payment of duty in the same manner in which they would have been liable if imported for the first time in India. In the matter of goods sent out for repairs only there is exemption notification No. 204/76. The benefit thereof has been taken by the appellant. A perusal of Import Export Policy 1992-97 and Exemption Notification No. 13/81 clearly shows that the benefit thereof was not available to the appellant in the case at hand. The machinery parts exported for repairs and re-imported thereafter did not require any licence for the import of the goods, which licence is one of the conditions precedent to attract applicability of Notification No. 13/81. Same is the inference which flows from the provisions contained in paragraphs 24, 25, 26 and 31 of the Policy. Para 172 of the Policy makes it legal to re-import after repairs abroad the machinery and equipment exported specifically for the purpose of repairs and also allows release of foreign exchange payment for the purpose. Both these things may not have been permissible but for para 172 of the Policy. This is the only effect of para 172. Reliance on para 172 so as to link the Policy with Notification NO. 13/81 is misconceived. Para 159, while permitting conversion of an existing DTA into EQU, specifically excludes any concession in duties and tax (under the Policy) being made available to plant and machinery already installed. The parts exported and re-imported by the appellant were of the machinery `already installed on the date of promulgation of the Policy. They were certainly not covered thereunder.

0[ds]7. Having heard the learned counsel for the parties, we are of the opinion that the order of the Tribunal cannot be found fault with. Under Section 20 of the Customs Act, 1962 read with the definition of `import as given in clause 23 of Section 2, imported goods would includegoods as well and therefore the goods sent out of India andwould also be liable to payment of duty in the same manner in which they would have been liable if imported for the first time in India. In the matter of goods sent out for repairs only there is exemption notification No. 204/76. The benefit thereof has been taken by the appellant. A perusal of Import Export Policyand Exemption Notification No. 13/81 clearly shows that the benefit thereof was not available to the appellant in the case at hand. The machinery parts exported for repairs andthereafter did not require any licence for the import of the goods, which licence is one of the conditions precedent to attract applicability of Notification No. 13/81. Same is the inference which flows from the provisions contained in paragraphs 24, 25, 26 and 31 of the Policy. Para 172 of the Policy makes it legal toafter repairs abroad the machinery and equipment exported specifically for the purpose of repairs and also allows release of foreign exchange payment for the purpose. Both these things may not have been permissible but for para 172 of the Policy. This is the only effect of para 172. Reliance on para 172 so as to link the Policy with Notification NO. 13/81 is misconceived. Para 159, while permitting conversion of an existing DTA into EQU, specifically excludes any concession in duties and tax (under the Policy) being made available to plant and machinery already installed. The parts exported andby the appellant were of the machinery `already installed on the date of promulgation of the Policy. They were certainly not covered thereunder.

### Instruction: Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document. ### Input: of Tribunal, the appellant has filed these appeals under Section 130 E of the Customs Act, 1962. The only question arising for decision is whether the appellant is entitled to benefit of Notification No. 13/81 read with Export Import Policy, 1992-97 (hereinafter `Policy, for short). 2. Export and Import Policy 1992-97 announced certain benefits and privileges to 100% export oriented units (EQUs). Vide order dated 9th June, 1992 the Government of India declared the appellant a unit entitled to facilities and privileges admissible under the 100% export oriented scheme by permitting the conversion of the appellant from existing domestic tariff area (DTA) into 100% EQU at Munnar in the State of Kerala for the manufacture of instant tea powder and aqueous tea aroma (by-product) upto the specified capacity. This decision of the Government of India entitled the appellant to import additional capital goods worth Rs. 300 lacs CIF for the project as per the list enclosed which included decanters, two in number. It was also specified that the import of capital goods, raw materials and components for production under this scheme shall be exempt from customs duty. Availing the benefit of EQU sanction letter the appellant had imported capital goods (other than those in issue) worth Rs. 225 lacs. A balance of Rs. 75 lacs entitlement was still available to the appellant. According to the appellant the cost of repairs incurred in Germany was Rs. 38,06,017/- which was declared by it to be the value of the goods for the purpose of re-importation in terms of Notification No. 13/81. 3. Notification No. 13/81 has been issued in exercise of powers conferred by sub-section (1) of Section 25 of the Customs Act, 1962. The Central Government has exempted capital goods, inter alia, when imported into India for the purpose of manufacture of articles for export out of India by 100% EQUs provided that the importer has been granted necessary licence for the import of the goods for the said purpose. This is one of the several conditions that is required to be satisfied. 4. The Import Export Policy 1992-97, vide para 24, provides that second hand capital goods and any other second hand goods shall not be imported unless permitted by this policy or in accordance with a licence issued in this behalf. Para 25 catalogues (a) to (1) sectors of the industry for which second hand capital goods may be imported without a licence. Admittedly, the appellant does not fall in any of such categories. Para 25 provides that any other second hand capital goods (i.e. other than those specified in para 25) may be imported in accordance with a licence issued in that behalf. Para 31 permits imported capital goods or parts thereof being sent abroad for repairs and re-imported but subject to certain specified conditions. Para 159 permits conversion of an existing domestic tariff area (DTA) unit into an EQU. It is specifically provided - "no concession in duties and tax shall, however, be available under the scheme for plant machinery and equipment already installed". Para 172 allows the units to re-import, after repairs abroad, machinery equipment exported by them for this specific purpose and payment of foreign exchange for this purpose. 5. There is yet another notification No. 204/76 issued under Section 25(1) of the Customs Act whereby articles when re-imported into India after having been exported for repairs subject to compliance with certain specified conditions have been declared liable to payment of duty only on the value of such re-imported goods which would be made up of the fair cost of repairs carried out plus insurance and freight charges both ways. 6. The Tribunal has referred to and made analysis of all the abovesaid provisions and then concluded that the Import Export Policy 1992-97 read with Notification No., 13/81 gives exemption to the goods imported for the first time in India and does not cover the goods already imported and sent abroad for the purpose of repairs and then re-imported to India. 7. Having heard the learned counsel for the parties, we are of the opinion that the order of the Tribunal cannot be found fault with. Under Section 20 of the Customs Act, 1962 read with the definition of `import as given in clause 23 of Section 2, imported goods would include re-imported goods as well and therefore the goods sent out of India and re-imported would also be liable to payment of duty in the same manner in which they would have been liable if imported for the first time in India. In the matter of goods sent out for repairs only there is exemption notification No. 204/76. The benefit thereof has been taken by the appellant. A perusal of Import Export Policy 1992-97 and Exemption Notification No. 13/81 clearly shows that the benefit thereof was not available to the appellant in the case at hand. The machinery parts exported for repairs and re-imported thereafter did not require any licence for the import of the goods, which licence is one of the conditions precedent to attract applicability of Notification No. 13/81. Same is the inference which flows from the provisions contained in paragraphs 24, 25, 26 and 31 of the Policy. Para 172 of the Policy makes it legal to re-import after repairs abroad the machinery and equipment exported specifically for the purpose of repairs and also allows release of foreign exchange payment for the purpose. Both these things may not have been permissible but for para 172 of the Policy. This is the only effect of para 172. Reliance on para 172 so as to link the Policy with Notification NO. 13/81 is misconceived. Para 159, while permitting conversion of an existing DTA into EQU, specifically excludes any concession in duties and tax (under the Policy) being made available to plant and machinery already installed. The parts exported and re-imported by the appellant were of the machinery `already installed on the date of promulgation of the Policy. They were certainly not covered thereunder. ### Response: 0 ### Explanation: 7. Having heard the learned counsel for the parties, we are of the opinion that the order of the Tribunal cannot be found fault with. Under Section 20 of the Customs Act, 1962 read with the definition of `import as given in clause 23 of Section 2, imported goods would includegoods as well and therefore the goods sent out of India andwould also be liable to payment of duty in the same manner in which they would have been liable if imported for the first time in India. In the matter of goods sent out for repairs only there is exemption notification No. 204/76. The benefit thereof has been taken by the appellant. A perusal of Import Export Policyand Exemption Notification No. 13/81 clearly shows that the benefit thereof was not available to the appellant in the case at hand. The machinery parts exported for repairs andthereafter did not require any licence for the import of the goods, which licence is one of the conditions precedent to attract applicability of Notification No. 13/81. Same is the inference which flows from the provisions contained in paragraphs 24, 25, 26 and 31 of the Policy. Para 172 of the Policy makes it legal toafter repairs abroad the machinery and equipment exported specifically for the purpose of repairs and also allows release of foreign exchange payment for the purpose. Both these things may not have been permissible but for para 172 of the Policy. This is the only effect of para 172. Reliance on para 172 so as to link the Policy with Notification NO. 13/81 is misconceived. Para 159, while permitting conversion of an existing DTA into EQU, specifically excludes any concession in duties and tax (under the Policy) being made available to plant and machinery already installed. The parts exported andby the appellant were of the machinery `already installed on the date of promulgation of the Policy. They were certainly not covered thereunder.

Radhakisan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and Ors

All 482 (FB), are very apposite :"If a valid and perfected sale were not a condition precedent to the exercise of the pre-emptive right, consequences would follow which the law of pre-emption does not contemplate or provide for. In this very case, supposing the so-called vendor, notwithstanding the application of the 15th August, 1882 (which cannot amount to an estoppel under the circumstances) continues or re-enters into possession of the property, it is clear that the so-called vendee would have no title under the so-called sale, to enable him to recover possession-the transaction being, by reason of S. 54 of the Transfer of Property Act, ineffectual as transfer of ownership. The right of pre-emption being only a right of substitution, the successful pre-emptors title is necessarily the same as that of the vendee and if the vendee took nothing under the sale the pre-emptor can take nothing either; and it follows that if the vendee could not oust the vendor, the pre-emptor could not do so either; because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding a pre-emptive suit such as this, the so-called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale-deed in favour of a co-sharer other than the pre-emptive or in favour of a purchaser for value without notice of the so-called contract for sale it is difficult to conceive how the pre-emptor, who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property."12. Under S. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no right to enforce pre-emption arose. As we have said earlier wherever the Transfer of Property Act is in force Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act. Therefore when the suit was brought there was no transfer by way of sale which could be subject to pre-emption.13. It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the pre-emptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of pre-emption. The right to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh, 1959 SCR 878 at p. 884: (AIR 1958 SC 838 at p. 841), where Subba Rao, J. observed :"The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place".14. In the present case the transaction of sale had not been completed until February 1, 1944 when the sale deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of pre-emption.There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means.15. It was then submitted that the sale deed had as a matter of fact, been executed on February 1, 1944; but respondent Sridhar brought the suit not on the cause of action arising on the sale dated February 1, 1944 but on the transaction of April 10, 1943 coupled with that of April 24, 1943 which being mere contracts of sale created no interest in the vendee and there was no right of pre-emption in respondent No. 1 which could be enforce under the Code.Mr. Chatterji urged that it did not matter if the sale took place later and the suit was brought earlier but the suit as laid was one to pre-empt, a sale of April 1943 when, as a matter of fact, no sale had taken place. If respondent Sridhar had based his right of pre-emption on the basis of the sale of February 1, 1944 the appellant would have taken such defences as the law allowed him. The defence in regard to the conversion of the land from agricultural into non-agricultural site which negatives the right of pre-emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre-emptor.

1[ds]6. By S. 205 of the Berar Land Revenue Code of 1896 the right of pre-emption arose when a co-occupant in any Survey number transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration and it vested in very other co-occupant of the survey number. It will thus be seen that the right of pre-emption, which under Mohammedan law attaches to sales only, was also applicable to foreclosure of mortgages and relinquishment for valuable consideration. In the year 1907 the Transfer of Property Act (Act XIV of 1882) was extended to the province of Berar. In 1928 the Code was reenacted and it further extended the provisions in regard to pre-emption in Chapterit will be seen that the right of pre-emption has been by statute extended far beyond what was contemplated under Mohammedan law and also beyond what was recognised in the Berar Settlement Rules, Berar Sub-tenancy Rules and in the Code of 1896.Under S. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no right to enforce pre-emption arose. As we have said earlier wherever the Transfer of Property Act is in force Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act. Therefore when the suit was brought there was no transfer by way of sale which could be subject toright to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means.In the present case the transaction of sale had not been completed until February 1, 1944 when the sale deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of pre-emption.There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawfulrespondent Sridhar had based his right of pre-emption on the basis of the sale of February 1, 1944 the appellant would have taken such defences as the law allowed him. The defence in regard to the conversion of the land from agricultural into non-agricultural site which negatives the right of pre-emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help thewas a case from Bihar where the right of pre-emption under Mohammedan law was judicially recognised in regard to Hindus also. The question whether the sale which was to be pre-empted was the one under S. 54 of the Transfer of Property Act or the one under the principles of Mohammedan Law does not seem to have been the point raised in that case. It may be pointed out that both in the case which went to the Privy Council 48 IA 475: (AIR 1923 PC 41), and the Calcutta case, ILR 35 Cal 575 (supra), sale deeds were executed and registered before the suits to enforce pre-emption were filed. In the latter case the kabala was on July 28, 1904 and the ceremonies were performed after thatright to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means.In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh, 1959 SCR 878 at p. 884: (AIR 1958 SC 838 at p. 841)

### 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: All 482 (FB), are very apposite :"If a valid and perfected sale were not a condition precedent to the exercise of the pre-emptive right, consequences would follow which the law of pre-emption does not contemplate or provide for. In this very case, supposing the so-called vendor, notwithstanding the application of the 15th August, 1882 (which cannot amount to an estoppel under the circumstances) continues or re-enters into possession of the property, it is clear that the so-called vendee would have no title under the so-called sale, to enable him to recover possession-the transaction being, by reason of S. 54 of the Transfer of Property Act, ineffectual as transfer of ownership. The right of pre-emption being only a right of substitution, the successful pre-emptors title is necessarily the same as that of the vendee and if the vendee took nothing under the sale the pre-emptor can take nothing either; and it follows that if the vendee could not oust the vendor, the pre-emptor could not do so either; because in both cases the question would necessarily arise whether the sale was valid in the sense of transferring ownership. Again, if notwithstanding a pre-emptive suit such as this, the so-called vendor, who has executed an invalid sale which does not in law divest him of the proprietary right, subsequently executes a valid and registered sale-deed in favour of a co-sharer other than the pre-emptive or in favour of a purchaser for value without notice of the so-called contract for sale it is difficult to conceive how the pre-emptor, who has succeeded in a suit like the present, could resist the claim of such purchaser for possession of the property."12. Under S. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no right to enforce pre-emption arose. As we have said earlier wherever the Transfer of Property Act is in force Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act. Therefore when the suit was brought there was no transfer by way of sale which could be subject to pre-emption.13. It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the pre-emptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of pre-emption. The right to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh, 1959 SCR 878 at p. 884: (AIR 1958 SC 838 at p. 841), where Subba Rao, J. observed :"The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place".14. In the present case the transaction of sale had not been completed until February 1, 1944 when the sale deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of pre-emption.There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means.15. It was then submitted that the sale deed had as a matter of fact, been executed on February 1, 1944; but respondent Sridhar brought the suit not on the cause of action arising on the sale dated February 1, 1944 but on the transaction of April 10, 1943 coupled with that of April 24, 1943 which being mere contracts of sale created no interest in the vendee and there was no right of pre-emption in respondent No. 1 which could be enforce under the Code.Mr. Chatterji urged that it did not matter if the sale took place later and the suit was brought earlier but the suit as laid was one to pre-empt, a sale of April 1943 when, as a matter of fact, no sale had taken place. If respondent Sridhar had based his right of pre-emption on the basis of the sale of February 1, 1944 the appellant would have taken such defences as the law allowed him. The defence in regard to the conversion of the land from agricultural into non-agricultural site which negatives the right of pre-emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help the pre-emptor. ### Response: 1 ### Explanation: 6. By S. 205 of the Berar Land Revenue Code of 1896 the right of pre-emption arose when a co-occupant in any Survey number transferred by sale, foreclosure of mortgage or relinquishment in favour of a specified person for valuable consideration and it vested in very other co-occupant of the survey number. It will thus be seen that the right of pre-emption, which under Mohammedan law attaches to sales only, was also applicable to foreclosure of mortgages and relinquishment for valuable consideration. In the year 1907 the Transfer of Property Act (Act XIV of 1882) was extended to the province of Berar. In 1928 the Code was reenacted and it further extended the provisions in regard to pre-emption in Chapterit will be seen that the right of pre-emption has been by statute extended far beyond what was contemplated under Mohammedan law and also beyond what was recognised in the Berar Settlement Rules, Berar Sub-tenancy Rules and in the Code of 1896.Under S. 54 of the Transfer of Property Act a contract for sale does not of itself create any interest in or charge on immovable property and consequently the contract in the instant case created no interest in favour of the vendee and the proprietary title did not validly pass from the vendors to the vendee and until that was completed no right to enforce pre-emption arose. As we have said earlier wherever the Transfer of Property Act is in force Mohammedan Law or any other personal law is inapplicable to transfers and no title passes except in accordance with that Act. Therefore when the suit was brought there was no transfer by way of sale which could be subject toright to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means.In the present case the transaction of sale had not been completed until February 1, 1944 when the sale deed was executed. Anything done previous to it could not ordinarily be said to be a fraud to deprive a pre-emptor, from the exercise of his right of pre-emption.There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre-emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawfulrespondent Sridhar had based his right of pre-emption on the basis of the sale of February 1, 1944 the appellant would have taken such defences as the law allowed him. The defence in regard to the conversion of the land from agricultural into non-agricultural site which negatives the right of pre-emption would then have become a very important issue in the case and the appellant would have adduced proper proof in regard to it. The right of pre-emption is a weak right and is not looked upon with favour by courts and therefore the courts could not go out of their way to help thewas a case from Bihar where the right of pre-emption under Mohammedan law was judicially recognised in regard to Hindus also. The question whether the sale which was to be pre-empted was the one under S. 54 of the Transfer of Property Act or the one under the principles of Mohammedan Law does not seem to have been the point raised in that case. It may be pointed out that both in the case which went to the Privy Council 48 IA 475: (AIR 1923 PC 41), and the Calcutta case, ILR 35 Cal 575 (supra), sale deeds were executed and registered before the suits to enforce pre-emption were filed. In the latter case the kabala was on July 28, 1904 and the ceremonies were performed after thatright to pre-empt the sale is not exercisable till a pre-emtible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means.In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh, 1959 SCR 878 at p. 884: (AIR 1958 SC 838 at p. 841)